Gazette have been shown separately in Note 2]



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Part III--Enforcement
Division 1-Inspectors SECT 58 58 Appointment of inspectors

(1)


The Minister may, by instrument in writing, appoint a person as an inspector.

(2)


The Minister may make a written determination that a specified person, or a person included in a specified class of persons, does not have such of the powers conferred on an inspector by this Act as are specified in the determination. The determination has effect accordingly.

(3)


If the Minister makes a determination under subsection (2) about a named individual, the Minister must give the individual a copy of the determination.

SECT 59 59 Inspectors ex officio By force of this section:

(a)

any officer of Customs;



(b)

any member of the Australian Federal Police; and

(c)

any member of the police force of an external Territory;



is an inspector.

SECT 60 60 Arrangements for State and Territory officers to be inspectors

(1)

The Minister may enter into an arrangement with the appropriate Minister of the Crown of a State for:



(a)

officers or employees of the Public Service of the State or of an authority of the State (including a local government body); or

(b)

members of the police force of the State;



to be inspectors, and that arrangement has effect accordingly.

(2)


The Minister may enter into an arrangement with the appropriate person holding an office referred to in section 34 of the Northern Territory (Self-Government) Act 1978 for:

(a)


officers or employees of the Public Service of the Northern Territory or of an authority of the Northern Territory (including a local government body); or

(b)


members of the police force of the Northern Territory;

to be inspectors, and that arrangement has effect accordingly.

(3)

The Minister may enter into an arrangement with the appropriate person holding an office under section 13 of the Norfolk Island Act 1979 for persons appointed or employed under an enactment referred to in section 61 of that Act to be inspectors, and that arrangement has effect accordingly.



(4)

The Minister may make a written determination that a specified person, or a person included in a specified class of persons, who is an inspector because of this section does not have such of the powers conferred on an inspector by this Act as are specified in the determination. The determination has effect accordingly.

(5)

If the Minister makes a determination under subsection (4) about a named individual, the Minister must give the individual a copy of the determination.



SECT 61 61 Identity cards

(1)


The Minister may cause to be issued to an inspector, other than a member of a police force or an officer of Customs, an identity card in a form approved by the Minister.

(2)


Where a person in possession of an identity card issued to him or her under subsection (1) ceases to be an inspector, that person shall forthwith return the identity card to the Minister.

(3)


A person who, without reasonable excuse, contravenes subsection (2) is guilty of an offence punishable on conviction by a fine not exceeding one penalty unit.

Division 2-Boarding of vessels etc. and access to premises by consent SECT 62 62 Boarding of vessels etc. by inspectors

(1)

This section applies to:



(a)

any Australian vessel, Australian aircraft or Australian platform;

(b)

any vehicle, vessel or aircraft that is in Australia or an external Territory;



(c)

any vessel, or any aircraft capable of landing on water, that is in Australian waters; and

(d)

any aircraft that is over Australia, an external Territory or Australian waters.



(2)

An inspector may, with such assistance as he or she thinks necessary, board any vehicle, vessel, aircraft or platform to which this section applies for the purpose of exercising, and may exercise, the functions of an inspector in accordance with section 64 if he or she believes on reasonable grounds that there is in, or on, that vehicle, vessel, aircraft or platform:

(a)

any specimen that has been, or is proposed to be, exported or imported in contravention of this Act; or



(b)

any goods that may afford evidence as to the commission of an offence against this Act;

and, in the case of a vehicle, vessel or aircraft, may, for that purpose, stop and detain that vehicle, vessel or aircraft.

(3)


An inspector may require any person on board a vehicle, vessel, aircraft or platform to which this section applies whom the inspector finds committing, or whom the inspector suspects on reasonable grounds of having committed, an offence against this Act to state that person's full name and usual place of residence.

(4)


Where an inspector or the person in command of a Commonwealth ship or of a Commonwealth aircraft believes on reasonable grounds that a vessel to which this section applies and which is in Australian waters has been used or otherwise involved in the commission of an offence against this Act, he or she may bring, or, by means of an international signal code or other internationally recognized means of communication with a vessel, require the person in charge of the vessel to bring, the vessel to the nearest port in Australia or an external Territory to which it is safe and practicable to bring the vessel.

(5)


Where an inspector or the person in command of a Commonwealth ship or of a Commonwealth aircraft believes on reasonable grounds that an aircraft to which this section applies and which is over Australia or over or in Australian waters has been used or otherwise involved in the commission of an offence against this Act, he or she may, by means of an international signal code or other internationally recognized means of communication with an aircraft, require the person in charge of the aircraft to bring the aircraft to the nearest airport in Australia or an external Territory to which it is safe and practicable to bring the aircraft.

(6)


An inspector may, for the purposes of this Act, require the person in charge of a vehicle, vessel, aircraft or platform to which this section applies to give information concerning the vehicle, vessel, aircraft or platform and its crew and any other person on board the vehicle, vessel, aircraft or platform.

(7)


Where an inspector (other than a member of a police force, or an officer of Customs, who is in uniform) boards a vehicle, vessel, aircraft or platform to which this section applies, the inspector shall:

(a)


in the case of a member of a police force—produce, for inspection by the person in charge of that vehicle, vessel, aircraft or platform, written evidence of the fact that he or she is a member of that police force;

(b)


in the case of an officer of Customs—produce, for inspection by the person in charge of that vehicle, vessel, aircraft or platform, written evidence of the fact that he or she is an officer of Customs; or

(c)


in any other case—produce his or her identity card for inspection by that person;

and, if he fails to do so, the inspector is not authorized to remain, or to require any person assisting the inspector to remain, on board that vehicle, vessel, aircraft or platform or to detain that vehicle, vessel or aircraft.

(8)

Where an inspector (other than a member of a police force, or an officer of Customs, who is in uniform) makes a requirement of a person under this section, the inspector, unless it is impracticable to do so, shall:



(a)

in the case of a member of a police force—produce, for inspection by that person, written evidence of the fact that he or she is a member of that police force;

(b)

in the case of an officer of Customs—produce, for inspection by that person, written evidence of the fact that he or she is an officer of Customs; or



(c)

in any other case—produce his or her identity card for inspection by that person;

and, if the inspector fails to do so, that person is not obliged to comply with the requirement.

(9)


A person who, without reasonable excuse, intentionally fails to comply with a requirement made of the person by an inspector under this section or by the person in command of a Commonwealth ship or a Commonwealth aircraft under subsection (4) or (5) is guilty of an offence punishable on conviction by a fine not exceeding 60 penalty units.

(10)


In this section, unless the contrary intention appears:

Australian aircraft means an aircraft that:

(a)


is owned by:

(i)


the Commonwealth or an authority of the Commonwealth;

(ii)


a State or an authority of a State;

(iii)


the Northern Territory or an authority of the Northern Territory; or

(iv)


the Administration of Norfolk Island; or

(b)


is registered in Australia.

Australian platform means a platform that:

(a)


is fixed to the continental shelf of Australia or of an external Territory or to the sea-bed beneath Australian waters; or

(b)


is otherwise operating in that part of the sea above the continental shelf of Australia or of an external Territory or in Australian waters.

Australian vessel means a vessel that:

(a)


is owned by:

(i)


the Commonwealth or an authority of the Commonwealth;

(ii)


a State or an Authority of a State;

(iii)


the Northern Territory or an authority of the Northern Territory; or

(iv)


the Administration of Norfolk Island; or

(b)


is registered in Australia or flying the Australian flag.

Australian waters means:

(a)


the waters adjacent to Australia and having as their inner limits the baselines by reference to which the territorial limits of Australia are defined for the purposes of international law and as their outer limits lines seaward from those inner limits every point on each of which is distant 12 nautical miles from the point on one of those baselines that is nearest to the first-mentioned point; and

(b)


the waters adjacent to each external Territory and having as their inner limits the baselines by reference to which the territorial limits of that Territory are defined for the purposes of international law and as their outer limits lines seaward from those inner limits every point on each of which is distant 12 nautical miles from the point on one of those baselines that is nearest to the first-mentioned point.

Commonwealth aircraft means an aircraft in the service of the Commonwealth on which the prescribed ensign or prescribed insignia of the aircraft is or are displayed.

Commonwealth ship means a ship in the service of the Commonwealth on which the prescribed ensign of the ship is flying.

goods includes documents but does not include any specimen or any article to which subsection 4(2) applies.

SECT 63 63 Access to premises by consent

(1)

An inspector may, with the consent of the occupier of any premises, enter the premises for the purpose of exercising the functions of an inspector in accordance with section 64.



(5)

Where an inspector has entered any premises in pursuance of subsection (1), he or she may exercise the functions of an inspector in accordance with section 64.

SECT 64 64 Functions of inspectors--sections 62 and 63

(1)


The functions of an inspector who boards a vehicle, vessel, aircraft or platform under section 62 or enters premises under section 63 are:

(a)


to search the vehicle, vessel, aircraft, platform or premises, as the case may be; and

(b)


to inspect, take extracts from, and make copies of, any document that relates to the export or import of any prescribed specimen; and

(c)


to inspect, and take samples of, any prescribed specimen; and

(d)


to exercise powers of seizure conferred on the inspector by section 69B or 69M.

(2)


For the purposes of carrying out any functions under subsection (1), an inspector may break open any hold or compartment, or any container or other receptacle (including any place that could be used as a receptacle), on a vehicle, vessel, aircraft or platform or on any premises.

(3)


In this section, prescribed specimen means a specimen that is, or that an inspector believes on reasonable grounds is, a specimen the export or the import of which, otherwise than in accordance with a permit or an authority, is prohibited by this Act.

Division 3-Search warrants SECT 64A 64A When search warrants can be issued



Search of premises

(1)


A Magistrate may issue a warrant authorising an inspector to search premises if the Magistrate is satisfied by information on oath that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.

Search of a person

(2)


A Magistrate may issue a warrant authorising an inspector to carry out an ordinary search or a frisk search of a person if the Magistrate is satisfied by information on oath that there are reasonable grounds for suspecting that the person has in his or her possession, or will within the next 72 hours have in his or her possession, any evidential material.

Use of firearms

(3)


If the inspector applying for the warrant suspects that, in executing the warrant, it will be necessary to use firearms, the inspector must state that suspicion, and the grounds for that suspicion, in the information.

Statements in warrant—general

(4)


If a Magistrate issues a warrant, the Magistrate is to state in the warrant:

(a)


the offence to which the warrant relates; and

(b)


a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and

(c)


the kinds of evidential material that are to be searched for under the warrant; and

(d)


the name of the inspector who is to be responsible for executing the warrant; and

(e)


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

(f)


whether the warrant may be executed at any time or only during particular hours.

Statements in warrant—search of premises

(5)


The Magistrate is also to state, in a warrant in relation to premises:

(a)


that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (4)(c)) found at the premises in the course of the search that the executing inspector 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)


a thing relevant to another offence against this Act, where the other offence is an indictable offence;

if the executing inspector or an officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence against this Act; and

(b)

whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed if the executing inspector or an officer assisting suspects on reasonable grounds that the person has any evidential material or eligible seizable items in his or her possession.



Statements in warrant—search of a person

(6)


The Magistrate is also to state, in a warrant in relation to a person:

(a)


that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (4)(c)) found, in the course of the search, on or in the possession of the person or in a recently used conveyance, being a thing that the executing inspector 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)


a thing relevant to another offence against this Act, where the other offence is an indictable offence;

if the executing inspector or an officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence against this Act; and

(b)

the kind of search of a person that the warrant authorises.



Successive warrants

(7)


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

Emergency searches

(8)


If the application for the warrant is made under section 64M, this section applies as if:

(a)


subsections (1) and (2) refer to 48 hours rather than 72 hours; and

(b)


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

Powers of Magistrate—Jervis Bay Territory

(9)


A Magistrate in New South Wales or the Australian Capital Territory may issue a warrant in relation to premises or a person in the Jervis Bay Territory.

Powers of Magistrate—general

(10)


A Magistrate in a State or internal Territory may:

(a)


issue a warrant in relation to premises or a person in that State or Territory; or

(b)


issue a warrant in relation to premises or a person in an external Territory; or

(c)


issue a warrant in relation to premises or a person in another State or internal Territory (including the Jervis Bay Territory) if he or she is satisfied that there are special circumstances that make the issue of the warrant appropriate; or

(d)


issue a warrant in relation to a person wherever the person is in Australia or in an external Territory if he or she is satisfied that it is not possible to predict where the person may be.

Previous applications by member or special member of the Australian Federal Police

(11)


If the applicant for a warrant is a member or special member of the Australian Federal Police and has, at any time previously, applied for a warrant relating to the same person or premises, the person must state particulars of those applications and their outcome in the information.

SECT 64B 64B The things that are authorised by a search warrant



Search of premises

(1)


A warrant that is in force in relation to premises authorises the executing inspector or an officer assisting:

(a)


to enter the warrant premises and, if the premises are a conveyance, to enter the conveyance, wherever it is; and

(b)


to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes; and

(c)


to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises; and

(d)


to seize other things found at the premises in the course of the search that the executing inspector 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, where the other offence is an indictable offence;

if the executing inspector or an officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence against this Act; and

(e)

to seize other things found at the premises in the course of the search that the executing inspector or an officer assisting believes on reasonable grounds to be eligible seizable items; and



(f)

if the warrant so allows—to conduct an ordinary search or a frisk search of a person at or near the premises if the executing inspector or an officer assisting suspects on reasonable grounds that the person has any evidential material or eligible seizable items in his or her possession.



Search of a person

(2)


A warrant that is in force in relation to a person authorises the executing inspector or an officer assisting:

(a)


to search the person as specified in the warrant and things found in the possession of the person and any recently used conveyance for things of the kind specified in the warrant; and

(b)


to:

(i)


seize things of that kind; or

(ii)


record fingerprints from things; or

(iii)


take forensic samples from things;

found in the course of the search; and

(c)

to seize other things found on or in the possession of the person or in the conveyance in the course of the search that the executing inspector 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)

a thing relevant to another offence against this Act, where the other offence is an indictable offence;



if the executing inspector or an officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence against this Act; and

(d)


to seize other things found in the course of the search that the executing inspector or an officer assisting believes on reasonable grounds to be eligible seizable items.

Hours when search warrant may be executed

(3)


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

Ordinary searches or frisk searches

(4)


If the warrant authorises an ordinary search or a frisk search of a person, a search of the person different to that so authorised must not be done under the warrant.

Seized items may be made available to other agencies

(5)


If things are seized under a warrant, the warrant authorises the executing inspector 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.

SECT 64C 64C Availability of assistance, and use of force, in executing a warrant

(1)

In executing a warrant:



(a)

the executing inspector may obtain such assistance; and

(b)

the executing inspector, or a person who is an inspector and who is assisting in executing the warrant, may use such force against persons and things; and

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