Gazette have been shown separately in Note 2]



Yüklə 4.19 Mb.
səhifə6/34
tarix24.08.2017
ölçüsü4.19 Mb.
1   2   3   4   5   6   7   8   9   ...   34


(c)

a person who is not an inspector and who has been authorised to assist in executing the warrant may use such force against things;

as is necessary and reasonable in the circumstances.

(2)


A person who is not an inspector must not take part in searching or arresting a person.

SECT 64D 64D Details of warrant to be given to occupier etc.

(1)

If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the executing inspector or an officer assisting must make available to that person a copy of the warrant.



(2)

If a warrant in relation to a person is being executed, the executing inspector or an officer assisting must make available to that person a copy of the warrant.

(3)

If a person is searched under a warrant in relation to premises, the executing inspector or an officer assisting must show the person a copy of the warrant.



(4)

The executing inspector must identify himself or herself to the person at the premises or the person being searched, as the case may be.

(5)

The copy of the warrant referred to in subsections (1) and (2) need not include the signature of the Magistrate or the seal of the relevant court.



SECT 64E 64E Specific powers available to inspectors executing warrant

(1)


In executing a warrant in relation to premises, the executing inspector or an officer assisting may:

(a)


for a purpose incidental to the execution of the warrant; or

(b)


if the occupier of the premises consents in writing;

take photographs (including video recordings) of the premises or of things at the premises.

(2)

If a warrant in relation to premises is being executed, the executing inspector and all officers assisting may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the premises:



(a)

for not more than one hour; or

(b)

for a longer period if the occupier of the premises consents in writing.



(3)

If:


(a)

the execution of a warrant is stopped by an order of a court; and

(b)

the order is later revoked or reversed on appeal; and



(c)

the warrant is still in force;

the execution of the warrant may be completed.

SECT 64F 64F Use of equipment to examine or process things

(1)

The executing inspector or an officer assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of things found at the premises in order to determine whether they are things that may be seized under the warrant.



(2)

If:


(a)

it is not practicable to examine or process the things at the warrant premises; or

(b)

the occupier of the premises consents in writing;



the things may be moved to another place so that the examination or processing can be carried out in order to determine whether they are things that may be seized under the warrant.

(3)


If things are moved to another place for the purpose of examination or processing under subsection (2), the executing inspector must, if it is practicable to do so:

(a)


inform the occupier of the address of the place and the time at which the examination or processing will be carried out; and

(b)


allow the occupier or his or her representative to be present during the examination or processing.

(4)


The executing inspector or an officer assisting may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant if the executing inspector or an officer assisting believes on reasonable grounds that:

(a)


the equipment is suitable for the examination or processing; and

(b)


the examination or processing can be carried out without damage to the equipment or the thing.

SECT 64G 64G Use of electronic equipment at premises



Operation of equipment

(1)


The executing inspector or an officer assisting may operate electronic equipment at the premises to see whether evidential material is accessible by doing so if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.

Seizure etc.

(2)


If the executing inspector or an officer assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:

(a)


seize the equipment and any disk, tape or other associated device; or

(b)


if the material can, by using facilities at the premises, be put in documentary form—operate the facilities to put the material in that form and seize the documents so produced; or

(c)


if the material can be transferred to a disk, tape or other storage device that:

(i)


is brought to the premises; or

(ii)


is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;

operate the equipment or other facilities to copy the material to the storage device and take the storage device from the premises.



Limitation on seizure

(3)


A person may seize equipment under paragraph (2)(a) only if:

(a)


it is not practicable to put the material in documentary form as mentioned in paragraph (2)(b) or to copy the material as mentioned in paragraph (2)(c); or

(b)


possession of the equipment by the occupier could constitute an offence.

Securing equipment

(4)


If the executing inspector or an officer assisting believes on reasonable grounds that:

(a)


evidential material may be accessible by operating electronic equipment at the premises; and

(b)


expert assistance is required to operate the equipment; and

(c)


if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;

he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.



Notice about securing equipment

(5)


The executing inspector or an officer assisting must give notice to the occupier of the premises of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.

Period for which equipment may be secured

(6)


The equipment may be secured:

(a)


for a period not exceeding 24 hours; or

(b)


until the equipment has been operated by the expert;

whichever happens first.



Extension of period

(7)


If the executing inspector or an officer assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to a Magistrate for an extension of that period.

Notice to occupier

(8)


The executing inspector or an officer assisting must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.

Provisions relating to extensions

(9)


The provisions of this Part relating to the issue of warrants apply, with such modifications as are necessary, to the issuing of an extension.

SECT 64H 64H Compensation for damage to electronic equipment

(1)

If:


(a)

damage is caused to equipment as a result of it being operated as mentioned in section 64F or 64G; and

(b)

the damage was caused as a result of:



(i)

insufficient care being exercised in selecting the person who was to operate the equipment; or

(ii)

insufficient care being exercised by the person operating the equipment;



compensation for the damage is payable to the owner of the equipment.

(2)


Compensation is payable out of money appropriated by the Parliament for the purpose.

(3)


In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises and his or her employees and agents, if they were available at the time, had provided any warning or guidance as to the operation of the equipment that was appropriate in the circumstances.

SECT 64J 64J Copies of seized things to be provided

(1)

Subject to subsection (2), if an inspector seizes, under a warrant relating to premises:



(a)

a document, film, computer file or other thing that can be readily copied; or

(b)

a storage device the information in which can be readily copied;



the inspector must, if requested to do so by the occupier of the premises or another person who apparently represents the occupier and who is present when the warrant is executed, give a copy of the thing or the information to that person as soon as practicable after the seizure.

(2)


Subsection (1) does not apply if:

(a)


the thing that has been seized was seized under paragraph 64G(2)(b) or (c); or

(b)


possession of the document, film, computer file, thing or information by the occupier could constitute an offence.

SECT 64K 64K Occupier entitled to be present during search

(1)

If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the person is, subject to Part 1C of the Crimes Act 1914, entitled to observe the search being conducted.



(2)

The right to observe the search being conducted ceases if the person impedes the search.

(3)

This section does not prevent 2 or more areas of the premises being searched at the same time.



SECT 64L 64L Receipts for things seized under warrant

(1)


If a thing is seized under a warrant or moved under subsection 64F(2), the executing inspector or an officer assisting must provide a receipt for the thing.

(2)


If 2 or more things are seized or moved, they may be covered in the one receipt.

SECT 64M 64M Warrants by telephone or other electronic means



Application

(1)


An inspector may make an application to a Magistrate for a warrant by telephone, telex, facsimile or other electronic means:

(a)


in an urgent case; or

(b)


if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.

Voice communication

(2)


The Magistrate may require communication by voice to the extent that is practicable in the circumstances.

Information

(3)


An application under this section must include all information required to be provided in an ordinary application for a warrant, but the application may, if necessary, be made before the information is sworn.

Issue of warrant

(4)


If an application is made to a Magistrate under this section and the Magistrate, after considering the information and having received and considered such further information (if any) as the Magistrate required, is satisfied that:

(a)


a warrant in the terms of the application should be issued urgently; or

(b)


the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;

the Magistrate may complete and sign the same form of warrant that would be issued under section 64A.



Notification

(5)


If the Magistrate decides to issue the warrant, the Magistrate is to inform the applicant, by telephone, telex, facsimile or other electronic means, of the terms of the warrant and the day on which and the time at which it was signed.

Form of warrant

(6)


The applicant must then complete a form of warrant in terms substantially corresponding to those given by the Magistrate, stating on the form the name of the Magistrate and the day on which and the time at which the warrant was signed.

Completed form of warrant to be given to Magistrate

(7)


The applicant must, not later than the day after the day of expiry of the warrant or the day after the day on which the warrant was executed, whichever is the earlier, give or transmit to the Magistrate the form of warrant completed by the applicant and, if the information referred to in subsection

(3)


was not sworn, that information duly sworn.

Attachment

(8)


The Magistrate is to attach to the documents provided under subsection (7) the form of warrant completed by the Magistrate.

Presumption

(9)


If:

(a)


it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued under this section was duly authorised; and

(b)


the form of warrant signed by the Magistrate is not produced in evidence;

the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.

SECT 64N 64N Restrictions on personal searches A warrant can not authorise a strip search or a search of a person's body cavities.

SECT 64P 64P When a thing is in the possession of a person A reference in this Division to a person who has a thing in his or her possession includes a reference to a person who has a thing under his or her control in any place (whether for the use or benefit of the person or of another person), even if another person has the actual possession or custody of the thing.

Division 4-Stopping and searching conveyances SECT 64Q 64Q Searches of conveyances without warrant in emergency situations

(1)


This section applies if an inspector suspects, on reasonable grounds, that:

(a)


a thing relevant to an indictable offence against this Act is in or on a conveyance; and

(b)


it is necessary to exercise a power under subsection (2) in order to prevent the thing from being concealed, lost or destroyed; and

(c)


it is necessary to exercise the power without the authority of a search warrant because the circumstances are serious and urgent.

(2)


The inspector may:

(a)


stop and detain the conveyance; and

(b)


search the conveyance and any container in or on the conveyance, for the thing; and

(c)


seize the thing if he or she finds it there.

(3)


If, in the course of searching for the thing, the inspector finds another thing relevant to an offence against this Act, the inspector may seize that thing if he or she suspects, on reasonable grounds, that:

(a)


it is necessary to seize it in order to prevent its concealment, loss or destruction; and

(b)


it is necessary to seize it without the authority of a search warrant because the circumstances are serious and urgent.

(4)


The inspector must exercise his or her powers subject to section 64R.

SECT 64R 64R How an inspector exercises a power under section 64Q When an inspector exercises a power under section 64Q in relation to a conveyance, he or she:

(a)

may use such assistance as is necessary; and



(b)

must search the conveyance in a public place or in some other place to which members of the public have ready access; and

(c)

must not detain the conveyance for longer than is necessary and reasonable to search it and any container found in or on the conveyance; and



(d)

may use such force as is necessary and reasonable in the circumstances, but must not damage the conveyance or any container found in or on the conveyance by forcing open a part of the conveyance or container unless:

(i)

the person (if any) apparently in charge of the conveyance has been given a reasonable opportunity to open that part or container; or



(ii)

it is not possible to give that person such an opportunity.

Division 5-Arrest and related matters SECT 65 65 Powers of arrest of inspectors

(1)


An inspector may, without warrant, arrest any person, if the inspector believes on reasonable grounds that:

(a)


the person is committing or has committed an offence against this Act; and

(b)


proceedings against the person by summons would not be effective.

(2)


Where an inspector (other than a member of a police force, or an officer of Customs, who is in uniform) arrests a person under subsection (1), the inspector 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.

(3)


Where a person is arrested under subsection (1), an inspector shall without unreasonable delay bring the person, or cause the person to be brought, before a Justice of the Peace or other proper authority to be dealt with in accordance with law.

SECT 65A 65A Power to conduct a frisk search of an arrested person An inspector who arrests a person for an offence against this Act, or who is present at such an arrest, may, if the inspector suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying any eligible seizable items:

(a)

conduct a frisk search of the person at or soon after the time of arrest; and



(b)

seize any eligible seizable items found as a result of the search.

SECT 65B 65B Power to conduct an ordinary search of an arrested person An inspector who arrests a person for an offence against this Act, or who is present at such an arrest, may, if the inspector suspects on reasonable grounds that the person is carrying:

(a)


evidential material in relation to that or another offence against this Act; or

(b)


an eligible seizable item;

conduct an ordinary search of the person at or soon after the time of arrest, and seize any such thing found as a result of the search.

SECT 65C 65C Power to conduct search of arrested person's premises An inspector who arrests a person at premises for an offence against this Act, or who is present at such an arrest, may seize things in plain view at those premises that the inspector believes on reasonable grounds to be:

(a)


evidential material in relation to that or another offence against this Act; or

(b)


eligible seizable items.

Division 6-Miscellaneous provisions about searches, entry to premises, warrants etc. SECT 65D 65D Conduct of ordinary searches and frisk searches An ordinary search or a frisk search of a person under this Part must, if practicable, be conducted by a person of the same sex as the person being searched.

SECT 65E 65E Announcement before entry

(1)


An inspector must, before any person enters premises under a warrant or to arrest a person under this Act:

(a)


announce that he or she is authorised to enter the premises; and

(b)


give any person at the premises an opportunity to allow entry to the premises.

(2)


An inspector is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure:

(a)


the safety of a person (including an inspector); or

(b)


that the effective execution of the warrant or the arrest is not frustrated.

SECT 65F 65F Offence of making false statements in warrants A person must not make, in an application for a warrant, a statement that the person knows to be false or misleading in a material particular.

Penalty: Imprisonment for 2 years.

SECT 65G 65G Offences relating to telephone warrants A person must not:

(a)

state in a document that purports to be a form of warrant under section 64M the name of a Magistrate unless the Magistrate issued the warrant; or



(b)

state on a form of warrant under that section a matter that, to the person's knowledge, departs in a material particular from the form authorised by the Magistrate; or

(c)

purport to execute, or present to a person, a document that purports to be a form of warrant under that section that the person knows:



(i)

has not been approved by a Magistrate under that section; or

(ii)

to depart in a material particular from the terms authorised by a Magistrate under that section; or



(d)

give to a Magistrate a form of warrant under that section that is not the form of warrant that the person purported to execute.

Penalty: Imprisonment for 2 years.

SECT 65H 65H Retention of things which are seized

(1)

Subject to any contrary order of a court, if a person seizes a thing under Division 3, 4 or 5, the person must return it if:



(a)

the reason for its seizure no longer exists or it is decided that it is not to be used in evidence; or

(b)

if the thing was seized under section 64Q:



(i)

the reason for its seizure no longer exists or it is decided that it is not to be used in evidence; or

(ii)

the period of 60 days after its seizure ends;



whichever first occurs;

unless the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

(2)

If a thing is seized by an inspector under section 64Q, at the end of the 60 days specified in subsection (1), the inspector must take reasonable steps to return the thing to the person from whom it was seized (or to the owner if that person is not entitled to possess it) unless:



(a)

proceedings in respect of which the thing may afford evidence were instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or

(b)

the inspector may retain the thing because of an order under section 65J; or



(c)

the inspector is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy or dispose of the thing.

SECT 65J 65J Magistrate may permit a thing to be retained

(1)


If a thing is seized under section 64Q, 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 inspector 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 inspector to continue to retain the thing:



(a)

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

(b)

to enable evidence of an offence against this Act to be secured for the purposes of a prosecution;



the Magistrate may order that the inspector may retain the thing for a period specified in the order.

(3)


Before making the application, the inspector 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 inspector believes to have such an interest of 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.

SECT 65K 65K Law relating to legal professional privilege not affected This Part does not affect the law relating to legal professional privilege.

SECT 65L 65L Other laws about search, arrest etc. not affected

(1)


This Part is not intended to limit or exclude the operation of another law of the Commonwealth relating to:

(a)


the search of persons or premises; or

(b)


arrest and related matters; or

(c)


the stopping, detaining or searching of conveyances; or

(d)


the seizure of things.

(2)


To avoid doubt, it is declared that even though another law of the Commonwealth provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.

SECT 66 66 Persons to assist inspectors

(1)

Subject to subsection (2), the owner, or person in charge, of any vehicle, vessel, aircraft or platform boarded by an inspector under section 62, or of any premises entered by an inspector under section 63, shall, if requested by an inspector to do so, provide reasonable assistance to the inspector in the performance of the functions, or carrying out of the duties, or the exercise of the powers, of the inspector under this Act in relation to that vehicle, vessel, aircraft or platform or those premises.



(1A)

A person who intentionally contravenes subsection (1) is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 12 months.

(1B)

Subject to subsection (2), the owner, or the person in charge, of:



(a)

premises entered under a warrant; or

(b)

a conveyance stopped under section 64Q;



must, if requested by an inspector to do so, provide reasonable assistance to the inspector in:

(c)


the performance of the functions; or

(d)


the carrying out of the duties; or

(e)


the exercise of the powers;

conferred on the inspector under this Act in relation to those premises or that conveyance.

(1C)

A person who intentionally contravenes subsection (1B) is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 12 months.



(2)

Where an inspector (other than a member of a police force, or an officer of Customs, who is in uniform) makes a request of a person under this section, the inspector 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 request.

Division 7-Power to search baggage etc. SECT 67 67 Power to search baggage etc.

(1)

An inspector may examine any goods that are to be, are being, or have been, taken on or off a prescribed vessel or any goods that the inspector believes, on reasonable grounds, to be such goods.



(2)

An inspector may ask a person who owns, is carrying or is otherwise associated with, or appears to the inspector to be associated with, goods that the inspector is examining or entitled to examine under subsection (1) any question in respect of the goods.

(3)

A person shall not, without reasonable excuse, intentionally refuse or intentionally fail to answer a question put to the person under subsection (2).



Penalty: 60 penalty units.

(4)


In this section:

baggage, in relation to a prescribed vessel, includes any parcel or other goods that a passenger or member of the crew of the vessel has had with him or her on the vessel.

examine includes:

(a)


in relation to goods that are baggage, open and search the baggage; and

(b)


in relation to goods in a container, open and search the container.

goods includes a specimen and baggage.

member of the crew includes:

(a)


in relation to a ship—the master, a mate or an engineer of the ship; and

(b)


in relation to an aircraft—the pilot of the aircraft.

prescribed vessel means:

(a)


a ship that voyages between:

(i)


a place in Australia and a place outside Australia; or

(ii)


a place in an external Territory and a place outside that Territory; or

(b)


an aircraft that flies between:

(i)


a place in Australia and a place outside Australia; or

(ii)


a place in an external Territory and a place outside that Territory.

Division 8-Power to ask questions about specimens SECT 69 69 Inspector may ask questions about the nature or origin of specimens



When section applies

(1)


This section applies to a specimen if an inspector has reasonable grounds to suspect that:

(a)


the specimen has been exported, or is proposed to be exported, in contravention of section 21; or

(b)


the specimen has been imported, or is proposed to be imported, in contravention of section 22.

Questions

(2)


If the inspector has reasonable grounds to suspect that a person has information about the nature or origin of the specimen, the inspector may ask the person one or more questions about the nature or origin of the specimen.

Answers to questions

(3)


Subject to subsections (6) and (7), if a person is asked a question under subsection (2), the person must not intentionally refuse or intentionally fail to answer the question to the extent that the person is capable of doing so.

False answers

(4)


If a person is asked a question under subsection (2), the person must not give an answer that is false or misleading in a material particular if:

(a)


the person knows that the answer is false or misleading in a material particular; or

(b)


the person is reckless as to whether the answer is false or misleading in a material particular.

Offence

(5)


A person who contravenes subsection (3) or (4) is guilty of an offence punishable on conviction by a fine not exceeding 10 penalty units.

No requirement to give incriminating answers

(6)


If a person is asked a question under subsection (2), the person is not required to answer the question if the answer might tend to incriminate the person or expose the person to a penalty.

Identity cards etc.

(7)


If a person is asked a question under subsection (2) by an inspector, the person is not required to answer the question unless:

(a)


if the inspector is a member of a police force—the inspector produces, for inspection by the person, written evidence of the fact that the inspector is a member of that police force; or

(b)


if the inspector is an officer of Customs—the inspector produces, for inspection by the person, written evidence of the fact that the inspector is an officer of Customs; or

(c)


if the inspector is neither a member of a police force nor an officer of Customs—the inspector produces the inspector's identity card for inspection by the person.

Division 9-Power to ask for names and addresses SECT 69A 69A Inspector may ask a person to give the person's name and address

(1)

An inspector may ask an individual to tell the inspector the individual's name and address if the inspector has reasonable grounds to suspect that the individual has been involved in the commission of an offence against this Act or the regulations.



(2)

Subject to subsection (5), a person must not intentionally refuse or intentionally fail to comply with a request under subsection (1).

(3)

A person must not, in purported compliance with a request under subsection (1), give a name or address that the person knows is false or misleading.



(4)

A person who contravenes subsection (2) or (3) is guilty of an offence punishable on conviction by a fine not exceeding 10 penalty units.

(5)

If an inspector makes a request of a person under subsection (1), the person is not required to comply with the request unless:



(a)

if the inspector is a member of a police force—the inspector produces, for inspection by the person, written evidence of the fact that the inspector is a member of that police force; or

(b)

if the inspector is an officer of Customs—the inspector produces, for inspection by the person, written evidence of the fact that the inspector is an officer of Customs; or



(c)

if the inspector is neither a member of a police force nor an officer of Customs—the inspector produces the inspector's identity card for inspection by the person.

Division 10-Seizure and forfeiture etc. Subdivision A--Seizure of specimens involved in a contravention of this Act or the regulations SECT 69B 69B Seizure of specimens involved in a contravention of this Act or the regulations An inspector may seize a specimen if the inspector has reasonable grounds to suspect that the specimen has been used or otherwise involved in the commission of an offence against this Act or the regulations.

SECT 69C 69C Notice about seizure

(1)

Subject to subsection (2), if a specimen is seized by an inspector under section 69B, the inspector must give:



(a)

the owner of the specimen; or

(b)

the person who had possession, custody or control of the specimen immediately before it was seized;



a written notice:

(c)


identifying the specimen; and

(d)


stating that it has been seized under section 69B and giving the reason for the seizure; and

(e)


setting out the terms of sections 69D and 69E.

The notice must be given as soon as practicable after the seizure.

(2)

An inspector is not required to give a notice under subsection (1) about a specimen if, after making such inquiries as the inspector thinks appropriate, the inspector does not, within 30 days after the seizure, have sufficient information to enable the inspector to give the notice. In that event, the inspector must keep a written record of the seizure.



SECT 69D 69D Applications for return of specimen

(1)


If a specimen is seized under section 69B, the owner of the specimen may apply in writing to the Designated Authority for the delivery to the owner of the specimen.

(2)


The application must be made:

(a)


within 30 days after the seizure; or

(b)


if a notice is given under subsection 69C(1) in relation to the specimen—within 30 days after the giving of the notice.

(3)


The application must be made on the ground that the specimen was not used or otherwise involved in the commission of an offence against this Act or the regulations.

(4)


If the applicant satisfies the Designated Authority that that ground has been established, the Designated Authority must grant the application.

Note: Under section 69H, the Designated Authority may retain the specimen for up to 30 days after making a decision on the application.

SECT 69E 69E Court action for return of specimen

(1)


If a specimen is seized under section 69B, the owner of the specimen may bring an action against the Commonwealth in a court of competent jurisdiction for the delivery of the specimen to the owner on the ground that the specimen was not used or otherwise involved in the commission of an offence against this Act or the regulations.

(2)


An action under subsection (1) must be brought:

(a)


within 30 days after the seizure; or

(b)


if a notice is given under subsection 69C(1) in relation to the specimen—within 30 days after the giving of the notice.

(3)


If:

(a)


an action is brought under subsection (1); and

(b)


the court finds that the specimen was used or otherwise involved in the commission of the offence concerned;

the court must order the specimen to be forfeited to the Commonwealth.

(4)

If:


(a)

an action is brought under subsection (1); and

(b)

the action is discontinued by the owner otherwise than because of:



(i)

the delivery of the specimen to the owner; or

(ii)

the forfeiture of the specimen to the Commonwealth; or



(iii)

the disposal of the specimen under section 69R;

the specimen is forfeited to the Commonwealth.

SECT 69F 69F Consignment of specimen with consent of owner

(1)

If:


(a)

a specimen is seized under section 69B; and

(b)

the specimen was imported from a particular foreign country; and



(c)

the export of the specimen from the foreign country was not in contravention of a law of the foreign country that corresponds to this Act; and

(d)

the specimen is not specified in Part I of Schedule 3; and



(e)

if the importer had applied for a permit authorising the import of the specimen, it is not reasonably likely that the permit would have been granted; and

(f)

the importer produces written evidence from the relevant authority of the foreign country that the specimen may be returned to the foreign country without contravening such a law;



the Designated Authority may, with the consent of the owner of the specimen, consign the specimen to a place in the foreign country.

(2)


The consignment is to be at the expense of the owner of the specimen.

SECT 69G 69G Release of specimen If a specimen is seized under section 69B, the Designated Authority may release the specimen to the owner, or to the person from whose possession the specimen was seized, either:

(a)

unconditionally; or



(b)

on such conditions as the Designated Authority thinks fit (including conditions about the giving of security for payment of its value if it is forfeited).

SECT 69H 69H Retention of specimen If a specimen is seized under section 69B, the specimen may be retained until the end of 30 days after whichever is the latest of the following events:

(a)


the seizure;

(b)


if a notice is given under subsection 69C(1) in relation to the specimen—the giving of the notice;

(c)


if an application is made under subsection 69D(1) in relation to the specimen—the making of a decision on that application;

(d)


if:

(i)


proceedings for an offence against this Act or the regulations are instituted during the period within which an application may be made under subsection 69D(1) in relation to the specimen; and

(ii)


the specimen may have been used or otherwise involved in the commission of the offence or the specimen may afford evidence of the commission of the offence;

the termination of the proceedings (including any appeal to a court in relation to those proceedings);

(e)

if proceedings under section 69L are instituted during the period within which an application may be made under subsection 69D(1) in relation to the specimen—the termination of the proceedings (including any appeal to any court in relation to those proceedings).



However, this rule does not authorise the retention of the specimen if the owner of the specimen succeeds in an action under subsection 69E(1) for the delivery of the specimen to the owner. Nor does this rule require the return of the specimen if proceedings under subsection 69E(1) relating to the specimen are pending.

SECT 69J 69J Forfeiture of specimen after end of retention period

(1)

If:


(a)

a specimen is seized under section 69B; and

(b)

none of the following happens before the end of the period for which the specimen may be retained:



(i)

proceedings are instituted for an offence against this Act or the regulations, where the specimen is alleged to have been used or otherwise involved in the commission of the offence;

(ii)

the specimen is delivered to the owner;



(iii)

the owner of the specimen brings an action under subsection 69E(1) for the delivery of the specimen to the owner;

(iv)

proceedings are instituted under section 69L in relation to the specimen;



(v)

the specimen is disposed of under section 69R;

the specimen is forfeited to the Commonwealth at the end of that period.

(2)


Subsection (1) has effect only to the extent (if any) to which it gives effect to paragraph 1(b) of Article VIII of the Convention.

SECT 69K 69K Forfeiture of specimen by consent etc.

(1)

If:


(a)

a specimen is seized under section 69B; and

(b)

the owner of the specimen agrees to transfer ownership of the specimen to the Commonwealth, either:



(i)

unconditionally; or

(ii)

in the event that a future contingency happens; and



(c)

if subparagraph (b)(ii) applies—that contingency happens;

then:

(d)


the specimen becomes the property of the Commonwealth; and

(e)


the provisions of this Part relating to forfeiture apply as if the specimen had been forfeited to the Commonwealth under this Act.

(2)


If:

(a)


a specimen is seized under section 69B; and

(b)


the owner of the specimen agrees to transfer ownership of the specimen to the Commonwealth in the event that a future contingency happens;

the Designated Authority may retain the specimen:

(c)

until the specimen becomes the property of the Commonwealth; or



(d)

if the specimen does not become the property of the Commonwealth—until the occurrence of the last day on which that contingency could have happened.

(3)

Subsection (2) has effect despite anything in section 69H.



SECT 69L 69L Forfeiture of specimen by order of a civil court If:

(a)


a specimen is seized under section 69B; and

(b)


the specimen has been used or otherwise involved in a contravention of this Act or the regulations;

a court may, on the application of the Designated Authority, order the forfeiture to the Commonwealth of the specimen.

Subdivision B--Seizure of goods other than specimens SECT 69M 69M Seizure of goods other than specimens

(1)


This section applies to goods (including vehicles, vessels, aircraft, platforms and documents), but does not apply to a specimen.

(2)


An inspector may seize goods if the inspector has reasonable grounds to suspect that:

(a)


the goods have been used or otherwise involved in the commission of an offence against this Act or the regulations; or

(b)


the goods will afford evidence of the commission of an offence against this Act or the regulations.

SECT 69N 69N Retention of goods that have been seized

(1)

Goods seized under section 69M may be retained until:



(a)

the end of the period of 60 days after the seizure or the end of such extended period as is, or such extended periods as are, determined under subsection (3); or

(b)

if:


(i)

proceedings for an offence against this Act or the regulations are instituted within that period; and

(ii)

the goods may have been used or otherwise involved in the commission of the offence or the goods may afford evidence of the commission of the offence;



the proceedings (including any appeal to a court in relation to those proceedings) are terminated.

(2)


An inspector may apply to a Magistrate for an extension of the period during which the inspector is entitled to retain particular goods seized under section 69M.

(3)


If the Magistrate is satisfied that the retention of the goods for an extended period is warranted, the Magistrate may make an order extending the period during which the goods may be retained. The maximum period of an individual extension is 30 days.

(4)


Subsection (3) does not prevent a Magistrate from granting 2 or more successive extensions under that subsection of the period during which particular goods may be retained.

(5)


A function of making an order conferred on a Magistrate by subsection (3) is conferred on the Magistrate in a personal capacity and not as a court or a member of a court.

(6)


Without limiting the generality of subsection (5), an order made by a Magistrate under subsection (3) has effect only by virtue of this Act and is not taken, by implication, to be made by a court.

(7)


A Magistrate performing a function of, or connected with, making an order under subsection (3) 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).

(8)


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 subsection (3).

SECT 69P 69P Disposal of goods if owner cannot be located If:

(a)

goods are seized under section 69M; and



(b)

apart from this section, the Commonwealth is required to return the goods to the owner; and

(c)

the Designated Authority cannot, despite making reasonable efforts, locate the owner;



the Designated Authority may dispose of the goods in such manner as the Designated Authority thinks appropriate.

SECT 69Q 69Q Release of goods that have been seized The Designated Authority may authorise goods seized under section 69M or anything in, on or attached to such goods to be released to their owner, or to the person from whose possession they were seized, either:

(a)

unconditionally; or



(b)

on such conditions as the Designated Authority thinks fit (including conditions about the giving of security for giving payment of their value if they are forfeited).

Subdivision C--Immediate disposal of seized items SECT 69R 69R Immediate disposal of seized items

(1)


If:

(a)


a thing is seized under this Division; and

(b)


it is reasonably likely that the retention of the thing would:

(i)


constitute a serious threat to the environment; or

(ii)


constitute a serious threat to the continued existence, in the wild, of a particular species of animals or of a particular species of plants; or

(iii)


result in the introduction of an alien species that represents a threat to ecosystems, habitats or other species; or

(iv)


constitute a danger to public health; or

(v)


in the case of a live specimen—constitute a significant threat to the health of the specimen;

the Designated Authority may cause the thing to be dealt with in such manner as the Designated Authority considers appropriate (including the destruction of the thing).

(2)

Subject to subsection (3), if a thing is dealt with in accordance with subsection (1), the Designated Authority must give to:



(a)

the owner of the thing; or

(b)

the person who had possession, custody or control of the thing immediately before it was seized;



a written notice:

(c)


identifying the thing; and

(d)


stating that the thing has been seized under this Division and giving the reason for the seizure; and

(e)


stating that the thing has been dealt with under subsection (1) and specifying the manner in which it has been so dealt with and the reason for doing so; and

(f)


setting out the terms of subsection (4).

The notice must be given as soon as practicable after the thing is so dealt with.

(3)

The Designated Authority is not required to give a notice under subsection



(2)

about a thing if, after making such inquiries as the Designated Authority thinks appropriate, the Designated Authority does not, within 20 days after dealing with the thing, have sufficient information to enable the notice to be given.

(4)

If a thing is dealt with in accordance with subsection (1), the owner of the thing may bring an action against the Commonwealth in a court of competent jurisdiction for the recovery of the market value of the thing at the time it was so dealt with. The action must be brought on the ground that the thing was not used or otherwise involved in the commission of an offence against this Act or the regulations.



Subdivision D--Court-ordered forfeiture SECT 69S 69S Court-ordered forfeiture

(1)


If a court convicts a person of an offence against this Act or the regulations, the court may order the forfeiture to the Commonwealth of any thing (other than a specimen) used or otherwise involved in the commission of the offence.

(2)


If a court convicts a person of an offence against this Act or the regulations, the court must order the forfeiture to the Commonwealth of any specimen used or otherwise involved in the commission of the offence.

(3)


A court may make an order under subsection (1) or (2) even if the thing or specimen has been seized under this Act.

(4)


A reference in this section to a conviction of a person of an offence includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to the person in respect of the offence.

Note: Section 19B of the Crimes Act 1914 empowers a court that has found a person to have committed an offence to take action without proceeding to record a conviction.

Subdivision E--Dealings in forfeited items SECT 69T 69T Dealings in forfeited items

(1)


A thing forfeited to the Commonwealth under this Act becomes the property of the Commonwealth.

(2)


A thing forfeited to the Commonwealth under this Act is to be dealt with in such manner as the Designated Authority considers appropriate.

(3)


Without limiting subsection (2), the Designated Authority may sell a thing forfeited to the Commonwealth under this Act.

(4)


The Designated Authority must not sell a specimen forfeited to the Commonwealth under this Act unless, in the opinion of the Designated Authority, the buyer will use the specimen for scientific or educational purposes.

Subdivision F--Delivery of forfeited items to the Commonwealth SECT 69U 69U Delivery of forfeited items to the Commonwealth

(1)

If:


(a)

a thing is forfeited to the Commonwealth under this Act; and

(b)

the thing has not been dealt with under section 69T; and



(c)

the thing is in the possession, custody or control of a person other than:

(i)

the Commonwealth; or



(ii)

an agency of the Commonwealth;

the person must deliver the thing to the Designated Authority.

(2)


A person who intentionally contravenes subsection (1) is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 2 years.

Subdivision G--Keeping of specimens that have been seized SECT 69V 69V Keeping of specimens retained under this Part If a person is authorised under this Part to retain a specimen, the person may do so by causing the specimen to be taken to, and kept at, a place approved by the Designated Authority for the purpose of keeping specimens seized under this Division.

SECT 69W 69W Recovery of costs of storing or keeping specimens

(1)


If a specimen is seized under this Part, the owner is liable to pay to the Commonwealth an amount equal to the sum of the following costs:

(a)


reasonable costs incurred by the Commonwealth in relation to the custody of the specimen;

(b)


reasonable costs incurred by the Commonwealth in transporting the specimen;

(c)


in the case of a specimen that is a live animal or a live plant—reasonable costs incurred by the Commonwealth in maintaining the animal or plant.

(2)


If:

(a)


a specimen is seized under this Part; and

(b)


the specimen is disposed of;

the owner is liable to pay to the Commonwealth an amount equal to the reasonable costs incurred by the Commonwealth in disposing of the specimen.

(3)

An amount payable by a person under this section is a debt due by the person to the Commonwealth.



(4)

An amount payable by a person to the Commonwealth under this section may be recovered by action in a court of competent jurisdiction.

(5)

The Designated Authority may remit an amount payable by a person under this section.



(6)

In addition to its effect apart from this subsection, this section also has the effect it would have if a liability under this section were, by express provision, confined to the case of a specimen that:

(a)

is forfeited to the Commonwealth under this Act; or



(b)

would have been forfeited to the Commonwealth under this Act if it had not been disposed of.

Subdivision H--Rescuing goods SECT 71A 71A Rescuing goods

(1)


A person who intentionally or recklessly:

(a)


rescues any goods that have been, or are about to be, seized under this Act; or

(b)


staves, breaks or destroys any goods, or destroys any documents relating to, any goods to prevent the seizure of goods, the securing of goods, or the proof of any offence under this Act;

is guilty of an offence punishable upon conviction by imprisonment for a term not exceeding 2 years.

(2)

In this section, goods includes vehicles, vessels, aircraft, platforms, specimens and documents.



1   2   3   4   5   6   7   8   9   ...   34


Verilənlər bazası müəlliflik hüququ ilə müdafiə olunur ©azkurs.org 2016
rəhbərliyinə müraciət

    Ana səhifə