ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 - SECT 409A Monitoring warrants by telephone or other electronic means
ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 - SECT 409A
Monitoring warrants by telephone or other electronic means(1) An authorised officer may make an application to a magistrate for a monitoring warrant by telephone, telex, fax or other electronic means:
(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the monitoring warrant.
(2) The magistrate:
(a) may require communication by voice to the extent that is practicable in the circumstances; and
(b) may make a recording of the whole or any part of any such communication by voice.
(3) An application under this section must include all information as required to be provided in an application under section 409, but the application may, if necessary, be made before the information is sworn or affirmed.
Issue of monitoring 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 monitoring 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 monitoring warrant;
the magistrate may complete and sign the same form of monitoring warrant that would be issued under section 409.
(5) If the magistrate decides to issue the monitoring warrant, the magistrate must inform the applicant, by telephone, telex, fax or other electronic means, of the terms of the monitoring warrant and the day on which and the time at which it was signed.
Form of monitoring warrant
(6) The applicant must then complete a form of monitoring 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 monitoring warrant was signed.
Completed form of monitoring warrant to be given to magistrate
(7) The applicant must, not later than 48 hours after making the application, give or transmit to the magistrate:
(a) the form of monitoring warrant completed by the applicant; and
(b) if the information referred to in subsection (3) was not sworn or affirmed--that information duly sworn or affirmed.
Attachment of form of warrant to subsection (7) documents
(8) The magistrate must attach to the documents provided under subsection (7) the form of monitoring warrant completed by the magistrate.
Presumption if form of warrant not produced in evidence
(a) it is material, in any proceeding, for a court to be satisfied that the exercise of a power under a monitoring warrant issued under this section was duly authorised; and
(b) the form of monitoring 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.
Court may admit evidence even if subsection (7) or (8) not complied with
(10) A court may admit evidence obtained because of the issue of
a warrant pursuant to this section even if either or both of subsections
(7) and (8) have not been complied with if, having regard to the nature
of and reasons for the non - compliance and any other relevant matters, the
court is satisfied that it was not practicable to comply with that subsection
or those subsections (as the case requires).