Commonwealth Consolidated Acts

TRADE PRACTICES ACT 1974 - SECT 65Q

             (1)  Where the Minister or an officer authorised by the Minister for the purposes of this section (in this section referred to as an authorised officer ) has reason to believe that a corporation which, in trade or commerce, supplies goods of a particular kind which are intended to be used or are of a kind likely to be used by a consumer and which will or may cause injury to any person is capable of furnishing information, producing documents or giving evidence relating to goods of that kind, the Minister or the authorised officer may, by notice in writing served on the corporation, require the corporation:

                     (a)  to furnish to the Minister, by writing signed by a competent officer of the corporation, in the manner, and within such reasonable time, as are specified in the notice, any such information;

                     (b)  to produce to the Minister, or to the authorised officer, in accordance with such reasonable requirements as are specified in the notice, any such documents; or

                     (c)  to cause a competent officer of the corporation to appear before the Minister or the authorised officer at such reasonable time and place as are specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.

             (2)  Where an authorised officer has reason to believe that goods of a particular kind which are intended to be used or are of a kind likely to be used by a consumer will or may cause injury to a person, an authorised officer may, for the purposes of ascertaining whether goods of that kind will or may cause injury to any person, enter any premises in or from which the authorised officer has reason to believe a corporation supplies goods of that kind in trade or commerce and:

                     (a)  inspect goods of that kind;

                     (b)  take samples of goods of that kind;

                     (c)  inspect any documents relating to goods of that kind and make copies of, or take extracts from, those documents; or

                     (d)  inspect equipment used in the manufacturing, processing or storage of goods of that kind.

             (3)  The powers of an authorised officer under subsection (2) shall not be exercised except:

                     (a)  pursuant to a warrant issued under subsection (5); or

                     (b)  in circumstances where the exercise of those powers is required without delay in order to protect life or public safety.

             (4)  An authorised officer may apply to a person who is a judge of the Court or of the Supreme Court of a State or Territory for the issue under subsection (5) of a warrant to exercise the powers of an authorised officer under subsection (2) in relation to premises.

             (5)  Where an application under subsection (4) is made to a person who is a judge of such a court, the person may issue a warrant authorising an authorised officer named in the warrant, with such assistance as the officer thinks necessary and if necessary by force, to enter the premises specified in the warrant and to exercise the powers of an authorised officer under subsection (2) in relation to those premises.

             (6)  A person who is a judge of such a court shall not issue a warrant under subsection (5) unless:

                     (a)  an affidavit has been furnished to the person setting out the grounds on which the issue of the warrant is being sought;

                     (b)  the applicant or some other person has given to the first‑mentioned person such further information (if any) as the first‑mentioned person requires concerning the grounds on which the issue of the warrant is being sought; and

                     (c)  the first‑mentioned person is satisfied that there are reasonable grounds for issuing the warrant.

             (7)  A warrant issued under subsection (5) shall:

                     (a)  specify the purpose for which the warrant is issued;

                     (b)  state whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night;

                     (c)  include a description of the kind of goods authorised to be inspected or sampled; and

                     (d)  specify a day, not being later than 7 days after the day on which the warrant is issued, at the end of which the warrant ceases to have effect.

          (7A)  An authorised officer or a person assisting the authorised officer must, before any person enters the premises under a warrant issued under subsection (5):

                     (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.

          (7B)  An authorised officer or a person assisting the authorised officer is not required to comply with subsection (7A) 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 the authorised officer and the person assisting the authorised officer); or

                     (b)  that the effective execution of the warrant is not frustrated.

             (8)  Where an authorised officer takes samples under paragraph (2)(b), the officer shall pay a reasonable price for the goods sampled.

             (9)  A person who refuses or fails to comply with a notice under this section is guilty of an offence punishable on conviction by a fine not exceeding 40 penalty points.

          (9A)  Subsection (9) does not apply if the person complies with the notice to the extent to which the person is capable of complying with it.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (9A) (see subsection 13.3(3) of the Criminal Code ).

          (9B)  Subsection (9) is an offence of strict liability.

Note 1:       Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:       For strict liability , see section 6.1 of the Criminal Code .

          (9C)  If:

                     (a)  a person, in purported compliance with a notice under this section, furnishes information or gives evidence; and

                     (b)  the person does so knowing that the information or evidence is false or misleading in a material particular;

the person is guilty of an offence punishable on conviction by imprisonment for not longer than 12 months.

           (10)  A person who refuses or fails to provide an authorised officer acting in accordance with subsection (2) with all reasonable facilities and assistance for the effective exercise of the authorised officer's powers under that subsection is guilty of an offence.

Penalty:  Imprisonment for 2 years.

Note:          Penalty units are defined in section 4AA of the Crimes Act 1914 . Under subsection 4D(1) of that Act, these penalties are only maximum penalties for the offences. Subsection 4B(2) of that Act allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of one of the offences, subsection 4B(3) of that Act allows a court to impose a fine of an amount not greater than 5 times the maximum fine that the court could impose on an individual convicted of the same offence.

           (11)  Any information furnished or evidence given by a person under this section, any document produced by a person under this section, and any information, evidence or document obtained under this section, is not admissible in evidence against the person:

                     (a)  in any proceedings instituted by the person; or

                     (b)  in any other proceedings, other than proceedings against the person for a contravention of a provision of this section.