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WILDLIFE PROTECTION (REGULATION OF EXPORTS AND IMPORTS) AMENDMENT ACT 1995 No. 121 of 1995 - SCHEDULE 19
SCHEDULE 19 Section 3
POWERS OF SEARCH, ENTRY AND SEIZURE 1. Subsection 4(1) (definition of
"premises"): Omit the definition, substitute:
" 'premises' includes a place and a conveyance;". 2. Subsection 4(1): Insert:
" 'conveyance' includes an aircraft, vehicle or vessel;
'eligible seizable item' means anything that would present a danger to a
person or that could be used to assist a person to escape from lawful custody;
'evidential material' means a thing relevant to an offence against this Act,
including such a thing in electronic form;
'executing inspector', in relation to a warrant, means the inspector named in
the warrant as being responsible for executing the warrant;
'frisk search' means:
(a) a search of a person conducted by quickly running the hands over the
person's outer garments; and
(b) an examination of anything worn or carried by the person that is
conveniently and voluntarily removed by the person;
'Magistrate' means a Magistrate who is remunerated by salary or otherwise;
'occupier', in relation to a conveyance, means the person apparently in charge
of the conveyance;
'officer assisting', in relation to a warrant, means:
(a) a person who is an inspector and who is assisting in executing the
warrant; or
(b) a person who is not an inspector and who has been authorised by the
relevant executing inspector to assist in executing the warrant;
'ordinary search' means a search of a person or of articles in the possession
of a person that may include:
(a) requiring the person to remove his or her overcoat, coat or jacket and
any gloves, shoes and hat; and
(b) an examination of those items;
'recently used conveyance', in relation to a search of a person, means a
conveyance that the person had operated or occupied at any time within 24
hours before the search began;
'thing relevant to an offence against this Act' means:
(a) anything with respect to which an offence against this Act has been
committed or is suspected, on reasonable grounds, to have been
committed; or
(b) anything as to which there are reasonable grounds for suspecting that
it will afford evidence as to the commission of an offence against
this Act; or
(c) anything as to which there are reasonable grounds for suspecting that
it is intended to be used for the purpose of committing an offence
against this Act;
'warrant' (except in Part IIA) means a warrant under Part III; Note: Division
7 of Part IIA provides for monitoring warrants in relation to classified
exotic birds.
'warrant premises' means premises in relation to which a warrant is in
force;". 3. Subsection 4(2): Omit ", other than subsection 69A(1),". 4.
Subsection 45(2): Omit "Subject to section 56A, for", substitute "For". 5.
Sections 54 to 57 (inclusive): Repeal the sections. 6. Part III (heading):
Omit "ADMINISTRATION", substitute "ENFORCEMENT". 7. Before section 58: Insert:
"Division 1-Inspectors". 8. Before section 62: Insert:
"Division 2-Boarding of vessels etc. and access to premises by consent". 9.
Subsections 63(2), (3) and (4): Omit the subsections. 10. Subsection 63(5):
Omit "or in pursuance of a warrant granted under subsection (3)". 11.
Subsection 63(6): Omit the subsection. 12. Paragraph 64(1)(a): Add at the end
"and". 13. Subsection 64(1): Add at the end:
"; and (d) to exercise powers of seizure conferred on the inspector by section
69B or 69M.". 14. After section 64: Insert:
"Division 3-Search warrants When search warrants can be issued Search of
premises
"64A.(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. The
things that are authorised by a search warrant Search of premises
"64B.(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. Availability of assistance, and use of
force, in executing a warrant
"64C.(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
(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. Details of warrant to be given to occupier etc.
"64D.(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.
Specific powers available to inspectors executing warrant
"64E.(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. Use of equipment to examine or process things
"64F.(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. Use of electronic equipment at premises
Operation of equipment
"64G.(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.
Compensation for damage to electronic equipment
"64H.(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.
Copies of seized things to be provided
"64J.(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. Occupier entitled to be
present during search
"64K.(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. Receipts for things seized under warrant
"64L.(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. Warrants by telephone or other electronic means Application
"64M.(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. Restrictions on
personal searches
"64N. A warrant can not authorise a strip search or a search of a person's
body cavities. When a thing is in the possession of a person
"64P. 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 Searches of conveyances without
warrant in emergency situations
"64Q.(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. How
an inspector exercises a power under section 64Q
"64R. 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.".
15. Before section 65: Insert:
"Division 5-Arrest and related matters". 16. Subsection 65(4): Omit the
subsection. 17. After section 65: Insert: Power to conduct a frisk search of
an arrested person
"65A. 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.
Power to conduct an ordinary search of an arrested person
"65B. 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. Power to conduct search of arrested person's
premises
"65C. 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. Conduct of ordinary searches and frisk searches
"65D. 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. Announcement before entry
"65E.(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. Offence of making false statements in warrants
"65F. 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. Offences relating to telephone warrants
"65G. 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. Retention of things which are seized
"65H.(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. Magistrate may permit a thing to be
retained
"65J.(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. Law relating to legal professional privilege not affected "65K.
This Part does not affect the law relating to legal professional privilege.
Other laws about search, arrest etc. not affected
"65L.(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.". 18. Before subsection 66(2):
Insert:
"(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.". 19. Before section 67: Insert:
"Division 7-Power to search baggage etc.". 20. Sections 69, 69A, 70 and 71:
Repeal the sections, substitute:
"Division 8-Power to ask questions about specimens Inspector may ask questions
about the nature or origin of specimens When section applies
"69.(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 Inspector may ask a person to
give the person's name and address
"69A.(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 Seizure of specimens involved in a contravention of this Act
or the regulations
"69B. 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. Notice about
seizure
"69C.(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. Applications
for return of specimen
"69D.(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. Court
action for return of specimen
"69E.(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. Consignment of specimen with
consent of owner
"69F.(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. Release of specimen
"69G. 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). Retention of specimen
"69H. 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. Forfeiture of specimen
after end of retention period
"69J.(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. Forfeiture of
specimen by consent etc. "69K.(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. Forfeiture of
specimen by order of a civil court
"69L. 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 Seizure of goods other
than specimens
"69M.(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. Retention of goods that have been seized
"69N.(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). Disposal of goods if owner cannot be located
"69P. 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. Release of
goods that have been seized
"69Q. 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 Immediate disposal of seized
items
"69R.(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 Court-ordered forfeiture
"69S.(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 Dealings in forfeited items
"69T.(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 Delivery of
forfeited items to the Commonwealth
"69U.(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 Keeping of specimens
retained under this Part
"69V. 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. Recovery of costs of storing or keeping specimens
"69W.(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". 21. Before section 72: Insert:
"PART IV-MISCELLANEOUS". 22. Paragraph 80(1)(k): Omit ", section 43 or 44 or
subsection 56A(3)", substitute "or section 43 or 44". 23. Paragraph 80(1)(v):
Omit the paragraph. 24. Transitional-pre-commencement surrender or seizure
(1) This item applies if, at any time before the commencement of this item, a
thing was surrendered or seized under section 54, 55, 56, 57, 69 or 71 of the
Wildlife Protection (Regulation of Exports and Imports) Act 1982 .
(2) Despite the amendments made by this Schedule, subsections 4(2) and 45(2)
and sections 54, 55, 56, 56A, 57, 69, 69A, 70, 71 and 80 of that Act continue
to apply, in relation to the surrender or seizure of the thing, as if those
amendments had not been made.
NOTES ABOUT SECTION HEADINGS
1. On the commencement of the amendment of section 9A of the
Wildlife Protection (Regulation of Exports and Imports) Act 1982 made by
Schedule 13 to this Act, the heading to that section is altered by omitting
"management programs" and substituting "amendments of Schedule 6 or
declarations of management programs or controlled specimens".
2. On the commencement of the amendments of section 63 of the Wildlife
Protection (Regulation of Exports and Imports) Act 1982 made by Schedule 19 to
this Act, the heading to that section is altered by adding at the end "by
consent".
3. On the commencement of the amendments of section 64 of the Wildlife
Protection (Regulation of Exports and Imports) Act 1982 made by Schedule 19 to
this Act, the heading to that section is altered by adding at the end "-
sections 62 and 63".
4. On the commencement of the amendment of section 77 of the Wildlife
Protection (Regulation of Exports and Imports) Act 1982 made by Schedule 9 to
this Act, the heading to that section is altered by adding at the end "and
Designated Authority".
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