HEALTH PRACTITIONER REGULATION NATIONAL LAW (NSW) - SCHEDULE 5
HEALTH PRACTITIONER REGULATION NATIONAL LAW (NSW) - SCHEDULE 5
SCHEDULE 5 – Investigators
Part 1 - Power to obtain information
1 Powers of investigators
For the purposes of conducting an investigation, an investigator may, by written notice given to a person, require the person to--
(a) give stated information to the investigator within a stated reasonable time and in a stated reasonable way; or
(b) attend before the investigator at a stated time and a stated place to answer questions or produce documents.
2 Offence for failing to produce information or attend before investigator
(1) A person required to give stated information to an investigator under clause 1(a) must not fail, without reasonable excuse, to give the information as required by the notice.: Maximum penalty--(a) in the case of an individual--$5,000; or(b) in the case of a body corporate--$10,000.
(2) A person given a notice to attend before an investigator must not fail, without reasonable excuse, to--(a) attend as required by the notice; and(b) continue to attend as required by the investigator until excused from further attendance; and(c) answer a question the person is required to answer by the investigator; and(d) produce a document the person is required to produce by the notice.: Maximum penalty--(a) in the case of an individual--$5,000; or(b) in the case of a body corporate--$10,000.
(3) For the purposes of subclauses (1) and (2), it is a reasonable excuse for an individual to fail to give stated information, answer a question or to produce a document, if giving the information, answering the question or producing the document might tend to incriminate the individual.
3 Inspection of documents
(1) If a document is produced to an investigator, the investigator may--(a) inspect the document; and(b) make a copy of, or take an extract from, the document; and(c) keep the document while it is necessary for the investigation.
(2) If the investigator keeps the document, the investigator must permit a person otherwise entitled to possession of the document to inspect, make a copy of, or take an extract from, the document at the reasonable time and place decided by the investigator.
Part 2 - Power to enter places
4 Entering places
For the purposes of conducting an investigation, an investigator may enter a place if--
(a) its occupier consents to the entry of the place; or
(b) it is a public place and the entry is made when it is open to the public; or
(c) the entry is authorised by a warrant.
5 Application for warrant
(1) An investigator may apply to a magistrate of a participating jurisdiction for a warrant for a place.
(2) The investigator must prepare a written application that states the grounds on which the warrant is sought.
(3) The written application must be sworn.
(4) The magistrate may refuse to consider the application until the investigator gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.
6 Issue of warrant
(1) The magistrate may issue the warrant only if the magistrate is satisfied there are reasonable grounds for suspecting there is evidence about a matter being investigated by the investigator at the place.
(2) The warrant must state--(a) that a stated investigator may, with necessary and reasonable help and force--(i) enter the place and any other place necessary for entry; and(ii) exercise the investigator's powers under this Part; and(b) the matter for which the warrant is sought; and(c) the evidence that may be seized under the warrant; and(d) the hours of the day or night when the place may be entered; and(e) the date, within 14 days after the warrant's issue, the warrant ends.
7 Application by electronic communication
(1) An investigator may apply for a warrant by phone, facsimile, email, radio, video conferencing or another form of communication if the investigator considers it necessary because of--(a) urgent circumstances; or(b) other special circumstances, including the investigator's remote location.
(2) The application--(a) may not be made before the investigator prepares the written application under clause 5(2); but(b) may be made before the written application is sworn.
(3) The magistrate may issue the warrant (the
"original warrant" ) only if the magistrate is satisfied--(a) it was necessary to make the application under subclause (1); and(b) the way the application was made under subclause (1) was appropriate.
(4) After the magistrate issues the original warrant--(a) if there is a reasonably practicable way of immediately giving a copy of the warrant to the investigator, for example, by sending a copy by fax or email, the magistrate must immediately give a copy of the warrant to the investigator; or(b) otherwise--(i) the magistrate must tell the investigator the date and time the warrant is issued and the other terms of the warrant; and(ii) the investigator must complete a form of warrant including by writing on it--(A) the magistrate's name; and(B) the date and time the magistrate issued the warrant; and(C) the other terms of the warrant.
(5) The copy of the warrant referred to in subclause (4)(a), or the form of warrant completed under subclause (4)(b) (in either case the
"duplicate warrant" ), is a duplicate of, and as effectual as, the original warrant.
(6) The investigator must, at the first reasonable opportunity, send to the magistrate--(a) the written application complying with clause 5(2) and (3); and(b) if the investigator completed a form of warrant under subclause (4)(b), the completed form of warrant.
(7) The magistrate must keep the original warrant and, on receiving the documents under subclause (6), file the original warrant and documents in the court.
(8) Despite subclause (5), if--(a) an issue arises in a proceeding about whether an exercise of a power was authorised by a warrant issued under this clause; and(b) the original warrant is not produced in evidence;the onus of proof is on the person relying on the lawfulness of the exercise of the power to prove a warrant authorised the exercise of the power.
(9) This clause does not limit clause 5.
8 Procedure before entry under warrant
(1) Before entering a place under a warrant, an investigator must do or make a reasonable attempt to do the following--(a) identify himself or herself to a person present at the place who is an occupier of the place by producing the investigator's identity card or another document evidencing the investigator's appointment;(b) give the person a copy of the warrant;(c) tell the person the investigator is permitted by the warrant to enter the place;(d) give the person an opportunity to allow the investigator immediate entry to the place without using force.
(2) However, the investigator need not comply with subclause (1) if the investigator reasonably believes that immediate entry to the place is required to ensure the effective execution of the warrant is not frustrated.
9 Powers after entering places
(1) This clause applies if an investigator enters a place under clause 4.
(2) The investigator may for the purposes of the investigation do the following--(a) search any part of the place;(b) inspect, measure, test, photograph or film any part of the place or anything at the place;(c) take a thing, or a sample of or from a thing, at the place for analysis, measurement or testing;(d) copy, or take an extract from, a document, at the place;(e) take into or onto the place any person, equipment and materials the investigator reasonably requires for exercising a power under this Part;(f) require the occupier of the place, or a person at the place, to give the investigator reasonable help to exercise the investigator's powers under paragraphs (a) to (e);(g) require the occupier of the place, or a person at the place, to give the investigator information to help the investigator in conducting the investigation.
(3) When making a requirement referred to in subclause (2)(f) or (g), the investigator must warn the person it is an offence to fail to comply with the requirement unless the person has a reasonable excuse.
10 Offences for failing to comply with requirement under clause 9
(1) A person required to give reasonable help under clause 9(2)(f) must comply with the requirement, unless the person has a reasonable excuse.: Maximum penalty--(a) in the case of an individual--$5,000; or(b) in the case of a body corporate--$10,000.
(2) A person of whom a requirement is made under clause 9(2)(g) must comply with the requirement, unless the person has a reasonable excuse.: Maximum penalty--(a) in the case of an individual--$5,000; or(b) in the case of a body corporate--$10,000.
(3) It is a reasonable excuse for an individual not to comply with a requirement under clause 9(2)(f) or (g) that complying with the requirement might tend to incriminate the individual.
11 Seizure of evidence
(1) An investigator who enters a public place when the place is open to the public may seize a thing at the place if the investigator reasonably believes the thing is evidence that is relevant to the investigation being conducted by the investigator.
(2) If an investigator enters a place with the occupier's consent, the investigator may seize a thing at the place if--(a) the investigator reasonably believes the thing is evidence that is relevant to the investigation being conducted by the investigator; and(b) seizure of the thing is consistent with the purpose of the entry as told to the occupier when asking for the occupier's consent.
(3) If an investigator enters a place with a warrant, the investigator may seize the evidence for which the warrant was issued.
(4) For the purposes of subclauses (2) and (3), the investigator may also seize anything else at the place if the investigator reasonably believes--(a) the thing is evidence that is relevant to the investigation; and(b) the seizure is necessary to prevent the thing being hidden, lost or destroyed.
12 Securing seized things
Having seized a thing, an investigator may--
(a) move the thing from the place where it was seized; or
(b) leave the thing at the place where it was seized but take reasonable action to restrict access to it.
13 Receipt for seized things
(1) As soon as practicable after an investigator seizes a thing, the investigator must give a receipt for it to the person from whom it was seized.
(2) However, if for any reason it is not practicable to comply with subclause (1), the investigator must leave the receipt at the place of seizure in a conspicuous position and in a reasonably secure way.
(3) The receipt must describe generally the seized thing and its condition.
(4) This clause does not apply to a thing if it is impracticable or would be unreasonable to give the receipt given the thing's nature, condition and value.
14 Forfeiture of seized thing
(1) A seized thing is forfeited to the National Agency if the investigator who seized the thing--(a) cannot find its owner, after making reasonable inquiries; or(b) cannot return it to its owner, after making reasonable efforts.
(2) In applying subclause (1)--(a) subclause (1)(a) does not require the investigator to make inquiries if it would be unreasonable to make inquiries to find the owner; and(b) subclause (1)(b) does not require the investigator to make efforts if it would be unreasonable to make efforts to return the thing to its owner.
(3) Regard must be had to a thing's nature, condition and value in deciding--(a) whether it is reasonable to make inquiries or efforts; and(b) if making inquiries or efforts, what inquiries or efforts, including the period over which they are made, are reasonable.
15 Dealing with forfeited things
(1) On the forfeiture of a thing to the National Agency, the thing becomes the Agency's property and may be dealt with by the Agency as the Agency considers appropriate.
(2) Without limiting subclause (1), the National Agency may destroy or dispose of the thing.
16 Return of seized things
(1) If a seized thing has not been forfeited, the investigator must return it to its owner--(a) at the end of 6 months; or(b) if proceedings involving the thing are started within 6 months, at the end of the proceedings and any appeal from the proceedings.
(2) Despite subclause (1), unless the thing has been forfeited, the investigator must immediately return a thing seized as evidence to its owner if the investigator is no longer satisfied its continued retention as evidence is necessary.
17 Access to seized things
(1) Until a seized thing is forfeited or returned, an investigator must allow its owner to inspect it and, if it is a document, to copy it.
(2) Subclause (1) does not apply if it is impracticable or would be unreasonable to allow the inspection or copying.
Part 3 - General matters
18 Damage to property
(1) This clause applies if--(a) an investigator damages property when exercising or purporting to exercise a power; or(b) a person (the
"other person" ) acting under the direction of an investigator damages property.
(2) The investigator must promptly give written notice of particulars of the damage to the person who appears to the investigator to be the owner of the property.
(3) If the investigator believes the damage was caused by a latent defect in the property or circumstances beyond the investigator's or other person's control, the investigator must state the belief in the notice.
(4) If, for any reason, it is impracticable to comply with subclause (2), the investigator must leave the notice in a conspicuous position and in a reasonably secure way where the damage happened.
(5) This clause does not apply to damage the investigator reasonably believes is trivial.
(6) In this clause--
"owner" , of property, includes the person in possession or control of it.
19 Compensation
(1) A person may claim compensation from the National Agency if the person incurs loss or expense because of the exercise or purported exercise of a power under this Schedule by the investigator.
(2) Without limiting subclause (1), compensation may be claimed for loss or expense incurred in complying with a requirement made of the person under this Schedule.
(3) Compensation may be claimed and ordered to be paid in a proceeding brought in a court with jurisdiction for the recovery of the amount of compensation claimed.
(4) A court may order compensation to be paid only if it is satisfied it is fair to make the order in the circumstances of the particular case.
20 False or misleading information
A person must not state anything to an investigator that the person knows is false or misleading in a material particular.
: Maximum penalty--(a) in the case of an individual--$5,000; or(b) in the case of a body corporate--$10,000.
21 False or misleading documents
(1) A person must not give an investigator a document containing information the person knows is false or misleading in a material particular.: Maximum penalty--(a) in the case of an individual--$5,000; or(b) in the case of a body corporate--$10,000.
(2) Subclause (1) does not apply to a person who, when giving the document--(a) informs the investigator, to the best of the person's ability, how it is false or misleading; and(b) gives the correct information to the investigator if the person has, or can reasonably obtain, the correct information.
22 Obstructing investigators
(1) A person must not obstruct an investigator in the exercise of a power, unless the person has a reasonable excuse.: Maximum penalty--(a) in the case of an individual--$5,000; or(b) in the case of a body corporate--$10,000.
(2) If a person has obstructed an investigator and the investigator decides to proceed with the exercise of the power, the investigator must warn the person that--(a) it is an offence to obstruct the investigator, unless the person has a reasonable excuse; and(b) the investigator considers the person's conduct is an obstruction.
(3) In this clause--
"obstruct" includes hinder and attempt to obstruct or hinder.
23 Impersonation of investigators
A person must not pretend to be an investigator.
: Maximum penalty--$5,000.