Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actssubstitute
Part 5 Enforcement powers
Division 5.1 General
61 Definitions for pt 5
In this part:
"connected"—a thing is connected with an offence if—
(a) the offence has been committed in relation to it; or
(b) it will provide evidence of the commission of the offence; or
(c) it was used, is being used, or is intended to be used, to commit the offence.
"data "includes—
(a) information in any form; and
(b) a program (or part of a program).
"data storage device "means a thing containing, or designed to contain, data for use by a computer.
"offence" includes an offence that there are reasonable grounds for believing has been, is being, or will be, committed.
"person assisting", in relation to a search warrant, means a person authorised by an inspector to assist in executing the warrant.
"search warrant" means a warrant issued under division 5.3 (Search warrants) that is in force.
Division 5.2 General powers of inspectors
62 General power of inspectors to enter premises
(1) For this Act, an inspector may—
(a) at any reasonable time, enter premises that the inspector believes, on reasonable grounds, are a workplace; or
(b) at any reasonable time, enter premises that the public is entitled to use or that are open to the public (whether or not on payment of money); or
(c) at any time, enter premises with the occupier's consent; or
(d) enter premises in accordance with a search warrant; or
(e) at any time, enter premises if the inspector believes, on reasonable grounds, that the circumstances are of such seriousness and urgency as to require immediate entry to the premises without the authority of a search warrant.
Note Premises includes any land, structure or vehicle and any part of an area of land, a structure or vehicle (see dict).
(2) However, subsection (1) (a) does not authorise entry into a part of premises that is being used only for residential purposes.
(3) For subsection (1), an inspector may stop and detain a vehicle that the inspector believes, on reasonable grounds—
(a) is a workplace; or
(b) contains documents relating to occupational health or safety at a workplace.
(4) For subsection (3), the inspector—
(a) may direct the driver of the vehicle to move the vehicle to a place (or another place) to which the public has access; and
(b) may exercise the inspector's powers in relation to the vehicle at the place; and
(c) must not detain the vehicle for longer than is reasonably necessary to exercise the inspector's powers under this division.
(5) An inspector may, without the consent of the occupier of premises, enter land around the premises to ask for consent to enter the premises.
(6) To remove any doubt, an inspector may enter premises under subsection (1) without payment of an entry fee or other charge.
(7) For subsection (1) (e), the inspector may enter the premises with any necessary assistance and force.
(8) In this section:
"at any reasonable time" means at any time—
(a) for subsection (1) (a)—during normal business hours or any other time when the premises are being used as a workplace; or
(b) for subsection (1) (b)—when the public is entitled to use the premises, or when the premises are open to or used by the public, whether or not on payment of money.
62A Production of identity card by inspectors
An inspector must not remain at premises entered under this part if the inspector does not produce his or her identity card for inspection when asked by the occupier.
62B Consent to entry by inspectors
(1) When seeking the consent of an occupier to enter premises under section 62 (1) (c) (General power of inspectors to enter premises), an inspector must—
(a) produce his or her identity card; and
(b) tell the occupier—
(i) the purpose of the entry; and
(ii) that anything found and seized under this part may be used in evidence in court; and
(iii) that consent may be refused.
(2) If the occupier consents, the inspector must ask the occupier to sign a written acknowledgment (an acknowledgment of consent )—
(a) that the occupier was told—
(i) the purpose of the entry; and
(ii) that anything found and seized under this part may be used in evidence in court; and
(iii) that consent may be refused; and
(b) that the occupier consented to the entry; and
(c) stating the time and date when consent was given.
(3) If the occupier signs an acknowledgment of consent, the inspector must immediately give a copy to the occupier.
(4) A court must find that the occupier did not consent to entry to the premises by the inspector under this part if—
(a) the question whether the occupier consented to the entry arises in a proceeding in the court; and
(b) an acknowledgment of consent for the entry is not produced in evidence for the entry; and
(c) it is not proved that the occupier consented to the entry.
62C General powers of inspectors for premises
An inspector who enters premises under this part may, for this Act, do 1 or more of the following in relation to the premises:
(a) examine anything;
(b) examine and copy, or take extracts from, documents relating to a contravention, or possible contravention, of this Act;
(c) take measurements, conduct tests and make sketches, drawings or any other kind of record (including photographs, films, or audio, video or other recordings);
(d) open or operate (or require to be opened or operated) plant or a system;
(e) take for analysis samples of water, soil or anything else that is part of the environment to find out whether the environment poses a risk to the health or safety of people;
(f) subject to division 5.5 (Taking and analysis of samples), take for analysis samples of anything else;
(g) carry out any other examination to find out whether this Act has been, or is being, complied with;
(h) take onto the premises any people, equipment or material the inspector reasonably needs to exercise a power under this Act;
(i) require the occupier, or anyone at the premises, to give information, answer questions, or produce documents or anything else, reasonably needed to exercise the inspector's functions under this part;
(j) require the occupier, or anyone at the premises, to give the inspector reasonable assistance to exercise a function under this part.
Note 1 At premises includes in or on the premises (see dict).
Note 2 Examine includes inspect, weigh, count, test and measure (see dict).
Note 3 The Legislation Act, s 170 and s 171 deal with the application of the privilege against selfincrimination and client legal privilege.
Note 4 A reference to an Act includes a reference to statutory instruments made or in force under the Act, including regulations and any law or instrument applied, adopted or incorporated by the Act (see Legislation Act, s 104).
62D General powers of inspectors for public places
(1) An inspector may exercise 1 or more of the powers mentioned in section 62 at a public place if the inspector suspects, on reasonable grounds, that the place is a workplace.
(2) This Act applies in relation to the exercise of a power under subsection (1) as if—
(a) the public place were premises entered by the inspector under this part; and
(b) all other necessary changes were made.
(3) Without limiting subsection (2), if a person is required to do something by an inspector under subsection (1), the person need not comply with the requirement if the inspector does not produce his or her identity card for inspection when asked by the person.
62E Contravention of requirement by inspector
A person must take all reasonable steps to comply with a requirement made of the person under section 62C (i) or (j) (including a requirement made in relation to something at a public place).
Maximum penalty: 50 penalty units.
62F Power of inspectors to take action to prevent etc imminent risk
(1) This section applies if an inspector believes, on reasonable grounds, that—
(a) premises are a workplace; and
(b) there is an imminent risk of serious harm to a person at or near the premises; and
(c) it is necessary for the inspector to take action without delay to prevent or minimise the risk.
Note 1 At premises includes in or on the premises (see dict).
Note 2 Premises includes any land, structure or vehicle and any part of an area of land, a structure or vehicle (see dict).
(2) This section applies even if an inspector has given a person an improvement or prohibition notice in relation to the premises and the time for complying with the notice has not ended.
(3) The inspector may take the action the inspector believes, on reasonable grounds, is necessary to prevent or minimise the risk.
(4) For subsection (3), the inspector may enter the premises with any necessary assistance and force.
(5) In deciding the action to be taken, the inspector must, to the extent that is reasonably practicable, consult with the occupier of the premises and the chief executive.
(6) The action an inspector may take includes asking someone the inspector believes, on reasonable grounds, has appropriate knowledge and experience to help the inspector prevent or minimise the risk.
(7) If an inspector asks someone to help under subsection (6), the person is taken to have the powers of an inspector to the extent reasonably necessary for the person to help prevent or minimise the risk.
(8) The power to enter premises under this section is additional to the powers under section 62 (General power of inspectors to enter premises).
62G Report about action under s 62F
As soon as practicable after taking action under section 62F, an inspector must—
(a) prepare a report that outlines why the action was taken, the action that was taken and any damage to property because of the action; and
(b) give a copy of the report to the occupier of the premises and the chief executive.
62H Recovery of Territory's costs for action under s 62F
(1) This section applies if an inspector takes action under section 62F (Power of inspectors to take action to prevent etc imminent risk) to prevent or minimise a risk .
(2) Costs incurred by the Territory in relation to the action are a debt owing to the Territory by, and are recoverable together and separately from, the following people:
(a) each employer in relation to work performed at the premises to which the action related;
(b) each owner and lessee of the premises to which the action related;
(c) the person who caused the risk.
(3) However, costs are not recoverable from a person if the person establishes that—
(a) the risk was caused by the act or omission of someone other than the person or the person's employee or agent; and
(b) reasonable precautions were taken and appropriate diligence was exercised by the person to avoid the act or omission.
(4) This section does not limit the powers the Territory has apart from this Act.
62I Power of entry etc in relation to dangerous occurrences
(1) This section applies if an inspector believes, on reasonable grounds, that a dangerous occurrence has happened, is happening or is about to happen at premises.
(2) The inspector may enter the premises to investigate the dangerous occurrence, ensure the premises are safe and prevent the concealment, loss or destruction of anything reasonably relevant to the investigation of the occurrence.
(3) For subsection (2), the inspector may enter the premises with any necessary assistance and force.
(4) The inspector may do anything reasonably necessary for a purpose mentioned in subsection (2).
(5) If an inspector acts under this section in the absence of the occupier of the premises, the inspector must, when leaving the premises, leave a written notice, secured in a conspicuous place, setting out—
(a) the inspector's name; and
(b) the time and date of the entry; and
(c) the purpose of the entry; and
(d) how to contact the inspector.
(6) The power to enter premises under this section is additional to the powers under section 62 (General power of inspectors to enter premises).
62J Power of inspectors to seize things
(1) An inspector who enters premises under this part with the consent of the occupier may seize anything at the premises if—
(a) the inspector is satisfied, on reasonable grounds, that the thing is connected with an offence against this Act; and
(b) seizure of the thing is consistent with the purpose of the entry told to the occupier when seeking the occupier's consent.
(2) An inspector who enters premises under a warrant issued under this part may seize anything at the premises that the inspector is authorised to seize under the warrant.
(3) An inspector who enters premises under this part (whether with the consent of the occupier, under a warrant or otherwise) may seize anything at the premises if satisfied, on reasonable grounds, that—
(a) the thing is connected with an offence against this Act; and
(b) the seizure is necessary to prevent the thing from being—
(i) concealed, lost or destroyed; or
(ii) used to commit, continue or repeat the offence.
(4) Also, an inspector who enters premises under this part (whether with the consent of the occupier, under a warrant or otherwise) may seize anything at the premises if satisfied, on reasonable grounds, that the thing poses a risk to the health or safety of people at a workplace.
(5) The powers of an inspector under subsections (3) and (4) are additional to any powers of the inspector under subsection (1) or (2) or any other Territory law.
62K Action by inspector in relation to seized thing
(1) This section applies if an inspector has seized a thing at premises (the place of seizure ) under section 62J.
(2) The inspector may—
(a) remove the thing from the place of seizure to another place; or
(b) leave the thing at the place of seizure but restrict access to it; or
(c) for a thing mentioned in section 62L (1)—destroy or otherwise dispose of the thing under section 62L (5).
Example of how access may be restricted for par (b)
The inspector may—
(a) place the seized thing in a room or other enclosed area, compartment or cabinet at the place of seizure; and
(b) fasten and seal the door or opening providing access to the room, area, compartment or cabinet; and
(c) mark the door or opening in a way that indicates that access to it has been restricted under this Act.
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(3) A person commits an offence if—
(a) the person interferes with a seized thing, or anything containing a seized thing, to which access has been restricted under subsection (2); and
(b) the person does not have an inspector's approval to interfere with the thing.
Maximum penalty: 100 penalty units.
(4) An offence against this section is a strict liability offence.
62L Power of inspectors to destroy unsafe things
(1) This section applies to anything inspected or seized under this part by an inspector if the inspector is satisfied, on reasonable grounds, that the thing poses a risk to the health or safety of people.
(2) The inspector may require the occupier of the premises where the thing is to destroy or otherwise dispose of the thing.
(3) The requirement may state 1 or more of the following:
(a) how the thing must be destroyed or otherwise disposed of;
(b) how the thing must be kept until it is destroyed or otherwise disposed of;
(c) the period within which the thing must be destroyed or otherwise disposed of.
(4) The occupier of the premises where the thing is commits an offence if the person contravenes a requirement under subsection (2).
Maximum penalty: 100 penalty units.
(5) Alternatively, if the thing has been seized under this part, the inspector may destroy or otherwise dispose of the thing.
(6) Costs incurred by the Territory in relation to the disposal of a thing under subsection (5) are a debt owing to the Territory by, and are recoverable together and separately from, the following people:
(a) each employer in relation to work performed in relation to the thing seized or, if there is no such employer, each employer in relation to work performed at the premises from which the thing was seized;
(b) the person who owned the thing.
62M Power of inspectors to require name and address
(1) An inspector may require a person to state the person's name and home address if the inspector suspects, on reasonable grounds, that the person is committing, is about to commit, or has just committed, an offence against this Act.
Note A reference to an Act includes a reference to statutory instruments made or in force under the Act, including regulations and any law or instrument applied, adopted or incorporated by the Act (see Legislation Act, s 104).
(2) If an inspector makes a requirement of a person under subsection (1), the inspector must—
(a) tell the person the reasons for the requirement; and
(b) as soon as practicable, record the reasons.
(3) A person commits an offence if the person contravenes a requirement under subsection (1).
Maximum penalty: 10 penalty units.
(4) However, a person is not required to comply with a requirement under subsection (1) if, when asked by the person, the inspector does not produce his or her identity card for inspection by the person.
(5) An offence against this section is a strict liability offence.
(6) In this section:
"home address", of a person, means the address of the place where the person usually lives.
62N Power of inspectors to require production of authorisation
(1) This section applies if—
(a) an inspector suspects, on reasonable grounds, that the person is doing something, is about to do something, or has just done something; and
(b) the regulations require doing the thing to be authorised (however described) under this Act.
Example
a person is operating a forklift and, under this Act, is required to hold a certificate to operate the forklift
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(2) The inspector may require the person to produce for inspection anything that authorises the person to do the thing.
(3) If an inspector makes a requirement of a person under subsection (2), the inspector must—
(a) tell the person the reasons for the requirement; and
(b) as soon as practicable, record the reasons.
(4) A person commits an offence if the person contravenes a requirement under subsection (2).
Maximum penalty: 5 penalty units.
(5) However, a person is not required to comply with a requirement under subsection (2) if, when asked by the person, the inspector does not produce his or her identity card for inspection by the person.
(6) An offence against this section is a strict liability offence.
(7) For this section, the regulations may declare that a person authorised to do a thing under a corresponding law is authorised to do the thing under this Act.
(8) In this section:
"corresponding law" means a State law that corresponds to this Act.
63 Warrants generally
(1) An inspector may apply to a magistrate for a warrant to enter premises.
(2) The application must be sworn and state the grounds on which the warrant is sought.
(3) The magistrate may refuse to consider the application until the inspector gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.
(4) The magistrate may issue a warrant only if satisfied there are reasonable grounds for suspecting—
(a) there is a particular thing or activity connected with an offence against this Act; and
(b) the thing or activity is, or is being engaged in, at the premises, or may be, or may be engaged in, at the premises within the next 14 days.
Note At premises includes in or on the premises (see dict).
(5) The warrant must state—
(a) that an inspector may, with any necessary assistance and force, enter the premises and exercise the inspector's powers under this part; and
(b) the offence for which the warrant is issued; and
(c) the things that may be seized under the warrant; and
(d) the hours when the premises may be entered; and
(e) the date, within 14 days after the day of the warrant's issue, that the warrant ends.
(6) In this section:
"connected"—an activity is connected with an offence if—
(a) the offence has been committed by engaging or not engaging in it; or
(b) it will provide evidence of the commission of the offence.
Note For the meaning of thing connected with an offence, see s 61.
63A Warrants—application made other than in person
(1) An inspector may apply for a warrant by phone, fax, radio or other form of communication if the inspector considers it necessary because of—
(a) urgent circumstances; or
(b) other special circumstances.
(2) Before applying for the warrant, the inspector must prepare an application stating the grounds on which the warrant is sought.
(3) The inspector may apply for the warrant before the application is sworn.
(4) After issuing the warrant, the magistrate must immediately fax a copy to the inspector if it is practicable to do so.
(5) If it is not practicable to fax a copy to the inspector—
(a) the magistrate must—
(i) tell the inspector what the terms of the warrant are; and
(ii) tell the inspector the date and time the warrant was issued; and
(b) the inspector must complete a form of warrant (the warrant form ) and write on it—
(i) the magistrate's name; and
(ii) the date and time the magistrate issued the warrant; and
(iii) the warrant's terms.
(6) The faxed copy of the warrant, or the warrant form properly completed by the inspector, authorises the entry and exercise of the inspector's powers under this part.
(7) The inspector must, at the first reasonable opportunity, send to the magistrate—
(a) the sworn application; and
(b) if the inspector completed a warrant form—the completed warrant form.
(8) On receiving the documents, the magistrate must attach them to the warrant.
(9) A court must find that a power exercised by an inspector was not authorised by a warrant under this section if—
(a) the question arises in a proceeding before the court whether the exercise of power was authorised by a warrant; and
(b) the warrant is not produced in evidence; and
(c) it is not proved that the exercise of power was authorised by a warrant under this section.
63B Search warrants—announcement before entry
(1) An inspector must, before anyone enters premises under a search warrant—
(a) announce that the inspector is authorised to enter the premises; and
(b) give anyone at the premises an opportunity to allow entry to the premises; and
(c) if the occupier of the premises, or someone else who apparently represents the occupier, is present at the premises—identify himself or herself to the person.
(2) The inspector is not required to comply with subsection (1) if the inspector believes, on reasonable grounds, that immediate entry to the premises is required to ensure—
(a) the safety of anyone (including the inspector or any person assisting); or
(b) that the effective execution of the warrant is not frustrated.
63C Details of search warrant to be given to occupier etc
If the occupier of the premises, or someone else who apparently represents the occupier, is present at the premises while a search warrant is being executed, the inspector or a person assisting must make available to the person—
(a) a copy of the warrant; and
(b) a document setting out the rights and obligations of the person.
63D Occupier entitled to be present during search etc
(1) If the occupier of premises, or someone else who apparently represents the occupier, is present at the premises while a search warrant is being executed, the person is entitled to observe the search being conducted.
(2) However, the person is not entitled to observe the search if—
(a) to do so would impede the search; or
(b) the person is under arrest, and allowing the person to observe the search being conducted would interfere with the objectives of the search.
(3) This section does not prevent 2 or more areas of the premises being searched at the same time.
63E Moving things to another place for examination or processing under search warrant
(1) A thing found at premises entered under a search warrant may be moved to another place for examination or processing to decide whether it may be seized under the warrant if—
(a) both of the following apply:
(i) there are reasonable grounds for believing that the thing is or contains something to which the warrant relates;
(ii) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance; or
(b) the occupier of the premises agrees in writing.
(2) The thing may be moved to another place for examination or processing for no longer than 72 hours.
(3) An inspector may apply to a magistrate for an extension of time if the inspector believes, on reasonable grounds, that the thing cannot be examined or processed within 72 hours.
(4) The inspector must give notice of the application to the occupier of the premises, and the occupier is entitled to be heard on the application.
(5) If a thing is moved to another place under this section, the inspector must, if practicable—
(a) tell the occupier of the premises the address of the place where, and time when, the examination or processing will be carried out; and
(b) allow the occupier or the occupier's representative to be present during the examination or processing.
(6) The provisions of this part relating to the issue of search warrants apply, with any necessary changes, to the giving of an extension under this section.
63F Use of electronic equipment under search warrant
(1) An inspector or a person assisting may operate electronic equipment at premises entered under a search warrant to access data (including data not held at the premises) if the inspector or person believes, on reasonable grounds, that—
(a) the data might be something to which the warrant relates; and
(b) the equipment can be operated without damaging the data.
(2) If the inspector or person assisting believes, on reasonable grounds, that any data accessed by operating the electronic equipment might be something to which the warrant relates, the inspector or person may—
(a) copy the data to a data storage device brought to the premises; or
(b) if the occupier of the premises agrees in writing—copy the data to a data storage device at the premises.
(3) The inspector or person assisting may take the device from the premises.
(4) The inspector or person assisting may do the following things if the inspector or person finds that anything to which the warrant relates (the material ) is accessible using the equipment:
(a) seize the equipment and any data storage device;
(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 produced.
(5) An inspector may seize equipment under subsection (4) (a) only if—
(a) it is not practicable to copy the data as mentioned in subsection (2) or to put the material in documentary form as mentioned in subsection (4) (b); or
(b) possession of the equipment by the occupier could be an offence.
63G Person with knowledge of computer systems to assist access etc under search warrant
(1) An inspector may apply to a magistrate for an order requiring a stated person to provide any information or assistance that is reasonably necessary to allow the inspector or a person assisting to do 1 or more of the following:
(a) access data held in or accessible from a computer that is at the premises;
(b) copy the data to a data storage device;
(c) convert the data into documentary form.
(2) The magistrate may make an order if satisfied that—
(a) there are reasonable grounds for suspecting that something to which the warrant relates is accessible from the computer; and
(b) the stated person is—
(i) reasonably suspected of possessing, or having under the person's control, something to which the warrant relates; or
(ii) the owner or lessee of the computer; or
(iii) an employee or agent of the owner or lessee of the computer; and
(c) the stated person has knowledge of—
(i) the computer or a computer network of which the computer forms a part; or
(ii) measures applied to protect data held in or accessible from the computer.
(3) A person commits an offence if the person contravenes an order under this section.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(4) The provisions of this part relating to the issue of search warrants apply, with any necessary changes, to the making of an order under this section.
63H Securing electronic equipment under search warrant
(1) This section applies if the inspector or a person assisting believes, on reasonable grounds, that—
(a) something to which the warrant relates (the material ) may be accessible by operating electronic equipment at the premises; and
(b) expert assistance is needed to operate the equipment; and
(c) the material may be destroyed, altered or otherwise interfered with if the inspector or person does not take action.
(2) The inspector or person may do whatever is necessary to secure the equipment.
Examples
locking the equipment up or placing a guard
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(3) The inspector or a person assisting must give written notice to the occupier of the premises of—
(a) the securing of the equipment; and
(b) the fact that the equipment may be secured for up to 24 hours.
(4) The equipment may be secured until the earlier of the following events happens:
(a) the end of the 24-hour period;
(b) the equipment is operated by the expert.
(5) If the inspector or a person assisting believes on reasonable grounds that the expert assistance will not be available within the 24-hour period, the inspector or person may apply to a magistrate to extend the period.
(6) The inspector or a person assisting must tell the occupier of the premises of the intention to apply for an extension, and the occupier is entitled to be heard on the application.
(7) The provisions of this part relating to the issue of search warrants apply, with any necessary changes, to the giving of an extension under this section.
63I Copies of things seized under search warrant to be provided
(1) This section applies if—
(a) the occupier of premises, or someone else who apparently represents the occupier, is present at the premises while a search warrant is executed; and
(b) the inspector seizes—
(i) a document, film, computer file or something else that can be readily copied; or
(ii) a data storage device containing information that can be readily copied.
(2) The person may ask the inspector to give the person a copy of the thing or information.
(3) The inspector must give the person the copy as soon as practicable after the seizure.
(4) However, the inspector is not required to give the copy if—
(a) the thing was seized under section 63F (Use of electronic equipment under search warrant); or
(b) possession of the thing or information by the occupier or person would be an offence.
Division 5.4 Return and forfeiture of things seized
64 Receipt for things seized
(1) As soon as practicable after a thing is seized by an inspector under this part, the inspector must give a receipt for it to the person from whom it was seized.
(2) If, for any reason, it is not practicable to comply with subsection (1), the inspector must leave the receipt, secured conspicuously, at the place of seizure under section 62K (2) (b) (Action by inspector in relation to seized thing).
(3) A receipt under this section must include the following:
(a) a description of the thing seized;
(b) an explanation of why the thing was seized;
(c) an explanation of the person's right to apply to a court under section 64C for an order disallowing the seizure;
(d) if the thing is removed from the premises where it is seized—where the thing is to be taken;
(e) the inspector's name, and how to contact the inspector.
64A Access to things seized
(1) This section applies to a document or anything else seized under this part.
(2) If asked by a person who would be entitled to inspect the thing if it were not seized under this part, an inspector must allow the person, at any reasonable time—
(a) for a document—to inspect it, take extracts from it or make copies of it; and
(b) for anything else—to inspect it.
(3) This section does not apply to—
(a) a thing seized under section 62I (4) (which is about the seizure of a thing that poses a risk to occupational health or safety); or
(b) a thing seized under section 63F (Use of electronic equipment under search warrant); or
(c) a thing or information if possession of it by the person otherwise entitled to inspect it would be an offence.
64B Return of things seized
(1) A thing seized under this part must be returned to its owner, or reasonable compensation must be paid to the owner by the Territory for the loss of the thing, if—
(a) an infringement notice for an offence connected with the thing is not served on the owner within 1 year after the day of the seizure and either—
(i) a prosecution for an offence connected with the thing is not begun within the 1-year period; or
(ii) a prosecution for an offence connected with the thing is begun within the 1-year period but the court does not find the offence proved; or
(b) an infringement notice for an offence connected with the thing is served on the owner within 1 year after the day of the seizure, the infringement notice is withdrawn and—
(i) a prosecution for an offence connected with the thing is not begun within 1 year after the day of the seizure; or
(ii) a prosecution for an offence connected with the thing is begun within 1 year after the day of the seizure but the court does not find the offence proved; or
(c) an infringement notice for an offence connected with the thing is served on the owner within 1 year after the day of the seizure, liability for the offence is disputed in accordance with the Magistrates Court Act 1930 , section 132 (Disputing liability for infringement notice offence) and—
(i) an infringement notice is not laid in the Magistrates Court against the person for the offence within 60 days after the day notice is given under section 132 that liability is disputed; or
(ii) the Magistrates Court does not find the offence proved; or
(d) before the thing is forfeited to the Territory under section 64F (Forfeiture of seized things), the chief executive—
(i) becomes satisfied that there has been no offence against this Act with which the thing was connected; or
(ii) decides not to prosecute or serve an infringement notice for the offence.
(2) However, this section does not apply—
(a) to a thing seized under section 62I (4) (which is about the seizure of a thing that poses a risk to occupational health or safety); or
(b) to a thing if the chief executive believes, on reasonable grounds, that the only practical use of the thing in relation to the premises where it was seized would be an offence against this Act; or
(c) to a thing if possession of it by its owner would be an offence.
64C Application for order disallowing seizure
(1) A person claiming to be entitled to anything seized under this part may apply to the Magistrates Court within 10 days after the day of the seizure for an order disallowing the seizure.
(2) However, this section does not apply to a thing seized under section 62J (4) (which is about the seizure of a thing that poses a risk to occupational health or safety).
(3) The application may be heard only if the applicant has served a copy of the application on the chief executive.
(4) The chief executive is entitled to appear as respondent at the hearing of the application.
64D Order for return of seized thing
(1) This section applies if a person claiming to be entitled to anything seized under this part applies to the Magistrates Court under section 64C for an order disallowing the seizure.
(2) The Magistrates Court must make an order disallowing the seizure if the court is satisfied that—
(a) the applicant would, apart from the seizure, be entitled to the return of the seized thing; and
(b) the thing is not connected with an offence against this Act; and
(c) possession of the thing by the person would not be an offence.
(3) The Magistrates Court may also make an order disallowing the seizure if satisfied there are exceptional circumstances justifying the making of the order.
(4) If the Magistrates Court makes an order disallowing the seizure, the court may make 1 or more of the following ancillary orders:
(a) an order directing the chief executive to return the thing to the applicant or to someone else that appears to be entitled to it;
(b) if the thing cannot be returned or has depreciated in value because of the seizure—an order directing the Territory to pay reasonable compensation;
(c) an order about the payment of costs in relation to the application.
64E Adjournment pending hearing of other proceedings
(1) This section applies to the hearing of an application under section 64C (Application for order disallowing seizure).
(2) If it appears to the Magistrates Court that the seized thing is required to be produced in evidence in a pending proceeding in relation to an offence against a Territory law, the court may, on the application of the chief executive or its own initiative, adjourn the hearing until the end of that proceeding.
64F Forfeiture of seized things
(1) This section applies if—
(a) anything seized under this part has not been destroyed or otherwise disposed of under section 62L (Power of inspectors to destroy unsafe things) or returned under section 64B (Return of things seized); and
(b) an application for disallowance of the seizure under section 64C (Application for order disallowing seizure)—
(i) has not been made within 10 days after the day of the seizure; or
(ii) has been made within that period, but the application has been refused or has been withdrawn before a decision in relation to the application had been made.
(2) If this section applies to the seized thing—
(a) it is forfeited to the Territory; and
(b) it may be sold, destroyed or otherwise disposed of as the chief executive directs.
64G Return of forfeited things
(1) This section applies to something forfeited under section 62F that has not been disposed of in a way that would prevent its return.
(2) If the chief executive becomes satisfied that there has been no offence against this Act with which the thing was connected, the chief executive must, as soon as practicable, return the thing to the person from whom it was seized or someone else who appears to the chief executive to be entitled to it.
(3) On its return, any proprietary and other interests in the thing that existed immediately before its forfeiture are restored.
64H Cost of disposal of things forfeited
(1) This section applies if—
(a) a person is convicted, or found guilty, of an offence against this Act in relation to something forfeited to the Territory under this part; and
(b) the thing was connected with an offence against this Act; and
(c) the person was the owner of the thing immediately before its forfeiture.
Note For the meaning of found guilty , see Legislation Act, dict, pt 1.
(2) If this section applies, costs incurred by or on behalf of the Territory in relation to the lawful disposal of the thing (including storage costs) are a debt owing to the Territory by the person.
Division 5.5 Taking and analysis of samples
65 Inspector may buy samples without complying with div 5.5
This division does not stop an inspector from buying a sample of a substance for analysis for the routine monitoring of compliance with this Act without complying with the requirements of this part.
65A Occupier etc to be told sample to be analysed
(1) This section applies if an inspector proposes to take, or takes, a sample of a substance for analysis from premises that are a workplace.
(2) Before or as soon as practicable after taking the sample, the inspector must tell the occupier of the premises of the inspector's intention to have the sample analysed.
(3) If the occupier is not present or readily available, the inspector must instead tell the person from whom the sample was obtained of the inspector's intention to have the sample analysed.
65B Payment for samples
(1) This section applies if an inspector takes a sample of a substance for analysis from premises that are a workplace.
(2) The inspector must pay, or offer to pay, to the person from whom the sample is taken—
(a) the amount (if any) prescribed under the regulations as the amount payable for the sample; or
(b) if no amount is prescribed—the current market value of the sample.
65C Samples from packaged substances
If a package of a substance contains 2 or more smaller packages of the same substance, the inspector may take 1 of the smaller packages for analysis.
65D Procedures for dividing samples
(1) This section applies to a sample of a substance being taken by an inspector for analysis and is subject to section 65E.
(2) The inspector must—
(a) divide the sample into 3 separate parts, and mark and seal or fasten each part; and
(b) leave 1 part with the person told under section 65A (Occupier etc to be told sample to be analysed) of the inspector's intention to have the sample analysed; and
(c) keep 1 of the parts for analysis; and
(d) keep 1 part for future comparison with the other parts of the sample.
(3) If a sample of a substance taken by an inspector is in the form of separate or severable objects, the inspector—
(a) may take a number of the objects; and
(b) divide them into 3 parts each consisting of 1 or more of the objects, or of the severable parts of the objects, and mark and seal or fasten each part; and
(c) deal with the sample under subsection (2) (b) to (d).
65E Exceptions to s 65D
(1) This section applies to a sample of a substance being taken by an inspector for analysis if dividing the substance into 3 separate parts would, in the inspector's opinion—
(a) so affect or impair the composition or quality of the sample as to make the separate parts unsuitable for accurate analysis; or
(b) result in the separate parts being of an insufficient size for accurate analysis; or
(c) otherwise make the sample unsuitable for analysis (including a method of analysis prescribed under the regulations for the substance in relation to which the sample was taken).
(2) The inspector may take as many samples as the inspector considers necessary to allow an accurate analysis to be made, and may deal with the sample or samples in any way that is appropriate in the circumstances, instead of complying with section 65D.
65F Certificates of analysis by authorised analysts
(1) The analysis of a sample of a substance for the chief executive must be carried out by, or under the supervision of, an authorised analyst.
(2) The authorised analyst must give to the chief executive a certificate of analysis that—
(a) is signed and dated by the analyst; and
(b) contains a written report of the analysis that sets out the findings; and
(c) identifies the method of analysis.
Note 1 If a form is approved under s 96B for the certificate, the form must be used.
Note 2 For the evidentiary status of a certificate under this section, see s 93H.
Division 5.6 Other enforcement provisions
67 Damage etc by inspectors to be minimised
(1) In the exercise, or purported exercise, of a function under this part, an inspector must take all reasonable steps to ensure that the inspector, and any person assisting, causes as little inconvenience, detriment and damage as is practicable.
(2) If an inspector, or a person assisting, damages anything in the exercise or purported exercise of a function under this part, the inspector must give written notice of particulars of the damage to the person the inspector believes, on reasonable grounds, is the owner of the thing.
(3) If the damage happens at premises entered under this part in the absence of the occupier of the premises, the notice may be given by leaving it secured in a conspicuous place at the premises.
67A Compensation for exercise of function by inspector
(1) A person may claim compensation from the Territory if the person suffers loss or expense because of the exercise, or purported exercise, of a function under this part by an inspector or person assisting.
(2) Compensation may be claimed and ordered in a proceeding for—
(a) compensation brought in a court of competent jurisdiction; or
(b) an order under section 64C (Application for order disallowing seizure); or
(c) an offence against this Act brought against the person making the claim for compensation.
(3) A court may order the payment of reasonable compensation for the loss or expense only if it is satisfied it is just to make the order in the circumstances of the particular case.
(4) The regulations may prescribe matters that may, must or must not be taken into account by the court in considering whether it is just to make the order.