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Contents (2016 - 58)
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Crown Land Management Act 2016 No 58
Current version for 1 July 2019 to date (accessed 22 September 2019 at 04:43)
Part 10
Part 10 Investigation of compliance
Introductory note.
 This Part provides powers to enable the investigation of compliance with this Act, the regulations and the provisions of holdings. It enables the following:
(a)  the Minister to appoint authorised officers,
(b)  the Minister and authorised officers to obtain information and records,
(c)  authorised officers to enter and search non-residential land or structures (and to obtain search warrants to enter and search residential land or structures),
(d)  authorised officers to question and identify persons,
(e)  authorised officers to seize vehicles used in connection with certain offences.
The Part also creates offences for:
(a)  contravening certain requirements made of persons under this Part, or
(b)  knowingly engaging in false or misleading conduct in trying to comply with a requirement of this Part, or
(c)  obstructing or impersonating an authorised officer.
Division 10.1 Introduction
10.1   Definition
In this Part:
land use restriction means:
(a)  a restriction on use imposed on land under Division 5.10, or
(b)  a public positive covenant imposed on land under Division 5.10, or
(c)  a condition on land to which a recording under section 5.11 (4) (a), 5.12 (1) (a) or 5.13 (a) relates.
10.2   When functions are exercised for a compliance purpose under Part
A function is exercised for a compliance purpose for the purposes of this Part if it is exercised for the purpose of:
(a)  determining whether there has been compliance with or a contravention of this Act or the regulations or any notice, direction, order or requirement issued or made under this Act, or
(b)  determining whether there has been compliance with or a contravention of the terms and conditions of a holding, or
(c)  determining whether there has been compliance with or a contravention of a land use restriction, or
(d)  obtaining information or records for purposes connected with the administration of this Act, or
(e)  generally for administering this Act.
Division 10.2 Compliance generally
10.3   Offence: contravention of requirement under Part
(1)  A person must comply with a requirement made of the person under this Part.
Maximum penalty (subject to section 10.25 (4)):
(a)  for a corporation—200 penalty units and, for a continuing offence, a further penalty of 20 penalty units for each day the offence continues, or
(b)  for an individual—100 penalty units and, for a continuing offence, a further penalty of 10 penalty units for each day the offence continues.
(2)  It is a defence to the prosecution of an offence against this section if the defendant proves that there was a lawful excuse for the conduct that is alleged to give rise to the offence.
10.4   Offence: false or misleading conduct under Part
A person must not provide any information or do any other thing in purported compliance with a requirement made under this Part, knowing that it is false or misleading in a material respect.
Maximum penalty:
(a)  for a corporation—2,000 penalty units and, for a continuing offence, a further penalty of 200 penalty units for each day the offence continues, or
(b)  for an individual—1,000 penalty units and, for a continuing offence, a further penalty of 100 penalty units for each day the offence continues.
10.5   Offences: obstruction or impersonation of authorised officer
A person must not:
(a)  threaten, hinder, obstruct or delay an authorised officer in the exercise of the officer’s functions under this Act or the regulations, or
(b)  damage, destroy or interfere with any vehicle or equipment that is used in the exercise of an authorised officer’s functions under this Act or the regulations, or
(c)  impersonate an authorised officer.
Maximum penalty (subject to section 10.25 (4)):
(a)  for a corporation—2,000 penalty units and, for a continuing offence, a further penalty of 200 penalty units for each day the offence continues, or
(b)  for an individual—1,000 penalty units and, for a continuing offence, a further penalty of 100 penalty units for each day the offence continues.
Division 10.3 Authorised officers
10.6   Authorised officers
(1)  The Minister may, by written instrument, appoint:
(a)  a specified qualified person to be an authorised officer, or
(b)  persons of a specified class of qualified persons to be authorised officers.
(2)  A person is a qualified person for appointment as an authorised officer if the person is any of the following:
(a)  an employee of a government sector agency,
(b)  an employee of a local council,
(c)  an employee of a Crown land manager of dedicated or reserved Crown land,
(d)  any other person of a class prescribed by the regulations.
(3)  A person cannot be appointed as an authorised officer unless the person has undergone training, or has any competency, that may be required by the Minister.
(4)  The Minister may exercise any power conferred by or under this Act on an authorised officer.
(5)  Accordingly, in this Act (except this Division and section 10.12) references to an authorised officer include references to the Minister.
10.7   Exercise of functions by authorised officers
(1)  An authorised officer has the functions conferred on authorised officers by or under this Act or another Act.
(2)  The Minister may, in the instrument of appointment of an authorised officer:
(a)  provide that the officer may not exercise specified functions, or
(b)  provide that the officer may exercise specified functions only, or
(c)  restrict in other ways the functions that the officer may exercise, including (for example) by limiting the circumstances in which the officer may exercise any functions conferred or imposed on the officer.
10.8   Identity cards
(1)  The Minister must issue an authorised officer with an identity card.
(2)  The identity card must:
(a)  be in the form approved by the Minister, and
(b)  state the following:
(i)  that it is issued under this Act,
(ii)  the name of the authorised officer,
(iii)  the expiry date (if any) for the appointment.
(3)  The identity card may, but need not, contain a photograph of the authorised officer.
(4)  An authorised officer must not exercise a function conferred by or under this Act unless an identity card has been issued to the officer by the Minister.
(5)  An authorised officer must produce the officer’s identity card for inspection on request when exercising the officer’s functions.
(6)  A person who has been issued with an identity card must return it to the Minister (or the Minister’s delegate) on demand.
Maximum penalty (subsection (6)): 100 penalty units.
10.9   Arrangements with other government agencies
(1)  The Minister may enter into an arrangement with the head of any government agency, or with a local council, for an employee of the government agency or council to exercise the functions of an authorised officer under this Act.
(2)  An employee of a government agency or local council who exercises the functions of an authorised officer in accordance with the arrangement is taken to be an authorised officer for the purposes of this Act.
Division 10.4 Powers to require information or records
10.10   Application of Division
This Division applies whether or not a power of entry under Division 10.5 is being or has been exercised.
10.11   Requirement to provide information and records to Minister
The Minister may, by written notice given to a person, require the person to provide the Minister with the information or records (or both) for a compliance purpose as the Minister requires in the notice.
10.12   Requirement to provide information and records to authorised officer
An authorised officer may, by written notice given to a person, require the person to provide the authorised officer with the information or records (or both) for a compliance purpose as the authorised officer requires in the notice.
10.13   Matters to be specified by notice
A notice under this Division must specify the manner in which information or records are required to be provided and a reasonable time by which the information or records are required to be provided.
10.14   Provisions relating to records
(1)  A notice under this Division may only require a person to provide existing records that are in the person’s possession or that are within the person’s power to obtain lawfully.
(2)  The person to whom any record is provided under this Division may take copies of it.
(3)  If any record required to be provided under this Division is in electronic, mechanical or other form, the notice requires the record to be provided in written form, unless the notice provides differently.
Division 10.5 Powers of entry and search of land and structures
10.15   Powers of authorised officers to enter land and structures
(1)  An authorised officer may, for a compliance purpose, enter:
(a)  any Crown land (or any structure in or on Crown land), and
(b)  any land that is not Crown land (or any structure in or on the land), but is subject to a land use restriction, and
(c)  any other land (or any structure in or on the land) to gain access to any land or structure referred to in paragraph (a) or (b).
(2)  Entry may be:
(a)  if the authorised officer reasonably suspects that an offence is being committed on the land—at any time, or
(b)  in any other case—at any reasonable time.
(3)  The power to enter authorises entry by foot or by means of a vehicle or in any other manner.
(4)  Entry may be effected by an authorised officer with the aid of any other authorised officers or police officers as the authorised officer considers necessary and with the use of reasonable force.
(5)  This section does not limit the circumstances in which entry may be effected to any land (or any structure in or on land) with the authority of a search warrant under section 10.18.
10.16   Entry into residential premises only with permission or warrant
This Part does not empower an authorised officer to enter any part of a structure used only for residential purposes without:
(a)  the permission of the occupier, or
(b)  the authority of a search warrant under section 10.18.
10.17   Powers of authorised officers to do things on entry
(1)  An authorised officer may, on or in any land (or structure) lawfully entered under section 10.15 (1) (a) or (b), do anything that in the opinion of the authorised officer is necessary to be done for a compliance purpose, including (but not limited to) the things specified in subsection (2).
(2)  An authorised officer may do any or all of the following:
(a)  examine and inspect any structure, vehicle or other article,
(b)  take and remove samples,
(c)  make any examinations, inquiries and tests that the authorised officer considers necessary,
(d)  take any photographs, films, audio, video and other recordings that the authorised officer considers necessary,
(e)  require records to be produced for inspection,
(f)  examine and inspect any records,
(g)  copy any records,
(h)  seize anything that the authorised officer has reasonable grounds for believing is connected with an offence against this Act or the regulations,
(i)  for the purposes of paragraph (h), direct the occupier of the land or structure where the thing is seized to retain it on the land or at the structure or at another place under the control of the occupier,
(j)  do any other thing the authorised officer is empowered to do under this Part.
(3)  The power to seize anything connected with an offence includes a power to seize:
(a)  a thing with respect to which the offence has been committed, and
(b)  a thing that will afford evidence of the commission of the offence, and
(c)  a thing that was used for the purpose of committing the offence.
A reference to an offence includes a reference to an offence that there are reasonable grounds for believing has been committed.
10.18   Search warrants
(1)  An authorised officer may apply to a warrants issuing officer for the issue of a search warrant if the authorised officer believes on reasonable grounds that:
(a)  a provision of this Act or the regulations is being or has been contravened at any premises, or
(b)  there is in or on any premises any matter or a thing that is connected with an offence against this Act or the regulations.
(2)  A warrants issuing officer to whom an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an authorised officer under this Act named in the warrant:
(a)  to enter the premises, and
(b)  to exercise any function of an authorised officer under this Part.
(3)  Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.
(4)  In this section:
matter or a thing connected with an offence means:
(a)  matter or a thing with respect to which the offence has been committed, or
(b)  matter or a thing that will afford evidence of the commission of an offence, or
(c)  matter or a thing that was used, or is intended to be used, for the purpose of committing the offence.
offence includes an offence that there are reasonable grounds for believing has been, or is to be, committed.
premises has the same meaning as in the Law Enforcement (Powers and Responsibilities) Act 2002.
warrants issuing officer means an authorised officer as defined in the Law Enforcement (Powers and Responsibilities) Act 2002.
10.19   Authorised officers may request assistance
A person may accompany an authorised officer and take all reasonable steps to assist an authorised officer in the exercise of the authorised officer’s functions under this Act if the authorised officer is of the opinion that the person is capable of providing assistance to the authorised officer in the exercise of those functions.
10.20   Assistance to be given to authorised officers
(1)  This section applies for the purpose of enabling an authorised officer to exercise any of the powers of an authorised officer under this Act in connection with any land (or any structure in or on land).
(2)  The Minister may, by written notice given to the owner or occupier of the land (or the structure in or on the land), require the owner or occupier to provide any reasonable assistance and facilities as may be specified in the notice within a specified time and in a specified manner.
(3)  Assistance and facilities can be required under this section, whether they are of the same kind as, or a different kind from, any prescribed by the regulations.
10.21   Care to be taken
In the exercise of a power of entering or searching premises under this Part, the authorised officer must do as little damage as possible.
10.22   Compensation
The Minister must compensate all interested parties for any damage caused by an authorised officer in exercising a power of entering land (or any structure in or on land) (but not any damage caused by the exercise of any other power), unless the occupier obstructed or hindered the authorised officer in the exercise of the power of entry.
Division 10.6 Powers to question and identify persons
10.23   Power of authorised officers to require answers
(1)  An authorised officer may require a person whom the authorised officer suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required for a compliance purpose to answer questions in relation to those matters.
(2)  The Minister may, by written notice, require a corporation to nominate, in writing within the time specified in the notice, a director or officer of the corporation to be the corporation’s representative for the purpose of answering questions under this section.
(3)  Answers given by a person nominated under subsection (2) bind the corporation.
(4)  An authorised officer may, by written notice, require a person to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered.
(5)  The place and time at which a person may be required to attend under subsection (4) is to be:
(a)  a place or time nominated by the person, or
(b)  if the place and time nominated is not reasonable in the circumstances or a place and time is not nominated by the person, a place and time nominated by the authorised officer that is reasonable in the circumstances.
10.24   Recording of evidence
(1)  An authorised officer may cause any questions and answers to questions given under this Division to be recorded if the officer has informed the person who is to be questioned that the record is to be made.
(2)  A record may be made using sound recording apparatus or audio visual apparatus, or any other method determined by the authorised officer.
(3)  A copy of the record must be provided by the authorised officer to the person who is questioned as soon as practicable after it is made.
(4)  A record may be made under this section despite the provisions of any other law.
10.25   Power of authorised officers to demand name and address
(1) Name and address to be given if offence suspected An authorised officer may require a person whom the authorised officer suspects on reasonable grounds to have offended or to be offending against this Act or the regulations to state the person’s full name and residential address.
(2) Driver licence to be produced if required on Crown land An authorised officer may require a person driving or riding a motor vehicle on Crown land to produce the person’s driver licence and to state the person’s full name and residential address.
(3) Proof of name and address An authorised officer may request a person who is required under this section to state his or her full name and residential address to provide proof of the name and address. It is not an offence against a provision of Division 10.2 to refuse or fail to comply with the request.
(4) Maximum penalty limited for contraventions of this section The maximum penalty for an offence against a provision of Division 10.2 in connection with a requirement under this section is 100 penalty units despite anything in that Division.
(5) Definition In this section:
driver licence includes:
(a)  a relevant Australian driver licence as defined in the Road Transport Act 2013, and
(b)  a foreign driver licence as defined in Part 5.1 of the Road Transport Act 2013.
Division 10.7 Power to seize vehicles
10.26   Seizure of vehicles for continuing vehicle offences
(1)  An authorised officer may seize a vehicle on Crown land if the officer has reason to believe that:
(a)  the vehicle was used to commit a vehicle offence, and
(b)  the vehicle offence has been a continuing offence for a period of at least 3 days.
(2)  The power conferred by subsection (1) includes a power to remove the vehicle from the place where it is found and to secure it from interference.
(3)  The State, the authorised officer and any other person acting under the direction of the authorised officer is not liable for a seizure under this Division for which there was reasonable cause.
10.27   Forfeiture of vehicles by order of court
(1)  A court that convicts a person of a vehicle offence in respect of which the vehicle was seized under this Division may order the forfeiture of the vehicle.
(2)  The court is not to order the forfeiture of the vehicle if it is satisfied that the vehicle was used without the authority of its owner or that its owner did not have reasonable cause to suspect that the vehicle would be used to commit the offence.
(3)  To avoid doubt, a forfeiture order is not a monetary penalty for the purposes of the provision of this Act or regulations that provides for the maximum monetary penalty that may be imposed by a court in proceedings for the offence concerned.
(4)  A vehicle that is forfeited because of an order of a court under this section is forfeited to the Crown.
(5)  The Minister may deal with the forfeited vehicle in any way the Minister considers appropriate.
(6)  Without limiting subsection (5), the Minister may destroy, sell or dispose of the vehicle or authorise its destruction, sale or disposal.
Division 10.8 Functions in relation to seized things
10.28   Definitions
(1)  In this Division:
owner of a thing includes a person entitled to possession of the thing.
responsible person for a seized thing means the apparent owner of the thing or the apparent occupier of premises at which the thing is seized.
seized thing means a thing seized by an authorised officer under this Part.
(2)  For the purposes of the Division, the continued retention of a seized thing in custody is not justified if and only if:
(a)  it is not or is no longer necessary to retain the thing to prevent, eliminate or minimise a biosecurity risk posed by or in relation to the thing, and
(b)  it is not or is no longer necessary to retain the thing as evidence of an offence.
10.29   Receipt for seized things
(1)  As soon as practicable after an authorised officer seizes a thing, the authorised officer must give a receipt for it to a responsible person.
(2)  If it is not practicable to comply with subsection (1), the authorised officer may instead leave the receipt at the place of seizure in a conspicuous position and in a reasonably secure way.
(3)  A receipt is not required if the thing is seized in a public place and the apparent owner of the thing cannot be located after reasonable inquiry.
(4)  A receipt must describe generally the seized thing and its condition.
(5)  This section does not apply if it is impracticable or would be unreasonable to give a receipt given the nature, condition or value of a seized thing.
10.30   Return of seized things
(1)  An authorised officer must return a seized thing to its owner if the authorised officer is satisfied that:
(a)  it is lawful for the owner to have possession of the thing, and
(b)  the continued retention of the thing in custody is not justified.
(2)  A requirement to return a seized thing to its owner includes a requirement to remove or lift any restrictions on an owner’s access to a seized thing.
(3)  This section does not apply if an authorised officer certifies in writing that the authorised officer is unable to return the seized thing to its owner.
10.31   Certification of inability to return seized thing
(1)  An authorised officer may certify in writing that the authorised officer is unable to return a seized thing to its owner if:
(a)  the authorised officer cannot find the owner of the thing after making any inquiries it is reasonable to make in the circumstances, or
(b)  the authorised officer cannot, for any other reason, return the thing to its owner after making any efforts to do so that are reasonable to make in the circumstances.
(2)  Regard is to be had to a thing’s nature, condition and value in deciding:
(a)  whether it is reasonable to make inquiries or efforts, and
(b)  what inquiries or efforts (if any) are reasonable in the circumstances.
(3)  The Minister may give directions as to the inquiries or efforts that are to be made by authorised officers in relation to the return of any seized thing or class of seized things.
(4)  Compliance with any such directions is evidence that all reasonable inquiries or efforts were made.
10.32   Court order requiring delivery of seized thing
(1)  A court may, on application by any person, make an order directing that a seized thing be delivered to the person.
(2)  A court may make such an order only if satisfied that:
(a)  the person is the owner of the seized thing, and
(b)  it is lawful for the person to have possession of the thing, and
(c)  the continued retention of the seized thing in custody is not justified.
(3)  In deciding an application the court may do any one or more of the following things:
(a)  make a finding or order as to the ownership of the thing,
(b)  make a finding or order as to liability for, and payment of, costs and expenses incurred in keeping a thing in custody,
(c)  make any necessary incidental or ancillary findings or orders.
(4)  The court to which an application under this section may be made is:
(a)  the Local Court, if the estimated value of the thing does not exceed $100,000, or
(b)  the Land and Environment Court, if the estimated value of the thing exceeds $100,000.
(5)  Despite subsection (4), a court that is hearing proceedings for an offence may deal with an application relating to a seized thing connected with that offence regardless of the estimated value of the thing.
(6)  A court cannot make an order under this section in respect of a thing that has been seized by an authorised officer in the case of an emergency unless the Minister has given notice of the Minister’s intention to declare the seized thing to be forfeited to the Minister.
(7)  A court cannot make an order under this section in respect of a seized thing that has been forfeited to the Crown.
(8)  A requirement to deliver a seized thing to its owner includes a requirement to remove or lift any restrictions on an owner’s access to a seized thing.
10.33   Forfeiture of seized thing
(1)  The Minister may, by written order, declare any seized thing to be forfeited to the Crown.
(2)  The Minister may make such an order only if:
(a)  the Minister is satisfied that the continued retention of the thing in custody is not justified, and
(b)  the thing cannot be returned to its owner.
(3)  A thing cannot be returned to its owner if:
(a)  the Minister is satisfied that it is not lawful for the owner of the seized thing to have possession of the thing, or
(b)  an authorised officer certifies in writing that the authorised officer is unable to return the seized thing to its owner.
(4)  The Minister must give notice of the Minister’s intention to declare a seized thing to be forfeited to the Crown.
(5)  The notice must be given at least 21 days before the order is made.
(6)  The Minister gives notice by:
(a)  publishing the notice on the Department’s website, and
(b)  serving the notice on the apparent owner of the thing.
(7)  However, it is not necessary to serve the notice on the apparent owner of the thing if an authorised officer has certified in writing that the authorised officer is unable to return the seized thing to its owner.
Note.
 Notice of the intention to make the declaration gives the owner of the thing an opportunity to seek a court order for the return of the thing.
10.34   Dealing with forfeited things
(1)  When an order is made by the Minister declaring a seized thing to be forfeited to the Minister, the seized thing is forfeited to the Crown and becomes the property of the Crown.
(2)  The Minister may deal with the thing in any way the Minister considers appropriate.
(3)  Without limiting subsection (2), the Minister may destroy, sell or dispose of the thing or authorise its destruction, sale or disposal.
Division 10.9 General
10.35   Provisions relating to requirements to provide records, information or answer questions
(1) Warning to be given on each occasion A person is not guilty of an offence of failing to comply with a requirement under this Part to provide records or information or to answer a question unless the person was warned on that occasion that a failure to comply is an offence.
(2) Self-incrimination not an excuse A person is not excused from a requirement under this Part to provide records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty.
(3) Information or answer not admissible if objection made However, any information provided or answer given by a natural person in compliance with a requirement under this Part is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence against this Part) if:
(a)  the person objected at the time to doing so on the ground that it might incriminate the person, or
(b)  the person was not warned on that occasion that the person may object to providing the information or giving the answer on the ground that it might incriminate the person.
(4) Records admissible Any record provided by a person in compliance with a requirement under this Part is not inadmissible in evidence against the person in criminal proceedings on the ground that the record might incriminate the person.
(5) Further information Further information obtained as a result of a record or information provided or of an answer given in compliance with a requirement under this Part is not inadmissible on the ground:
(a)  that the record or information had to be provided or the answer had to be given, or
(b)  that the record or information provided or answer given might incriminate the person.
(6) Requirement to state name and address This section extends to a requirement under this Part to state a person’s name and address.
10.36   Revocation or variation of notices
(1)  A notice given under this Part may be revoked or varied by a subsequent notice or notices.
(2)  A notice may be varied by modification of, or addition to, its terms and specifications.
(3)  Without limitation, a notice may be varied by extending the time for complying with the notice.