Federal Register of Legislation - Australian Government

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Act No. 166 of 1997 as made
An Act to provide for the administration of the Fuel Misuse (Penalty Surcharge) Act 1997, the Fuel Sale (Penalty Surcharge) Act 1997 and the Fuel Blending (Penalty Surcharge) Act 1997, and for related purposes
Originating Bill: Fuel (Penalty Surcharges) Administration Bill 1997
Date of Assent 11 Nov 1997
Date of repeal 01 Jul 2006
Repealed by Excise Laws Amendment (Fuel Tax Reform and Other Measures) Act 2006

 

 

 

 

Fuel (Penalty Surcharges) Administration Act 1997

 

No. 166, 1997

 

 

 

 

  

  

  


 

 

 

 

Fuel (Penalty Surcharges) Administration Act 1997

 

No. 166, 1997

 

 

 

 

An Act to provide for the administration of the Fuel Misuse (Penalty Surcharge) Act 1997, the Fuel Sale (Penalty Surcharge) Act 1997 and the Fuel Blending (Penalty Surcharge) Act 1997, and for related purposes

  

  

  


Contents

Part 1—Introduction                                                                                                             

1............ Short title............................................................................................

2............ Commencement..................................................................................

3............ Objects................................................................................................

4............ Definitions..........................................................................................

5............ Special meaning of entry for home consumption.................................

6............ Coverage of Act and binding of Crown..............................................

Part 2—Liability to pay penalty surcharge                                                              

7............ Purpose of Part...................................................................................

8............ When is penalty surcharge payable?..................................................

9............ Failure to pay penalty surcharge........................................................

Part 3—Record-keeping and notification obligations                                      

Division 1—Preliminary                                                                                           

10.......... Purpose of Part.................................................................................

11.......... Definitions........................................................................................

Division 2—Record-keeping obligations in relation to fuel                  

12.......... Record-keeping obligations of persons entering fuel........................

13.......... Record-keeping obligations of persons acquiring ownership or physical control of fuel                  

14.......... Record-keeping not required in relation to acquisition, storage, blending, use or disposal at less than threshold limit..........................................................................................................

15.......... Obligations concerning movement records and retention of other fuel records        

Division 3—Notification to accompany disposal                                          

16.......... Notification to be made at time of disposal......................................

17.......... Notification not required for disposals under threshold limit..........

18.......... Retention obligations for notification statements.............................

Division 4—Miscellaneous                                                                                     

19.......... Offence concerning false or misleading statements...........................

Part 4—Audit powers                                                                                                         

Division 1—Introduction                                                                                         

20.......... Purpose of Part.................................................................................

Division 2—Audit powers of authorised officers acting without warrant               

21.......... Authorised officers may request persons to answer questions etc..

22.......... Authorised officer may exercise certain powers by consent of occupier of premises                      

23.......... Authorised officer may exercise certain powers in relation to vehicles with consent of person in charge                 

24.......... Authorised officer may exercise certain powers in relation to vessels with consent of person in charge                  

25.......... Exercise of questioning powers and preliminary audit powers........

26.......... Preliminary audit powers.................................................................

Division 3—Monitoring warrants                                                                        

27.......... Issue of monitoring warrants............................................................

28.......... Monitoring powers...........................................................................

Division 4—Search warrants                                                                                  

29.......... Issue of search warrant.....................................................................

30.......... Things authorised by a search warrant.............................................

31.......... Use of equipment to examine or process things...............................

32.......... Use of electronic equipment at premises..........................................

Division 5—Rights and obligations relating to the obtaining and execution of warrants generally           

33.......... Warrants may be granted by telephone or other electronic means...

34.......... Announcement before entry.............................................................

35.......... Details of warrant to be given to occupier of premises....................

36.......... Availability of assistance, and use of force, in executing a warrant..

37.......... Occupier to provide executing officer with all reasonable facilities and assistance  

38.......... Offences............................................................................................

39.......... Compensation for damage to equipment or data..............................

40.......... Occupier entitled to be present during exercise of powers under a warrant            

41.......... Copies of seized things to be provided............................................

42.......... Retention of things that have been seized under this Act................

43.......... Disposal of things if owner cannot be located..................................

44.......... Release of things that have been seized............................................

45.......... Law relating to legal professional privilege not affected...................

46.......... CEO may give directions concerning exercise of powers under this Part                

47.......... Information or things may be made available to other agencies........

Part 5—Miscellaneous                                                                                                      

48.......... Persons not to remove or neutralise markers....................................

49.......... Conferral of functions on magistrate under this Act........................

50.......... Authorised officers...........................................................................

51.......... Identity cards....................................................................................

52.......... Application of the Criminal Code....................................................

53.......... Regulations.......................................................................................

 


Fuel (Penalty Surcharges) Administration Act 1997

No. 166, 1997

 

 

 

An Act to provide for the administration of the Fuel Misuse (Penalty Surcharge) Act 1997, the Fuel Sale (Penalty Surcharge) Act 1997 and the Fuel Blending (Penalty Surcharge) Act 1997, and for related purposes

[Assented to 11 November 1997]

The Parliament of Australia enacts:


 

Part 1Introduction

  

1  Short title

                   This Act may be cited as the Fuel (Penalty Surcharges) Administration Act 1997.

2  Commencement

                   This Act commences on the commencement of the Excise Tariff (Fuel Rates Amendments) Act 1997.

3  Objects

             (1)  This Act sets up an administrative scheme in relation to the collection of penalty surcharges imposed by the Fuel Misuse (Penalty Surcharge) Act 1997, the Fuel Sale (Penalty Surcharge) Act 1997 and the Fuel Blending (Penalty Surcharge) Act 1997.

             (2)  The object of this Act is, through the administrative scheme, and in conjunction with amendments made by the Customs Tariff (Fuel Rates Amendments) Act 1997, the Excise Tariff (Fuel Rates Amendment) Act 1997 and the Customs and Excise Legislation Amendment Act (No. 2) 1997, to make provision in relation to:

                     (a)  discouraging certain activities that result in a loss to the revenue in respect of customs and excise duties levied on certain petroleum products; and

                     (b)  where such activities have occurred—the capacity of the Commonwealth to collect penalty surcharges mentioned in subsection (1).

4  Definitions

             (1)  In this Act, unless the contrary intention appears:

acquisition, in relation to fuel, includes:

                     (a)  acquiring ownership of the fuel (whether by purchase, gift or operation of law and whether the person who acquires ownership of the fuel also acquires physical control of the fuel); and

                     (b)  acquiring physical control of the fuel (whether the person acquiring the physical control of the fuel also acquires ownership of the fuel).

Note:          The acquisition of physical control is limited by subsection (2).

Australia does not include an External Territory.

authorised officer, in relation to a particular provision of this Act, means an officer of Customs, or other person, appointed by the CEO under section 50 to be an authorised officer in respect of that provision.

blend, in relation to 2 or more amounts of fuel, means to combine these amounts, whether or not the resulting mixture is homogeneous.

Customs Act means the Customs Act 1901.

Customs Tariff means the Customs Tariff Act 1995.

disposal, in relation to fuel, includes:

                     (a)  sale or gift of the fuel (whether or not the person to whom the fuel is sold or given also acquires physical control of the fuel); and

                     (b)  passing physical control of the fuel to another person (whether or not the person to whom physical control passes also acquires ownership of the fuel); and

                     (c)  loss of the fuel.

evidential material means a thing that:

                     (a)  has been used or otherwise involved in the commission of an offence against this Act; or

                     (b)  will afford evidence of the commission of an offence against this Act.

Excise Act means the Excise Act 1901.

Excise Tariff means the Excise Tariff Act 1921.

executing officer, in relation to a monitoring warrant or a search warrant, means:

                     (a)  an authorised officer named in the warrant by the magistrate issuing it as being responsible for executing the warrant; or

                     (b)  if that authorised person does not intend to be present at the execution of the warrant—any authorised officer whose name has been written in the warrant by the authorised officer so named; or

                     (c)  another authorised officer whose name has been written in the warrant by the authorised officer last named in the warrant.

fuel means:

                     (a)  goods that have been entered for home consumption and that fall:

                              (i)  within a classification in subheading 2707, 2709 or 2710 of Schedule 3 to the Customs Tariff; or

                             (ii)  within a subitem of item 11 or within item 12 of the Schedule to the Excise Tariff; or

                     (b)  a blend of goods to which paragraph (a) applies; or

                     (c)  a blend of goods to which paragraph (a) applies and of goods comprising a blend created under paragraph (b).

                     (d)  a blend of goods to which paragraph (c) applies.

fuel record, in relation to a person dealing in fuel, means:

                     (a)  a type A record, a type B record or a type C record, within the meaning of section 11, that is required to be created by the person; or

                     (b)  a movement record, within the meaning of section 15, that is required to be carried by the person; or

                     (c)  a notification required to be retained by the person under section 18.

magistrate means a magistrate of a State or Territory.

marked fuel means fuel that contains at least the proportion of the marker that is prescribed for the purposes of this Act as indicating marked fuel.

marker means a chemical additive of a kind prescribed in regulations made under the Excise Tariff to be a fuel marker for the purposes of that Tariff.

monitoring warrant means a monitoring warrant issued under section 27.

movement record has the meaning given by subsection 15(2).

occupier, in relation to premises that are a vehicle or a vessel, means the person in charge of the vehicle or vessel.

person assisting, in relation to the executing officer of a monitoring warrant or a search warrant, means:

                     (a)  a person who is an authorised officer and who is assisting the executing officer in the execution of the warrant; or

                     (b)  a person who is not an authorised officer and who has been authorised by the CEO to assist the executing officer in executing the warrant.

person dealing in fuel means:

                     (a)  a person who is required to maintain a fuel record under Part 3; or

                     (b)  in the case of a person moving fuel from one place to another place in a vessel or vehicle—a person who is required to carry a fuel record on the vessel or vehicle under section 15.

premises means:

                     (a)  in relation to Division 2 of Part 4:

                              (i)  an area of land or any other place, whether or not it is enclosed or built on; or

                             (ii)  a building, wharf or other structure;

                            and includes a part of any such premises; and

                     (b)  in relation to other provisions of this Act:

                              (i)  an area of land or any other place, whether or not it is enclosed or built on; or

                             (ii)  a building, wharf or other structure; or

                            (iii)  a vessel or vehicle;

                            and includes a part of any such premises.

search warrant means a search warrant issued under section 29.

seize includes secure against interference.

Territory does not include an External Territory.

thing includes substance.

this Act includes the regulations made under this Act.

unmarked fuel means fuel that does not contain at least the proportion of the marker that is prescribed for the purposes of this Act as indicating marked fuel.

use, in relation to fuel, does not include blending that fuel with other fuel.

vehicle includes a hovercraft, railway rolling stock or the trailer of a road vehicle.

vessel means a ship, boat, raft or pontoon or any other thing capable of carrying persons or goods through water, but does not include a hovercraft.

warrant premises, in relation to a monitoring warrant or search warrant, means the premises to which the warrant relates.

             (2)  For the purposes of this Act, a person is not taken to have acquired physical control of fuel if the person merely has charge of the fuel in the person’s capacity as an employee of another person who owns the fuel.

             (3)  Expressions used in this Act that are defined for the purposes of the Customs Act have the same meaning as in the Customs Act.

             (4)  Expressions used in this Act that are defined for the purposes of the Excise Act (other than expressions that are also defined for the purposes of the Customs Act) have the same meaning as in the Excise Act.

5  Special meaning of entry for home consumption

                   In spite of subsections 4(3) and (4) of this Act, fuel is entered for home consumption when:

                     (a)  the entry of the fuel (other than fuel to which paragraph (b) or (c) applies) for home consumption under section 71A of the Customs Act is communicated to Customs within the meaning of the Customs Act; or

                     (b)  the fuel is delivered into home consumption in accordance with a permission granted under section 69 of the Customs Act; or

                     (c)  the fuel is taken into home consumption in accordance with a permission granted under section 77D of the Customs Act; or

                     (d)  the entry of the fuel (other than fuel to which paragraph (e) applies) for home consumption under section 58 of the Excise Act is lodged under this Act; or

                     (e)  the fuel is delivered for home consumption in accordance with a permission given under section 61C of the Excise Act.

6  Coverage of Act and binding of Crown

             (1)  This Act does not extend to any of the External Territories.

             (2)  This Act binds the Crown in all of its capacities other than the Crown in right of Norfolk Island.

             (3)  This Act does not make the Crown liable to be prosecuted for an offence.


 

Part 2Liability to pay penalty surcharge

  

7  Purpose of Part

                   The purpose of this Part is to provide for the payment of penalty surcharge for which a person has become liable under the Fuel Misuse (Penalty Surcharge) Act 1997, the Fuel Sale (Penalty Surcharge) Act 1997 or the Fuel Blending (Penalty Surcharge) Act 1997, and, in circumstances where a person fails to pay that surcharge, to provide for penalties in respect of that failure.

8  When is penalty surcharge payable?

             (1)  Penalty surcharge imposed on a person under the Fuel Misuse (Penalty Surcharge) Act 1997 in respect of the use of marked fuel in an internal combustion engine is payable by the person before that use.

             (2)  Penalty surcharge imposed on a person under the Fuel Sale (Penalty Surcharge) Act 1997 in respect of the sale of fuel for use in an internal combustion engine is payable by the person before that sale.

             (3)  Penalty surcharge imposed on a person under the Fuel Blending (Penalty Surcharge) Act 1997 in respect of the blending of marked and unmarked fuel is payable by the person before that blending.

9  Failure to pay penalty surcharge

             (1)  A person is guilty of an offence if:

                     (a)  the person is liable to pay penalty surcharge under subsection 8(2); and

                     (b)  the person fails, before the event specified in that subsection, to pay the penalty surcharge.

Penalty:  A fine equal to 5 times the amount of the penalty surcharge or 500 penalty units, whichever is the greater.

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

             (2)  A person is guilty of an offence if:

                     (a)  the person is liable to pay penalty surcharge under subsection 8(2); and

                     (b)  the person fails, before the event specified in that subsection, to pay the penalty surcharge.

Penalty:  A fine equal to the amount of the penalty surcharge or 100 penalty units, whichever is the greater.

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

             (3)  Strict liability applies to subsection (2).

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

             (4)  A person is guilty of an offence if:

                     (a)  the person is liable to pay penalty surcharge under subsection 8(1) in a circumstance other than the circumstance set out in paragraph (7)(b); and

                     (b)  the person fails, before the event specified in subsection 8(1), to pay the penalty surcharge.

Penalty:  A fine equal to 5 times the amount of the penalty surcharge or 500 penalty units, whichever is the greater.

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

             (5)  A person is guilty of an offence if:

                     (a)  the person is liable to pay penalty surcharge under subsection 8(1) in a circumstance other than the circumstance set out in paragraph (7)(b); and

                     (b)  the person fails, before the event specified in subsection 8(1), to pay the penalty surcharge.

Penalty:  A fine equal to the amount of the penalty surcharge or 100 penalty units, whichever is the greater.

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

             (6)  Strict liability applies to subsection (5).

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

             (7)  A person is guilty of an offence if:

                     (a)  the person is liable to pay penalty surcharge under subsection 8(1); and

                     (b)  that liability arises because of the person’s use of the fuel in an internal combustion engine of a vessel or vehicle having a fuel tank with a capacity that does not exceed 120 litres or such greater capacity as the regulations prescribe; and

                     (c)  the person fails, before the event specified in subsection 8(1), to pay the penalty surcharge.

Penalty:  2 penalty units.

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

             (8)  A person is guilty of an offence if:

                     (a)  the person is liable to pay penalty surcharge under subsection 8(3) in a circumstance other than the circumstance set out in paragraph (11)(b); and

                     (b)  the person fails, before the event specified in subsection 8(3), to pay the penalty surcharge.

Penalty:  A fine equal to 5 times the amount of the penalty surcharge or 500 penalty units, whichever is the greater.

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

             (9)  A person is guilty of an offence if:

                     (a)  the person is liable to pay penalty surcharge under subsection 8(3) in a circumstance other than the circumstance set out in paragraph (11)(b); and

                     (b)  the person fails, before the event specified in subsection 8(3), to pay the penalty surcharge.

Penalty:  A fine equal to the amount of the penalty surcharge or 100 penalty units, whichever is the greater.

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

           (10)  Strict liability applies to subsection (9).

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

           (11)  A person is guilty of an offence if:

                     (a)  the person is liable to pay penalty surcharge under subsection 8(3); and

                     (b)  that liability arises because the person blends fuel in the tank of a vessel or vehicle powered by an internal combustion engine where that tank has a capacity that does not exceed 120 litres or such greater capacity as the regulations prescribe; and

                     (c)  the person fails, before the event specified in subsection 8(3), to pay the penalty surcharge.

Penalty:  2 penalty units.

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

           (12)  If a person is convicted of an offence against subsection (1), (2), (4), (5), (7), (8), (9) or (11), the court may, in addition to imposing a penalty under that subsection, order the person to pay to the Commonwealth the amount of the penalty surcharge not paid by the person.


 

Part 3Record-keeping and notification obligations

Division 1Preliminary

10  Purpose of Part

             (1)  This Part deals generally with the obligation of certain persons who enter fuel for home consumption, and of certain persons who subsequently acquire ownership, or physical control, of some or all of that fuel:

                     (a)  to create and maintain records in relation to the entry or acquisition of that fuel, its storage and its use, blending or disposal; and

                     (b)  in relation to so much of that fuel as is disposed of to another person—to notify the person to whom it is disposed of whether the fuel is marked fuel or unmarked fuel.

             (2)  This Part also deals with the obligations of persons who have charge of fuel in vessels or vehicles for movement purposes to carry records relating to the movement of that fuel while the fuel is in transit from one place to another.

11  Definitions

                   In this Part:

type A record, in relation to fuel, means a record containing the prescribed particulars in relation to:

                     (a)  the entry of that fuel for home consumption; or

                     (b)  the acquisition, by purchase, gift, operation of law or any other means, of ownership of the fuel from another person (whether or not the person acquiring ownership of the fuel also has physical control of the fuel); or

                     (c)  the acquisition of physical control of that fuel from another person (whether or not the person acquiring physical control of the fuel also acquires the ownership of the fuel).

type B record, in relation to fuel, means a record containing the prescribed particulars in relation to the storage of the fuel by a person having ownership or physical control of the fuel.

type C record, in relation to fuel, means a record containing the prescribed particulars in relation to:

                     (a)  the use of the fuel; or

                     (b)  the blending of that fuel with other fuel; or

                     (c)  the disposal of the fuel;

by a person by whom, or for whom, the fuel was entered for home consumption, or who has subsequently acquired the ownership or physical control of the fuel.


 

Division 2Record-keeping obligations in relation to fuel

12  Record-keeping obligations of persons entering fuel

             (1)  A person is guilty of an offence if:

                     (a)  the person enters goods for home consumption that, upon their entry, will be fuel for the purposes of this Act; and

                     (b)  the person fails, at or before the time of that entry, to create a type A record in relation to the entry of that fuel.

Penalty:  10 penalty units.

             (2)  A person is guilty of an offence if:

                     (a)  the person enters goods for home consumption that, upon their entry, will be fuel for the purposes of this Act; and

                     (b)  the person subsequently stores some or all of that fuel; and

                     (c)  the person fails, at the time of so storing the fuel, to create a type B record in relation to the storage of the fuel so stored.

Penalty:  10 penalty units.

             (3)  For the purposes of subsection (2), storage of fuel does not include having charge of the fuel in a vessel or vehicle for the purpose of moving the fuel from one place to another.

             (4)  A person is guilty of an offence if:

                     (a)  the person enters goods for home consumption that, upon their entry, will be fuel for the purposes of this Act; and

                     (b)  the person subsequently uses, blends or disposes of some or all of that fuel; and

                     (c)  the person fails, at the time of so using, blending or disposing of the fuel, to create a type C record in relation to the use, blending or disposal of the fuel so used, blended or disposed of.

Penalty:  10 penalty units.

             (5)  A person who enters goods for home consumption that, upon their entry, will be fuel for the purposes of this Act may, if the person disposes of some or all of the fuel by transferring ownership or physical control to another person, give a copy of the type C record relating to the fuel so disposed of to the person who acquires ownership or physical control of that fuel.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility applying in respect of all offences set out in subsections (1), (2) and (4).

13  Record-keeping obligations of persons acquiring ownership or physical control of fuel

             (1)  For the purposes of this section, a person is not to be taken to acquire physical control of fuel if the person has taken charge of the fuel solely for the purpose of transporting it from one place to another place (whether or not the person is an employee of the owner of the fuel).

             (2)  A person is guilty of an offence if:

                     (a)  the person acquires ownership or physical control of fuel; and

                     (b)  the person fails, at the time when the fuel enters the person’s ownership or physical control, to create a type A record in relation to the acquisition of ownership or physical control of the fuel.

Penalty:  10 penalty units.

             (3)  Without limiting the manner in which a type A record can be created, if:

                     (a)  a person (the acquirer) acquires ownership or physical control of fuel; and

                     (b)  the acquirer is given a copy of the type C record of the disposal of that fuel to the acquirer; and

                     (c)  the acquirer signs the copy or the copy bears an imprint of the acquirer’s signature;

that copy of the type C record may, at the discretion of the acquirer, be treated for all purposes as the acquirer’s type A record created in relation to that fuel.

             (4)  A person is guilty of an offence if:

                     (a)  the person acquires ownership or physical control of fuel; and

                     (b)  the person subsequently stores some or all of that fuel; and

                     (c)  the person fails, at the time of so storing the fuel, to create a type B record in relation to the storage of the fuel so stored.

Penalty:  10 penalty units.

             (5)  For the purposes of subsection (4), storage of fuel does not include having charge of the fuel in a vessel or vehicle for the purpose of moving the fuel from one place to another.

             (6)  A person is guilty of an offence if:

                     (a)  the person acquires ownership or physical control of fuel; and

                     (b)  the person subsequently uses, blends or disposes of some or all of that fuel; and

                     (c)  the person fails, at the time of so using, blending or disposing of the fuel, to create a type C record in relation to the use, blending or disposal of the fuel so used, blended or disposed of.

Penalty:  10 penalty units.

             (7)  A person who acquires ownership or physical control of fuel may, if the person disposes of some or all of the fuel by transferring ownership or physical control of that fuel to another person, give a copy of the type C record relating to that fuel so disposed of to the person who acquires ownership or physical control of the fuel.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility applying in respect of all offences set out in subsections (2), (4) and (6).

14  Record-keeping not required in relation to acquisition, storage, blending, use or disposal at less than threshold limit

             (1)  Nothing in this Division requires the creation of:

                     (a)  a type A record in relation to the acquisition of ownership or physical control of fuel by a person if the fuel is acquired in an amount, or in an amount in a particular circumstance, for which, under the regulations, no record is required; or

                     (b)  a type B record in relation to the storage of fuel if the fuel is stored in an amount, or in an amount in a particular circumstance, for which, under the regulations, no record is required; or

                     (c)  a type C record in relation to the use of fuel by a person if the fuel is used in an amount, or in an amount in a particular circumstance, for which, under the regulations, no record is required; or

                     (d)  a type C record in relation to the blending of fuel by a person if the blended fuel is of an amount, or the blended fuel is of an amount and is blended in a particular circumstance, for which, under the regulations, no record is required; or

                     (e)  a type C record in relation to the disposal of fuel by a person if the fuel is disposed of in an amount, or in an amount in a particular circumstance, for which, under the regulations, no record is required.

             (2)  Regulations made for the purposes of a paragraph of subsection (1) may provide for different amounts in different circumstances.

15  Obligations concerning movement records and retention of other fuel records

             (1)  A person is guilty of an offence if:

                     (a)  the person has charge of fuel in a vessel or vehicle for the purpose of moving the fuel from one place to another (whether or not that person has acquired physical control of the fuel for the purposes of this Act); and

                     (b)  the person moves the fuel in that vessel or vehicle; and

                     (c)  while the fuel is being so moved, the person fails to carry on the vessel or vehicle in which the fuel is moved a movement record in respect of the fuel created by that person, or if that person is an employee, created by, or for, that person’s employer.

Penalty:  10 Penalty units.

             (2)  For the purposes of subsection (1), movement record, in relation to fuel, means a record or records containing particulars in relation to:

                     (a)  the amount of fuel being transported; and

                     (b)  whether that fuel is marked fuel or unmarked fuel; and

                     (c)  the place from which, and the place to which, the fuel is moved; and

                     (d)  the ownership of the fuel.

For the purposes of this Act, a movement record may be constituted by commercial documents or a type A, B or C record that contains the requisite particulars, or a combination of any such documents or records.

             (3)  Subsection (1) does not apply to movement of fuel if the fuel is of an amount, or is of an amount and moved in particular circumstances, for which, under the regulations, no movement record is required.

             (4)  A person is guilty of an offence if:

                     (a)  the person is required at any time, under section 12 or 13, to create a fuel record in respect of particular fuel; and

                     (b)  the person creates that record; and

                     (c)  the person fails to retain that record for 5 years.

Penalty:  10 penalty units.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility applying in respect of the offences under this section.


 

Division 3Notification to accompany disposal

16  Notification to be made at time of disposal

             (1)  A person is guilty of an offence if:

                     (a)  the person disposes of the ownership of fuel to another person (whether or not physical control of the fuel passes to that other person); and

                     (b)  the first-mentioned person fails to provide a written statement to that other person indicating whether the fuel is marked fuel or unmarked fuel.

Penalty:  10 penalty units.

Note:          A failure to provide a written statement as required by this subsection may lead to a penalty surcharge liability under the Fuel Sale (Penalty Surcharge) Act 1997.

             (2)  A person is guilty of an offence if:

                     (a)  the person has physical control of fuel; and

                     (b)  the person allows another person to take physical control of that fuel; and

                     (c)  the first-mentioned person fails, at the time of allowing physical control to pass to that other person, to give the other person a written statement indicating whether the fuel is marked fuel or unmarked fuel.

Penalty:  10 penalty units.

             (3)  For the purposes of subsection (2), a person is not to be taken to have physical control of fuel if the person has charge of the fuel solely for the purposes of moving the fuel from one place to another place (whether or not the person is an employee of the owner of the fuel).

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility applying in respect of the offences set out in subsections (1) and (2).

17  Notification not required for disposals under threshold limit

             (1)  Nothing in this Division requires a person to notify another person to whom the ownership or physical control of fuel is transferred if the fuel so transferred is of an amount, or is of an amount and is transferred in a particular circumstance, for which, under the regulations, no notification is required.

             (2)  Regulations made for the purposes of subsection (1) may provide for different amounts in different circumstances.

18  Retention obligations for notification statements

             (1)  A person is guilty of an offence if:

                     (a)  the person provides a notification indicating that particular fuel is marked fuel or unmarked fuel; and

                     (b)  the person fails to retain a copy of that notification for 5 years after it is provided.

Penalty:  10 penalty units.

             (2)  A person is guilty of an offence if:

                     (a)  the person is provided with a notification indicating that particular fuel is marked fuel or unmarked fuel; and

                     (b)  the person fails to retain that notification for 5 years after it is provided.

Penalty:  10 penalty units.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility applying in respect of the offences set out in subsections (1) and (2).


 

Division 4Miscellaneous

19  Offence concerning false or misleading statements

                   A person is guilty of an offence if:

                     (a)  the person includes in a fuel record a statement that is false or misleading in a material particular; or

                     (b)  the person carries on a vessel or vehicle a movement record that the person knows to be false or misleading in a material particular.

Penalty:  10 penalty units.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility applying in respect of an offence under this section.


 

Part 4Audit powers

Division 1Introduction

20  Purpose of Part

                   The purpose of this Part is to make provisions for and in relation to the audit procedures in order to:

                     (a)  ensure compliance with this Act; and

                     (b)  obtain evidential material concerning any offence against this Act.


 

Division 2Audit powers of authorised officers acting without warrant

21  Authorised officers may request persons to answer questions etc.

                   If an authorised officer has reasonable grounds to believe that a person is a person dealing in fuel, the authorised officer may, with the consent of the person, request the person:

                     (a)  to answer any question in relation to the fuel that is put to the person by the authorised officer; and

                     (b)  to produce to the authorised officer any fuel record that is required to be maintained or carried by the person in relation to the fuel.

22  Authorised officer may exercise certain powers by consent of occupier of premises

             (1)  If an authorised officer has reasonable grounds to believe that there is, at any premises, a quantity of fuel, or a fuel storage facility, that exceeds a limit prescribed by the regulations for the purposes of this section, the authorised officer may enter the premises and exercise all or any of the preliminary audit powers set out in section 26.

             (2)  An authorised officer may not, under subsection (1), enter any premises unless the occupier of the premises, or another person apparently representing the occupier, has consented to the entry.

             (3)  An authorised officer may not remain on any premises if the occupier of the premises, or another person apparently representing the occupier, requests the officer to leave.

23  Authorised officer may exercise certain powers in relation to vehicles with consent of person in charge

             (1)  If an authorised officer has reasonable grounds to believe:

                     (a)  that a vehicle is being used for the transportation of a quantity of fuel that exceeds 1,000 litres; or

                     (b)  that a vehicle is capable of carrying more than 1,000 litres of fuel;

the authorised officer may:

                     (c)  stop the vehicle; and

                     (d)  with the consent of the person in charge, or apparently in charge, of the vehicle, board the vehicle and exercise all or any of the preliminary audit powers set out in section 26.

             (2)  An authorised officer may not continue to detain a vehicle, or remain on board a vehicle, if the person in charge, or apparently in charge, of the vehicle requests the officer to discontinue the exercise of his or her powers.

24  Authorised officer may exercise certain powers in relation to vessels with consent of person in charge

             (1)  If an authorised officer has reasonable grounds to believe:

                     (a)  that a vessel is being used for the transportation of fuel between places within Australia; or

                     (b)  that a vessel is capable of carrying more than 1,000 litres of fuel;

the authorised officer may:

                     (c)  stop the vessel; and

                     (d)  with the consent of the person in charge, or apparently in charge, of the vessel—board the vessel and exercise all or any of the preliminary audit powers set out in section 26.

             (2)  An authorised officer may not continue to detain a vessel, or remain on board a vessel, if the person apparently in charge of the vessel requests the officer to discontinue the exercise of his or her powers.

25  Exercise of questioning powers and preliminary audit powers

             (1)  An authorised person is not entitled:

                     (a)  to ask questions of a person, or request a person to produce fuel records, under section 21; or

                     (b)  to enter premises under section 22 and to exercise preliminary audit powers on those premises; or

                     (c)  to stop and board a vehicle under section 23 and to exercise preliminary audit powers in relation to that vehicle; or

                     (d)  to stop and board a vessel under section 24 and to exercise preliminary audit powers in relation to that vessel;

unless the authorised officer produces his or her identity card to the person referred to in paragraph (a) to the occupier or other person apparently representing the occupier of the premises, or to the person in charge, or apparently in charge, of the vehicle or vessel, as the case requires.

             (2)  Before obtaining the consent of a person for the purposes of this section, the authorised officer must inform the person that he or she may refuse to give consent.

             (3)  The entry of premises, the boarding of a vehicle or vessel, and the exercise of preliminary audit powers on those premises or that vehicle or vessel by an authorised officer by virtue of the consent of a person is not lawful unless the person voluntarily consented to the entry or boarding, and to the exercise of those powers.

26  Preliminary audit powers

                   In this Division, preliminary audit powers means:

                     (a)  examining any fuel records produced in accordance with section 21; or

                     (b)  examining any facility that is, or might be, used for the storage of fuel at the premises concerned in a quantity exceeding the limit prescribed for the purposes of section 22; or

                     (c)  so far as section 22 is concerned—examining any vessel or vehicle or plant, found at the premises concerned, for the operation of which fuel is required; or

                     (d)  as far as section 23 is concerned—examining fuel that is being transported by the vehicle concerned; or

                     (e)  so far as section 24 is concerned—examining fuel that is being transported by the vessel concerned; or

                      (f)  taking samples of any fuel found in such a receptacle, vehicle, vessel or plant.


 

Division 3Monitoring warrants

27  Issue of monitoring warrants

             (1)  An authorised officer may apply to a magistrate for a monitoring warrant in relation to particular premises.

             (2)  Subject to subsection (3), the magistrate may issue the monitoring warrant if satisfied, by information on oath or affirmation, that it is reasonably necessary that the authorised officer should have access to the premises for the purpose of finding out whether this Act has been, or is being, complied with.

             (3)  The magistrate must not issue the warrant unless the authorised officer or someone else has given the magistrate, either orally (on oath or affirmation) or by affidavit, any further information the magistrate may require about the grounds on which the issue of the warrant is being sought.

             (4)  The warrant must:

                     (a)  state the purpose for which the warrant is issued; and

                     (b)  identify the premises to which the warrant relates; and

                     (c)  name the authorised officer who is to be responsible for executing the warrant; and

                     (d)  authorise the executing officer and any person assisting that officer, using such force as is necessary and reasonable, from time to time while the warrant remains in force, to enter the premises and exercise monitoring powers referred to in section 28; and

                     (e)  if the premises identified in the warrant comprise or contain a vessel or vehicle—authorise the executing officer and any person assisting that officer to stop the vessel or vehicle (where necessary) for the purpose of boarding it and exercising monitoring powers in relation to it as premises identified in the warrant or as a part of such premises; and

                      (f)  state whether an entry under the warrant is authorised to be made at any time of the day or night or during specified hours of the day or night; and

                     (g)  specify the day (not more than 6 months after the issue of the warrant) on which the warrant ceases to have effect.

             (5)  A magistrate of a particular State or Territory may issue a monitoring warrant in respect of premises in another State or Territory.

28  Monitoring powers

             (1)  In this Division, monitoring powers, in relation to a monitoring warrant, means:

                     (a)  in relation to particular warrant premises—the following powers:

                              (i)  to search the premises; and

                             (ii)  to take photographs (including video recordings) of the premises or any thing at the premises that the executing officer or person assisting that officer believes on reasonable grounds to be evidential material; and

                            (iii)  to inspect, examine and take samples of, any fuel or other substance on the premises; and

                            (iv)  to examine anything on or in the premises where fuel is stored or consumed, (for example, machinery on the premises); and

                             (v)  to take extracts from, or make copies of, any fuel record, or any other document apparently relating to fuel, that is found on the premises; and

                            (vi)  to take onto the premises any equipment or material reasonably necessary for the purpose of exercising a power under subparagraph (i), (ii), (iii), (iv) or (v); and

                     (b)  in relation to any fuel record, or any other document apparently relating to fuel, that is found on the premises—the powers described in subsections (2) and (3); and

                     (c)  in relation to any thing found on the premises during the execution of the warrant that the executing officer or a person assisting that officer believes on reasonable grounds to be evidential material in relation to the commission of an offence against this Act—the power to seize the thing if the officer or person 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.

             (2)  The executing officer or a person assisting that officer has power to operate equipment on the warrant premises to see whether:

                     (a)  the equipment; or

                     (b)  a disk, tape or other storage device that:

                              (i)  is on the premises; and

                             (ii)  can be used with or is associated with the equipment;

contains information that is relevant to determining whether the Act has been, or is being, complied with.

             (3)  If the executing officer, or a person assisting that officer, after operating equipment at the premises, finds that the equipment, or that a disk, tape or other storage device on the premises, contains such information, he or she has power:

                     (a)  to operate the equipment or other facilities to put the information in documentary form and copy the documents so produced; or

                     (b)  if the information 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;

to operate the equipment or other facilities to copy the information to the storage device and remove the storage device from the premises.


 

Division 4Search warrants

29  Issue of search warrant

             (1)  An authorised officer may apply to a magistrate for a search warrant in relation to particular premises.

             (2)  Subject to subsection (3), a magistrate may issue the warrant if satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material on the premises.

             (3)  A magistrate must not issue the warrant unless the authorised officer or someone else has given the magistrate, either orally (on oath or affirmation) or by affidavit, any further information the magistrate may require about the grounds on which the issue of the search warrant is being sought.

             (4)  If a magistrate issues a warrant, the magistrate must state in the warrant:

                     (a)  the offence to which the warrant relates; and

                     (b)  a description of the warrant premises; and

                     (c)  the kind of evidential material that is to be searched for under this warrant; and

                     (d)  the name of the authorised officer 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; and

                     (g)  that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (c)) found at the premises in the course of the search that the executing officer or a person assisting that officer 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;

                            if the officer or person 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.

             (5)  Paragraph (4)(e) does not prevent the issue of successive warrants in relation to the same premises.

             (6)  If the application for the warrant is made under section 33, this section applies as if:

                     (a)  subsection (2) refers to 48 hours rather than 72 hours; and

                     (b)  paragraph (4)(e) refers to 48 hours rather than 7 days.

             (7)  A magistrate of a particular State or Territory may issue a search warrant in respect of a particular premises in another State or Territory.

30  Things authorised by a search warrant

                   A search warrant authorises the executing officer and any person assisting that officer:

                     (a)  to enter the warrant premises; and

                     (b)  if the warrant premises comprise or contain a vessel or vehicle—to stop the vessel or vehicle (where necessary) and to board it and exercise the powers referred to in paragraphs (c) to (f) as powers relating to it as warrant premises or as a part of warrant premises; and

                     (c)  to search the warrant premises for the evidential material of the kind stated in the warrant; and

                     (d)  to take photographs (including video recordings) of the warrant premises and any thing found at the premises that the officer or person assisting believes on reasonable grounds to be evidential material of that kind; and

                     (e)  to seize the thing believed to be the evidential material in relation to the offence to which the warrant relates; and

                      (f)  to seize another thing found on the warrant premises in the course of the search that the officer or person 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;

                            if the officer or person 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.

31  Use of equipment to examine or process things

             (1)  An executing officer or a person assisting that officer may bring to any warrant premises any equipment reasonably necessary for the examination or processing of things found on 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 on the warrant premises; or

                     (b)  the occupier of the premises consents in writing;

the things may be removed 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 search warrant.

             (3)  If things are removed to another place for examination or processing under subsection (2), the executing officer or a person assisting that officer 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 officer or a person assisting that officer may operate equipment already on the warrant premises to carry out the examination or processing of a thing found on the premises in order to determine whether it is a thing that may be seized under the search warrant if the officer or person 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.

32  Use of electronic equipment at premises

             (1)  The executing officer or a person assisting that officer may operate electronic equipment on the warrant premises to see whether evidential material is accessible by doing so if the officer or person assisting believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.

             (2)  If the executing officer or a person assisting that officer, after operating the equipment, finds that evidential material is accessible by doing so, the officer or person assisting may:

                     (a)  seize the equipment and any disk, tape or other associated device; or

                     (b)  if the material can, by using facilities on 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 warrant premises; or

                             (ii)  is on the warrant 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.

             (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 against this Act.

             (4)  If the executing officer or a person assisting that officer believes on reasonable grounds that:

                     (a)  evidential material may be accessible by operating electronic equipment on the warrant 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.

             (5)  The executing officer or a person assisting that officer must give notice to the occupier of the premises of his or her intention to seize equipment and of the fact that the equipment may be secured for up to 24 hours.

             (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.

             (7)  If the executing officer or a person assisting that officer 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 order for an extension of that period.

             (8)  The executing officer or a person assisting that officer 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.

             (9)  The provision of this Part relating to the issue of warrants apply, with such modifications as are necessary to the issue of an extension.


 

Division 5Rights and obligations relating to the obtaining and execution of warrants generally

33  Warrants may be granted by telephone or other electronic means

             (1)  An authorised officer may make an application to a magistrate for a monitoring warrant or a search 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.

             (2)  The magistrate may require communication by voice to the extent that is practicable in the circumstances.

             (3)  An application under this section must include all information required to be provided in an ordinary application for a monitoring warrant or a search warrant, as the case requires, but the application may, if necessary, be made before the information is sworn.

             (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 27 or 29, as the case requires.

             (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.

             (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.

             (7)  The applicant must, not later than the day after:

                     (a)  the day of expiry of the warrant; or

                     (b)  the day on which the warrant was executed or, in the case of a monitoring warrant, first 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.

             (8)  The magistrate is to attach to the documents provided under subsection (7) the form of warrant completed by the magistrate.

             (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.

34  Announcement before entry

             (1)  Before any person proposes to enter premises under a monitoring warrant or a search warrant, the executing officer must:

                     (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)  The executing officer 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 authorised officer); or

                     (b)  in the case of a search warrant—that the effective execution of the warrant is not frustrated.

35  Details of warrant to be given to occupier of premises

             (1)  If:

                     (a)  a monitoring warrant or a search warrant in relation to premises is being executed; and

                     (b)  a person who is the occupier of the premises or another person who apparently represents the occupier is present at the premises;

the executing officer:

                     (c)  must identify himself or herself to the person by producing his or her identity card; and

                     (d)  make available to that person a copy of the warrant.

             (2)  The copy of the warrant need not include the signature of the magistrate or the seal of the relevant court.

36  Availability of assistance, and use of force, in executing a warrant

In executing a monitoring warrant or search warrant:

                     (a)  the executing officer may obtain such assistance; and

                     (b)  the executing officer or a person assisting that officer may use such force against persons and things;

as is necessary and reasonable in the circumstances.

37  Occupier to provide executing officer with all reasonable facilities and assistance

                   The occupier or a person apparently acting on behalf of the occupier of premises to which a monitoring warrant or a search warrant relates must provide the executing officer in relation to that warrant and any person assisting that officer with all reasonable facilities and assistance for the effective exercise of their powers.

Penalty:  10 penalty units.

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

38  Offences

             (1)  The executing officer who is on premises that he or she has entered under a monitoring warrant or a search warrant may require an occupier of the premises:

                     (a)  to answer any questions put by the executing officer; and

                     (b)  to provide, at a time and place convenient to the executing officer, any fuel record required to be maintained by the person that is requested by the executing officer; and

                     (c)  if the warrant premises are a vessel or vehicle that is transporting fuel from one place to another—to provide to the executing officer any fuel record required to be carried by the occupier.

             (2)  A person is guilty of an offence if the person fails to comply with a requirement under subsection (1).

Penalty:  10 penalty units.

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

39  Compensation for damage to equipment or data

             (1)  If:

                     (a)  damage is caused to equipment as a result of it being operated as mentioned in section 28, 31 or 32; or

                     (b)  the data recorded on the equipment is damaged or programs associated with its use are damaged or corrupted;

because:

                     (c)  insufficient care was exercised in selecting the person who was to operate the equipment; or

                     (d)  insufficient care was exercised by the person operating the equipment;

compensation for the damage or corruption is payable to the owner of the equipment or the user of the data or programs concerned.

             (2)  For the purposes of subsection (1), damage to data includes damage by erasure of data or addition of other data.

             (3)  Compensation is payable out of money appropriated by the Parliament for the purpose.

             (4)  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.

40  Occupier entitled to be present during exercise of powers under a warrant

             (1)  If:

                     (a)  a monitoring warrant or a search warrant in relation to premises is being executed; and

                     (b)  a person who is the occupier of the premises or another person who apparently represents the occupier is present at the premises;

then the person is entitled to observe the exercise of powers under the warrant.

             (2)  The right to observe the exercise of powers ceases if the person impedes the exercise of those powers.

             (3)  This section does not prevent the exercise of powers under the warrant in 2 or more areas of the premises at the same time.

41  Copies of seized things to be provided

             (1)  Subject to subsection (2), if the executing officer in relation to a monitoring warrant or a search warrant or a person assisting that officer seizes, under the warrant:

                     (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 officer or person must 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 32(2)(b) or (c); or

                     (b)  possession of the thing by the occupier could constitute an offence against this Act.

42  Retention of things that have been seized under this Act

             (1)  A thing seized under this Act may be retained until:

                     (a)  the end of the period of 120 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 have been instituted within that period; and

                             (ii)  the thing may have been used or otherwise involved in the commission of the offence;

                            the proceedings (including any appeal to a court in relation to those proceedings) are terminated.

             (2)  An authorised officer may apply to a magistrate for an extension of the period during which the officer is entitled to retain the thing.

             (3)  If the magistrate is satisfied that the retention of the thing for an extended period is warranted, the magistrate may make an order extending the period during which the thing may be retained.

             (4)  Subsection (3) does not prevent a magistrate from granting 2 or more successive extensions under that subsection of the period during which a particular thing may be retained.

43  Disposal of things if owner cannot be located

                   If:

                     (a)  things are seized under this Act; and

                     (b)  apart from this section, the Commonwealth is required to return the things to the owner of the things; and

                     (c)  the CEO cannot, despite making reasonable efforts, locate the owner;

the CEO may dispose of the things in such manner as the CEO thinks appropriate.

44  Release of things that have been seized

                   The CEO may authorise:

                     (a)  things seized under this Act; or

                     (b)  anything in, on or attached to the things;

to be released to their owner, or to the person from whose possession they were seized, either:

                     (c)  unconditionally; or

                     (d)  on such condition as the CEO thinks fit.

45  Law relating to legal professional privilege not affected

                   Divisions 3, 4 and 5 do not affect the law relating to legal professional privilege.

46  CEO may give directions concerning exercise of powers under this Part

             (1)  The CEO may give directions in writing under this subsection concerning:

                     (a)  the circumstances in which the powers in this Part may be exercised; and

                     (b)  the officers of Customs who are entitled to exercise those powers; and

                     (c)  the manner and frequency of reporting to the CEO concerning the exercise of those powers.

             (2)  A direction given for the purposes of subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

47  Information or things may be made available to other agencies

                   An authorised officer may make information or a thing obtained under this Part available to officers of other agencies if it is necessary to do so for the purpose of enabling the agency to investigate or prosecute an offence to which the information or thing relates.


 

Part 5Miscellaneous

  

48  Persons not to remove or neutralise markers

             (1)  A person is guilty of an offence if the person removes a marker from, or neutralises the presence of a marker in, fuel.

Penalty:  10 times the amount of excise duty applicable to the fuel if it were entered under the Excise Act as unmarked fuel of a kind classified to subparagraph 11(C)(2)(a) of the Schedule to the Excise Tariff or 500 penalty units, whichever is the greater.

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

             (2)  A person is guilty of an offence if the person removes a marker from, or neutralises the presence of a marker in, fuel.

Penalty:  2 times the amount of excise duty applicable to the fuel if it were entered under the Excise Act as unmarked fuel of a kind classified to subparagraph 11(C)(2)(a) of the Schedule to the Excise Tariff or 100 penalty units, whichever is the greater.

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

             (3)  Strict liability applies to subsection (2).

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

49  Conferral of functions on magistrate under this Act

             (1)  A conferral of functions on a magistrate under section 27, 29, 32, 33 or 42 (a specified provision) is a conferral on the magistrate in the personal capacity of the magistrate and not as a court or a member of a court and does not impose an obligation on the magistrate to perform the functions.

             (2)  Without limiting subsection (1), a warrant issued, or an order made, by a magistrate under any of the specified provisions has effect only by virtue of this Act and is not taken, by implication, to be made by a court.

             (3)  A magistrate performing a function connected with the issue of a warrant, or the making of an order, under any of the specified provisions 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).

             (4)  The Governor-General may make arrangements with the Governor of a State, the Administrator of the Northern Territory or the Chief Minister of the Australian Capital Territory 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 functions connected with the issuing of warrants, or the making of orders, under a specified provision.

50  Authorised officers

             (1)  The CEO may make a written determination that a specified officer of Customs or other person is an authorised officer for the purposes of this Act. The determination has effect accordingly.

Note:          A person may be specified by name, by inclusion in a specified class or in any other way.

             (2)  The Minister may issue a written certificate stating that a specified person was at a specified time, or was at all times during a specified period, an authorised officer for the purposes of this Act or of particular provisions of this Act.

Note:          A person may be specified by name, by inclusion in a specified class or in any other way.

             (3)  In any proceedings relating to this Act, a certificate under subsection (2) is prima facie evidence of the matters in the certificate.

             (4)  A document purporting to be a certificate under subsection (3) must, unless the contrary is established, be taken to be a certificate and to have been properly given.

51  Identity cards

             (1)  The CEO may cause to be issued to each authorised officer an identity card.

             (2)  An identity card must:

                     (a)  be in a form approved in writing by the CEO; and

                     (b)  incorporate a recent photograph of the person.

             (3)  A person who ceases to be an authorised officer must, as soon as practicable after so ceasing, return his or her identity card to the CEO.

             (4)  A person is guilty of an offence if:

                     (a)  the person has been issued with an identity card; and

                     (b)  the person fails to return the card as provided for in subsection (3).

Penalty:  5 Penalty units.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility applying in respect of the offence in this subsection.

52  Application of the Criminal Code

                   Chapter 2 of the Criminal Code applies to all offences against this Act.

53  Regulations

                   The Governor General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.


  

[Minister's second reading speech made in

House of Representatives on 25 June 1997

Senate on 1 October 1997]

 

 

(99/97)