Contents
Division 2 · Notices requiring information and documents
Subdivision A · Production notices
113ESOS agency for a registered provider may give a production notice#
(1)This section applies if the ESOS agency for a registered provider reasonably believes that a relevant individual of the provider has, or has access to, information or documents that are relevant to a monitoring purpose.
(2)The ESOS agency may give the relevant individual a written notice requiring him or her to:
(a)give any information or documents relevant to the monitoring purpose to an authorised officer of the agency; or
(b)show any such documents to an authorised officer of the agency; or
(c)make copies of any such documents and give the copies to an authorised officer of the agency.
Note: The ESOS agency may also give the relevant individual an attendance notice: see section 116.
Information and documents may be required in a particular form
(3)If the information or documents are in a particular form then the production notice may require the information or documents to be given in that form.
113ATPS Director may give a production notice#
(1)This section applies if the TPS Director reasonably believes that a relevant individual of a registered provider has, or has access to, information or documents that are relevant to the performance of the TPS Director’s functions under Part 5 of this Act.
(2)The TPS Director may give the relevant individual a written notice requiring the individual:
(a)to give any such information or documents to a TPS officer; or
(b)to show any such documents to a TPS officer; or
(c)to make copies of any such documents and give the copies to a TPS officer.
(3)If the information or documents are in a particular form then the notice may require the information or documents to be given in that form.
114Contents of the production notice#
(1)A production notice must:
(a)state that it is given under section 113 or 113A; and
(b)set out the effects of sections 120 and 121; and
(ba)if the notice is given under section 113—set out the effect of section 122; and
(bb)if the notice is given under section 113A—set out the effect of section 122A; and
(c)state how and by when the information or documents must be given or shown.
Time for production of information or documents
(2)In so far as the notice covers information or documents:
(a)that relate to any extent to the calendar year in which the notice is given; and
(b)that are required to be given or shown on the premises where they are currently located;
the time mentioned in paragraph (1)(c) must be at least 24 hours after the notice is given.
(3)In so far as the notice covers any other information or documents, the time mentioned in paragraph (1)(c) must be at least 72 hours after the notice is given.
115Serving production notices#
(1)The ESOS agency for a registered provider must give a production notice under section 113 to a relevant individual of the provider:
(a)by delivering it to the individual personally; or
(b)by:
(i)leaving it at the address of the individual’s place of residence or business last known to the ESOS agency; and
(ii)taking reasonably practicable action to draw the individual’s attention to the notice; or
(c)by sending it by ordinary or any other class of pre-paid post to the individual’s place of residence or business last known to the ESOS agency.
(1A)The TPS Director must give a production notice under section 113A to a relevant individual of a registered provider:
(a)by delivering it to the relevant individual personally; or
(b)by:
(i)leaving it at the address of the relevant individual’s place of residence or business last known to the TPS Director; and
(ii)taking reasonably practicable action to draw the relevant individual’s attention to the notice; or
(c)by sending it by ordinary or any other class of pre-paid post to the relevant individual’s place of residence or business last known to the TPS Director.
(2)However, if the ESOS agency uses the method in paragraph (1)(c) or the TPS Director uses the method in paragraph (1A)(c), the time mentioned in paragraph 114(1)(c) must be at least 14 days after the notice is given (instead of at least 24 hours or 72 hours).
Note: Section 29 of the Acts Interpretation Act 1901 sets out when the notice is taken to have been given if the notice is posted to the individual.
Subdivision B · Attendance notices
116Attendance notices#
(1)This section applies if the ESOS agency for a registered provider reasonably believes that a relevant individual of the provider has, or has access to, information or documents that are relevant to a monitoring purpose.
(2)The ESOS agency may give the relevant individual written notice requiring the individual to attend before an authorised officer of the agency and answer questions about the matter.
Note: The ESOS agency may also give the relevant individual a production notice: see section 113.
117Contents of the attendance notice#
(1)An attendance notice given to a relevant individual of a registered provider must:
(a)state that it is given under section 116; and
(b)set out the effects of sections 120, 121 and 122; and
(c)state where and when the individual is to attend.
The time mentioned in paragraph (c) must be at least 14 days after the notice is given.
(2)An attendance notice may be included in the same document as a production notice, if the notices are being given to the same relevant individual of a registered provider.
Subdivision C · Common rules for production and attendance notices
118Scales of expenses#
The regulations may prescribe scales of expenses to be allowed to persons required to give information or documents under this Division.
120Offence: failing to comply with a notice#
(1)A person who refuses or fails to comply with a production or attendance notice commits an offence.
Penalty: Imprisonment for 6 months.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2)However, a person does not commit an offence in relation to a production notice if the person complied with the notice to the extent that it was practicable to do so within the period allowed by the notice.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.
121Offence: giving false or misleading information#
A person who gives false or misleading information in the course of complying or purporting to comply with a production or attendance notice commits an offence.
Penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
122Offence: giving false or misleading document to authorised officer#
(1)A person who gives or shows an authorised officer of the ESOS agency for a registered provider a document that is false or misleading in a material particular, in the course of complying or purporting to comply with a production or attendance notice given by the agency, commits an offence.
Penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2)However, the person does not commit the offence if the document is accompanied by a written statement signed by the person:
(b)setting out or referring to the material particular.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.
122AOffence: giving false or misleading document to TPS officer#
(1)A person commits an offence if:
(a)the person is given a production notice under section 113A; and
(b)the person gives or shows a TPS officer a document in compliance or purported compliance with the notice; and
(c)the document is false or misleading in a material particular.
Penalty: Imprisonment for 12 months.
(2)Subsection (1) does not apply to a person if the document is accompanied by a written statement signed by the person:
(b)setting out or referring to the material particular.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.
123Information and documents that incriminate a person#
(1)A person is not excused from the requirement to comply with a production or attendance notice on the ground that doing so might tend to incriminate the person or expose the person to a penalty.
(2)However, if the person is an individual:
(a)the information, document or answer to the question; or
(b)any other information, document or thing obtained as a direct or indirect result of complying with a notice;
is not admissible in evidence against the individual in any criminal proceedings other than proceedings under, or arising out of, section 121 or 122.
124Copies of documents#
Authorised officer etc.
(1)An authorised officer of the ESOS agency for a registered provider, or a person covered by subsection (2) who has the authorised officer’s permission, may:
(a)inspect a document given or shown to the authorised officer under this Division; and
(b)make and retain copies of, or take and retain extracts from, such a document; and
(c)retain a copy of a document given to the authorised officer in accordance with a requirement covered by paragraph 113(2)(c) (copies of documents given under production notices).
(2)This subsection covers a person if the person is an employee of the same ESOS agency as the authorised officer.
TPS Director etc.
(3)The TPS Director or a TPS officer may:
(a)inspect a document given or shown to a TPS officer under this Division; and
(b)make and retain copies of, or take and retain extracts from, such a document; and
(c)retain a copy of a document given to a TPS officer under this Division.
125Retaining of documents by authorised officer etc.#
(1)An authorised officer of the ESOS agency for a registered provider, or a person covered by subsection (3) who has the authorised officer’s permission, may retain a document given to the authorised officer under this Division:
(a)for the purposes of this Act; or
(b)for the purposes of an investigation as to whether an offence has been committed; or
(c)to enable evidence of an offence to be secured for the purposes of a prosecution.
(2)However, the document must not be retained for longer than 60 days after the authorised officer was given the document.
Note: The authorised officer may apply to retain the document for a further period: see section 128.
(3)This subsection covers a person if the person is an employee of the same ESOS agency as the authorised officer.
125ARetaining of documents by TPS officer#
(1)If a TPS officer is given a document under this Division, the TPS officer may retain the document:
(a)for the purposes of this Act; or
(b)for the purposes of an investigation as to whether an offence has been committed; or
(c)to enable evidence of an offence to be secured for the purposes of a prosecution.
(2)However, the document must not be retained for longer than 60 days after the TPS officer was given the document.
Note: The TPS officer may apply to retain the document for a further period: see section 128A.
126Owner of document must be given copy#
(a)certify a copy of the document to be a true copy; and
(1A)If a TPS officer retains a document under section 125A, the TPS officer must as soon as practicable:
(a)certify a copy of the document to be a true copy; and
(2)The certified copy must be received in all courts and tribunals as evidence as if it had been the original.
Owner may inspect etc. original document
(3)Until the certified copy is given, the owner, or a person authorised by the owner, may inspect and make copies of, or take and retain extracts from, the original document at the times and places that the person retaining the document, or the TPS officer, thinks appropriate.
127Returning of documents#
(1)This section applies 60 days after a document is given under this Division to either of the following persons (the holder):
(a)an authorised officer of the ESOS agency for a registered provider;
(b)a TPS officer.
128Authorised officer etc. may apply to retain document for a further period#
(1)An authorised officer of the ESOS agency for a registered provider given a document under this Division, or another person (the permitted person) who is retaining such a document under section 125, may apply to a magistrate or ART member for an order that the officer or permitted person may retain the document for a further period.
Time limit for application
(2)The application must be made before the end of:
(a)60 days after the document was given to the authorised officer; or
(b)a period previously specified in an order of a magistrate or ART member under section 129.
Persons affected by notice to be notified if practicable
128ATPS officer may apply to retain document for a further period#
(1)If a TPS officer is given a document under this Division, the TPS officer may apply to a magistrate or ART member for an order that the officer may retain the document for a further period.
(2)The application must be made before the end of:
(a)60 days after the document was given to the TPS officer; or
(b)a period previously specified in an order of a magistrate or ART member under section 129.
(3)Before making the application, the TPS officer must:
(a)take reasonable steps to discover which persons’ interests would be affected by the retention of the document; and
129Magistrate or ART member may order retention for further period#
(1)The magistrate or ART member may order that the person who made the application under section 128 may retain the document if the magistrate or ART member is satisfied that it is necessary for the person to retain it:
(a)for the purposes of this Act; or
(b)for the purposes of an investigation as to whether an offence has been committed; or
(c)to enable evidence of an offence to be secured for the purposes of a prosecution.
Power conferred personally
(3)The power in subsection (1) conferred on a magistrate is conferred on the magistrate:
(a)in a personal capacity; and
(b)not as a court or a member of a court.
Power need not be accepted
(4)A magistrate need not accept the power conferred by subsection (1).
Protection and immunity
(5)A magistrate exercising a power conferred by subsection (1) has the same protection and immunity as if the magistrate were exercising the power:
(a)as the court of which the magistrate is a member; or
(b)as a member of the court of which the magistrate is a member.
Sourced from the Federal Register of Legislation at legislation.gov.au, © Commonwealth of Australia, licensed under CC BY 4.0. Compilations may have been reformatted.