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TOBACCO PLAIN PACKAGING ACT 2011 - SECT 52

Investigation powers

Provisions subject to investigation

             (1)  A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:

                     (a)  an offence against this Act; or

                     (b)  a civil penalty provision of this Act; or

                     (c)  an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.

Note:          Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.

Related provisions

             (2)  For the purposes of Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection (1), there are no related provisions.

Authorised applicant and authorised person

             (3)  For the purposes of Part 3 of the Regulatory Powers Act, an authorised officer is both an authorised applicant and an authorised person in relation to evidential material that relates to a provision mentioned in subsection (1).

Issuing officer

             (4)  For the purposes of Part 3 of the Regulatory Powers Act, a person is an issuing officer in relation to evidential material that relates to a provision mentioned in subsection (1) if:

                     (a)  the person is:

                              (i)  a Judge of a court created by the Parliament; or

                             (ii)  a Deputy President of the Administrative Appeals Tribunal; or

                            (iii)  a non-presidential member of the Administrative Appeals Tribunal who is enrolled as a legal practitioner of the High Court, or the Supreme Court of a State or Territory, and has been so enrolled for at least 5 years; and

                     (b)  the person has consented to exercise powers conferred by that Part in relation to evidential material that relates to a provision mentioned in subsection (1); and

                     (c)  the Attorney-General has, by writing, nominated the person to exercise those powers.

             (5)  An issuing officer who is a Deputy President or non-presidential member of the Administrative Appeals Tribunal exercising a power conferred by Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection (1), has the same protection and immunity as a Justice of the High Court.

Note:          Subsection 75(3) of the Regulatory Powers Act confers protection and immunity on a judge exercising the powers of an issuing officer.

Relevant chief executive

             (6)  For the purposes of Part 3 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to evidential material that relates to a provision mentioned in subsection (1).

             (7)  The Secretary may, in writing, delegate to an SES employee, or acting SES employee, in the Department the Secretary's powers and functions under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1).

             (8)  In exercising powers or functions delegated under subsection (7), the delegate must comply with any directions of the Secretary.

Relevant court

             (9)  For the purposes of Part 3 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to evidential material that relates to a provision mentioned in subsection (1):

                     (a)  the Federal Court of Australia;

                     (b)  the Federal Circuit Court of Australia.

Additional investigation powers

           (10)  The additional power mentioned in subsection (11) is taken to be included in the investigation powers under Part 3 of the Regulatory Powers Act as that Part applies in relation to evidential material that relates to a provision mentioned in subsection (1).

           (11)  The additional investigation power is the power to take samples of evidential material on premises entered under section 48 of the Regulatory Powers Act as that section applies in relation to evidential material that relates to a provision mentioned in subsection (1).

Use of force in executing a warrant

           (12)  In executing an investigation warrant under Part 3 of the Regulatory Powers Act as that Part applies in relation to evidential material that relates to a provision mentioned in subsection (1):

                     (a)  an authorised person may use such force against things as is necessary and reasonable in the circumstances; and

                     (b)  a person assisting the authorised person may use such force against things as is necessary and reasonable in the circumstances.

Person assisting

           (13)  An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1).

Self-incrimination

           (14)  Despite section 47 of the Regulatory Powers Act, a person is not excused from giving information, producing a document or answering a question under subsection 54(3) of the Regulatory Powers Act, as Part 3 of that Act applies in relation to this Act, on the ground that the information, the production of the document, or answer to the question, might tend to incriminate the person or expose the person to a penalty.

           (15)  However, in the case of an individual none of the following is admissible in evidence against the individual in criminal proceedings:

                     (a)  the information given, the document produced or the answer given;

                     (b)  giving the information, producing the document or answering the question;

                     (c)  any information, document or thing obtained as a direct or indirect consequence of giving the information, producing the document or answering the question.

Extension to external Territories

           (16)  Part 3 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1), extends to every external Territory.

   



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