Monitoring and Investigation powers
Introduction to warrants
Parts 2 and 3 of the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act) set out standard monitoring and investigation provisions for monitoring or gathering information to determine compliance with a regulatory regime. These powers include entry, search and seizure powers. These powers may be exercised where consent is given by the occupier of the premises or where a warrant has been issued authorising the entry of premises for the purpose of monitoring or investigation.
A warrant is an authorisation, by a judicial officer, to enter and search premises. The Regulatory Powers Act provides for monitoring and investigation warrants.
An issuing officer can issue a monitoring warrant in relation to a provision, information or matter that is nominated in the triggering Act. For more information on a ‘matter’ for the purposes of Part 2 of the Regulatory Powers Act, see 2021 amendments to the Regulatory Powers Act.
An issuing officer may issue an investigation warrant in relation to evidential material with respect to provisions nominated in the triggering Act, which authorises the authorised person to enter and search private premises and to seize evidential material.
A monitoring warrant regime under Part 2 of the Regulatory Powers Act may be appropriate where it is necessary to monitor or audit compliance with legislative requirements, or whether a matter exists that may indicate failure to comply with regulatory obligations where no offence is suspected. An authorised person may enter premises for the purposes of monitoring, either with the consent of the occupier or under a monitoring warrant. If entering the premises under a monitoring warrant, the authorised person can exercise monitoring powers with regards to compliance with a provision or the correctness of information given in compliance with a provision. Monitoring powers include the power to search premises, the power to examine or observe any activity conducted on the premises, the power to inspect and examine anything on the premises, the power to record anything on the premises and the power to inspect and copy any document on the premises.
An issuing officer may only issue a warrant if they are satisfied, by information on oath or affirmation, that it is reasonably necessary that one or more authorised persons should have access to the premises for the purpose of determining compliance with a regulatory regime that is subject to the monitoring powers under the Regulatory Powers Act.
An issuing officer must not issue a warrant unless the issuing officer has been provided, either orally or by affidavit, with such further information as they require concerning the grounds on which the issue of the warrant is being sought.
An investigation warrant regime under Part 3 of the Regulatory Powers Act may be appropriate where it is necessary to gather evidential material that relates to the contravention of offence provisions or civil penalty provisions. An authorised person may enter premises for the purposes of investigation, either with the consent of the occupier or under an investigation warrant. If entering the premises under an investigation warrant, the authorised person can exercise investigation powers with regards to contravention of an offence provision or a civil penalty provision. Investigation powers include the power to search premises for evidential material suspected to be on the premises, the power to seize evidential material found on the premises, the power to inspect and examine anything on the premises, and the power to record anything on the premises.
An issuing officer may only issue an investigation warrant if they are satisfied, by oath or affirmation, that there are reasonable grounds for suspecting that there is, or may be within the next 72 hours, evidential material on the premises.
An issuing officer must not issue a warrant unless the issuing officer has been provided, either orally or by affidavit, with the further information they require concerning the grounds on which the issue of the warrant is being sought.
In urgent cases, applications for investigation warrants can be made by electronic means (such as by telephone) by an authorised applicant to an issuing officer under section 71 of the Regulatory Powers Act.
Use of related provisions
The Regulatory Powers Act provides that a triggering Act may identify related provisions in Acts other than the triggering Act. This means that in the course of exercising monitoring or investigation powers, if an authorised person finds an item that could be evidence of contravention of a related provision, the authorised person may secure the item (if exercising monitoring powers) or seize the item (if exercising investigation powers). When a triggering Act applies Part 2 or 3 of the Regulatory Powers Act, it must identify any related provisions.
A person or body may be subject to more than one regulatory regime administered by the same agency or regulator. The use of related provisions reduces the administrative burden of the agency or regulator by preventing the loss, concealment or destruction of a thing that would demonstrate that another provision has been, or will not be, complied with.
The Regulatory Powers Act provides that the triggering Act can nominate any judicial officer to be an issuing officer. It is Australian Government policy that an issuing officer should be a magistrate as they are experienced in issuing warrants and are generally more accessible to regulators and agencies. Triggering legislation should provide that an issuing officer is a magistrate of a State or Territory.
A magistrate who issues a monitoring or investigation warrant is doing so persona designata. This means the issuing officer is not exercising judicial power of the court of which they are a member, but acting as an independent decision-maker.
Legislation that allows for persona designata functions on a magistrate must make it clear that:
- The power or function is being conferred on a person, and not on the court to which they are appointed.
- The magistrate is not obliged to exercise the function.
Use of force against ‘objects’
The standard provisions in the Regulatory Powers Act do not include a use of force provision. If a person executing an investigation or monitoring warrant is to be able to use force against property, a provision allowing this will need to be included in the triggering Act and fully justified in the Explanatory Memorandum for that Act. The Senate Scrutiny of Bills Committee has commented adversely where an adequate justification has not been provided.
The circumstances where it would be appropriate for a triggering Act to include the power to use force would depend on the specific regulatory regime. For example, an authorised person may need to open locked doors, cabinets, drawers and other similar objects that are suspected of containing material that may demonstrate that a provision, information or matter subject to monitoring or investigation has been, or will not be, complied with. If an Act modifies the standard provisions to allow for use of force, this power may only be used when executing a monitoring or investigation warrant, and only where necessary and reasonable. The assistance required by the authorised person may be unanticipated and the qualifications of the person assisting will depend on the individual circumstances.
Sections 23 and 53 of the Regulatory Powers Act provide that authorised persons may be assisted by other persons where that assistance is necessary and reasonable and where it is authorised in the triggering Act. For example, specialist assistance may be required to access electronic data, to deal with dangerous objects or classified evidentiary material. Assistance from other persons allows monitoring and investigation powers to be performed efficiently and effectively by those most adept and qualified to do so. The assistance required by the authorised person may be unanticipated and the qualifications of the person assisting will depend on the individual circumstances.
A function or duty performed by a person assisting is taken to have been performed by the authorised person. At all times, the person assisting is subject to directions given by the authorised person. The authorised person is responsible for any powers exercised by the person assisting.
Where Acts provide for the use of a person assisting, especially where use of force is provided for, this will need to be thoroughly justified in the Explanatory Memorandum.