House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Deputy Prime Minister and Treasurer, the Hon Wayne Swan MP)

Chapter 8 Information gathering and monitoring powers

Outline of chapter

8.1 This Chapter:

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explains the information gathering and monitoring powers of the Australian Charities and Not-for-profits Commission (ACNC); and

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sets out the scope of information that can be gathered under these powers and the circumstances in which the powers may be used.

Summary of new law

8.2 The ACNC will be responsible for implementing a report-once, use-often reporting framework, providing education and support to the sector, and establishing a public information portal.

8.3 ACNC registration will be a precondition for not-for-profit (NFP) entities to access exemptions, benefits and concessions provided under Australian laws, including Australian taxation laws.

8.4 The ACNC will be responsible for assessing whether NFP governance structures and financial positions are appropriate for these entities to receive public funds.

8.5 Commonwealth government agencies that administer exemptions, benefits and concessions provided in Australian laws would no longer be required to assess the adequacy of NFP governance structures and financial position.

8.6 The ACNC will take this role over from these other Commonwealth government agencies and will therefore centralise the assessment of the adequacy of NFP governance structures and financial position.

8.7 For the NFP sector's regulatory framework to function and remain effective the ACNC needs to be able to access the latest available information through appropriate information gathering and monitoring powers.

8.8 Without these powers the ACNC would be unable to gather information beyond that contained in information statements and financial reports, and would be unable to investigate fraud and whether public funds are being used to promote charitable purposes.

8.9 The ACNC will administer a report-once, use-often reporting framework. A part of the framework will be the 'charity passport' which will be used by registered entities to meet the majority of their financial and governance reporting requirements.

8.10 Commonwealth government agencies will use information in the passport to satisfy their particular information requirements and will not be required to verify the accuracy of information. Through time it is possible that information in the charity passport could satisfy the requirements of State and Territory government agencies.

8.11 Information contained in the passport must be correct and accurate for the report-once, use-often framework to function effectively and reduce the red-tape faced by NFPs. The information gathering and monitoring power enables the Australian Charities and Not-for-profits Commission Commissioner (ACNC Commissioner) to validate the accuracy of the information contained in the passport.

8.12 Under its secrecy framework the ACNC will be able to share information with Australian government authorities where the sharing of information is reasonably necessary to promote the object of the Bill.

8.13 The ACNC will not be responsible for ensuring that product and service standards are met. However, to function effectively as a one-stop shop regulator for the sector, the ACNC will need to have appropriate powers to take samples of products or inspect items on premises with a view to sharing the information gathered with relevant authorities.

8.14 It is also critical for the legislation to contain safeguards to protect the interests of registered entities and the privacy of employees of these entities. This will be achieved by having specific conditions that are required to be satisfied prior to the ACNC using these powers.

8.15 Additionally, the scope of the powers will be limited to information that is absolutely necessary for the ACNC to administer the sector's regulatory framework.

Information gathering and monitoring powers

8.16 The ACNC Bill provides the ACNC Commissioner with powers to gather information or request documents, search premises and inspect items on premises, and secure documents or electronic equipment found on premises.

8.17 The ACNC Commissioner can use these powers to determine whether a registered entity has complied with:

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provisions of the ACNC Bill, including provisions that create offences, or administrative penalties;

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registration conditions required to maintain ACNC registration; and

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provisions in the Crimes Act 1914 or the Criminal Code that creates offences related to the ACNC Bill.

8.18 The ACNC Commissioner will also be able to use these powers to determine whether information provided by registered entities, including information required to be provided under the ACNC Bill and information provided on a voluntary basis, is correct and accurate.

8.19 These powers are required to support the regulatory framework administered by the ACNC and the ACNC's role as a one-stop shop regulator for the sector.

Detailed explanation of new law

Information gathering powers

8.20 This Bill provides the ACNC Commissioner with the power to gather information or documents that are reasonably necessary for the purposes of determining whether:

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a registered entity has complied with a provision subject to monitoring in the ACNC Bill; or

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information given by a registered entity, either on a voluntary basis or to fulfil an obligation under the ACNC Bill, is correct and accurate.

[Subsection 70-5(1)]

8.21 The ACNC Commissioner would be able to gather the required information or documents from any entity that could reasonably be expected to have the information required.

8.22 The ACNC Commissioner can send information requests to any entity; requests do not have to be constrained to registered entities. This includes for example banks and financial institutions that manage the funds of registered entities, or any other entity that is affiliated with the registered entity.

8.23 The information that can be requested is confined to information that is reasonably necessary to determine whether a provision subject to monitoring has been, or is being, complied with, and whether information subject to monitoring is correct and accurate.

8.24 Further information on the scope of provisions subject to monitoring and information subject to monitoring is provided in paragraphs 8.54 to 8.59.

8.25 The ACNC Commissioner is required to issue a written notice to an entity requesting the entity:

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to give to the ACNC Commissioner, within the period and in the manner and form specified in the notice, any information;

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to attend and give evidence before the ACNC Commissioner for the purpose of obtaining information;

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to produce to the ACNC Commissioner, within the period and in the manner specified in the notice, any documents; or

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to make copies of any documents and to produce to the ACNC Commissioner, within the period and in the manner specified in the notice, those copies.

[Subsection 70-5(2)]

8.26 For the purposes of providing the ACNC Commissioner with evidence, the ACNC Commissioner may require information to be given on oath or affirmation and to be given orally or in writing. The ACNC Commissioner (or an ACNC officer) may administer an oath or affirmation. [Subsection 70-5(3)]

8.27 If an entity does not comply with the written notice issued by the ACNC Commissioner the entity commits an offence. The maximum penalty that the entity is liable for is 20 penalty units. [Subsection 70-5(4)]

8.28 This penalty is low when compared to penalties imposed on for-profit entities for similar offences (see for example Division 353 in Schedule 1 to the Taxation Administration Act 1953 ).

8.29 To ensure entities have sufficient time to comply with a written request issued by the ACNC Commissioner, entities are required to be given a minimum of 14 days to comply. [Subsection 70-5(5)]

8.30 Written notice issued by the ACNC Commissioner must outline the implications of not complying with the request, including the implications of providing false or misleading information or documents under sections 137.1 and 137.2 of the Criminal Code . [Subsection 70-5(6)]

8.31 As part of the ACNC Commissioner's general information gathering powers, the ACNC Commissioner is able to inspect documents provided by entities and to make and retain copies of the documents. [Section 70-10]

8.32 This power is required in situations where the ACNC Commissioner needs to examine significant quantities of documents and information, and having to do so with limited time would be impractical.

8.33 To avoid doubt the ACNC Commissioner will be able to retain possession of copies of documents provided by entities to meet their requirements in the written notice given by the ACNC Commissioner. [Section 70-20]

8.34 The ACNC Commissioner would have the authority to take and retain for as long as is necessary, possession of an original document provided by entities. [Subsection 70-15(1)]

8.35 Generally, the ACNC Commissioner would take certified copies. However, in specific cases where originals are required to prevent evidence from being destroyed of altered, the ACNC Commissioner would be able to retain the original document.

8.36 For example, if the ACNC is provided access to a registered entity's contractual documentation and there is a risk that the entity could destroy or alter the contract which contains incriminating evidence, the ACNC Commissioner would be able to retain the original.

8.37 To ensure that the entity providing the document is not disadvantaged by the ACNC Commissioner maintaining possession of the original document, the entity will be entitled to be supplied with a certified copy of the document. [Subsection 70-15(2)]

8.38 The copy certified by the ACNC Commissioner must be received in all courts and tribunals as evidence as if the documents were original. [Subsection 70-15(3)]

8.39 This subsection further ensures that the entity is not disadvantaged by the ACNC Commissioner maintaining possession of the original document.

8.40 As a safeguard, until the ACNC Commissioner supplies the certified copy of the original documents, the entity which provided the ACNC Commissioner with the document will have the right to inspect and make copies of, or take extracts from, the document. [Subsection 70-15(4)]

8.41 An individual will not be excused from complying with a notice given by the ACNC Commissioner on the grounds that complying with the notice may incriminate the individual or expose the individual to a penalty. [Subsection 70-25(1)]

8.42 However, the use of the information that incriminates the individual will be constrained. In particular, the information will not be admissible in evidence against the individual in criminal proceedings or proceedings in relation to the recovery of a civil penalty, this includes information obtained as a direct or indirect consequence of the individual providing information. [Subsection 70-25(2)]

8.43 Providing a blanket no self-incrimination provision could seriously undermine the effectiveness of the regulatory scheme administered by the ACNC. Information gathering and monitoring powers are the main channels available to the ACNC Commissioner to gather information and ultimately monitor ongoing eligibility to registration. The Guide to Framing Commonwealth Offences notes that in these situations overriding the privilege is acceptable.

8.44 For example, the privilege against self-incrimination does not apply in relation to the Australian Tax Office's coercive information gathering powers under section 264 of the Income Tax Assessment Act 1936 . As the ACNC is taking over the regulatory responsibilities of the ATO for registered entities it has been provided with equivalent powers. The Courts have accepted that retaining such a privilege in such cases would frustrate the regulator in the exercise of its functions. ^[1]

8.45 However unlike the powers of the ATO this legislation constrains the use of any incriminating evidence by providing both use and derivative use immunity to protect the rights of individuals.

8.46 The ACNC will need to seek information from different types of entities, including from third parties that may be self-incriminatory to those parties. For example, there may be instances of collusion between the management of a charity and donors. In the ACNC regulatory context this type of tax fraud may occur where the committee of management of a charity colludes with a large donor for tax avoidance purposes.

8.47 Failing to provide the ACNC with the necessary scope to act as an effective regulator in the situations outlined above would create significant integrity issues and risks of mismanagement of funds intended for charitable and NFP purposes.

8.48 It is important to keep in mind that individuals working in NFP entities manage public funds, at times with limited oversight. Public companies, for example, have shareholders that ensure the individuals running corporations are accountable. However, the same kind of market discipline does not apply to those managing NFPs and it is arguable that these individuals should be subject to appropriate levels of oversight.

8.49 Individuals working in NFP entities manage resources and monies that come from donors or volunteers and are earmarked for the most vulnerable in our community. It is therefore important that NFP entities are subject to appropriate oversight to ensure those monies are used lawfully to assist our most vulnerable community members.

8.50 It is recognised that overriding the privilege against self-incrimination can lead to a loss of personal liberty. Therefore, it has been decided to constrain the use of any self-incriminating information.

8.51 Constraining the use of any self-incriminating information would generally increase the willingness of individuals to provide information.

8.52 This is particularly important for NFP entities that may be managed by volunteers who may not be aware of the totality of their regulatory obligations and may therefore hesitate to provide information unless assured that this information will not be used to prosecute them.

8.53 Evidence will be admissible against the individual in criminal proceedings if those proceedings relate to: failure of the entity to comply with the written notice; contravention of section 137.1 or 137.2 of the Criminal Code which deals with false or misleading information; or section 149.1 of the Criminal Code which deals with obstruction of Commonwealth public officials undertaking functions as a Commonwealth public officials. [Subsection 70-25(2)]

Monitoring powers

8.54 The Bill provides for ACNC officers to enter the premises of an entity and exercise a range of monitoring powers for the purposes of monitoring compliance with a provision which is subject to monitoring, or to determine whether information subject to monitoring is correct. [Subsection 75-15(1)]

8.55 These powers will be used to monitor and investigate specific issues and will complement the ACNC's more general information gathering powers. [Division 75]

8.56 ACNC officers will only be able to enter an entity's premises and exercise monitoring powers when the occupier of the premises has consented to the entry, or the entry is made under a monitoring warrant. [Subsection 75-15(2)]

8.57 The premises which the ACNC will be able to enter are broader than the premises of NFPs registered by the ACNC. However, the information which the ACNC will be able to obtain will be constrained to information which is necessary to administer the ACNC Bill.

8.58 Provisions subject to monitoring include:

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a provision of the Bill that creates an offence; this includes failure to comply with directions given by the ACNC Commissioner and failure by registered entities to keep records as required by the Bill;

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a provision of a legislative instrument made under this Bill that creates an offence;

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a provision of the Crimes Act 1914 or the Criminal Code that creates an offence, to the extent that the offence relates to the Bill or a legislative instrument made under the Bill. This includes section 137.1 or 137.2 of the Criminal Code that deal with false or misleading information;

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a provision of the Bill, if non-compliance with the provision gives rise to an administrative penalty, this includes a penalty for failing to lodge a document on time;

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a provision of a legislative instrument made under the Bill, if non-compliance with the provision gives rise to an administrative penalty; and

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ongoing eligibility for registration including conditions for registration in section 25-5 and for the revocation of registration in section 35-10.

[Section 75-5]

8.59 Information subject to monitoring includes information given to the ACNC:

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in compliance or purported compliance with a provision of the Bill or of a legislative instrument made under the Bill, this includes information in annual information statements and financial statements;

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in compliance or purported compliance with a provision of the Crimes Act 1914 or of the Criminal Code , to the extent that the provision relates to the Bill or a legislative instrument made under the Bill; or

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any other information given to the ACNC Commissioner, including information given voluntarily, which is included on the Australian Charities and Not-for-profits Register.

[Section 75-10]

Example 8.34

A registered entity, WT Inc, makes a statement to the ACNC Commissioner. The statement is believed to be fraudulent, which is a contravention of the Criminal Code . The ACNC Commissioner asks WT Inc to provide evidence to support the statement. WT Inc is not cooperative and refuses to provide the information.

As a last resort the ACNC Commissioner could apply for a monitoring warrant, in order to gain access to the appropriate information and determine the validity of the statement made by WT Inc.

Monitoring powers of ACNC Officers

8.60 ACNC officers have a set of monitoring powers which they may exercise when they have entered a premise either with the consent of the occupier of the premises, or under a monitoring warrant. [Section 75-20] .

8.61 The ACNC requires this set of monitoring powers to ensure that it is able monitor ongoing eligibility to registration and to function as a one-stop shop regulator for the sector.

8.62 The set of monitoring powers ensures that the ACNC is able to collect information and materials which may also be required by other Australian government agencies in administering their duties.

8.63 Australian government agency means the Commonwealth, a State or a Territory or an authority of the Commonwealth, a State or a Territory.

8.64 Information and materials would still be required for the purposes of monitoring compliance with a provision subject to monitoring, or to determine whether information subject to monitoring is correct.

8.65 Where this information could also be required by other authorities the ACNC would have the power to collect this information and share it with these other Australian government authorities.

8.66 The sharing of information is an important channel available to the ACNC to maintain, protect and enhance public trust and confidence in the sector. The ACNC secrecy framework empowers the ACNC to share information with Australian government authorities where the sharing of information is reasonably necessary to promote the object of the ACNC Bill.

Example 8.35

Reduced Poverty Inc is a registered charity established for the relief of poverty. The entity provides food and housing to the homeless in Sydney. The ACNC enters the premises of the entity under a monitoring warrant to monitor whether it continues to meet the requirements of registration. ACNC officers receive concerns raised by beneficiaries of the charity suggesting that the food provided and cooking practices are likely to not meet health standards. If the public becomes aware of this potentially inappropriate practice it would affect public trust and confidence in the sector.

ACNC officers therefore take images of the entity's cooking facilities and a sample of the food provided to the homeless. Consistent with the ACNC's secrecy framework, ACNC officers pass this information on to the government agency which is responsible for local food safety inspections.

Example 8.36

Australia Overseas Aid Inc is a registered charity established for the control of diseases in human beings in overseas jurisdictions. The entity provides medication and medical equipment to countries in need of support. The ACNC receives intelligence that the entity is not complying with all of its registration conditions. ACNC officers enter the entity's premises and decide to take a sample of the medicines on the premises which look suspicious. ACNC officers pass this sample on to the Australian Federal Police.

8.67 The set of monitoring powers provided to ACNC officers in the ACNC Bill are:

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the power to search the premises and anything on the premises;

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the power to examine or observe any activity conducted on the premises;

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the power to inspect, examine, take measurements of, or conduct tests on, anything on the premises;

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the power to make any still or moving image or any recording of the premises or anything on the premises;

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the power to inspect any document on the premises;

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the power to take extracts from, or make copies of, any such document;

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the power to take onto the premises such equipment and materials as the ACNC officer requires for the purpose of exercising powers in relation to the premises;

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the power to sample anything on the premises; and

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the powers set out in the Bill including the power to operate electronic equipment on the premises and the authority to have other individuals assist ACNC officers.

[Section 75-20]

8.68 The monitoring powers of an ACNC officer include the power to operate electronic equipment on the premises and to use electronic storage devices which are on the premises and are compatible with the electronic equipment. [Subsection 75-25(1)]

8.69 ACNC officers would have to have reasonable grounds to suspect that electronic equipment contains information relevant to determining compliance with a provision subject to monitoring, or if information subject to monitoring is correct.

8.70 If an ACNC officer finds relevant information on electronic equipment, ACNC officers will have the power to:

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convert relevant data into documentary form and remove those documents from the premises;

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transfer relevant data to a disk, tape or other storage device that is brought to the premises by the ACNC officer or is on the premises; and

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remove the disk, tape or other storage device from the premises.

[Subsections 75-25(2) and (3)]

8.71 An ACNC officer can only use a disk, tape or other storage device that is in the premises if it has been agreed in writing by the occupier. [Paragraph 75-25(3)(b)(ii)]

8.72 These powers are required to ensure ACNC officers are able to convert any relevant information into a usable form. For example, ACNC officers will have the power to use electronic equipment to print documents and remove these documents from the premises.

8.73 The powers also ensure that the occupier's equipment is only used with consent so as to not negatively affect the occupier's operations.

8.74 ACNC officers are able to operate electronic equipment only if the ACNC officer believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment. [Paragraph 75-25(4)(a)]

8.75 The ACNC officer also has to have reasonable grounds to suspect that:

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the equipment contains data relevant to determining whether a registered entity has, or is, complying with provisions subject to monitoring, or if information subject to monitoring is correct;

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the disk, tape or other storage device contains data relevant to determining whether a registered entity has, or is, complying with provisions subject to monitoring, or if information subject to monitoring is correct. [Paragraph 75-25(4)(b)]

8.76 These provisions ensure that ACNC officers can access required information and that the interests and privacy of registered entities and their employees are adequately protected.

8.77 In certain circumstances, an ACNC officer may secure a thing or item that is found on the premises for a period of 24 hours, or more if an extension is provided by an issuing officer which is defined as a Federal magistrate or magistrates under the Bill. [Section 75-30]

8.78 An ACNC officer can secure a thing for 24 hours when an ACNC officer believes on reasonable grounds that:

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a provision subject to monitoring has been contravened with respect to the thing;

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the thing affords evidence of the contravention of a provision subject to monitoring; or

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the thing is intended to be used for the purpose of contravening a provision subject to monitoring.

[Paragraph 75-30(2)(b)]

8.79 In addition, ACNC officers have to suspect on reasonable grounds that:

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it is necessary to secure the thing in order to prevent it from being concealed, lost or destroyed before a warrant to seize the thing is obtained; and

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it is necessary to secure the thing without a warrant because the circumstances are serious and urgent.

[Paragraph 75-30(2)(c)]

8.80 These conditions have been included to ensure that ACNC officers will only secure a thing when it is required, and when there is a serious risk that the thing needs to be secured to prevent it from been destroyed in order to disturb the ACNC investigation.

8.81 In addition, the circumstances have to be serious and urgent to enable ACNC officers to secure the thing without appropriate search warrants. This can include a situation where public funds are going to be used in a highly inappropriate manner.

8.82 The 24 hour period may only be extended in accordance with the Bill. To extend the time period an ACNC officer has to apply to an 'issuing officer' for an extension of the period. [Subsection 75-30(3)]

8.83 The ACNC officer needs to suspect on reasonable grounds that the extension is required. The magistrate will take all information into account when deciding whether to provide the extension. [Subsection 75-30(4)]

8.84 The Bill also allows for the occupier of the premises to be heard in relation to ACNC officers' extension application. [Subsection 75-30(4)]

8.85 This ensures that the circumstances surrounding the extension, including the implications of the extension on the operations of the occupier, are taken into account. For example, the occupier may suggest alternative arrangements which would ensure ACNC officers have access to relevant information and that the operations of the occupier are not unnecessarily affected.

8.86 The issuing officer may issue the extension if the 'issuing officer' is satisfied that it is necessary to extend the period over which the thing is secured, in order to prevent the thing from being concealed, lost or destroyed. [Subsection 75-30(5)]

8.87 ACNC officers would be required to provide information to the 'issuing officer' on oath or affirmation.

8.88 The provisions of this Division relating to the issuance of monitoring warrants, including Subdivision 75-F and Subdivision 75-H apply, with necessary modifications, to the issuance of an extension. [Subsection 75-30(6)]

8.89 The framework established by Division 75 for the issuance of warrants applies to extensions. However, in certain sections the provisions need to be modified to apply to extensions.

8.90 For example, in Subdivision 75-F the condition for issuing a monitoring warrant differs from the condition the 'issuing officer' needs to consider when granting an extension.

8.91 The period may be extended on more than one occasion. [Subsection 75-30(7)]

8.92 An ACNC officer may be assisted by other individuals in exercising monitoring powers or performing functions or duties under this Division. ACNC officers can only be assisted if the assistance is necessary and reasonable. [Section 75-35]

8.93 This may be the case where assistance is required to help carry out documents or where the ACNC officer requires specialised assistance, including for example, assistance to operate electronic equipment.

8.94 An individual assisting the ACNC officer would have the power to:

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enter the premises; and

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perform functions and duties provided for under this Division of the Bill in order assist the ACNC officer to determine if:

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a provision subject to monitoring has been, or is being, complied with; or

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information subject to monitoring is correct.

8.95 The individual assisting the ACNC officer would be required to use these powers in accordance with a direction given by an ACNC officer. [Paragraph 75-35(2)(c)]

8.96 To ensure all provisions in this Division apply to individuals assisting ACNC officers, including section 120-480 on compensation for damage to electronic equipment, powers exercised and functions undertaken by the by the individual assisting ACNC officers are taken to have been exercised by an ACNC officer. [Subsections 75-35(3) and 75-35(4)]

8.97 To avoid doubt, any direction given by an ACNC officer to an individual assisting the ACNC officer, is not a legislative instrument. [Subsection 75-35(5)]

8.98 Where entry is authorised under a monitoring warrant or by consent, an ACNC officer may ask the occupier, or an individual that represents the occupier to answer any questions and produce any document which relates to a:

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provision subject to monitoring; or

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information subject to monitoring.

[Subsections 75-40(1), (2) and (3)]

8.99 An individual will not be excused from answering any questions or producing any document in order to comply with a request from an ACNC officer on the grounds that complying may incriminate the individual or expose the individual to a penalty. [Subsection 75-40(4)]

8.100 However, the use of the information that incriminates the individual will be constrained. In particular, the information will not be admissible in evidence against the individual in criminal proceedings; this includes information obtained as a direct or indirect consequence of the individual providing information. [Subsection 75-40(5)]

8.101 This policy is consistent with that of Section 70-20 which was developed to support the effectiveness of the regulatory scheme administered by the ACNC and ensure the ACNC has access to required information.

8.102 Evidence will be admissible against the individual in criminal proceedings if those proceedings relate to: failure by the individual to comply with the written notice; contravention of sections 137.1 or 137.2 of the Criminal Code which deals with false or misleading information; or section 149.1 of the Criminal Code which deals with obstruction of Commonwealth public officials undertaking functions as a Commonwealth public officials. [Subsection 75-40(5)]

Obligations and incidental powers of ACNC officers

8.103 ACNC officers may enter the premises of an entity and exercise monitoring powers if an occupier of the premises, or an individual that represents the occupier of the premises, consents to the entry.

8.104 ACNC officers would be required to inform the occupier of the premises that consent is voluntary and that the occupier may therefore refuse consent. [Subsection 75-45(1)]

8.105 ACNC officers will only lawfully be able to enter premises and exercise monitoring powers if the consent is truly voluntary. [Subsection 75-45(2)]

8.106 If ACNC officers do not fulfil both conditions mentioned above, the ACNC would not be able to use the information or evidence gathered to administer the ACNC Bill or in criminal proceedings.

8.107 Occupiers of the premises may provide consent for entry for a limited time period. The consent will only have effect for that period unless the consent is withdrawn earlier by the occupier of the premises. [Subsection 75-45(3)]

8.108 If consent is not limited to a particular period, the consent will have effect until it is withdrawn. [Subsection 75-45(5)]

8.109 The occupier has the discretion to extend the period of consent if requested to do so by an ACNC officer and the occupier has no issue with extending consent. [Subsection 75-45(4)]

8.110 If the occupier of the premises decides to withdraw the consent given to ACNC officers, the ACNC officers and any person assisting the ACNC officers must leave the premises. [Subsection 75-45(6)]

8.111 When an ACNC officer enters the premises of an entity under a warrant issued by an issuing officer, the ACNC officer is required to announce that he or she is authorised by virtue of a warrant to enter the premises. [Subsection 75-50(1)]

8.112 ACNC officers are also required to show their identity card to the occupier of the premises and to give the individuals at the premises an opportunity to allow entry to the premises. [Subsection 75-50(2)]

8.113 However, an ACNC officer does not need to comply with these requirements if the ACNC officer reasonably believes that immediate entry is required. If this is the case, the ACNC officer must show their identity card as soon as practicable after entering the premises. [Subsection 75-50(2)]

8.114 Immediate entry will be required where ACNC officers have the reasonable belief that the safety of a person is at risk or that by announcing entry the effective execution of the warrant is at risk. [Subsection 75-50(2)]

8.115 This power would be used in rare cases, where an ACNC officer determines that information subject to monitoring is at risk of being destroyed if the officer does not move quickly to obtain this information.

8.116 An ACNC officer is, under these circumstances, not required to abide by the above provisions which require ACNC officers to announce that he or she is authorised to enter the premises, and to show his or her identity card.

8.117 When ACNC officers enter under the exception outlined above, the officers would be required to show the occupier of the premises, or a person who represents the occupier, his or her identity card as soon as practicable after entering the premises. [Subsection 75-50(3)]

8.118 ACNC officers executing a monitoring warrant must be in possession of the warrant, or a copy of the warrant. [Section 75-55]

8.119 ACNC officers must make a copy of the warrant available to the occupier of the premises, or another individual that represents the occupier, and inform the occupier or individual who represents the occupier of their rights and responsibilities in English. [Section 75-60]

8.120 This provision ensures that the occupier is satisfied that a warrant has been issued, and that the occupier is made aware of the purposes for which the warrant is issued and the time period for which the warrant will be in force (further details on the content of the warrant are provided in Section 75-85).

8.121 If ACNC officers suspect on reasonable grounds that there is relevant information or data on the premises, that this information is accessible by an expert operating electronic equipment, and the data may be interfered with, ACNC officers will have the power to secure electronic equipment on the premises. [Subsections 75-65(1), (2) and (3)]

8.122 This power is required for ACNC officers to gather data which may not be easily accessible and requires an expert to extract and convert into a usable form. This power could be used in situations where data is encrypted.

8.123 The equipment may be secured by locking it up, placing the equipment under the watch of a guard or any other means. [Subsection 75-65(2)]

8.124 ACNC officers are required to inform the occupier of their intention to secure the equipment. The officers must also inform the occupier that the equipment may be secured for a period of up to 24 hours. [Subsection 75-65(4)]

8.125 The electronic equipment may be secured until the 24-hour period ends or for a shorter period if the equipment has been operated by the expert. [Subsection 75-65(5)]

8.126 ACNC officers may apply to an issuing officer for an extension of the 24-hour period if the ACNC officer suspects on reasonable grounds that the equipment needs to be secured for longer. [Subsection 75-65(6)]

8.127 ACNC officers would use this power when they can't get an expert to operate the equipment after the 24-hour period has passed, or when the expert was unable to operate the equipment and the officer engages another expert to operate the equipment.

8.128 Before ACNC officers make the application to the 'issuing officer', the officers must give notice to the occupier of the premises, with the occupier being entitled to be heard in relation to the application for the extension. [Subsection 75-65(7)]

8.129 This requirement ensures that occupiers are given a chance to respond to the officers' intention to apply for an extension.

8.130 The 'issuing officer' may issue an extension if satisfied that it is necessary to do so to prevent the destruction, alteration or inference with the relevant data. [Subsection 75-65(8)]

8.131 The framework under which a monitoring warrant is issued applies to cases where an 'issuing officer' extends the time period which electronic equipment is secured under this Section. [Subsection 75-65(9)]

8.132 In general, the framework established by Division 75 for the issuance of warrants applies to extensions. However, in certain sections the provisions need to be modified to apply to extensions.

8.133 For example, in Subdivision 75-F the condition for issuing a monitoring warrant differs from the condition the 'issuing officer' needs to consider when granting an extension.

8.134 The 24-hour period may be extended more than once. [Subsection 75-65(10)]

8.135 If damage or corruption occurs to the electronic equipment because insufficient care was exercised in selecting the expert to operate the equipment, or insufficient care was exercised by the individual, the Commonwealth must pay the owner of the equipment reasonable compensation for the damage or corruption. [Subsection 75-70(1)]

8.136 The Commonwealth and the owner have to agree on a reasonable amount. [Subsection 75-70(2)]

8.137 If the owner and the Commonwealth do not agree on a compensation amount, the owner or user may institute proceedings in a Court for a reasonable amount of compensation. The Court would have the responsibility of determining the reasonable amount of compensation. [Subsection 75-65(3)]

8.138 In coming to a view on the reasonable amount of compensation regard is to be had to whether the occupier of the premises, or the occupier's employees or agents, were available and provided any appropriate warning or guidance on the operation of the equipment. [Subsection 75-70(4)]

8.139 For these subsections to apply, damage has to be caused to the equipment, or data recorded on the equipment has to be damaged or programs associated with the use of the equipment, or with the use of the data have to be damaged or corrupted. [Subsection 75-70(1)]

Occupier's rights and responsibilities

8.140 The occupier of premises to which a monitoring warrant relates, or another person who represents the occupier, is entitled to observe the execution of the monitoring warrant if present at the premises while the warrant is being executed. [Subsection 75-75(1)]

8.141 ACNC officers continue to be able to execute the warrant in 2 or more areas of the premises at the same time. [Subsection 75-75(3)]

8.142 The occupiers will lose the right to observe the execution of the warrant if the occupier or other person impedes the proper execution of the monitoring warrant. [Subsection 75-75(2)]

8.143 Occupiers must provide ACNC officers that are executing a warrant and individuals assisting the ACNC officer with reasonable facilities and assistance for the effective exercise of their powers. [Subsection 75-80(1)]

8.144 The occupier commits an offence if the occupiers do not provide ACNC officers with reasonable facilities and assistance for the effective exercise of their powers. The penalty for this offence is 20 penalty units. [Subsection 75-80(2)]

Monitoring warrants

8.145 The ACNC Commissioner may apply to an 'issuing officer' for a monitoring warrant under the Bill. [Subsection 75-85(1)]

8.146 The magistrate may issue the monitoring warrant if satisfied, by information on oath or affirmation provided by the ACNC Commissioner, that it is necessary that one or more ACNC officer should have access to the premises for the purpose of determining whether:

•

a provision subject to monitoring has been, or is being, complied with; or

•

information subject to monitoring is correct.

[Subsection 75-85(2)]

8.147 The ACNC Commissioner or their delegate must give the magistrate any information required concerning the grounds on which the warrant is being sought. This information can be provided orally or by affidavit. [Subsection 75-85(3)]

8.148 The monitoring warrant must contain certain information which is set out in the Bill, including the premises to which the warrant relates, the purpose for which the warrant is issued, and the day on which the warrant ceases to be in force. [Subsection 75-85(4)]

8.149 The monitoring warrant will be in force for a period of no more than one month after the issue of the warrant. [Paragraph 75-85(4)(f)]

Powers of issuing officers

8.150 Power conferred on an 'issuing officer' to issue a monitoring warrant is conferred in a personal capacity, not as a court or a member of a court. [Subsection 75-90(1)]

8.151 The issuing officer does not need to accept the power conferred by this Bill. [Subsection 75-90(2)]

8.152 An issuing officer will have immunity when exercising the power under this Division as the court of which the issuing officer is a member; or as a member of the court of which the issuing officer is a member. [Subsection 75-90(3)]

General provisions

8.153 The ACNC Commissioner must issue an identity card to an ACNC officer who the ACNC Commissioner considers is likely to exercise monitoring powers and functions under this Bill. [Subsection 75-95(1)]

8.154 The ACNC Commissioner would provide these individuals with the appropriate training making them aware of their obligations and responsibilities.

8.155 The identity card must be in the form set out by the ACNC Commissioner, and contain a recent photograph of the ACNC officer. [Subsection 75-95(2)]

8.156 A photograph is required to ensure that the occupiers of the premises are satisfied that the ACNC officers mentioned in the warrant are actually executing the warrant.

8.157 An ACNC officer would commit an offence if the officer ceases to be an ACNC officer and does not return the identity card to the ACNC Commissioner within 14 days of ceasing to be an ACNC officer. [Subsection 75-95(3)]

8.158 The penalty for this offence will be 1 penalty unit. The offence will be a strict liability offence. [Subsection 75-95(4)]

8.159 The officer would not commit an offence if the identity card was lost or destroyed. The officer would bear the evidential burden in relation to the offence. [Subsection 75-95(5)]

8.160 ACNC officers must carry their identity card at all times when exercising the monitoring powers. [Subsection 75-95(6)]