Part 5 Inspectors and enforcement
(1) The Director-General may appoint any member of staff of the Department, or any person who the Director-General considers is suitably qualified for the purpose, to be an inspector for the purposes of this Act.(2) On appointing an inspector under subsection (1), the Director-General must issue to the inspector a certificate of authority that authorises the inspector to exercise the functions conferred on an inspector by this Act.(3) A certificate of authority must:(a) state that it is issued under the Assisted Reproductive Technology Act 2007, and(b) give the name of the person to whom it is issued, and(c) state the date, if any, on which it expires, and(d) describe the nature of the functions conferred and the source of the functions.
(1) An inspector may, for the purpose of ascertaining whether or not a provision of this Act, or the regulations, is being or has been contravened:(a) at any time, enter and inspect premises that are recorded in the register of ART providers under Division 1 of Part 2 as premises at which an ART provider provides ART services, and(b) at any reasonable time, enter and inspect any other premises.(2) While on premises entered under this section or under the authority of a search warrant under this Part, an inspector may do one or more of the following:(a) inspect anything that the inspector reasonably believes may provide evidence of an offence against this Act or the regulations,(b) take and remove for analysis or testing a sample of any substance that the inspector reasonably believes may provide evidence of an offence against this Act or the regulations,(c) inspect any records kept on those premises and require any person whom the inspector reasonably believes to have custody or control of those records to produce them for inspection,(d) require any person on those premises to answer questions or otherwise furnish information in relation to a contravention of this Act or the regulations,(e) make and take away copies of the whole or any part of any records or other information,(f) take away and retain, for such period as may be reasonably necessary, any records or other information, or any part of them, in order to make copies of them,(g) take away and retain any records or other information, if the inspector concerned reasonably believes that the records or information are evidence of an offence against this Act or the regulations, until proceedings for the offence have been disposed of,(h) seize and detain anything that the inspector reasonably believes may provide evidence of an offence against this Act or the regulations,(i) place anything seized, as referred to in paragraph (h), in a container, or in a room, compartment or cabinet located on the premises where it was seized, and mark, fasten and seal that container or, as the case may be, the door or opening providing access to the room, compartment or cabinet,(j) take such photographs, films, audio, video and other recordings as the inspector considers necessary.(3) Anything seized under this section may, at the option of the inspector who made the seizure or another inspector acting in place of that inspector, be detained on the premises where it was found or be removed to other premises and detained there.(4) Before taking away a record or statement or anything seized under this section, an inspector must tender an appropriate receipt to the person from whom it was taken.(5) This section does not authorise an inspector to enter any part of premises that is being used for residential purposes except:(a) with the consent of the occupier, or(b) under the authority of a search warrant.(6) An inspector must, when exercising on any premises any power of an inspector under this section, produce the inspector’s certificate of authority if required to do so by the occupier of the premises.
48 Provisions relating to exercise of powers
(1) A power conferred by this Act to enter premises, or to make an inspection or take other action on premises, may not be exercised unless the inspector proposing to exercise the power:(a) is in possession of the inspector’s certificate of authority, and(b) gives reasonable notice to the occupier of the premises of the intention to exercise the power unless the giving of notice would defeat the purpose for which it is intended to exercise the power, and(c) exercises the power at a reasonable time, unless it is being exercised in an emergency or in relation to premises that are recorded in the register of ART providers under Division 1 of Part 2 as premises at which an ART provider provides ART services, and(d) uses no more force than is reasonably necessary to effect the entry or make the inspection or take other action.(2) If damage is caused by an inspector exercising a power to enter premises, a reasonable amount of compensation is recoverable as a debt owed by the Crown to the owner of the premises unless the occupier obstructed the exercise of the power.(3) This section does not apply to a power conferred by a search warrant issued under the Law Enforcement (Powers and Responsibilities) Act 2002.
49 Requirement to provide information and records
(1) An inspector may, by written notice given to a person, require the person to furnish to the inspector such information or records (or both) as the inspector requires by the notice, being information that relates to the question of whether or not a provision of this Act or the regulations is being or has been contravened.(2) A notice under this section:(a) must specify the manner in which information or records are required to be furnished and a reasonable time by which the information or records are required to be furnished, and(b) may only require a person to furnish existing records that are in the person’s possession or that are within the person’s power to obtain lawfully.(3) The inspector to whom any record is furnished under this Part may take copies of it.(4) If any record required to be furnished under this Part is in electronic, mechanical or other form, the notice requires the record to be furnished in written form, unless the notice otherwise provides.(5) This section applies whether or not a power of entry under this Act is being or has been exercised.
50 Requirement to provide answers
(1) An inspector may require a person who the inspector suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required for the purposes of this Act to answer questions in relation to those matters.(2) An inspector may, by written notice, require a corporation to nominate, in writing within the time specified in the notice, a director or officer of the corporation to be the corporation’s representative for the purpose of answering questions under this section.(3) Answers given by a person nominated under subsection (2) bind the corporation.
51 Limitation on self-incrimination
(1) A person who is required under this Part to answer a question or to produce a thing is not excused from answering the question or producing that thing on the ground that the answer to the question or the production of the thing might tend to incriminate the person or make the person liable to a penalty.(2) The answer to the question or production of the thing by an individual is not admissible in evidence against the individual in any criminal proceedings (except proceedings for an offence under section 53 (1)) if:(a) the individual objected at the time to answering the question or producing the thing on the ground that it might incriminate the individual, or(b) the individual was not warned on that occasion that the individual may object to answering the question or producing the thing on the ground that it might incriminate the individual.
(1) An inspector may apply to an authorised officer for a search warrant if the inspector has reasonable grounds for believing that a provision of this Act or the regulations has been or is being contravened on premises.(2) An inspector may not apply for a search warrant unless the inspector has notified the Director-General of the intended application.(3) An authorised officer to whom an application for a search warrant is made under this section may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an inspector named in the warrant, when accompanied by a police officer, and any other person named in the warrant:(a) to enter the premises concerned, and(b) to search the premises for evidence of a contravention of this Act or the regulations.(4) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.(5) In this section:authorised officer means an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002.
(1) A person must not:(a) without reasonable excuse, neglect or fail to comply with a requirement made of the person by an inspector under this Act, or(b) without reasonable excuse, hinder or obstruct an inspector in the exercise of any of the powers conferred by this Act.Maximum penalty: 100 penalty units in the case of a corporation or 50 penalty units in any other case.
(2) A person is not guilty of an offence under subsection (1) (a) unless it is established by the prosecutor that the inspector concerned warned the person that a failure or refusal to comply with the requirement was an offence.(3) A person is not guilty of an offence under subsection (1) (b) unless it is established by the prosecutor that:(a) the inspector produced at the relevant time the inspector’s certificate of authority, and(b) the person was informed by the inspector, or otherwise knew, that the inspector was empowered to exercise the power to which the offence relates.
(1) Any person claiming to be entitled to any seized item (other than a sample of any substance taken for analysis or testing) may, within 10 days after the date on which the seizure took place, make an application to the Local Court for an order disallowing the seizure.(2) An application made under this section must not be heard unless the applicant has served a copy of the application on the Director-General.(3) The Director-General is entitled to appear as respondent at the hearing of an application made under this section.(4) The Local Court must, on the hearing of an application made under this section, make an order disallowing the seizure if:(a) the Court is satisfied that:(i) the applicant would, but for the seizure, be entitled to the seized item, and(ii) the respondent has failed to prove beyond all reasonable doubt that, at the time of the seizure, an offence was being or had been committed in relation to the seized item, or(b) the Court is of the opinion that there are exceptional circumstances justifying the making of an order disallowing the seizure.(5) In any other case, the Local Court must refuse the application.(6) If on the hearing of an application made under this section it appears to the Local Court that the seized item that is the subject of the application is required to be produced in evidence in any pending proceedings in connection with an offence against this Act or the regulations, the Court may, either on the application of the respondent or on its own motion, adjourn the hearing until the conclusion of those proceedings.(7) If the Local Court makes an order under subsection (4) disallowing the seizure of any seized item, the Court must also make one or both of the following orders:(a) an order directing the respondent to cause the seized item to be delivered to the applicant or to such other person as appears to the Court to be entitled to it,(b) if the seized item cannot for any reason be so delivered or has in consequence of the seizure depreciated in value, an order directing the Director-General to pay to the applicant such amount by way of compensation as the Court considers to be just and reasonable.(8) The award of costs with respect to the hearing of an application made under this section is at the discretion of the Local Court.(9) If the Local Court makes an order for the payment of any amount as compensation under subsection (7) (b) or awards any amount as costs under subsection (8), that order is enforceable as a judgment of the Court.
(1) The Director-General must immediately cause a seized item (whether or not the item is forfeited to the Crown) to be delivered to such person as appears to the Director-General to be entitled to it, if:(a) the Director-General becomes satisfied that there has been no contravention of this Act or the regulations in relation to the seized item, and(b) the seized item has not been disposed of or destroyed in a manner that would prevent it from being dealt with in accordance with this subsection.(2) A seized item is forfeited to the Crown and may be destroyed or disposed of in such manner as the Director-General directs if:(a) no application for disallowance of the seizure of a seized item has been made within the period allowed by this Part, or(b) an application has been made within that period and the application has been refused or withdrawn before a decision in respect of that application has been made, or(c) the item is a sample of a substance taken for analysis or testing and the analysis or testing will damage or destroy the item.(3) If any seized item is delivered to a person in accordance with subsection (1), such proprietary and other interests as existed immediately before the forfeiture are revived.
55A Use of enforcement powers in connection with Surrogacy Act 2010
(1) An inspector may exercise any function conferred on the inspector by this Part in connection with the enforcement of this Act or the regulations for the purpose of ascertaining whether or not a provision of the Surrogacy Act 2010 or the regulations under that Act is being or has been contravened by an ART provider or in connection with the provision of ART treatment.(2) For that purpose, a reference in this Part to this Act or the regulations includes a reference to the Surrogacy Act 2010 or the regulations under that Act.