Associations Incorporation Act 1981 (Victoria)/Part VIIIA

by Government of the State of Victoria, Australia

PART VIIIA—POWERS OF INSPECTION^[1]

37A Definition

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In this Part, legal practitioner means an Australian legal practitioner within the meaning of the Legal Profession Act 2004.

38B

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37C Production of identity card

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(1) An inspector must produce his or her identity card for inspection—

(a) before exercising a power under this Part other than a requirement made by post; and

(b) at any time during the exercise of a power under this Part, if asked to do so.

Penalty: 10 penalty units.

(2) This section does not apply to the exercise of a power under section 37E.

37D Inspectors may require certain persons to appear, answer questions and produce documents

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(1) For the purpose of ascertaining whether the provisions of this Act and the regulations have been complied with, an inspector may by notice in the prescribed form—

(a) require an incorporated association to produce to the inspector at a time and place specified in the notice specified relevant documents relating to the incorporated association; and

(b) require any person who is involved in the activities of an incorporated association to produce to the inspector at a time and place specified in the notice specified relevant documents relating to the incorporated association; and

(c) require any person who is involved in the activities of an incorporated association—

(i) to attend before the inspector at a time and place specified in the notice; and

(ii) to answer any questions put to the person by the inspector relating to the promotion, formation, membership, control, transactions, dealings, business or property of the incorporated association.

(2) A person is to be considered to be involved in the activities of an incorporated association if the person—

(a) is or has been an officer or employee of, or an agent, banker, legal practitioner, auditor or other person acting in any capacity for or on behalf of, the incorporated association (including an incorporated association that is in the course of being wound up or has had its incorporation cancelled); or

(b) is a person who has any relevant documents relating to the incorporated association in his or her possession or control; or

(c) is a person who was a party to the creation of any relevant documents relating to the incorporated association.

(3) A person is not subject to any liability by reason of complying with a requirement made or purportedly made under this section.

37E Inspector's powers of entry

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(1) An inspector may enter any place and may search for and seize any relevant documents or anything that the inspector believes on reasonable grounds to be connected with an offence against this Act that is found on or in the place, if the entry, search and seizure are made—

(a) with the consent of the occupier after the inspector has—

(i) informed the occupier of the purpose of the search; and

(ii) informed the occupier that anything seized during the search may be used in evidence in court; and

(iii) informed the occupier that the occupier may refuse to give consent to the entry and search; and

(iv) produced his or her identity card for inspection; or

(b) in accordance with a warrant issued under section 37F.

(2) If an occupier consents to an entry and search, the inspector who requested consent must ask the occupier to sign an acknowledgment in the prescribed form stating—

(a) that the occupier has been informed of the purpose of the search and that anything seized in the search may be used in evidence in court; and

(b) that the occupier has been informed that he or she may refuse to give consent to the entry and search; and

(c) that the occupier has consented to such an entry and search; and

(d) the date and time that the occupier consented.

(3) An occupier who signs an acknowledgment must be given a copy of the signed acknowledgment immediately.

(4) If, in any proceeding, an acknowledgment is not produced to the court, it must be presumed, until the contrary is proved, that the occupier did not consent to an entry and search.

37EA Entry without consent or warrant

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(1) For the purpose of monitoring compliance with this Act or the regulations, an inspector may, subject to subsection (2)—

(a) enter and search any premises at which the inspector believes, on reasonable grounds—

(i) an association is trading or supplying goods or services; or

(ii) a person is keeping a record or document that is required to be kept by this Act or the regulations or that may show whether or not this Act or the regulations are being complied with;

(b) examine anything found on the premises; (c) seize anything found on the premises or secure anything found on the premises against interference, if the inspector believes, on reasonable grounds, that it is connected with a contravention of this Act or the regulations;

(d) examine and test any equipment found on the premises that is of a kind used in connection with the supply of goods or services;

(e) in the case of any document on the premises, do all or any of the following—

(i) require the document to be produced for examination;

(ii) examine, make copies or take extracts from the document, or arrange for the making of copies or the taking of extracts to be done on the premises or elsewhere;

(iii) remove the document for so long as is reasonably necessary to make copies or take extracts from the document;

(f) make any still or moving image or audio-visual recording;

(g) bring any equipment onto the premises that the inspector believes, on reasonable grounds, is necessary for the examination or processing of things (including documents) found at the premises in order to determine whether they are things that may be seized under this section.

(2) An inspector—

(a) must not exercise a power under subsection (1) in any part of the premises that is used for residential purposes; and

(b) must not exercise a power under subsection (1), except between the hours of 9 a.m. to 5 p.m., or when the premises are open for business.

(3) If an inspector exercises a power of entry under this section without the owner or occupier being present the inspector must, on leaving the premises, leave a notice setting out—

(a) the time of entry; and

(b) the purpose of entry; and

(c) a description of things done while on the premises; and

(d) the time of departure; and

(e) the procedure for contacting the Director for further details of the entry.

37F Search warrant

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(1) An inspector may apply to a magistrate for the issue of a search warrant in relation to a particular place if—

(a) an incorporated association or person does not comply with a requirement of an inspector under section 37D within the time specified in the notice; or

(b) there are reasonable grounds for suspecting that there may be at that place any document or thing that may be evidence of the commission of an offence against this Act or the regulations.

(2) The magistrate may issue the search warrant if the magistrate is satisfied by the evidence on oath, whether oral or by affidavit, of an inspector that there are reasonable grounds for suspecting that there is or may be within the next 28 days, at that place—

(a) a relevant document; or

(b) a document or thing that may be evidence of the commission of an offence against this Act or the regulations.

(3) A search warrant under this section authorises the inspector named in the warrant and any assistants the inspector considers necessary—

(a) to enter the place specified in the warrant, if necessary by force; and

(b) to search for and seize—

(i) a relevant document named or described in the warrant; or

(ii) a document or thing named or described in the warrant and which the inspector believes on reasonable grounds, to be connected with an offence.

(4) A search warrant issued under this section must state—

(a) the purpose for which the search is required and the nature of the offence suspected; and

(b) any conditions to which the warrant is subject; and

(c) whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and

(d) a day not being later than 28 days after the issue of the warrant, on which the warrant ceases to have effect.

(5) A search warrant must be issued in accordance with the Magistrates' Court Act 1989.

(6) Except as provided by this Act, the rules to be observed with respect to search warrants mentioned in the Magistrates' Court Act 1989 extend and apply to warrants under this section.

37G Announcement before entry

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(1) On executing a search warrant, the inspector executing the warrant must announce that he or she is authorised by the warrant to enter the place and, if the inspector has been unable to obtain unforced entry, must give any person at the place an opportunity to allow entry to the place.

(2) An inspector need not comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the place is required to ensure the safety of any person or that the effective execution of the search warrant is not frustrated.

37H Details of warrant to be given to occupier

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If the occupier or another person who apparently represents the occupier is present at premises where a search warrant is being executed, the inspector must—

(a) identify himself or herself to that person; and

(b) give to the person a copy of the warrant.

37I Seizure of documents or things not mentioned in the warrant

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If, in the course of executing a search warrant, an inspector finds a document or thing that he or she believes on reasonable grounds to be—

(a) connected with the offence, although not the document or thing named or described in the warrant; or

(b) connected with another offence against this Act—

and the inspector believes, on reasonable grounds, that it is necessary to seize that document or thing in order to prevent its concealment, loss or destruction, the warrant is deemed to authorise the inspector to seize the document or thing.

37J Power of inspector to require information or documents

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An inspector who—

(a) exercises a power of entry under this Part; and

(b) produces his or her identity card for inspection by a person—

may, to the extent that it is reasonably necessary to determine compliance with this Act, require the person to give information to the inspector, orally or in writing, to produce documents to the inspector and to give reasonable assistance to the inspector.

37K Functions of inspectors in relation to relevant documents

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(1) An inspector has the following powers in relation to relevant documents produced to the inspector pursuant to a requirement made under this Part—

(a) power to take possession of the documents or secure them against interference;

(b) power to make copies, or take extracts from, the documents;

(c) power to require any person who was party to the creation of the documents to make a statement providing any explanation that the person is able to provide as to any matter relating to the creation of the documents or as to any matter to which the documents relate;

(d) power to retain possession of the documents for such reasonable period as is necessary to enable the documents to be inspected, and copies of, or extracts from, the documents to be made or taken.

(2) While an inspector retains possession of a document, the inspector must permit a person who would be entitled to inspect the document were it not in the possession of the inspector to inspect the document at any reasonable time and make a copy of, or take extracts from, the document.

(3) If an inspector takes possession of or secures against interference any relevant document and a person has a lien on the document, the inspector's actions do not prejudice the lien.

(4) An inspector must not take possession of a document apparently in the possession or custody of a person unless the inspector makes out and tenders to the person a written receipt—

(a) identifying the document; and

(b) stating the name of the inspector and the reason why the document is being seized.

37L Offence—failing to comply with requirements of inspector

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(1) A person must not refuse or fail, without reasonable excuse, to comply with a requirement of an inspector under this Part to produce relevant documents or to give reasonable assistance to the inspector.

Penalty: 60 penalty units.

(2) A person must not—

(a) give information to an inspector that the person knows to be false or misleading in a material particular; or

(b) produce a document that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information.

Penalty: 60 penalty units.

(3) A person must not without reasonable excuse obstruct or hinder an inspector exercising functions under this Act.

Penalty: 60 penalty units

37M Protection against self-incrimination

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(1) It is a reasonable excuse for a natural person to refuse or fail to give information or do any other thing that the person is required to do by or under this Part, if the giving of the information or the doing of that other thing would tend to incriminate the person.

(2) Despite subsection (1), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is required to produce by or under this Part, if the production of the document would tend to incriminate the person.

37N Privilege

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(1) A legal practitioner is entitled to refuse to comply with a requirement under section 37D or 37J relating to a relevant document if—

(a) the document contains a privileged communication made by or on behalf of or to the legal practitioner in his or her capacity as a legal practitioner; or

(b) the legal practitioner is not able to comply with the requirement without disclosing a privileged communication made by or on behalf of or to the legal practitioner in his or her capacity as a legal practitioner.

(2) The legal practitioner is not entitled to refuse to comply with the requirement to the extent that he or she is able to comply with it without disclosing the privileged communication.

(3) The legal practitioner is also not entitled to refuse to comply with the requirement if the person by or on behalf of whom the communication was made or (if the person is an incorporated association in the course of being wound up) the liquidator agrees to the legal practitioner complying with the requirement.

(4) If the legal practitioner refuses to comply with the requirement, he or she must immediately furnish in writing to the Registrar—

(a) the name and address of the person to whom or by or on behalf of whom the communication was made (if known to the legal practitioner); and

(b) sufficient particulars to identify the document containing the communication (if the communication was made in writing).

Penalty: 60 penalty units.

37O Police aid for inspectors

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(1) An inspector may call to his or her aid a member of the police force if he or she is obstructed, or believes on reasonable grounds that he or she will be obstructed, in the exercise of his or her functions as an inspector.

(2) A member of the police force has, while acting in aid of an inspector, all the functions of an inspector.

37P Entry to be reported to the Director

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(1) If an inspector exercises a power of entry under this Part, the inspector must report the exercise of the power to the Director within 7 days after the entry.

(2) The report must include all relevant details of the entry including particulars of—

(a) the time and place of the entry; and

(b) the purpose of the entry; and

(c) the things done while on the premises, including details of things seized, copies made and extracts taken; and

(d) the time of departure from the premises.

37PA Register of exercise of powers of entry

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The Director must keep a register containing the particulars of all matters reported to the Director under section 37P.

37PB Complaints

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(1) Any person may complain to the Director about the exercise of a power by an inspector under this Part.

(2) The Director must—

(a) investigate any complaint made to the Director; and

(b) provide a written report to the complainant on the results of the investigation.

37Q Secrecy

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(1) An inspector must not disclose information acquired in the course of an investigation under this Part except—

(a) for the purpose of conducting the investigation and making a report of the investigation; or

(b) as permitted by subsection (2); or

(c) for the purpose of any proceedings under this Act; or

(d) with the consent of the person to whom the information relates.

Penalty: 60 penalty units.

(2) An inspector may disclose information acquired in the course of an investigation—

(a) to a member of the police force, if the inspector reasonably suspects that an offence has been committed; or

(b) to a court or tribunal; or

(c) to a person appointed as the liquidator of the incorporated association.

Footnotes

1. Pt 8A (Heading and ss 37A–37Q) inserted by No. 57/1997 s. 26.
2. S. 37A inserted by No. 57/1997 s. 26, repealed by No. 17/1999 s. 21(2), new s. 37A inserted by No. 18/2005 s. 18(Sch. 1 item 7).
3. S. 37B inserted by No. 57/1997 s. 26, repealed by No. 17/1999 s. 21(2).
4. S. 37C inserted by No. 57/1997 s. 26, amended by No. 17/1999 s. 21(3), substituted by No. 79/2006 s. 69.
5. S. 37D inserted by No. 57/1997 s. 26.
6. S. 37E inserted by No. 57/1997 s. 26.
7. S. 37EA inserted by No. 79/2006 s. 70.
8. S. 37F inserted by No. 57/1997 s. 26.
9. S. 37G inserted by No. 57/1997 s. 26.
10. S. 37H inserted by No. 57/1997 s. 26.
11. S. 37I inserted by No. 57/1997 s. 26.
12. S. 37J inserted by No. 57/1997 s. 26.
13. S. 37K inserted by No. 57/1997 s. 26.
14. S. 37L inserted by No. 57/1997 s. 26.
15. S. 37M inserted by No. 57/1997 s. 26, substituted by No. 79/2006 s. 71.
16. S. 37N inserted by No. 57/1997 s. 26.
17. S. 37O inserted by No. 57/1997 s. 26.
18. S. 37P inserted by No. 57/1997 s. 26, substituted by No. 79/2006 s. 72.
19. S. 37PA inserted by No. 79/2006 s. 72.
20. S. 37PB inserted by No. 79/2006 s. 72.
21. S. 37Q inserted by No. 57/1997 s. 26.