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Powers of inspectors under the Fuel Quality Standards Act 2000

The Act sets out the powers that an inspector may exercise upon entering premises for the purposes of the Act either with consent of the occupier, or under a monitoring or offence-related warrant. If an occupier does not consent to entry by an inspector, an inspector may only enter premises for sampling and the collection of other evidence under either a monitoring or an offence-related warrant.

• Monitoring powers
• Offence-related powers

Monitoring powers

Subsection 41(1) of the Act allows inspectors to exercise certain powers for the purpose of monitoring compliance with the Act. These powers may be exercised with the consent of the occupier of the premises or under a monitoring warrant. The powers include the authority for an inspector to sample fuel. They also enable an inspector to:

1. search the premises and any thing on the premises;
2. inspect, examine, take measurements of, conduct tests on, and take samples of, any fuel or fuel additive on the premises;
3. take photographs, make video or audio recordings or make sketches of the premises or any thing on the premises;
4. inspect any book, record or document on the premises;
5. take extracts from or make copies of any such book, record or document;
6. take onto the premises such equipment and materials as the inspector requires for the purpose of exercising powers in relation to the premises;
7. secure a thing, until an offence-related warrant is obtained to seize it:
   1. that the inspector finds during the exercise of monitoring powers on the premises; and
   2. that the inspector believes on reasonable grounds is evidential material; and
   3. that the inspector believes on reasonable grounds would be lost, destroyed or tampered with before the warrant can be obtained.

An inspector has the power to operate equipment at premises to find out whether the equipment or a tape, disk or other storage device at the premises contains information that is relevant to determining whether there has been compliance with the Act or assessing the correctness of information provided under the Act (subsection 41(2)).

If after operating the equipment an inspector finds the equipment or any tape, disk or other storage device contains such information, the inspector may:

1. operate facilities at the premises to put the information in documentary form and remove the documents so produced; or
2. operate facilities at the premises to transfer the information to a disk, tape or storage device that is brought to the premises for the exercise of the power or is at the premises and the use of which for the purpose has been agreed in writing by the occupier and remove the disk, tape or storage device from the premises (subsection 41(3)).

The operation of electronic equipment at the premises in order to exercise a power under Part 3 of the Act should only be undertaken if the inspector believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment (section 49).

If expert assistance is required to operate electronic equipment inspectors should note they may in certain circumstances secure such equipment for up to 24 hours to enable time for an expert to be called in to operate the equipment (see section 50).

An inspector has the power to require a person to answer questions when the inspector has entered the premises under a monitoring warrant (but note the limitation in section 42(3)). Subsection 42 of the Act provides that:

1. An inspector who is authorised to enter premises by a monitoring warrant may require any person in or on the premises to:
   1. answer any questions put by the inspector; or
   2. produce any book, record or document requested by the inspector.
2. A person is guilty of an offence if the person refuses or fails to comply with a requirement under subsection (1).
3. A person is excused from complying with this requirement under subsection (1) if the answer to the question or the production of the book, record or document might tend to incriminate the person or expose the person to a penalty.

Offence-related powers

Offence-related powers under the Act are described in sections 43 and 44. If an inspector has reasonable grounds for suspecting that there may be evidential material on any premises, the inspector may, with the consent of the occupier of the premises or under an offence-related warrant, enter the premises and exercise the offence-related powers set out in section 44. An inspector is not authorised to enter the premises unless the occupier has consented or the entry is made under an offence related warrant (section 43).

Subsection 44(1) of the Act describes offence-related powers that an inspector may exercise in relation to premises under section 43. The powers include the authority for an inspector to sample fuel but also enable an inspector to:

1. search the premises and any thing on the premises for evidential material;
2. inspect, examine, take measurements of, conduct tests on, or take samples of the evidential material;
3. take photographs, make video or audio recordings or make sketches of the premises or the evidential material; and
4. take onto the premises such equipment and materials as the inspector requires for the purpose of exercising powers in relation to the premises.

The offence-related powers under the Act include the power to operate equipment at premises to find out whether evidential material is accessible by doing so (subsections 44(2)). If after operating the equipment the inspector finds evidential material is accessible by doing so, the offence related powers include the power:

1. to seize the equipment and any disk, tape or other associated device, (but only if the inspector entered the premises under an offence related warrant) and only if:
   - it is not practicable to put the material in documentary form as mentioned in (b) below or to transfer the material as mentioned in (c) below; or
   - the possession by the occupier of the equipment would constitute an offence against a law of the Commonwealth);
2. to operate the equipment or other facilities at the premises to put the evidential material in documentary form and seize the documents so produced (but only if the inspector entered under an offence-related warrant);
3. to operate the equipment or other facilities at the premises to transfer the material to a disk, tape or other storage device that is brought to the premises for the exercise of the power or is at the premises, and the use of which for the purpose has been agreed in writing by the occupier, and remove the disk, tape or storage device from the premises (subsection 44(3)).

Subsection 44(7) provides inspectors the power to seize other things that they find in the course of a search conducted under an offence-related warrant, where the inspector believes on reasonable grounds that it is necessary to seize the other thing in order to prevent its destruction, or concealment, or to prevent its use in committing, continuing or repeating an offence against the Act.

Note also that sections 49 and 50 (use of electronic equipment) also apply where offence-related powers are being exercised.