Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) In this section:
"authorised officer" means a person authorised by the Electoral Commission under subsection (2).
"prescribed person" means a person whose name is included in a list in a report mentioned in subsection 17(2A).
(2) The Electoral Commission may, by instrument in writing signed by the Electoral Commissioner on behalf of the Electoral Commission, authorize a person or a person included in a class of persons to perform duties under this section.
(2A) An authorised officer may, for the purpose of:
(aaa) finding out whether:
(i) a person to whom section 305B (gifts to political parties and significant third parties) or 306 (gifts to members of the House of Representatives or Senators) applies or may apply; or
(ia) a member of the House of Representatives or a Senator; or
(ii) a prescribed person; or
(iii) the agent of a registered political party, candidate or group; or
(iv) the financial controller of a significant third party or associated entity; or
(v) a third party;
has complied with this Part, or the Criminal Code to the extent that it relates to this Part; or
(aab) determining whether to give a notice under section 287S or 302H (anti - avoidance);
by notice served personally or by post on:
(aac) the member of the House of Representatives or Senator; or
(a) the agent or any officer of the political party, or the agent of the candidate or group; or
(aa) the financial controller of the significant third party, third party or associated entity or any officer of the significant third party, third party or associated entity; or
(b) the prescribed person or, if the prescribed person is a body corporate, any of its officers;
as the case may be, require the member of the House of Representatives, Senator, agent, financial controller, person or officer:
(c) to produce, within the period and in the manner specified in the notice, the documents or other things referred to in the notice; or
(d) to appear, at a time and place specified in the notice, before the authorised officer to give evidence, either orally or in writing, and to produce the documents or other things referred to in the notice.
(2AB) The period specified in a notice for the purposes of paragraph (2A)(c) must be no longer than 30 days after the date of the notice.
(2B) If a notice under paragraph (2A)(a) or (aa) requires an officer of a political party, significant third party, third party or associated entity (other than the agent of the party, or the financial controller of the significant third party, third party or associated entity, as the case requires) to appear before an authorised officer under paragraph (2A)(d), then the agent of the party, or the financial controller of the significant third party, third party or associated entity, is entitled:
(a) to attend at the proceeding under paragraph (2A)(d); or
(b) to nominate another person in writing to attend on behalf of the agent or financial controller.
(2C) Failure of the agent or nominee to attend under subsection (2B) does not affect the powers of the authorised officer to conduct the proceeding under paragraph (2A)(d).
(2D) Where a body corporate, unincorporated body or individual has made a gift or disposition of property of $25,000 or more to a registered political party or candidate, an authorised officer must conduct an investigation of that gift or disposition of property in accordance with this section.
(3) Where an authorized officer has reasonable grounds to believe that a person is capable of producing documents or other things or giving evidence relating to a contravention, or possible contravention, of a civil penalty provision in this Part, or relating to matters that are set out in, or are required to be set out in, a claim or return under this Part, the authorized officer may, by notice served personally or by post on that person, require that person:
(a) to produce, within the period and in the manner specified in the notice, such documents or other things as are referred to in the notice; or
(b) to appear, at a time and place specified in the notice, before the authorized officer to give evidence, either orally or in writing, and to produce such documents or other things as are referred to in the notice.
(3A) If:
(a) an authorised officer has reasonable grounds to believe that a person is capable of producing documents or other things, or giving evidence, relating to whether another person or an entity is, or was at a particular time, a significant third party, third party or associated entity; and
(b) the person is, or has at any time been, the financial controller or an officer of the significant third party, third party or associated entity;
the authorised officer may, by notice served personally or by post on the person, require the person:
(c) to produce, within the period and in the manner specified in the notice, such documents or other things as are specified in the notice; or
(d) to appear, at a time and place specified in the notice, before the authorised officer to give evidence, whether orally or in writing, and to produce the documents or other things specified in the notice.
The notice must not require the person to produce documents, or to appear, until after the end of the period of 14 days beginning on the day on which the notice was received, and must set out the person's right to request a review under subsection (3B).
(3B) A person who is given a notice under subsection (3A) may request that the Electoral Commission review the decision to issue the notice. The request must be:
(a) in writing; and
(b) given to the Electoral Commission during the period of 14 days beginning on the day on which the notice was received.
(3C) The Electoral Commission must:
(a) review the decision as soon as practicable after receiving a request under subsection (3B); and
(b) affirm, vary or set aside the decision; and
(c) notify the person in writing of its decision on the review.
(3D) If a person requests a review of a decision, the person is not taken to have refused or failed to comply with the notice to which the review relates at any time before the Electoral Commission has notified the person of its decision on the review.
(4) An authorized officer may require any evidence that is to be given to him or her in compliance with a notice under subsection (2A), (3) or (3A) to be given on oath or affirmation and for that purpose the authorized officer may administer an oath or affirmation.
(5) A person commits an offence if the person refuses to comply with a notice under subsection (2A), (3) or (3A) to the extent that the person is capable of complying with the notice.
(5A) A person commits an offence if the person fails to comply with a notice under subsection (2A), (3) or (3A) to the extent that the person is capable of complying with the notice.
(5B) Strict liability applies to an offence against subsection (5A).
Note: For strict liability , see section 6.1 of the Criminal Code .
(5C) Subsection (5) or (5A) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (5C) (see subsection 13.3(3) of the Criminal Code ).
(6) A person shall not, in purported compliance with a notice under subsection (2A), (3) or (3A), give evidence that is, to the knowledge of the person, false or misleading in a material particular.
Penalty: Imprisonment for 6 months or 10 penalty units, or both.
(7) Where:
(a) an authorized officer has reasonable grounds for suspecting that there may be, at any time within the next following 24 hours, upon any land or upon or in any premises, vessel, aircraft or vehicle, a document or other thing that may afford evidence relating to a contravention of a civil penalty provision in, or an offence against, this Part; and
(b) the authorized officer has reasonable grounds to believe that, if a notice under this section were issued for the production of the document or other thing, the document or other thing might be concealed, lost, mutilated or destroyed;
the authorized officer may make an application to a magistrate for the issue of a warrant under subsection (8).
(8) Subject to subsection (9), where an application under subsection (7) is made by an authorized officer to a magistrate, the magistrate may issue a warrant authorizing the authorized officer or any other person named in the warrant, with such assistance as the officer or person thinks necessary and if necessary by force:
(a) to enter upon the land or upon or into the premises, vessel, aircraft or vehicle;
(b) to search the land, premises, vessel, aircraft or vehicle for documents or other things that may afford evidence relating to a contravention of the civil penalty provision or offence, being documents or other things of a kind described in the warrant; and
(c) to seize any documents or other things of the kind referred to in paragraph (b).
(9) A magistrate shall not issue a warrant under subsection (8) unless:
(a) an affidavit has been furnished to the magistrate setting out the grounds on which the issue of the warrant is being sought;
(b) the authorized officer applying for the warrant or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought; and
(c) the magistrate is satisfied that there are reasonable grounds for issuing the warrant.
(10) Where a magistrate issues a warrant under subsection (8), the magistrate shall state on the affidavit furnished in accordance with subsection (9) which of the grounds specified in that affidavit he or she has relied on to justify the issue of the warrant and particulars of any other grounds so relied on.
(11) A warrant issued under subsection (8) shall:
(a) include a statement of the purpose for which the warrant is issued, which shall include a reference to the contravention of the civil penalty provision or offence in relation to which the warrant is issued;
(b) state whether entry is authorized to be made at any time of the day or night or during specified hours of the day or night;
(c) include a description of the kind of documents or other things authorized to be seized; and
(d) specify a date, not being later than one month after the date of issue of the warrant, upon which the warrant ceases to have effect.
(12) Where a document or other thing is seized by a person pursuant to a warrant issued under subsection (8):
(a) the person may retain the document or other thing so long as is reasonably necessary for the purposes of the investigation to which the document or other thing is relevant; and
(b) when the retention of the document or other thing by the person ceases to be reasonably necessary for those purposes, the person shall cause the document or other thing to be delivered to the person who appears to the first - mentioned person to be entitled to possession of the document or other thing.