11. Powers of authorised officers

11.1 Authorised officers

Who is an authorised officer?

[  National Law, Section 195 ]

An authorised officer is a person who has been authorised by the regulatory authority to carry out specific functions under the National Law. Regulatory authorities may authorise anyone who they consider appropriate.

A defect in the authorisation of an authorised officer does not affect the validity of any action taken or decision made by the officer under the National Law.

Identity cards

[  National Law & Regulations, Section 196, Regulation 187 ]

The regulatory authority must issue each authorised officer an identify card which states:

• the full name of the authorised officer
• that the officer is authorised under section 195 of the National Law
• the date of the officer’s authorisation
• the card must be issued by the regulatory authority that authorised the person.

An authorised officer must carry the card whenever he or she is exercising functions under the National Law.

If the identity card does not have a photograph of the authorised officer, the officer must carry another form of photographic identification and a letter authorising the use of the photographic identification from the regulatory authority. The photographic identification and letter must be presented along with the identity card.

The card must be presented before exercising a power of entry and, if requested, during the exercise of any other power under the National Law. The officer is not authorised to exercise the power unless the card is produced when required.

When an officer’s authorisation ceases, they must return their identity card to the regulatory authority.

An authorised officer may be prosecuted for failing to carry, show or return the identity card as required. The maximum penalty that may be imposed by a court is $1,100.

11.2 Authorised officer’s powers of entry

[  National Law, Sections 197, 199, 200, 200A, 201 ]

Authorised officers have powers to enter, inspect and search an education and care service premises or any other business premises to carry out the following:

• assess and monitor the service
• investigate the service
• search for documents and evidence at the principal office or any other business office of the approved provider
• enter any premises without a search warrant to determine if a service is operating without a service approval
• enter any premises with a search warrant, to determine whether a service is operating without a service approval or in contravention of the National Law, or to search for documents and evidence.

Each power of entry has specific requirements that must be met for the entry to be considered lawful. The guidance below provides information about these requirements. Note that some requirements apply to more than one power of entry, such as:

Giving warning

[  National Law, Section 212 ]

Before requiring a person to answer a question or provide information under the relevant powers of entry, an authorised officer must:

• produce their identity card
• warn the person that a failure to comply with the officer’s requirement or to answer the question, without reasonable excuse, is an offence
• in the case of an individual, warn the person about protection against self-incrimination.

This requirement does not prevent an authorised officer from obtaining and using evidence given to the officer voluntarily. This requirement also does not apply to requests made under section 197 (powers of entry for assessing and monitoring approved services).

Protection against self-incrimination

[  National Law, Section 211 ]

An individual may refuse or fail to give information or do anything that is required under the National Law that may incriminate the individual, except for:

• producing a document or part of a document that is required to be kept under the National Law, or
• giving their name or address when required, or
• doing anything required under sections 215 and 216 (information, documents and evidence required under the powers of regulatory authorities).

Documents or parts of documents produced by an individual, that are required to be kept under the National Law, are not admissible in evidence against the individual in any criminal proceedings (other than under the National Law) or in any civil proceedings. However, information disclosed by an individual may be used to support an alternative action, such as a compliance direction or emergency action notice. It may also be used to support a decision to impose a condition on an approval.

Occupier’s consent to entry and search

[  National Law, Section 213 ]

Where an occupier’s written consent to entry and search is required and the occupier provides this, the occupier must be given a copy of the signed consent immediately.

If a written consent is not produced in court, it is presumed the occupier did not consent to the entry and search, until the contrary is proved.

Powers of entry for assessing and monitoring an approved education and care services

What is the power?

[  National Law, Section 197 ]

An authorised officer may enter any education and care service premises to:

• monitor compliance with the National Law
• conduct a rating assessment of a service
• collect contact details of the parents of all enrolled children due to the suspension or cancellation of a service or provider approval (see Suspension and Cancellations).

The authorised officer may enter the premises with any assistants reasonably required.

When can the power be used and what consent is required?

An authorised officer may enter the education and care service premises at any reasonable time.

An authorised officer may not enter a family day care residence unless the service is operating at the time of entry or the occupier has given written consent to the entry and inspection.

What can be done using the power?

An authorised officer may enter the service premises and take any of the actions listed below.

A document or thing in this context means something that is used or likely to be used in the provision of the education and care service.

If a document or thing is taken away, the authorised officer must tell the person apparently in charge of it or an occupier of the premises. It must then be returned to that person or to the service within seven (7) calendar days.

National Authority representative may enter service premises in company with Regulatory Authority

What is the power?

[  National Law, Section 198 ]

A representative from the National Authority may enter an approved education and care service with an authorised officer.

When can the power be used?

The National Authority representative, in company with an authorised officer, may enter the premises within the service’s usual hours of operation.

What can be done using the power?

The entry is solely for the purpose of informing the National Authority of a regulatory authority’s rating assessment processes, to assist the National Authority to promote consistency across jurisdictions.

Powers of entry for investigating approved education and care service

What is the power?

[  National Law, Section 199 ]

An authorised officer may investigate an approved education and care service if the officer reasonably suspects an offence has been or is being committed against the National Law.

The authorised officer may enter the service premises with any necessary assistants.

When can the power be used and what consent is required?

An authorised officer may enter the education and care service premises at any reasonable time, with or without the consent of the occupier of the premises.

An authorised officer may not enter a family day care residence unless:

• the authorised officer reasonably believes that a service is operating at that time, or
• the register of family day care educators indicate that the service is operating at that time, or
• the occupier of the residence has consented in writing to the entry and inspection.

What can be done using the power?

An authorised officer may enter the service premises and take any of the actions listed below.

A document or thing in this context means something that is used or likely to be used in the provision of the education and care service.

A regulatory authority may also choose to exercise its power to obtain information, documents and evidence by notice as part of an investigation. See Powers of regulatory authorities for more information.

Powers of entry to business premises

What is the power?

[  National Law, Section 200 ]

An authorised officer may enter the principal office or any other business office of the approved provider if they reasonably suspect it holds documents or other evidence that are relevant to a possible offence against the National Law.

When can the power be used and what consent is required?

The authorised officer must not enter and search the premises without consent from the occupier.

Before obtaining the occupier’s consent, the authorised officer must:

• present their identity card
• inform the occupier of the purpose of the search and the powers that may be exercised
• inform the occupier that they may refuse to give consent to:
  • the entry and search or the taking of anything
  • the taking of any copy or extract of any documents.

What can be done using the power?

If the occupier consents, the authorised officer may enter the premises and take any of the actions listed below.

Entry to premises without a search warrant

What is the power?

[  National Law, Section 200A ]

An authorised officer may enter any premises (including residential or business premises) to determine whether an education or care service is operating without a service approval, if:

• the authorised officer reasonably believes a person is operating a service in contravention of section 103 at the premises, and
• the occupier of the premises has consented in writing to the entry and inspection.

When can the power be used and what consent is required?

The authorised officer must not enter and search the premises without written consent from the occupier.

Before obtaining the occupier’s consent, the authorised officer must:

• present their identity card
• inform the occupier of the purpose of the search and the powers that may be exercised
• inform the occupier that they may refuse to give consent to:
  • the entry and search or the taking of anything
  • the taking of any copy or extract of any documents.

What can be done using the power?

If the occupier consents, the authorised officer may enter the premises and take any of the actions listed below (see clause 5(2)(a) to (e) of Schedule 2 of the National Law).

Entry to premises with a search warrant

What is the power?

[  National Law, Section 201 ]

An authorised officer may enter any education and care service premises with a search warrant, if they reasonably believe that:

• a person is operating an education and care service from the premises without service approval (see section 103 of the National Law)
• an approved education and care service is operating from the premises in contravention of the National Law.

An authorised officer may also enter the principal office or any other business office of the approved provider, if they reasonably believe that the premises holds documents or other evidence relevant to a possible offence against the National Law.

When can the power be used and what consent is required?

An authorised officer must obtain a search warrant before entering the premises.

Applying for a warrant

[  National Law, Clause 1, Schedule 2 ]

An authorised officer may apply to a magistrate for a search warrant if they reasonably believe that:

• a person is or has been operating a service at the premises in breach of the National Law, or
• documents or other evidence relevant to a possible offence against the National Law are on the premises.

The authorised officer must prepare a sworn, written application that sets out the grounds on which the warrant is sought. The magistrate may refuse to consider the application until the authorised officer gives the magistrate all the information the magistrate requires, and in the manner specified.

In urgent or special circumstances (for example, remote location), an authorised officer may apply for a warrant electronically by phone, fax, email, radio, video conferencing or another form of communication. The application can be made after the authorised officer prepares the written application and before it is sworn.

An authorised officer should refer to their regulatory authority’s internal guidelines or protocols for information about when the regulatory authority will consent to the authorised officer seeking a warrant.

Receiving the warrant

[  National Law, Clause 2, Schedule 2 ]

The magistrate may issue the warrant only if they reasonably believe that the grounds for applying for a warrant (set out above) are met.

The warrant must state:

• the named authorised officer may, with necessary and reasonable help and force, enter the premises and any other premises necessary for entry, and exercise the officer’s powers under the warrant
• the matter for which the warrant is sought
• the evidence that may be seized
• the hours when the premises may be entered
• the end date of the warrant (within 14 days of issue).

[  National Law, Clause 3, Schedule 2 ]

Where an application was made electronically, the magistrate may issue the warrant if they are satisfied that it was necessary to apply electronically, and the application was appropriate.

If the warrant is issued, the magistrate must immediately give a copy of the warrant to the authorised officer, where reasonably possible (for example, sending by email or fax). If this is not possible, the magistrate must tell the authorised officer the date and time the warrant is issued and the other terms of the warrant. The authorised officer must complete a form of warrant containing the magistrate’s name, the date and time of issue, and other terms of the warrant. In either case, this warrant is referred to as a duplicate warrant and can be used the same way as an original warrant.

If the authorised officer completed a form of warrant, they must send the written application for the warrant and the form of warrant to the magistrate at the first reasonable opportunity. The magistrate must file these documents along with the original warrant.

If there is an issue about whether an exercise of power was authorised by the duplicate warrant and the original warrant is not produced in evidence, the onus of proof is on the person relying on the lawfulness of the exercise of power to prove that it was authorised.

  WA  In Western Australia, a Justice of the Peace may also exercise the powers of a magistrate when issuing a search warrant.

Before entering the premises

[  National Law, Clause 4, Schedule 2 ]

Before entering the premises with a warrant, an authorised officer must or make a reasonable attempt to:

• show their identity card to an occupier of the premises
• give the person a copy of the warrant
• tell the person the authorised officer is permitted by the warrant to enter the premises
• give the person an opportunity to allow immediate entry without the officer using force.

The authorised officer does not need to follow this procedure if they reasonably believe that immediate entry is necessary to ensure effective execution of the warrant.

What can be done using the power?

[  National Law, Clause 5, Schedule 2 ]

An authorised officer entering the premises with a search warrant may take any of the actions listed below.

Seized items

[  National Law, Section 202 ]

If an authorised officer has taken an item under the powers of entry for investigating approved education and care services, entering business premises or entering premises with or without a search warrant (sections 199, 200, 200A, 201), they must take reasonable steps to return the item if there is no reason to retain it.

While an authorised officer holds a seized item, they must provide the owner of the item with reasonable access while it is being held.

If the seized item is not returned within 60 calendar days, the authorised officer must take reasonable steps to return it unless:

• proceedings (including any appeal) have commenced within the 60 day period and are not completed, or
• a court order states that the item can be retained.

[  National Law, Section 203 ]

An authorised officer may apply to a court within 60 calendar days of seizing an item, to request permission to hold the item for an extended period. The court may extend the period if it considers it necessary:

• for an investigation into whether an offence has been committed, or
• to allow evidence of an offence to be obtained for a prosecution.

The court may adjourn an application for extension to enable notice of the application to be given to any person.

An authorised officer may apply to a court within a period of extension to request permission to hold the item for a further extended period.

Summary table – Powers of entry

This table is a brief overview of the powers of entry available to authorised officers.

11.3 Authorised officer’s powers to obtain information

Authorised officers have powers to obtain the following types of information:

• a person’s name and address in relation to offences or suspected offences against the National Law (section 204)
• evidence of a person’s age, name and address to check if minimum age requirements are met (section 205)
• information, documents and evidence for monitoring compliance, a rating assessment, or notifying parents of children enrolled at a service about the suspension or cancellation of a service or provider approval (section 206).

Each power to obtain information has specific requirements that must be met for the exercise of power to be considered lawful. The guidance below provides information about these requirements. Note that some requirements apply commonly across the powers, such as:

Giving warning

[  National Law, Section 212 ]

Before requiring a person to answer a question or provide information under these powers, an authorised officer must:

• produce their identity card
• warn the person that a failure to comply with the officer’s requirement or to answer the question, without reasonable excuse, is an offence
• in the case of an individual, warn the person about protection against self-incrimination.

This requirement does not prevent an authorised officer from obtaining and using evidence given to the officer voluntarily.

Protection against self-incrimination

[  National Law, Section 211 ]

An individual may refuse or fail to give information or do anything that is required under the National Law that may incriminate the individual, except for:

• producing a document or part of a document that is required to be kept under the National Law, or
• giving their name or address when required, or
• doing anything required under sections 215 and 216 (information, documents and evidence required under the powers of regulatory authorities).

Documents or parts of documents produced by an individual, that are required to be kept under the National Law, are not admissible in evidence against the individual in any criminal proceedings (other than under the National Law) or in any civil proceedings. However, information disclosed by an individual may be used to support an alternative action, such as a compliance direction or emergency action notice. It may also be used to support a decision to impose a condition on an approval.

Power to require name and address

[  National Law, Section 204 ]

An authorised officer may require a person to state their name and residential address if the authorised officer:

• finds a person committing an offence against the National Law
• finds a person in circumstances that lead the officer to reasonably suspect the person is committing or has committed an offence against the National Law
• has information that leads the officer to reasonably suspect the person is committing or has committed an offence against the National Law.

If the authorised officer reasonably suspects the person gave a false name or residential address, the officer may require evidence of the name or address.

Evidence of a person’s name could include a driver’s licence, birth certificate, change of name certificate, bank card or passport.

Evidence of a person’s residential address could include a driver’s licence, utility bill, or a lease agreement or contract of sale for a residential property.

Power to require evidence of age, name and address of person

[ National Law, Section 205 ]

If an authorised officer reasonably suspects that a staff member, family day care educator or a volunteer employed or engaged at a service is not of the minimum age required by the National Regulations, the authorised officer may require the person to:

• state their correct date of birth
• provide evidence of their date of birth either immediately (if, in the circumstances, it would be reasonable to expect the person to have evidence of their date of birth) or within 14 calendar days
• state their name and residential address if the person refuses to, or is unable to, state their correct date of birth or provide evidence of their date of birth, or if the person is not of the required minimum age.

Evidence of a person’s date of birth could include a birth certificate, driver’s licence or passport.

Power of authorised officers to obtain information, documents and evidence

[  National Law, Section 206 ]

An authorised officer may write to a specified person to request that they provide relevant information in the manner requested and in writing, signed by the person or a competent officer of that person (if the person is not an individual).

The officer may exercise this power for:

• monitoring compliance with the National Law
• a rating assessment of a service
• collecting contact details of the parents of all enrolled children due to a suspension or cancellation of a service or provider approval (see Suspensions and Cancellations).

The person must be given at least 14 calendar days to respond to the request.

A specified person means a person who is or was an approved provider, nominated supervisor, staff member or volunteer at an approved education and care service, or a family day care educator.