Part 10A Investigation and enforcement powers

In this part—

authorised purposes —see section 188B.

compliance notice —see section 188X(1).

The Secretary may exercise the functions conferred under this part for the following purposes ( authorised purposes)—

(a) investigating, monitoring and enforcing compliance with the requirements of section 106,

(b) obtaining information or records connected with the administration of this part,

(c) administering or executing this part, including regulations made under this part.

A power conferred by this division may be exercised whether or not a power of entry under Division 3 is being exercised.

(1) The Secretary may direct a person to give a document to the Secretary.

(2) The direction may be given if the Secretary requires the document for an authorised purpose.

(3) The direction must be given by written order given to the person.

(4) The order must specify—

(a) the way the document must be given, and

(b) the form in which the document must be given, and

(c) a reasonable date by which the document must be given.

(5) The order may only require a person to give existing documents that are—

(a) in the person’s possession, or

(b) within the person’s power to obtain lawfully.

(6) The Secretary may make copies of the document.

(7) A document in electronic, mechanical or other form must be given in written form unless otherwise stated in the order.

(8) A person must not fail to comply with an order under this section.

Maximum penalty for subsection (8)—

(a) for an individual—

(i) 20 penalty units, and

(ii) for a continuing offence—2 penalty units for each day the offence continues, or

(b) otherwise—

(i) 100 penalty units, and

(ii) for a continuing offence—10 penalty units for each day the offence continues.

(1) The Secretary may direct a person to answer questions about a matter if the Secretary—

(a) reasonably suspects the person to have knowledge of the matter, and

(b) reasonably requires information about the matter for an authorised purpose.

(2) The direction may require the answers to be—

(a) written, or

(b) given verbally—

(i) in person, or

(ii) by audio link or audio visual link.

(3) The Secretary may direct an owners corporation to nominate an individual to answer questions on behalf of the owners corporation.

(4) The nomination must be—

(a) in writing, and

(b) given to the Secretary within the time required in the direction.

(5) The individual must be a director or other officer of the owners corporation.

(6) Answers given by the individual bind the owners corporation.

(7) The Secretary may direct the person or nominated individual to attend at a specified place and time to answer questions if—

(a) the answers must be given verbally, and

(b) attendance at the place is reasonably required for the questions to be properly put and answered.

(8) The place and time must be reasonable in the circumstances.

(9) A direction under this section must be in writing.

(10) A person must not fail to comply with a direction under this section.

Maximum penalty for subsection (10)—

(a) for an individual—

(i) 20 penalty units, and

(ii) for a continuing offence—2 penalty units for each day the offence continues, or

(b) otherwise—

(i) 100 penalty units, and

(ii) for a continuing offence—10 penalty units for each day the offence continues.

(1) The Secretary may record a person answering questions under this division if the Secretary—

(a) informs the person that the record will be made, and

(b) gives a copy of the record to the person as soon as practicable after the record is made.

(2) The record may be made using—

(a) sound recording apparatus, or

(b) audio visual apparatus, or

(c) another method decided by the Secretary.

(3) The record may be made despite the provisions of another law.

(1) The Secretary may enter premises, other than a part of premises used only for residential purposes, at a reasonable hour in the daytime.

(2) The entry may occur with or without a search warrant.

(3) The Secretary may enter a part of premises used only for residential purposes—

(a) with the permission of the occupier, or

(b) under the authority of a search warrant.

(4) Common property is taken not to be a part of premises used only for residential purposes.

(5) When exercising a power of entry under this division, the Secretary may be accompanied by persons ( assistants) the Secretary considers necessary.

(6) An assistant may accompany the Secretary and take all reasonable steps to assist the Secretary in the exercise of the Secretary’s functions.

(1) The Secretary may apply to an issuing officer for a search warrant.

(2) The Secretary may make the application if the Secretary believes on reasonable grounds that—

(a) a duty under section 106 has been or is being breached at premises, or

(b) a matter or thing connected with a breach of a duty under section 106 is in or on premises.

(3) The issuing officer may issue the search warrant if satisfied there are reasonable grounds to do so.

(4) The search warrant may authorise the Secretary to—

(a) enter the premises, and

(b) exercise functions under this division.

(5) The Law Enforcement (Powers and Responsibilities) Act 2002, Part 5, Division 4 applies to the search warrant.

(6) Without limiting the Law Enforcement (Powers and Responsibilities) Act 2002, section 71, a police officer may—

(a) accompany the Secretary when executing the search warrant, and

(b) take all reasonable steps to assist the Secretary in the exercise of the Secretary’s functions.

(7) In this section—

issuing officer means an authorised officer under the Law Enforcement (Powers and Responsibilities) Act 2002.

(1) The Secretary may exercise a power specified in this subdivision when on premises the Secretary entered lawfully.

(2) A power may be exercised in relation to a thing without the consent of the owner of the thing.

(3) A power to do something includes a power to arrange for the thing to be done, whether at the premises or elsewhere.

The Secretary may—

(a) examine and inspect records, and

(b) copy records, and

(c) direct a person to produce records for inspection.

(1) The Secretary may—

(a) examine and inspect a thing, and

(b) take and remove samples of a thing, and

(c) make examinations, inquiries, measurements or tests the Secretary considers necessary, and

(d) take photographs or other recordings the Secretary considers necessary.

(2) The power to examine and inspect a thing includes a power to use reasonable force to break open or otherwise access a thing, including a floor or wall containing the thing.

(3) The power to test a thing includes a power to destructively test a thing, or a sample of a thing, if that is a reasonable test in the circumstances.

(1) The Secretary may open up, cut open or demolish building work if the Secretary reasonably believes it is necessary because there is, or there is likely to be, a contravention of section 106.

(2) The power to do a thing under this section may be exercised by an appropriately qualified person at the direction of the Secretary.

(1) The Secretary may—

(a) seize a thing the Secretary has reasonable grounds to believe is connected with a contravention of section 106, and

(b) move a seized thing from the place where it is seized or leave it at the place where it is seized and take reasonable action to restrict access to the thing, and

(c) direct the occupier of the premises where a thing is seized to keep the thing—

(i) at the premises, or

(ii) at another place under the control of the occupier.

(2) The power to seize a thing connected with an offence includes a power to seize—

(a) a thing in relation to which the offence has been committed, and

(b) a thing that will afford evidence of the commission of the offence, and

(c) a thing that was used for the purpose of committing the offence.

(3) In this section, a reference to an offence includes a reference to an offence that there are reasonable grounds to believe has been committed.

The Secretary may do anything that, in the Secretary’s opinion, is reasonably necessary to be done for an authorised purpose.

(1) The Secretary may direct a person to provide reasonable assistance, as specified by the Secretary, if the direction—

(a) is for the purposes of the Secretary exercising functions under this division in relation to premises, and

(b) is given to—

(i) the owner or occupier of the premises, or

(ii) if the premises are not a public place—a person on the premises.

(2) The direction may be given—

(a) orally to the person, or

(b) by written notice given to the person.

(3) A person must not fail to comply with a direction under this section.

Maximum penalty for subsection (3)—

(a) for an individual—

(i) 20 penalty units, and

(ii) for a continuing offence—2 penalty units for each day the offence continues, or

(b) otherwise—

(i) 100 penalty units, and

(ii) for a continuing offence—10 penalty units for each day the offence continues.

A person must not, without reasonable excuse, obstruct, hinder or interfere with the Secretary in the exercise of the Secretary’s functions under this part.

Maximum penalty—

(a) for an individual—20 penalty units, or

(b) otherwise—100 penalty units.

A person must not, without reasonable excuse, fail to comply with a direction of the Secretary under this part.

Maximum penalty—

(a) for an individual—

(i) 20 penalty units, and

(ii) for a continuing offence—2 penalty units for each day the offence continues, or

(b) otherwise—

(i) 100 penalty units, and

(ii) for a continuing offence—10 penalty units for each day the offence continues.

(1) The Secretary, when seizing a thing at premises under this part, must give the person apparently in charge of the premises a written receipt for the thing seized.

(2) The Secretary may keep the seized thing for evidence in court proceedings until—

(a) the court in which the proceedings are commenced orders its return, or

(b) if no order is made—the completion of the proceedings, including an appeal.

(3) A record may be kept under this section if, within a reasonable time—

(a) a copy of the record is made, and

(b) the Secretary certifies that the copy is a true copy, and

(c) the person from whom the record was seized is given the certified copy.

(4) The certified copy is, as evidence, of equal validity to the record.

(1) The Secretary may destroy or dispose of a thing if—

(a) the thing was seized under this division, and

(b) the thing is no longer required as evidence in proceedings.

(2) The Secretary must not destroy a thing under this division unless—

(a) before destroying the thing, the Secretary gives written notice of the proposed destruction to the owner or person in charge of the thing, or

(b) the Secretary is satisfied that the owner or person in charge of the thing has already been given written notice of the proposed destruction.

(3) Notice must be given at least 7 days before the thing is destroyed.

(4) A requirement to give notice does not apply to the destruction of a thing if—

(a) there does not appear to be an individual immediately in control of the thing, and the owner or person in charge cannot be located after making reasonable inquiries, and

(b) the Secretary considers that, in the circumstances, the thing must be destroyed without notice to the owner or person in charge.

(5) This section does not apply to the destruction of a thing that has been forfeited to the Secretary.

(6) If the Secretary decides to destroy or dispose of a thing—

(a) the thing immediately becomes the property of the State, and

(b) compensation is not payable for—

(i) the transfer of ownership, or

(ii) the destruction or disposal of the thing, and

(c) duty is not payable for the transfer, and

(d) the Secretary must, as soon as practicable, tell the person who owned the thing immediately before its seizure about the destruction or disposal, unless—

(i) the Secretary is not able to find the person after making reasonable inquiries, or

(ii) it is otherwise impracticable or unreasonable to tell the person.

(7) This section does not limit the Secretary’s power to destroy a thing in the exercise of another power for an authorised purpose.

(1) An owners corporation may enter into an undertaking under this section.

(2) Before entering into an undertaking, the owners corporation must approve the undertaking by special resolution.

(3) The Secretary may accept a written undertaking given by an owners corporation that the owners corporation will take action to do the following in relation to a breach of a duty under section 106(1) or (2)—

(a) carry out maintenance and repair work,

(b) renew or replace fixtures or fittings.

(4) A person who contravenes an undertaking accepted by the Secretary commits an offence.

Maximum penalty for subsection (4)—

(a) 200 penalty units, and

(b) for a continuing offence—20 penalty units for each day the offence continues.

(1) An owners corporation that enters into an undertaking may, with the written agreement of the Secretary—

(a) vary the undertaking, or

(b) withdraw the undertaking.

(2) Before varying or withdrawing an undertaking under subsection (1), the owners corporation must approve the variation or withdrawal by special resolution.

(3) The Secretary may—

(a) vary an undertaking, with the written agreement of the owners corporation, or

(b) withdraw the Secretary’s acceptance of an undertaking, by written notice served on the owners corporation.

(4) Before agreeing to vary an undertaking under subsection (3)(a), the owners corporation must approve the variation by special resolution.

(5) The provisions of an undertaking may not be varied to provide for a different subject matter.

(6) An undertaking ceases to have effect if—

(a) the undertaking is withdrawn by the owners corporation, or

(b) the acceptance of the undertaking is withdrawn by the Secretary.

(7) In this section—

undertaking means an undertaking under section 188T.

(1) The Secretary may apply to the Tribunal for an order to remedy or restrain a breach of a duty under section 106(1) or (2).

(2) An order may be made without the Secretary being required to show a likelihood of damage.

(3) The Tribunal may grant an interim order pending the determination of the application if, in the Tribunal’s opinion, it is desirable to grant the order.

(4) The Tribunal must not require the Secretary or another person, as a condition of granting an interim order, to give an undertaking as to damages.

(5) The Tribunal may make the orders the Tribunal thinks fit to remedy or restrain a breach if satisfied a breach—

(a) has been committed, or

(b) will be committed unless restrained by an order of the Tribunal.

(1) The Secretary may, whether or not the Secretary has received a complaint, investigate a breach or possible breach of a duty under section 106.

(2) The Secretary may require that a complaint made to the Secretary about a matter referred to in subsection (1) be in a form approved by the Secretary.

(3) However, the Secretary is not required to investigate a matter.

(4) This section does not limit other powers the Secretary may have under another Act or law to receive a complaint or investigate a matter.

(1) The Secretary may give an owners corporation a notice (a compliance notice) if the Secretary reasonably believes the owners corporation has breached a duty under section 106(1) or (2).

(2) A compliance notice must not be given in relation to work for which a building work rectification order, within the meaning of the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020, may be issued.

(1) A compliance notice must state the reasons for the giving of the notice.

(2) The compliance notice may do the following—

(a) require the owners corporation to take action, specified in the notice, to remedy the breach,

(b) describe the standard of work required to remedy the breach,

(c) require work to be carried out by an appropriately qualified or licensed professional,

(d) require that a person make good a building or work that has been damaged as a result of the person carrying out building work,

(e) require the provision of documentary evidence to demonstrate compliance with the notice.

(3) A compliance notice given in relation to a dispute may—

(a) specify conditions about the payment of money due under a contract for the work, and

(b) require the conditions to be complied with by the party who raised the dispute before the other requirements of the notice are complied with.

(4) The compliance notice may specify the period in which the owners corporation must comply with the notice, including multiple periods to allow for different stages for compliance.

The Secretary may amend a compliance notice if the owners corporation given the notice agrees to the amendment.

(1) A compliance notice is revoked if the notice has been complied with.

(2) The Secretary must, when a compliance notice has been complied with, give a written notice to the owners corporation given the compliance notice confirming the revocation of the compliance notice.

(3) The failure of the Secretary to give the written notice does not affect the revocation of the compliance notice.

An owners corporation given a compliance notice must not fail to comply with the notice.

Maximum penalty—

(a) 200 penalty units, and

(b) for a continuing offence—20 penalty units for each day the offence continues.

(1) An owners corporation may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision to give the owners corporation a compliance notice.

(2) The application must be made no later than 28 days after the owners corporation receives the notice.

(3) The Administrative Decisions Review Act 1997, Chapter 3, Part 2 does not apply to the application.

(4) In determining the application, the Tribunal must take into account any matter that was required to be taken into account in making the decision to give the compliance notice.