Environment Protection and Biodiversity Conservation Act 1999

This section applies to a thing that is seized under section 445.

The thing may be retained until:

the reason for the seizure no longer exists; or

it is decided that the thing is not to be used in evidence; or

the end of the period of 60 days after the seizure, or, if that period has been extended under subsection (3), the end of the extended period;

As soon as practicable after the end of the period (the retention period) during which the thing may be retained under subsection (1A), the CEO must cause reasonable steps to be taken to return the thing to the person from whom it was seized (or to the owner if that person is not entitled to possess it).

Subsection (1B) does not apply if:

the thing is forfeited or forfeitable to the Commonwealth; or

a proceeding in respect of which the thing may afford evidence was commenced before the end of the retention period and has not been completed (including an appeal to a court in relation to that proceeding); or

the thing has been dealt with under this Part, or as otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory), in a way that means the CEO is not in a position to cause reasonable steps to be taken to return the thing; or

the Commonwealth, the CEO or an authorised officer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy, dispose of or otherwise deal with the thing.

An authorised officer may, before the end of the retention period, apply to a magistrate for an order permitting the retention of the thing for a further period.

If, in relation to an application under subsection (2), the magistrate is satisfied, by information on oath or affirmation, that it is necessary for the thing to continue to be retained:

for the purposes of an investigation as to whether an offence against an environmental law has been committed, or whether an environmental penalty provision has been contravened; or

to enable evidence of an offence against an environmental law, or of a contravention of an environmental penalty provision, to be secured for the purposes of a proceeding against the person for such an offence or contravention;

Before an authorised officer makes an application under subsection (2), he or she must:

take reasonable steps to discover who has an interest in the retention of the thing; and

if it is practicable to do so, give notice in writing of the proposed application to each person whom the authorised officer believes to have an interest in the proposed application.

Subsection (3) does not prevent a magistrate from granting 2 or more successive extensions under that subsection of the period during which the thing may be retained.

A function of making an order conferred on a magistrate by subsection (3) is conferred on the magistrate in a personal capacity and not as a court or a member of a court.

Without limiting the generality of subsection (5), an order made by a magistrate under subsection (3) has effect only by virtue of this Act and is not taken, by implication, to be made by a court.

A magistrate performing a function of, or connected with, making an order under subsection (3) has the same protection and immunity as if he or she were performing that function as, or as a member of, a court (being the court of which the magistrate is a member).

The Governor‑General may make arrangements with the Governor of a State, the Chief Minister for the Australian Capital Territory or the Administrator of the Northern Territory for the performance, by all or any of the persons who from time to time hold office as magistrates in that State or Territory, of the function of making orders under subsection (3).