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Biodiscovery Bill 2004
BIODISCOVERY BILL 2004
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
The objectives of the Biodiscovery Bill 2004 are to:
1. facilitate sustainable access by biodiscovery entities to the State's
native biological resources for biodiscovery;
2. encourage the development in the State of value added
biodiscovery;
3. ensure the State obtains a fair and equitable share in the benefits
of biodiscovery on behalf of all Queenslanders; and
4. enhance the knowledge of the State's native biological diversity
promoting conservation and sustainable use of these resources.
By introducing the proposed legislative framework, the Queensland
Government intends to:
· create certainty for all stakeholders by establishing a streamlined
and clear legislative framework regulating collection and use of
all native biological material from Queensland State land and
Queensland waters for biodiscovery purposes;
· ensure that the State of Queensland, on behalf of all
Queenslanders, shares in the benefits that flow from making
these resources available;
· allow access to small quantities of biological material from
protected species and areas, whilst maintaining strict protection
of these resources; and
· enhance conservation outcomes through improved scientific
knowledge of Queensland's wildlife.
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Biodiscovery Bill 2004
Reasons for and Achievements of the Policy Objectives
Australia has ratified the United Nations Environment Program
Convention on Biological Diversity (CBD), the objectives of which are: to
conserve biological diversity; the sustainable use of its components; and
the fair and equitable sharing of benefits arising from the use of genetic
resources. Article 15 of the CBD recognises the sovereign rights of states
over their natural resources and their authority to determine access to
genetic resources, including the fair and equitable sharing of benefits
gained.
The proposed Biodiscovery Bill 2004 aims to implement the objectives
of Article 15 of the CBD by creating a regulatory and contractual
framework for the access and use of Queensland's native biological
resources.
The benefits sought under the Biodiscovery Bill 2004 will align with
those (that are relevant to Queensland) spelt out in Appendix II to the
Access to Genetic Resources and Benefit-sharing Bonn Guidelines of the
CBD. These are listed below.
1. Monetary benefits may include, but not be limited to:
a. access fees/fee per sample collected or otherwise acquired;
b. up-front payments;
c. milestone payments;
d. payment of royalties;
e. licence fees in case of commercialisation;
f. special fees to be paid to trust funds supporting conservation
and sustainable use of biodiversity;
g. salaries and preferential terms where mutually agreed;
h. research funding;
i. joint ventures; and
j. joint ownership of relevant intellectual property rights.
2. Non-monetary benefits may include, but not be limited to:
a. sharing of research and development results;
b. collaboration, cooperation and contribution in scientific research
and development programmes, particularly biotechnological
research activities, where possible in the provider country;
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Biodiscovery Bill 2004
c. participation in product development;
d. collaboration, cooperation and contribution in education and
training;
e. admittance to ex situ facilities of genetic resources and to
databases;
f. transfer to the provider of the genetic resources of knowledge
and technology under fair and most favourable terms, including
on concessional and preferential terms where agreed, in
particular, knowledge and technology that make use of genetic
resources, including biotechnology, or that are relevant to the
conservation and sustainable utilization of biological diversity;
g. strengthening capacities for technology transfer to user
developing country Parties (to the CBD) and to Parties that are
countries with economies in transition and technology
development in the country of origin that provides genetic
resources. Also to facilitate abilities of indigenous and local
communities to conserve and sustainably use their genetic
resources;
h. institutional capacity-building;
i. human and material resources to strengthen the capacities for the
administration and enforcement of access regulations;
j. training related to genetic resources with the full participation of
providing Parties, and where possible, in such Parties;
k. access to scientific information relevant to conservation and
sustainable use of biological diversity, including biological
inventories and taxonomic studies;
l. contributions to the local economy;
m. research directed towards priority needs, such as health and food
security, taking into account domestic uses of genetic resources
in provider countries;
n. institutional and professional relationships that can arise from an
access and benefit-sharing agreement and subsequent
collaborative activities;
o. food and livelihood security benefits;
p. social recognition; and
q. joint ownership of relevant intellectual property rights.
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Biodiscovery Bill 2004
The proposed legislation will establish the authority for the Queensland
Government to comprehensively regulate the collection of native biological
material on all State land and in Queensland waters for the purpose of
biodiscovery and enter into benefit sharing agreements with parties
undertaking biodiscovery research and commercialisation in relation to
those resources.
Consistent with its Objective, the Biodiscovery Bill 2004 proposes a two-
pronged approach that will be taken with this regulatory framework by
introducing:
i) a single regime authorising collection of native biological
resources for biodiscovery on State land and in Queensland
waters; and
ii) mandatory commercial benefit sharing agreements with the State
Government for use of native biological resources sourced from
Queensland.
The draft Biodiscovery Bill 2004 requires any person, organisation or
institute seeking to undertake biodiscovery using native biological material
sourced from State land or Queensland waters to agree to share with the
State (on behalf of the Queensland community) any benefits that may be
derived from biodiscovery. The type of benefits the State will seek include:
· increased investment in Queensland's biotechnology industry;
· increased and improved knowledge of Queensland's biodiversity;
· technology transfer;
· collaborations with Queensland-based entities;
· job creation scientific, technical, legal, financial and
administrative;
· development of new or improved products or processes for
agricultural, medical and industrial purposes; and
· monetary returns.
It is intended that the State will assert its authority to regulate the taking
of all native biological material on all State land and in Queensland waters.
This approach is supported by Article 15.1 of the CBD. It is intended that a
private land owner may enter into a benefit sharing agreement in respect of
native biological resources sourced from his or her land. It is not intended
to alter any access rights of landholders or alter existing intellectual
property rights which may be generated in the course of biodiscovery.
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Biodiscovery Bill 2004
Alternatives to the Bill
There are no alternatives considered appropriate for achieving these
policy objectives. Further, maintaining the status quo would compound
and enhance restrictions preventing the development of a sustainable
biodiscovery industry in Queensland. Currently to collect and use
biological resources for biodiscovery purposes:
· multiple approvals may be necessary from multiple agencies;
· access to biological resources may not be allowed for some
species or for particular localities containing important genetic
reservoirs of the State's biodiversity; and
· there is no legislative requirement for the State to require a
person or organisation undertaking biodiscovery on native
biological resources sourced from State land or Queensland
waters to enter into a benefit sharing agreement.
Estimated Cost of Implementation
The economic implications for the State of the proposed system can be
examined in terms of the two key outcomes of the proposed regulatory
regime.
1 Streamlined Assessment
· As the streamlined assessment process will build upon
existing processes, any resulting financial burden borne by
industry is likely to be minimal and should be offset by the
positive administrative impact that will arise through
streamlining.
· In accordance with normal Environmental Protection
Agency (EPA) practice charges for assessment and
management costs may be levied. Charges will be based on
current charges for permits issued under the Nature
Conservation Act 1992.
· There will be some costs for the State associated with
resourcing the assessment process. There may be some
management costs to the State as a result of the more
comprehensive coverage of permits that will now fall within
the Biodiscovery Bill 2004. However as this is a small
industry this requirement will be met from current
resources.
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Biodiscovery Bill 2004
· There may be some cost to the Queensland Museum and
Queensland Herbarium in relation to the processing of
voucher specimens. However these organisations have the
ability to charge fees for services rendered on a cost
recovery basis.
2 Benefit Sharing Agreements
· The benefit sharing regime represents a new requirement for
the biodiscovery industry and will result in a negative
financial impact - firstly in the contracting of legal
assistance during the negotiation stage, and secondly in the
payment of monetary benefits.
· There also will be costs for the State in relation to
negotiation and management of any prosecution process.
Consistency with Fundamental Legislative Principles
The Biodiscovery Bill 2004 has been drafted with regard to Fundamental
Legislative Principles.
Consultation
In May-June 2002 the Department of Innovation and Information
Economy undertook an extensive public consultative effort to gauge
interest in and reactions to the Queensland Biodiscovery Policy Discussion
Paper. This included placement of the document on the Department's
website, public fora in Townsville, Cairns, Mareeba and Brisbane, as well
as 12 round table consultations. The Department received 65 written
submissions on the paper.
On 23 June 2003 a six week consultative process commenced on an
Exposure Draft Biodiscovery Bill 2004, Explanatory Notes, draft
Compliance Code for Collection of Native Biological Material for
Biodiscovery Purposes, and a Queensland Biodiscovery Bill 2004Fact
Pack. The Department received 38 written submissions on the documents.
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Biodiscovery Bill 2004
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Clause 1 Short title
This is a formal provision that specifies the short title of the Bill as the
Biodiscovery Bill 2004.
Clause 2 Commencement
This provides the Biodiscovery Bill 2004 will commence on the day on
which the Act is proclaimed.
Clause 3 Purposes of Act
Sub-clause 3(1) provides that the purposes of the Biodiscovery Bill 2004
are to:
a) facilitate managed access by biodiscovery entities to the State's
native biological resources for biodiscovery ensuring the
sustainability of those resources;
b) encourage the development in the State of value added
biodiscovery;
c) ensure the State, for the benefit of all persons in the State, obtains
a fair and equitable share in the benefits of biodiscovery; and
d) enhance conservation outcomes through improved scientific
knowledge of Queensland's wildlife.
Sub-clause 3(2) provides that the purposes are to be achieved by a
streamlined regulatory framework for biodiscovery, a contractual
framework for sharing of benefits of biodiscovery, a Compliance Code and
Collection Protocols, and through monitoring and enforcement of
compliance with the Act.
The terms "biodiscovery" and "benefit" are defined in Schedule -
Dictionary.
"Biodiscovery" is defined as including biodiscovery research or the
commercialisation of native biological material or a product of
biodiscovery research. "Biodiscovery research" involves the analysis of
molecular, biochemical or genetic information about native biological
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Biodiscovery Bill 2004
material for the purpose of commercialising (i.e. using for gain) the
material.
"Sustainability" is not defined in the Bill as the United Nations World
Commission on Environment and Development definition of
"sustainability" from its 1987 report Our Common Future has been relied
upon "a development which meets the needs of the present without
compromising the ability of future generations to meet their own needs".
"Benefit of biodiscovery" is defined so as to align, as much as is possible
subject to Constitutional limitations, with the benefits defined in Appendix
II to the Access to Genetic Resources and Benefit-sharing Bonn Guidelines
of the CBD (see above). The definition of "benefit of biodiscovery" is an
inclusive definition, which provides biodiscovery entities with an
indication of the types of benefits that may be returned to the State.
Clause 4 Why this Act was enacted
This clause clarifies that the Biodiscovery Bill 2004 has been developed
to fulfil the State of Queensland's responsibilities under Article 15 of the
CBD and give legislative effect to those responsibilities.
Clause 5 Definitions
This clause refers the reader to the Dictionary for definition of terms (i.e.
Schedule).
PART 2--OPERATION OF ACT
Clause 6 Act binds all persons
Sub-clause 6(1) provides that the Biodiscovery Bill 2004 will bind the
Crown in each of its capacities, as far as the Parliament permits.
Sub-clause 6(2) provides that the Crown may not be prosecuted for a
criminal offence against the Biodiscovery Bill 2004 or ensuing regulations.
Clause 7 Relationship with other Acts
This clause clarifies that the Biodiscovery Bill 2004 will operate to the
exclusion of (i.e. overrides) other legislation in relation to permitting
requirements for biodiscovery purposes.
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Biodiscovery Bill 2004
For example, possession of a Biodiscovery Collection Authority (BCA)
removes the requirement for a permit under the Nature Conservation Act
1992 to take, use, keep or interfere with wildlife in a national park. The
holder of a BCA will be subject to the requirements of other Acts other
than the permitting requirements.
Clause 8 Operation of Act
This is an interpretation clause to clarify that the operation of the
Biodiscovery Bill 2004 has full effect notwithstanding any adverse effect it
may have on the existence or exercise of private rights, including
proprietary rights. This clause has been included to overcome the
presumption of statutory interpretation against legislation having such an
effect.
Clause 9 Extra-territorial application of Act
This clause states that the Biodiscovery Bill 2004 will have effect outside
Queensland borders in respect of offences committed in relation to
biodiscovery (e.g. the provisions in the Biodiscovery Bill 2004 will
continue to apply to samples collected for biodiscovery purposes even
though such samples may be moved out of Queensland). This is similar in
some respects to the extra-territorial application of the Environmental
Protection Act 1994 to actions outside Queensland that might impact on
Queensland.
PART 3--COLLECTION AUTHORITIES
Division 1--Preliminary
Clause 10 What collection authority authorises
This clause states that a BCA will authorise the taking and keeping of
minimal quantities of native biological resources from State land and
Queensland waters.
The term "State land" is defined in Schedule Dictionary and it
excludes freehold land not owned by the State; freeholding lease to be
granted in fee-simple by the State to someone other than the State and land
that has been the subject of native title determination granting rights of
exclusive possession.
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Biodiscovery Bill 2004
The term "Queensland waters" is defined in the Acts Interpretation Act
1954.
"Queensland waters" means all waters that are:
(a) within the limits of the State; or
(b) coastal waters of the State.
The term "coastal waters" is defined in the Acts Interpretation Act 1954.
"Coastal waters of the State" mean:
(a) all waters of the territorial sea of Australia that are within the
adjacent area in respect of the State, other than any part
mentioned in the Coastal Waters (State Powers) Act 1980 (Cth),
section 4(2); or
(b) any sea that is on the landward side of any part of the territorial
sea of Australia and within the adjacent area in respect of the
State, but is not within the limits of the State.
The term "territorial sea of Australia" is defined in the Acts
Interpretation Act 1954 as follows.
"Territorial sea of Australia" means the territorial sea of Australia within
the limits mentioned in the Coastal Waters (State Powers) Act 1980 (Cth).
The term "adjacent area in respect of the State" is defined in the Acts
Interpretation Act 1954 as follows.
"Adjacent area in respect of the State" means the area the boundary of
which is described in the Petroleum (Submerged Lands) Act 1967 (Cth),
schedule 2, as in force immediately before the commencement of the
Coastal Waters (State Powers) Act 1980 (Cth).
Schedule 2 of the Petroleum (Submerged Lands) Act 1967 (Cth) lists the
coordinates (longitude and latitude) of adjacent area in respect of
Queensland.
Section 4 of the Coastal Waters (State Powers) Act 1980 (Cth) defines
"coastal waters" as follows.
4. Extent of territorial sea and coastal waters
(1) For the purposes of this Act, the limits of the territorial sea of
Australia shall be the limits existing from time to time,
ascertained consistently with the Seas and Submerged Lands Act
1973 and instruments under that Act and with any agreement
(whether made before or after the commencement of this Act) for
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Biodiscovery Bill 2004
the time being in force between Australia and another country
with respect to the outer limit of a particular part of that
territorial sea.
(2) If at any time the breadth of the territorial sea of Australia is
determined or declared to be greater than 3 nautical miles,
references in this Act to the coastal waters of the State do not
include, in relation to any State, any part of the territorial sea of
Australia that would not be within the limits of that territorial sea
if the breadth of that territorial sea had continued to be 3 nautical
miles.
Division 2--Application for collection authority
Clause 11 Procedural requirements for application
Sub-clause 11(1) requires that applications for a BCA must be made to
the EPA chief executive in an approved form, supported by sufficient
information and documentation for the application to be assessed and
accompanied by relevant fees.
Sub-clause 11(2) provides that the application must be accompanied by
a copy of the proposed or approved biodiscovery plan. (Note: biodiscovery
is a commercial undertaking and the biodiscovery plan will assist
Government in determining whether proposed activities are commercial in
nature or otherwise, in which case a different permit regime may be
applicable).
Sub-clause 11(3) provides that sub-clause 11(2) does not apply if the
applicant entered into a BSA with the State prior to commencement of this
section of the Biodiscovery Bill 2004 and the BSA provides for the matters
mentioned in clauses 32(1) and 33.
Sub-clause 11(4) provides that the information may require verification
by a statutory declaration.
Clause 12 - Content of approved form
This clause sets out the mandatory information that must be included in
a BCA application form. The information includes:
· the applicant's name and, if the applicant is not an individual, the
applicant's Australian Corporation Number (ACN) or Australian
Business Number (ABN);
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Biodiscovery Bill 2004
· the applicant's place of business;
· a description of the State land or Queensland waters (e.g. the real
property description or geographic coordinates);
· the type of material to be collected, including its scientific
classification to the extent known by the applicant; and
· the period the BCA is to apply (i.e. a one off collection or a
repeated collection activity over a period of seasons or years).
Clause 13 Chief executive's powers before deciding application
Sub-clause 13(1) provides that the EPA chief executive may request
further information from the applicant (in relation to applications).
Sub-clause 13(2) provides that at least 20 business days must be
provided to the applicant to provide the requested information.
(Note: when the term "business days" is used in these Exaplanatory
Notes the term should be taken to mean a day other than a Saturday,
Sunday, bank or public holiday in Brisbane, Queensland.)
Sub-clause 13(3) provides that the EPA chief executive may require the
information requested to be verified by a statutory declaration.
Sub-clause 13(4) provides that the applicant is taken to have withdrawn
the application if the requested information is not provided within the
requested time period.
Sub-clause 13(5) provides that the EPA chief executive must request
information mentioned in sub-clause 13(1) within 20 business days of
receiving the application.
Clause 14 Deciding application
Sub-clause 14(1) provides that the EPA chief executive may decide to
grant the application or refuse to grant the application.
Sub-clause 14(2) provides that the EPA chief executive may grant the
application if satisfied that:
· the collection is for biodiscovery;
· the collection conforms with the Compliance Code and any
relevant Collection Protocol; and
· other matters prescribed under regulations have been adhered to.
Sub-clause 14(2A) provides that the EPA chief executive is not limited
in any way by sub-clause 14(2) in relation to what he or she may have
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Biodiscovery Bill 2004
regard to in deciding an application. This ensures that the EPA chief
executive takes into account all relevant matters in deciding an application.
Sub-clause 14(3) provides that the EPA chief executive may refuse to
grant a BCA even if the applicant has entered into a BSA or has an
approved Biodiscovery Plan. This head of power ensures that the
sustainability of the resource is paramount to other considerations.
Clause 15 Steps to be taken after application decided
Sub-clause 15(1) provides that if the EPA chief executive decides to
grant an application she or he must advise the applicant as soon as
practicable.
Sub-clause 15(2) provides that if the EPA chief executive decides:
· to grant a BCA with conditions she or he must, as soon as
practicable, advise the applicant of the decision; or
· not to grant an application she or he must, as soon as practicable,
advise the applicant about the decision and refund any fee
charged for registration of the BCA.
Clause 16 Term of authority
This clause provides that a BCA may be for any time period, but it may
not exceed three years and it expires at the end of its term.
Sub-clause 16(4) provides that a BCA lapses after one year if no BSA
has been entered into by that time.
Clause 17 Conditions of collection authority
Sub-clause 17(1) provides that it is a condition of a BCA that collection
of native biological materIal must not take place unless a BSA is in force.
This clause applies to biodiscovery entities and collection agents acting on
their behalf, to ensure that the entity who will use the native biological
material has a BSA in place so as to avoid any breach of the proposed
legislation.
This clause further provides that to the extent they are applicable to a
BCA, the condition of the Compliance Code or a Collection Protocol are
conditions of a BCA. These are in addition to conditions imposed under
clause 14. However, where there is an inconsistency between the two, the
condition imposed under clause 14 prevails.
Clause 18 Collection authority
This clause outlines the details that will be included in a BCA. For
example it must state: its number; the date of issue and expiry date; the
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Biodiscovery Bill 2004
holder's name (individual or corporation) and ABN or can, where
applicable; the type of material to which it relates and its scientific
classification to the extent known; the areas from which the material may
be collected; as well as any conditions imposed under clause 14.
Clause 19 Failure to decide application
This clause provides that the EPA chief executive is taken to have
refused to grant a BCA if no decision is reached within 40 business days
after further information or documentation requested has been provided. If
further information or documentation is not requested, the EPA chief
executive has 40 business days to decide the application after receiving
such further information else it is taken to be refused.
Sub-clause 19(3) provides that as soon as practicable after the EPA chief
executive is taken to have refused the application she or he must refund any
registration fee paid by an applicant.
Division 3--Amending, suspending, cancelling or surrendering
collection authority
Clause 20 - Amending, suspending or cancelling collection authority
Sub-clause 20(1) provides that the EPA chief executive may amend,
suspend or cancel a BCA if she or he reasonably believes:
· the BCA was obtained because of incorrect or misleading
information; or
· the BCA holder has breached a condition of the BCA; or
· an emergency such as a natural disaster (e.g. bushfire) has
impacted upon the sustainability of the activities approved under
the BCA; or
· the BCA holder has been convicted of an offence under the
Biodiscovery bill 2004.
Sub-clause 20(2) provides that the EPA chief executive may amend a
BCA if:
· land is dedicated as a new national park under the Nature
Conservation Act 1992 (Qld);
· marine park is declared under the Marine Parks Act 1982 (Qld);
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Biodiscovery Bill 2004
· particular wildlife is changed to a higher level of classification
under the Nature Conservation Act 1992 (Qld);or
· at a holder's request.
Sub-clause 20(3) provides that no compensation is payable by the State
to any party for any action undertaken according to sub-clauses 20(1) and
20(2).
Clause 21 Procedure for amendment, suspension or cancellation
Sub-clause 21(1) provides that the EPA chief executive must advise the
holder in writing of her or his intention to amend, suspend or cancel a
BCA, the grounds for such action and further relevant details and invite the
holder to show cause as to why such action should not be taken (the holder
has a minimum of 20 business days to respond).
Sub-clause 21(2) provides that after examining the response from the
holder the EPA chief executive may decide to proceed with an amendment,
suspension or cancellation.
Sub-clauses 21(3), 21(4) and 21(5) provide that the EPA chief executive
must inform the holder of her or his decision to proceed with an
amendment, suspension or cancellation and that the decision takes effect
on the date the written notice is given to the holder or on a nominated date.
Sub-clause 21(6) provides that the effect of an amendment does not
depend on such amendment being noted on the BCA. This means that
administration is reduced so that the decision of the EPA chief executive
does not need to be recorded on a BCA for the decision to be effective.
Clause 22 Returning collection authority on cancellation
This clause provides that the holder of a BCA that has been cancelled
must within 10 business days of receiving advice of such cancellation from
the EPA chief executive (unless the person has a reasonable excuse) return
the BCA to the EPA chief executive.
A reasonable excuse in such circumstances may include the situtation
where a person is out of the country during the 10 business days allowed
and was therefore unable to return the BCA.
Clause 23 Surrendering collection authority
This clause provides that the holder of a BCA may surrender that BCA
by advising the EPA chief executuve in writing that it is being surrendered
and returning it.
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Biodiscovery Bill 2004
Division 4 Effect of particular statutory changes on collection authority
Clause 24 Collection authority concerning land dedicated as new
national park or declared as marine park
This clause provides that where land is dedicated under the Nature
Conservation Act 1992 as a national park, national park (scientific) or
national park (recovery) or where land or water is declared a marine park
under the Marine Parks Act 1982 or the zoning of a marine park is changed
and a BCA is inconsistent with the applicable Act, that BCA will continue
for the term that is unexpired, subject to the Biodiscovery Bill 2004. This
clause has been included to provide some certainty for biodiscovery
entities. It has also been included to ensure national park and marine park
planning processes mesh with BCA assessment procedures. However, the
BCA remains subject to amendment, cancellation or suspension under
clause 20.
Clause 25 Collection authority concerning wildlife
This clause provides for changes in classification of wildlife to a higher
level under the Nature Conservation Act 1992. The BCA will continue for
the term that remains unexpired subject to any amendment, cancellation or
suspension under clause 20.
Division 5--Miscellaneous
Clause 26 Replacement collection authority
This clause provides that a BCA holder may apply to the EPA chief
executive in the approved form for a replacement of the relevant BCA. The
clause also provides that fees may be charged for such.
Clause 27 Collection authority register
This clause provides that the EPA chief executive must maintain a
register of BCAs in a way the EPA chief executive considers appropriate
(e.g. on the internet).
Sub-clause 27(3) provides that the publicly available elements of the
register must only include:
· the name of the person to whom the BCA was issued;
· the date the BCA was issued; and
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Biodiscovery Bill 2004
· the term of the BCA.
Sub-clause 27(4) provides that the elements of the register of BCAs that
is not publicly available must include an appropriate description of the land
or water to which the BCA applies and any conditions that may have been
imposed on the BCA. This clause provides guidance for Government
officials as to what information should be recorded in relation to BCAs.
Such information can then be used to learn more about and monitor the
ecology of particular areas or species.
Clause 28 Public access to collection authority register
This clause provides that a member of the public may inspect the
puiblicly avaiable elements of the register established under clause 27 free
of charge at the EPA head office during normal business hours or obtain a
copy of those details on payment of a fee decided by the EPA chief
executive.
Subclause 28(2) provides that the fee must not be more than the
reasonable cost of producing that copy.
Subclause 28(3) provides that the EPA chief executive may publish the
publicly available elements of the part of the register established under
clause 28 in a manner considered appropriate by the EPA chief executive.
PART 4--OTHER MATTERS ABOUT COLLECTION
AUTHORITIES
Division 1--Identifying native biological material and giving samples of
material to State
Clause 29 Identifying native biological material
This clause provides that the holder of BCA must, as soon as practicable
after collecting a sample of native biological material, label that material
and keep the native biological material appropriately labeled for the full
term the BCA holder holds the sample.
Sub-clause 29(2) provides that the label must state: the BCA (e.g.
number) under which the native biological material was collected; the date
of collection; and the scientific classification of the native biological
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Biodiscovery Bill 2004
material if the holder is reasonably able to classify it. The label must also
identify the geographic location from which the native biological material
was collected.
Sub-clause 29(3) provides that the holder of a BCA must ensure that any
sample or substance sourced from the original material collected under the
BCA is labeled appropriately so as to allow its source to be tracked.
For example, if a novel chemical is identified in a sample,
documentation concerning the research on the chemical must always
include reference to the source material (species, collection date,
collection area). This requirement will remain in place throughout the
biodiscovery research, development and commercialisation stages
and will assist the State to track a valuable product from source to
market.
It has been proposed that BCAs be individually identified via bar code
so that disclosure or information inappropriately or inadvertently is
avoided.
Clause 30 Giving samples of material to State
This clause provides that as soon as practicable after collection of a
sample authorised under a BCA, the holder of that BCA must lodge a
sample of the material with the Queensland Museum (for animal material)
or the Queensland Herbarium (for plant material) or another nominated
agency/institution for other native biological materials (e.g. micro-
organisms, fungi).
The clause further provides that such samples must be appropriately
labelled (for taxonomy, geographic location of collection) and be of
sufficient size to enable scientific classification of the material. If the
material is to be identified prior to lodgement, that identification must
contain as much detail as possible regarding the sample's taxonomic status.
Sub-clause 30(4) provides that if the labelling requirements of this
clause are not complied with, the Queensland Museum, Queensland
Herbarium or another nominated agency/institution may scientifically
classify the material and recover costs associated with doing so from the
BCA holder.
The requirement for biodiscovery entities to pay for classification carried
out by the State (i.e. the Queensland Museum or Queensland Herbarium)
has been included at the request of the Queensland Museum and
Queensland Herbarium to ensure internal resource allocation is not
negatively impacted upon by the proposed legislation. This requirement is
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Biodiscovery Bill 2004
not compulsory and relates only to voucher samples submitted under the
Biodiscovery Bill 2004 that have not been appropriately identified or where
voucher samples are submitted prior to identification. From an
environmental perspective, this requirement will ensure that biodiscovery
entities have a suitable body of taxonomic knowledge, thus ensuring
minimal disturbance to the natural environment.
Clause 31 Restriction on receiving entity's use of samples
This clause provides that a receiving entity (i.e. the Queensland
Museum, Queensland Herbarium or another nominated agency/institution)
may not use the sample given to it, or part thereof, except for:
· identification purposes as stipulated under clause 29; or
· with the BCA holder's consent.
Division 2--Material disposal report
Clause 32 - Giving material disposal report to DSDI chief executive
This clause provides that within 15 business days of 30 June and 31
December each year a BCA holder must provide the State with details as to
what native biological material was collected under the BCA, when, to
whom that material has been delivered (including contact details), and the
quantity delivered in each case. Whilst this is a considerable reporting
burden, it is considered appropriate as it will allow the State to track
samples and ensure BSAs are negotiated with those parties that actually
conduct biodiscovery. Further, it is less onerous than requiring the BCA
holder to enter into a BSA with the State in respect of each sample.
Finally, this requirement will assist the State in ensuring it obtains a fair
and equitable share in the benefits of biodiscovery on behalf of all
Queenslanders.
The term "material disposal report" is defined in Schedule - Dictionary.
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Biodiscovery Bill 2004
PART 5--BENEFIT SHARING AGREEMENTS
Division 1--Entering into agreement
Clause 33 Power to enter into agreement
Sub-clause 33(1) gives the Minister for State Development and
Innovation (the DSDI Minister) the power to enter into a BSA with a
biodiscovery entity on behalf of the State.
The term "biodiscovery entity" is defined in the Biodiscovery Bill 2004
as any entity that engages in biodiscovery. This includes any company,
partnership, sole trader, institution or research organisation involved in
biodiscovery research or commercialisation of native biological material or
biodiscovery research.
The definition links with the definition of "entity" contained in the Acts
Interpretation Act 1954, which states: "entity" includes a person and an
unincorporated body.
The DSDI Minister may delegate this power. The BSA gives the entity
the right to use native biological material for biodiscovery and the entity
agrees to provide benefits to the State.
Sub-clause 33(2) provides that the DSDI Minister must not enter into a
BSA with a biodiscovery entity unless the latter has an approved
Biodiscovery Plan.
Sub-clause 33(3) provides that the parties to the BSA may decide to
amend the BSA at any time.
Clause 34 Content of agreement
Sub-clause 34(1) provides that the BSA must include certain elements
such as: date of commencement; the benefits to be provided, as well as
when those benefits are to be provided; a list of all relevant BCAs; and the
biodiscovery entity's place of business.
Sub-clause 34(2) provides that the BSA must also include any conditions
attached to the BSA, other than those referred to in clause 35.
Clause 35 Conditions of agreement
Sub-clause 35(1) provides that all BSAs permit the biodiscovery entity
to carry out only the biodiscovery research and commercialisation
activities detailed in its approved Biodiscovery Plan.
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Biodiscovery Bill 2004
Sub-clause 35(2) provides that a condition of all BSAs is that the
biodiscovery entity must not allow another party to use the native
biological material the subject of the BSA unless that other party is: acting
for the entity; a person exempted from requiring a BSA under clause 54 of
the Biodiscovery Bill 2004; or a party to a BSA concerning the material.
Sub-clause 35(3) provides that sub-clauses 35(1) and 35(2) do not limit
the conditions that may be included in an agreement.
Division 2--Approval of biodiscovery plans
Clause 36 Application for approval of plan
This clause provides that a biodiscovery entity may apply to the DSDI
chief executive for approval of a Biodiscovery Plan. The Biodiscovery
Plan must be in the approved form and provide details listed in clause 37.
Clause 37 Content of plan
This clause provides that a Biodiscovery Plan must include certain
elements including:
· the commercialisation activities the entity proposes and a related
timetable;
· the elements of those activities that the entity proposes to carry
out outside Queensland;
· the benefits that the biodiscovery entity considers will flow to
Queensland as a result of the biodiscovery activities; and
· the elements of research and commercialisation activities that the
biodiscovery entity proposes to outsource.
Clause 38 Chief executive's powers before deciding application
Sub-clause 38(1) provides that the DSDI chief executive may request in
writing further information or documents from the biodiscovery entity to
aid the assessment of a Biodiscovery Plan. Sub-clause 38(2) provides that
such a request must be made within 20 business days of the DSDI chief
executive receiving the application.
Sub-clause 38(2) provides that the DSDI chief executive must provide
the biodiscovery entity a reasonable period of at least 20 business days in
which to deliver the information requested in sub-clause 38(1).
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Biodiscovery Bill 2004
Sub-clause 38(3) provides that the DSDI chief executive may require
that the information or documentation be verified via a statutory
declaration.
Sub-cluse 38(4) provides that the biodiscovery entity is taken to have
withdrawn an application for approval of a Biodiscovery Plan if the
information or documentation requested by the DSDI chief executive is not
received within the stated period.
Clause 39 Deciding application
This clause provides that the DSDI chief executive must consider and
approve or refuse to approve the Biodiscovery Plan submitted by a
biodiscovery entity. The decision of the DSDI chief executive may be with
or without conditions. Approval must only take place if the DSDI chief
executive is satisfied with the proposed benefits that will accrue to the State
of Queensland (based on her or his consideration of the proposed
Biodiscovery Plan) under a BSA.
As an application may cover various State land tenures and areas of
scientific endeavour, administrative arrangements will be put in place so
that on all applications the DSDI chief executive will consult with the chief
executives of the Queensland Government Departments that administer
the:
· Nature Conservation Act 1992 currently EPA;
· Fisheries Act 1994 currently DPIF; and
· Land Act 1994 currently the DNRME.
Clause 40 Steps to be taken after application decided
This clause provides that the DSDI chief executive must, as soon as
practicable, advise the biodiscovery entity in writing of her or his decision
in relation to the Biodiscovery Plan including any conditions.
No right of external review has been included for decisions made under
this clause. Prohibition on external appeals for the DSDI chief executive's
refusal to approve a Biodiscovery Plan has not been included as the
Biodiscovery Plan forms the basis of negotiations between the State and
biodiscovery entities in negotiating a BSA. In all commercial negotiations
both parties have a right to decide whether to enter negotiations or cease
negotiations and this is reflected in the Biodiscovery Bill 2004. Including
such a right may, in effect, be viewed as attempting to force a commercial
agreement. Including a right of external review or appeal could also expose
confidential commercial information, a prospect that has been strongly
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Biodiscovery Bill 2004
opposed by industry and research institutions during both rounds of public
consultation. However, applicants will retain a right to a merits-based
review by the DSDI Minister.
Clause 41 Amendment of approved plan
Sub-clause 41(1) provides that where a biodiscovery entity wishes to
amend its Biodiscovery Plan the biodiscovery entity must apply in the
approved form to the DSDI chief executive for approval of any amendment.
Sub-clause 41(2) provides that the process outlined in clauses 37
through 40 apply to the application for amendment. For example, under
sub-clause 40(4) if the DSDI chief executive does not advise the
applicant within a period of 20 business days of receiving the application
for amendment, the DSDI chief executive is taken to have approved the
amended Biodiscovery Plan.
Division 3--Register and other records about benefits sharing
agreements
Clause 42 Benefit sharing agreement register
This clause provides that the DSDI chief executive must maintain a
register of biodiscovery BSAs in a way the DSDI chief executive considers
appropriate (e.g. on the internet).
Sub-clause 42(3) provides that the register must only include:
· the name of the biodiscovery entity with whom the BSA has been
entered;
· the date the agreement was entered into;
· the term of the BSA; and
· other particulars the DSDI Minister and the biodiscovery entity
agree in writing to disclose.
Clause 43 Records to be kept by biodiscovery entity
Sub-clause 43(1) requires a biodiscovery entity that has entered into a
BSA with the State to maintain each record or document evidencing the
results of biodiscovery research carried out under the BSA for a period of
30 years after the document is created. This requirement also applies to the
biodiscovery entity's successors and assigns.
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Biodiscovery Bill 2004
Sub-clause 43(2) requires a biodiscovery entity that has entered into a
BSA with the State to maintain all records or accounts necessary for
calculating the amounts payable to the State under the BSA for 30 years
after the record or account is created. This requirement also applies to the
biodiscovery entity's and its successors and assigns.
The 30 year time limit has been included to reflect the often long time
lag between collection and initial research and development of a viable
product. This time period also reflects the fact that patents for therapeutic
goods generally run for 20 years, with an option to extend for a further five
years.
The penalty units (50) proposed for not complying with sub-clause 40(1)
equates to a maximum financial penalty of $3,750 for an individual and
$18,750 for a corporation. This may be applied on a per document basis.
PART 6--COMPLIANCE CODE AND COLLECTION
PROTOCOLS
Clause 44 Establishing compliance code
This clause provides that the EPA chief executive may establish a
Compliance Code to provide guidance on the collecting of native
biological material under a BCA. The Compliance Code may provide for:
· standards for collecting native biological material designed so as
to ensure the sustainability of such actions;
· measures for minimising the impact of collection activities; and
· setting standards for the use of motor vehicles, or other
machinery or things, on or in areas where collection for
biodiscovery may be proposed.
Sub-clause 44(3) provides that the Compliance Code will be a statutory
instrument (as defined under the Statutory Instruments Act 1992), but that it
will not be subordinate legislation. Despite this, sub-clause 45(4) provides
that sections 49 through 51 of the Statutory Instruments Act 1992, which
deal with tabling of subordinate legislation in the Legsilative Assembly,
apply to the Compliance Code as if it were subordinate legislation.
Making this regulatory tool (i.e. the Compliance Code) a statutory
instrument rather than sub-ordinate legislation should not demonstrate
25
Biodiscovery Bill 2004
insufficient regard to the institution of Parliament. The Compliance Code
will be technical and procedural in nature, and elevating such to
subordinate legislation status may not add to the rigor of the proposed
regulatory regime. To ensure the Compliance Code is subject to
Parliamentary scrutiny, the Biodiscovery Bill 2004 requires that it be
subject to the tabling and disallowance provisions of the Statutory
Instruments Act 1992. Finally, transparency will assured through the
requirement of the Biodiscovery Bill 20043 that the Compliance Code be
made publicly available by the EPA chief executive (e.g. on the internet).
Clause 45 Establishing collection protocols
This clause provides that the EPA chief executive may establish
Biodiscovery Collection Protocols (Collection Protocols) as written
documents to govern the collection of native biological material to ensure
sustainability. Collection Protocols may be developed for:
· the collection of particular native biological material under a
BCA;
· collecting native biological material in a particular area; or
· using a particular collection technique for collection of native
biological material.
Sub-clause 45(3) provides that a Collection Protocol will be a statutory
instrument (as defined under the Statutory Instruments Act 1992), but that it
will not be subordinate legislation. Despite this, sub-clause 45(4) provides
that sections 49 through 51 of the Statutory Instruments Act 1992, which
deal with tabling of subordinate legislation in the Legsilative Assembly,
apply to the Compliance Code as if it were subordinate legislation.
Making this regulatory tool (i.e. Collection Protocols) a statutory
instrument rather than sub-ordinate legislation should not demonstrate
insufficient regard to the institution of Parliament. Collection Protocols
will be technical and procedural in nature, and elevating such to
subordinate legislation status may not add to the rigor of the proposed
regulatory regime. It may also prove difficult to draft workable subordinate
legislation to deal with such matters. Further, as the Biodiscovery Bill 2004
requires Collection Protocols (at this time none have been established) be
subject to the tabling and disallowance provisions of the Statutory
Instruments Act 1992. Finally, transparency will be assured through the
requirement of the Biodiscovery Bill 2004 that all Collection Protocols
developed by the EPA be made publicly available by the EPA chief
executive (e.g. on the internet).
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Biodiscovery Bill 2004
Clause 46 Consultation for compliance code and protocols
The clause provides that if the Compliance Code or a Collection
Protocol relates to the Wet Tropics World Heritage Area or land or waters
contiguous with the Great Barrier Reef Region the EPA chief executive
must consult with and have regard to the views of the Wet Tropics
Management Authority and the Great Barrier Reef Marine Park Authority
respectively.
Sub-clause 46(2) provides that the EPA chief executive may consult with
other bodies (e.g. Queensland Museum) when establishing or amending the
Compliance Code or a Collection Protocol.
As the Biodiscovery Bill 2004 applies to lands and waters not managed
by EPA, and matters not proposed to be managed by EPA (i.e. BSA
negotiations), administrative arrangements will be put in place so that prior
to establishing or amending the Compliance Code or a Collection Protocol,
the EPA chief executive will consult with the chief executive of the
Queensland Government Departments that administer the:
· Gene Technology Act 2001 currently DSDI;
· Fisheries Act 1994 currently DPIF; and
· Land Act 1994 currently the DNRME.
Clause 47 Public notice of establishment of compliance code and
collection protocols
Sub-clause 47(1) requires the EPA chief executive publish in the gazette
a notice stating that a Compliance Code and or Collection Protocol has
been established or amended by the EPA and is available for inspection on
the EPA website and at the EPA head office and each regional office.
Clause 48 When compliance code and collection protocols have effect
A Compliance Code or Collection Protocol is effective from the date its
establishment or amendment is published in the gazette or a later date
stated in the notice.
Clause 49 Access to compliance code and collection protocols
The EPA chief executive must keep a copy of the Compliance Code and
each Collection Protocol together with all documents applied by the
Compliance Code or Collection Protocol, documents adopted by the
Compliance Code or Collection Protocol and documents incorporated into
the Compliance Code or Collection Protocol.
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Biodiscovery Bill 2004
Sub-clause 49(2) provides that persons may purchase a copy of a
Compliance Code or Collection Protocol from the EPA chief executive.
Sub-clause 49(3) provides that the fees charged must not represent an
amount greater than the reasonable cost of producing such documents.
PART 7--OFFENCES
Division 1--Offences about collection authorities and biodiscovery plans
Clause 50 Offence to take without a collection authority
This clause creates offences (punishable by up to 3000 penalty units) for:
taking native biological material for biodiscovery from State land or
Queensland waters without a BCA.
The penalty units (3000 and 2000 respectively) proposed for this offence
equate to a maximum financial penalty of $225,000 for an individual and
$1,125,000 for a corporation. These very strict penalties are proposed to
ensure alignment with similar offences in the Nature Conservation Act
1992 and to erect a real and decisive disincentive for biopiracy the act of
collecting and using native bioligical material without approval of
Government or land holders. If penalties were less restrictive, it is
conceivable that some unethical players may decide to pay a penalty rather
than comply with the requirements proposed in the Biodiscovery Bill 2004.
Clause 51 Contravening a condition of a collection authority
This clause creates an offence for contravention of conditions imposed
under a BCA. This offence also applies to conditions imposed under the
Compliance Code or a Collection Protocol.
The penalty units (100) proposed for this offence equate to a maximum
financial penalty of $7,500 for an individual and $37,500 for a corporation.
This strict penalty is proposed to ensure a real and decisive disincentive for
collection activities that may endanger the sustainability of the State's
native biological assets. This penalty is consistent with similar penalties
imposed under the Nature Conservation Act 1992.
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Biodiscovery Bill 2004
Clause 52 - False or misleading information given by applicant
This clause creates offences for the deliberate provision of false or
misleading information to the EPA chief executive in an application for a
BCA and the DSDI chief executive in an application for approval of a
Biodiscovery Plan.
The penalty units (100) proposed for this offence equate to a maximum
financial penalty of $7,500 for an individual and $37,500 for a corporation.
These penalties are proposed to ensure a real and decisive disincentive for
biopiracy and defrauding the State and the Queensland community of a
share in the benefits derived from biodiscovery. If penalties were less
restrictive, it is conceivable that some unethical players may decide to pay
a penalty rather than comply with the requirements proposed in the
Biodiscovery Bill 2004.
Clause 53 False or misleading documents given by applicant
This clause creates offences for the deliberate provision of false or
misleading documents to the EPA chief executive in an application for a
BCA and the DSDI chief executive in an application for approval of a
Biodiscovery Plan.
The penalty units (100) proposed for this offence equate to a maximum
financial penalty of $7,500 for an individual and $37,500 for a corporation.
These penalties are proposed to ensure a real and decisive disincentive for
biopiracy and defrauding the State and the Queensland community of a
share in the benefits derived from biodiscovery. If penalties were less
restrictive, it is conceivable that some unethical players may decide to pay
a penalty rather than comply with the requirements proposed in the
Biodiscovery Bill 2004.
Sub-clause 53(3) provides that the offence does not apply to a person
who, when delivering such documents, informs the EPA or DSDI chief
executive (in respect of an application for a BCA or an application for
approval of a Biodiscovery Plan respectively) how it is false or misleading
and gives the correct information to the EPA or DSDI chief executive (in
respect of an application for a BCA or an application for approval of a
Biodiscovery Plan respectively) if the person has or can reasonably obtain
the correct information.
This exemption allows for biodiscovery entities to use best endeavours
to ensure information provided is as up to date and accurate as possible in
their interactions with Government.
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Biodiscovery Bill 2004
Division 2--Offences about benefit sharing agreements
Clause 54 Using native biological material for biodiscovery without a
benefit sharing agreement
This clause creates an offence for using native biological material for
biodiscovery without a BSA with the State. This offence is limited to
native biological material that was collected from State land or Queensland
waters and State collections, if the material is sourced from State land or
Queensland waters.
Sub-clause 54(2) provides that the offence created under sub-clause
54(1) does not apply to a person using the material for scientific
classification, verification of results or conducting biodiscovery on behalf
of a biodiscovery entity that is already party to a BSA in respect of
activities permitted by the agreement.
Sub-clause 54(3) provides that the offence created under sub-clause
54(1) does not apply to an educational institution or a researcher at that
institution undertaking research (on native biological material or something
sourced from that material) that does not involve commercialisation of the
native bioliogical material. "Educational institution" is defined as a school,
college, university, university college, TAFE institute or registered training
organisation under the Vocational Education, Training and Employment
Act 2000. This exemption has been included so that research that is not
commercial in nature or intent will not be impeded by the enactment of the
Biodiscovery Bill 2004.
The penalties proposed for this offence are very strict (5000 penalty
units. The full commercial value of any commercialisation of the material).
These penalties are proposed to ensure a real and decisive disincentive for
biopiracy and reflect the magnitude of gains to be made by unethical
players. Erecting such a strict disincentive should result in a situation
where the cost of complying with the Biodiscovery Bill 2004 are less
prohibitive than the cost of non-compliance.
Clause 55 Contravening a condition of a benefit sharing agreement
This clause creates an offence for biodisiveroy entities breaching a
condition of a BSA that has been executed with the State. This will occur
when an apporved Biodisciovery Plan is contravened.
The penalties units (100) proposed for this offence will provide an
incentive for biodiscovery entities to ensure the Government is advised of
all biodiscovery activities (i.e. the that Biodiscovery Plans are up to date).
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Biodiscovery Bill 2004
Clause 56 False or misleading information given by person seeking
benefit sharing agreement
This clause creates an offence for the deliberate provision of false or
misleading information to the DSDI Minister in negotiation of a BSA.
The penalty units (100) proposed for this offence equate to a maximum
financial penalty of $7,500 for an individual and $37,500 for a corporation.
These penalties are proposed to ensure a real and decisive disincentive for
efforts to defraud the State and the Queensland community of a share in the
benefits derived from biodiscovery. If penalties were less restrictive, it is
conceivable that some unethical players may decide to pay a penalty rather
than comply with the requirements proposed in the Biodiscovery Bill 2004.
The magnitude of the maximum penalty is reflective of the potential
financial benefit unethical players may enjoy.
In its dealings to date in respect of benefit sharing, the Government has
not experienced such unethical behaviour. Therefore, the strict penalties
have been included as a precautionary measure.
Clause 57 False or misleading documents given by person seeking
benefit sharing agreement
This clause creates an offence for the deliberate provision of false or
misleading documents to the DSDI Minister in negotiation of a BSA.
The penalty units (100) proposed for this offence equate to a maximum
financial penalty of $7,500 for an individual and $37,500 for a corporation.
These penalties are proposed to ensure a real and decisive disincentive for
efforts to defraud the State and the Queensland community of a share in the
benefits derived from biodiscovery. If penalties were less restrictive, it is
conceivable that some unethical players may decide to pay a penalty rather
than comply with the requirements proposed in the Biodiscovery Bill 2004.
In its dealings to date in respect of benefit sharing, the Government has
not experienced such unethical behaviour. Therefore, the strict penalties
have been included as a precautionary measure.
Sub-clause 57(2) provides that the offence does not apply to a person
who, when delivering such documents, informs the IIE Minister how it is
false or misleading and gives the correct information to the IIE Minister if
the person has or can reasonably obtain the correct information.
This exemption allows for biodiscovery entities to use best endeavours
to ensure documentation provided is up to date and as accurate as possible
in their interactions with Government.
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Biodiscovery Bill 2004
Clause 58 False or misleading information about reportable matters
This clause creates an offence for the deliberate provision of false or
misleading information or documents in relation to a reportable matter to
the DSDI Minister. A "reportable matter" is a commitment made under a
BSA involving providing reports to the DSDI Minister on:
· results of biodiscovery research;
· commercialisation activities; or
· the total value or consideration of commercialisation activities.
The penalty units (100) proposed for this offence equate to a maximum
financial penalty of $7,500 for an individual and $37,500 for a corporation.
These penalties are proposed to ensure a real and decisive disincentive for
efforts to defraud the State and the Queensland community of a share in the
benefits derived from biodiscovery. If penalties were less restrictive, it is
conceivable that some unethical players may decide to pay a penalty rather
than comply with the requirements proposed in the Biodiscovery Bill 2004.
In its dealings to date in respect of benefit sharing, the Government has
not experienced such unethical behaviour. Therefore, the strict penalties
have been included as a precautionary measure.
Division 3--Other offence provisions
Clause 59 Claims by persons about holding a collection authority
This clause creates an offence for a person fraudulently claiming she or
he is the holder of a BCA. This offence has been designed to deter
unethical players from claiming activities have been approved.
The penalty units (100) proposed for this offence equate to a maximum
financial penalty of $7,500 for an individual and $37,500 for a corporation.
Clause 60 Collection authority to be available for immediate
inspection
This clause requires the holder of a BCA to have that BCA or a copy
thereof available for inspection whilst undertaking collection activities.
This will improve the monitoring of collection activities and help ensure
the Biodiscovery Bill 2004 creates a transparent and accountable regulatory
system.
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Biodiscovery Bill 2004
The penalty units (20) proposed for this offence equate to a maximum
financial penalty of $1,500 for an individual and $7,500 for a corporation.
PART 8--MONITORING AND ENFORCEMENT
Division 1--Inspectors
Clause 61 Appointment and qualifications
This clause provides that the EPA chief executive or the DSDI chief
executive may appoint inspectors. Inspectors must have specific
qualifications if they are to be appointed.
The clause provides that an inspector may be:
· a public service employee - this allows rangers and ecological
experts currently employed by the EPA, DPIF, DNRME,
Queensland Museum or the Wet Tropics Management Authority
to be appointed (e.g. to police collection activities in national
parks or the Wet Tropics World Heritage Area);
· a local government employee;
· a person accredited by the National Association of Testing
Authorities (NATA) this allows professional auditors to be
appointed (e.g. to audit company accounts to ensure all benefits
committed to the State under a BSA are delivered); and
· a person prescribed under a regulation at present there are no
regulations under the Biodiscovery Bill 2004, however providing
for such will allow the EPA or DSDI chief executive to appoint
persons with particular expertise (e.g. a mycology expert or
particular species of plant, an intellectual property expert or
patent attorney or forensic accountant) that may not be found
within Government or through NATA accredited auditors.
Subject to the approval of the relevant agency, Commonwealth
Government employees may provide advice in inspection and monitoring
activities. The relevant agencies may include the Great Barrier Reef
Marine Park Authority or CSIRO.
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Biodiscovery Bill 2004
Clause 62 Appointment conditions and limit on powers
This clause provides that in appointing an inspector the EPA or DSDI
chief executive, whichever has made the relevant appointment, must ensure
that an inspector is advised in writing of any conditions relating to his or
her appointment.
Clause 63 Issue of identity card
This clause provides that in appointing an inspector the EPA or DSDI
chief executive, whichever has made the relevant appointment, must issue
the inspector with an identity card that contains:
· a recent photograph of the inspector;
· a copy of the inspector's signature;
· clarification that the inspector has been appointed as an inspector
under the Biodiscovery Bill 2004; and
· an expiry date.
Sub-clause 63(3) provides that an inspector may be issued with a single
identity card even though they fulfil different functions under different
legislation. This is standard practice in Queensland.
Clause 64 Production or display of identity card
This clause provides that in exercising any powers under the
Biodiscovery Bill 2004 an inspector must produce her or his identity card
for display to a person or have the identity card displayed so that it is
clearly visible to the person. If this is not possible the inspector must
produce the identity card for the person at the first reasonable opportunity.
Clause 65 When inspector ceases to hold office
This clause provides that an inspector appointed will cease to hold that
office when:
· the term of appointment expires;
· the appointment ceases under a condition of appointment; or
· the inspector resigns (see clause 66).
Sub-clause 65(2) provides that the above examples do not limit the ways
or circumstances in which an inspector ceases to hold office. This allows,
for example, disciplinary procedures to be implemented.
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Biodiscovery Bill 2004
Clause 66 Resignation
This clause provides that an inspector may resign that position by
providing written advice of such an intention to the EPA or DSDI chief
executive, whichever was responsible for the inspector's appointment.
Clause 67 Return of identity card
This clause provides that a person who ceases to be an inspector must
return the idenitity card issued under clause 58 to the EPA or DSDI chief
executive, whichever was responsible for the inspector's appointment,
within 21 days of ceasing to be an inspector. The penalty units (20)
proposed for failure to return identity card equate to a maximum financial
penalty of $1,500. However, the penalty may be avoided if the person has a
reasonable excuse for failing to return the identity card within the 21 days.
Division 2--Powers of inspectors
The powers created in the following provisions reflect standard
Queensland criminal investigatorial powers. The penalties listed below
reflect the special circumstances of the biodiscovery industry and have
been designed to deter, as much as is possible, unethical or illegal activity.
Subdivision 1--Entry of places
Clause 68 Power to enter places
Sub-clause 68(1) provides that an inspector appointed under clause 61
may enter a place if:
· the occupier consents; or
· it is a public place that is open to the public at the time of entry;
or
· entry is authorised under a warrant; or
· it is a biodiscovery entity's place of business stated in the
biodiscovery entity's BCA or the BSA and is: open for business;
open for entry; or required to be open for inspection under the
BCA or the BSA.
Sub-clause 68(2) provides that an inspector may, within reason:
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Biodiscovery Bill 2004
· enter land surrounding the premises she or he wishes to enter; or
· enter part of the place she or he wishes to enter that the public is
ordinarily allowed to enter when they wish to contact the
occupier (e.g. the foyer of a building premises).
Sub-clause 68(3) provides that the power to enter a biodiscovery entity's
place of business does not extend to that part or those parts of a premises
where a person resides (e.g. a dwelling above a shop).
Subdivision 2--Procedure for entry
Clause 69 Entry with consent
Sub-clause 69(1) provides clarification that this clause applies where an
inspector appointed under clause 50 intends to seek the approval from an
occupier of a place for entry by that inspector or another inspector.
Sub-clause 69(2) provides that before seeking consent for entry, an
inspector must inform the occupier of the reason entry is sought and that
approval may be withheld.
Sub-clause 69(3) provides that if approval is given for the inspector to
enter a premises, the inspector may ask the occupier to confirm such
approval was given in writing.
Sub-clause 69(4) provides that in giving approval in writing, such
approval must state that:
· the occupier has been advised of the purpose of entry and that
approval may be withheld;
· the purpose of entry;
· the occupier gives the inspector consent to enter the place and
exercise powers granted to the inspector; and
· the time and date the approval was given.
Sub-clause 69(5) provides that if the occupier signs the approval, the
inspector must immediately give the occupier a copy of the approval.
Sub-clause 69(6) provides that if an issue arises in a proceeding under
the Biodiscovery Bill 2004 about whether approval for entry was in fact
granted and an approval complying with sub-clause 69(4) is not produced,
the onus of proof for proving that the occupier gave approval for entry rests
with the person relying on the lawfulness of entry.
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Biodiscovery Bill 2004
Clause 70 Application for warrant
This clause provides that an inspector appointed under clause 61 may
apply to a magistrate for a warrant for a place, that the warrant must be
sworn and state the grounds on which the warrant is sought and that the
magistrate may refuse to consider the application until the inspector
provides all the information the magistrate requires in the way the
magistrate requires.
Clause 71 Issue of warrant
This clause provides that a magistrate may issue a warrant only if
satisfied there are reasonable grounds for suspecting an identified place
contains evidence of an offence against the Biodiscovery Bill 2004 and that
such evidence is at the identified place or will be at the identified place
within the next seven days. The warrant must state that:
· an inspector may enter the identified place or any other necessary
place and exercise her or his powers;
· the suspected offence justifying the warrant;
· the evidence sought;
· the evidence may be seized;
· the hours of the day or night when the place may be entered; and
· the date the warrant ends (limited to 14 days after issue).
Clause 72 Special warrants
This clause provides that an inspector appointed under clause 61 may
apply for a special warrant by telephone, fax, radio or other form of
communication in special circumstances (e.g. urgency of the matter or
remoteness of the inspector's location). Before doing so, the inspector
must prepare an application stating grounds for seeking the warrant,
however, the application may be made before the application is sworn.
Upon issuing a special warrant the relevant magistrate must fax the
inspector a copy of the special warrant if it is reasonably practicable to do
so. If it is not reasonably practicable to do so:
· the magistrate must advise the inspector of the terms of the
special warrant and the date and time the special warrant was
issued; and
· the inspector must complete a form of warrant (i.e. "warrant
form") and include the magistrate's name and the date and time
the magistrate issued the special warrant.
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Biodiscovery Bill 2004
Clause 73 Warrants - procedure before entry
This clause applies if an inspector appointed under clause 61 and named
in a warrant intends to enter the place named in the warrant.
Sub-clause 73(2) provides that the inspector must make a reasonable
attempt to:
· identify herself or himself to an occupier of the place named in
the warrant by producing her or his identity card issued to the
inspector under clause 63 or by some other means that identifies
her or him as an inspector appointed under the Biodiscovery Bill
2004;
· give the occupier a copy of the warrant, special warrant or
warrant form, whichever is relevant;
· verbally advise the occupier that she or he is permitted by the
warrant to enter the place; and
· give the occupier the opportunity to allow immediate entry prior
to using force.
Sub-clause 73(3) provides an exemption for the inspector from sub-
clause 73(2) if the inspector reasonably believes that immediate entry to the
place is required to ensure the effective execution of the warrant. Such a
power may be seen as not having sufficient regard to a person's rights and
liberties. However, this power is justified on the basis that it will only be
exercised if an inspector reasonably suspects a place has been used or is
being used to commit an offence or the place is, or contains, evidence of an
offence and such action is required to avoid loss of the evidence.
Subdivision 3--Other powers
Clause 74 Power to stop and search vehicles etc.
Sub-clause 74(1) provides that this section applies if an inspector
appointed under clause 61 reasonably believes a vehicle, boat or aircraft is
being or has been used in the commission of an offence against the
Biodiscovery Bill 2004, or that a vehicle, boat or aircraft or the contents of
any may contain evidence of the commission of an offence against the
Biodiscovery Bill 2004.
Sub-clause 74(2) provides that the inspector may enter or board the
vehicle, boat or aircraft and exercise powers spelt out in clause 74(3) of the
38
Biodiscovery Bill 2004
Biodiscovery Bill 2004. In doing so the inspector may use necessary and
reasonable force without a warrant. Such a power may be seen as not
having sufficient regard to a person's rights and liberties. However, this
power is justified on the basis that it will only be exercised if an inspector
reasonably suspects a vehicle has been used or is being used to commit an
offence or the vehicle etc is, or contains, evidence of an offence and such
action is required to avoid loss of the evidence.
Sub-clause 74(3) provides that if the vehicle, boat or aircraft is in motion
or about to move the inspector may signal the person in control of such
vehicle, boat or aricraft to stop or not move the vehicle, boat or aircraft.
This clause only applies to aircraft when that aircraft is on the ground.
Sub-clause 74(4) creates an offence for willfully and without a
reasonable excuse ignoring the signal given under sub-clause 74(3).
The penalty units (165) proposed for this offence equate to a maximum
financial penalty of $12,375 for an individual and $61,875 for a
corporation. These very strict penalties have been set to reflect the
seriousness of the State's sovereign responsibility to protect and manage on
behalf of all Queenslanders the State's native biological material.
Providing a serious disincentive should encourage players to operate
legally within the framework set by the Biodiscovery Bill 2004 rather than
risk financial penalty.
Sub-clause 74(5) provides that sub-clause 74(4) does not apply to a
person if to obey the signal given by an inspector under sub-clause 74(3)
would endanger the person or other persons and if the person obeys the
signal given by an inspector under sub-clause 74(3) as soon as practicable.
Sub-clause 74(6) provides that an inspector may require the driver or
person in command of a vehicle, boat or aircraft to assist the inspector in
entering or boarding and bringing the vehicle, boat or aircraft to a place
specified by the inspector and to remain in control of the vehicle, boat or
aircraft whilst the inspector exercises her or his powers.
Sub-clause 74(7) creates an offence for a person who willfully and
without a reasonable excuse contravenes a requirement given under sub-
clause 74(6).
The penalty unit (165) proposed for this offence equates to a maximum
financial penalty of $12,375 for an individual and $61,875 for a
corporation. These very strict penalties have been set to reflect the
seriousness of the State's sovereign responsibility to protect and manage on
behalf of all Queenslanders the State's native biological material.
Providing a serious disincentive should encourage players to operate
39
Biodiscovery Bill 2004
legally within the framework set by the Biodiscovery Bill 2004 rather than
risk financial penalty.
Sub-clause 74(8) provides that if while searching a vehicle, boat or
aircraft an inspector finds something that she or he reasonably believes
could evidence commission of an offence against the Biodiscovery Bill
2004 clauses 78 through 86 apply to that thing.
Clause 75 General powers after entering places
This clause provides guidance for an inspector that has entered a place
under clause 68 or if entry is gained with the occupier's approval. For
monitoring and enforcing the Biodiscovery Bill 2004 an inspector may:
· search any part of the place;
· inspect, measure, photograph or film any part of the place or
anything at the place;
· take an extract from or copy a document at the place;
· take into or onto the place any equipment the inspector
reasonably believes necessary to fulfil their responsibilities under
this Division 2;
· require the occupier or another person at the place to provide
reasonable help to enable the inspector to exercise the above
powers (in doing so the inspector must inform the occupier or
other person that it is an offence to fail to comply without a
reasonable excuse);
· require the occupier or another person at the place to provide the
inspector with information to allow the inspector to ascertain
whether compliance with the Biodiscovery Bill 2004 is being
achieved (in doing so the inspector must inform the occupier or
other person that it is an offence to fail to comply without a
reasonable excuse).
Clause 76 Failure to help inspector
This clause creates an offence for failing to provide reasonable help
under clause 75(3)(e) without a reasonable excuse. The clause provides
that a reasonable excuse for a person in relation to this offence includes
failing to comply if compliance might incriminate the person.
The penalty units (50) proposed for this offence equate to a maximum
financial penalty of $3,750 for an individual and $18,750 for a corporation.
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Biodiscovery Bill 2004
Clause 77 Failure to give information
This clause creates an offence for failing to provide information to an
inspector under clause 75(3)(f) without a reasonable excuse. The clause
provides that a reasonable excuse includes failing to comply if compliance
might incriminate the person.
The penalty units (50) proposed for this offence equate to a maximum
financial penalty of $3,750 for an individual and $18,750 for a corporation.
Subdivision 4--Power to seize evidence
Clause 78 Seizing evidence at place that may only be entered with
consent or warrant
This clause applies if an inspector appointed under clause 61 is
authorised to enter a place with the occupier's approval or under a warrant
and does so. The clause allows an inspector to seize a thing if the inspector
reasonably believes the thing is evidence of commission of an offence
against the Biodiscovery Bill 2004 and such seizure is consistent with the
purposes of entry as communicated to the occupier (where approval has
been obtained) or with the warrant.
Sub-clause 78(4) provides that the inspector may also seize anything else
at the place if the inspector reasonably believes the thing is evidence of
commission of an offence against the Biodiscovery Bill 2004 and such
seizure is necessary to prevent the thing being hidden, lost or destroyed.
Clause 79 Seizing evidence at other places
Sub-clause 79(1) provides that an inspector appointed under clause 61
may enter a public place, enters or boards a vehicle, boat or aircraft without
consent or a warrant.
Sub-clause 79(2) provides that an inspector appointed under clause 61 is
authorised to seize a thing from a public place, vehicle, boat or aircraft if
the inspector reasonably believes the thing is evidence of commission of an
offence against the Biodiscovery Bill 2004.
Clause 80 Securing seized things
This clause provides that having seized a thing an inspector appointed
under clause 60 reasonably believes is evidence of commission of an
offence against the Biodiscovery Bill 2004, the inspector may move the
thing or leave a thing where it is but restrict access to it.
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Biodiscovery Bill 2004
Clause 81 Tampering with seized things
This clause creates an offence for tampering or attempting to tamper
with a thing to which an inspector appointed under clause 61 has restricted
access or tampering with something that is restricting access, without the
inspector's approval.
The penalty units (50) proposed for this offence equate to a maximum
financial penalty of $3,750 for an individual and $18,750 for a corporation.
Clause 82 Receipt for seized things
This clause provides that an inspector appointed under clause 61 must,
as soon as is practicable, provide a receipt for any seized thing to the
person from whom it was taken. The receipt must describe each thing
seized. If this is not possible, the inspector must leave a receipt in a
conspicuous place and in a secure manner at the place of seizure (e.g. under
the windscreen wiper on the windscreen of a vehicle).
Sub-clause 82(4) provides an exemption to the requirement to leave a
receipt for seized things if it is impractical or would be unreasonable to
give the receipt. This exemption is limited to the nature, condition and
value of the seized thing.
Clause 83 Disposal of native biological material
This clause provides that the EPA chief executive may direct that
material that has been seized as evidence of an offence against the
Biodiscovery Bill 2004 be disposed of and may direct the method of
disposal if satisfied it is necessary to do so in the interests of the welfare of
the material or for the protection of the material. Disposal may take place
whether or not a proceeding has been taken or a person has been convicted
of an offence.
This clause effects the acquisition of a right, which may constitute an
interference with a biodiscovery entity's property rights in native biological
material or something sourced from that material, without compensation.
The State can legislate to acquire property or to affect commercial interests
in property, with or without compensation, both prospectively and with
retrospective effect. The one requirement is to legislate with precision on
the point. The power effected by this provision is prospective, not
retrospective, and very precise as it is limited to instances where it is
necessary to do so in the interests of the welfare of the material or for the
protection of the material.
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Biodiscovery Bill 2004
Clause 84 Forfeiture of things not owned by the State
This clause provides that a seized thing that is not owned by the State
becomes the property of the State where the seizing inspector cannot find
the owner or cannot return it to its owner. In each instance the inspector
must make reasonable inquiries or efforts. The term "owner" in respect of
property has been defined, for this clause, to mean the person in possession
or control.
Clause 85 Dealing with forfeited things
This clause provides that a thing forfeited to the State (see clause 84)
becomes the property of the State and the State may dispose of or destroy
the thing as the EPA chief executive considers appropriate.
Clause 86 Return of seized things
This clause provides that if a seized thing is not disposed of (see clause
83) or forfeited (see clause 84) the inspector must return it to the person
from whom it was taken after six months or where proceedings have
commenced within 6 months,at the end of any proceedings and appeal
from proceedings in which the thing plays a part. However, the inspector
must return the thing immediately if she or he is satisfied that it is no longer
evidence of commission of an offence against the Biodiscovery Bill 2004.
Clause 87 Access to seized things
This clause provides that until a seized thing is disposed of, forfeited or
returned, the inspector must allow access to it by the person from whom it
was taken for inspection purposes and if it is a document for copying
purposes.
Sub-clause 87(2) provides an exemption to the requirement to allow
access to the seized thing if it is impractical or would be unreasonable to
allow inspection or copying (e.g. if the thing is being stored in Brisbane
and the person sought Access To It In Cairns).
Division 3--General investigation matters
Clause 88 Inspector's obligation not to cause unnecessary damage
This clause provides that an inspector must take all reasonable steps to
ensure he or she does not cause any unnecessary damage.
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Biodiscovery Bill 2004
Clause 89 Notice of damage
This clause provides that where an inspector appointed under clause 61
or a person acting under the direction of that inspector causes damage to
property, the inspector must advise the owner of the property in writing
(i.e. give notice) of particulars of the damage. If this is not possible, the
inspector must leave written advice of the damage in a conspicuous place
and in a secure manner where the damage happened. The term "owner" in
respect of property has been defined, for this clause, to mean the person in
possession or control. The inspector may also advise that in her or his
opinion the damage was caused by a latent defect in the property or was
caused by circumstances beyond the control of the inspector or the person
acting under her or his direction.
Sub-clause 89(5) provides that the above does not apply if the inspector
reasonably believes the damage is trivial.
Clause 90 Compensation
This clause provides that a person may claim compensation from the
State if loss or expense is incurred as a result of entry, search or seizure
actions outlined in subdivisions 1, 3 and 4 of Division 2. This includes loss
or expense incurred in complying with a requirement made of a person
under subdivisions 1, 3 and 4 of Division 2 of Part 8 of the Biodiscovery
Bill 2004.
Sub-clause 90(3) provides that the court in which such claim is made
will depend on the level of compensation claimed.
Sub-clause 90(4) provides that a court may make a compensation order
only where the court is satisfied such an order is fair in the particular case.
Clause 91 False or misleading information given to inspector
This clause creates an offence for deliberately stating false or misleading
information to an inspector appointed under clause 61.
The penalty units (50) proposed for this offence equate to a maximum
financial penalty of $3,750 for an individual and $18,750 for a corporation.
Clause 92 False or misleading documents given to inspector
This clause creates an offence for deliberately providing a false or
misleading document to an inspector appointed under clause 61.
The penalty units (50) proposed for this offence equate to a maximum
financial penalty of $3,750 for an individual and $18,750 for a corporation.
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Biodiscovery Bill 2004
Sub-clause 92(2) provides that the offence does not apply to a person
who, when providing such documents, informs the inspector how it is false
or misleading and gives the correct information to the inspector if the
person has or can reasonably obtain the correct information. This
exemption allows for biodiscovery entities to use best endeavours to ensure
information provided is as up to date and accurate as possible in their
interactions with the Queensland Government.
Clause 93 Obstructing an inspector
Sub-clause 93(1) creates an offence for obstructing an inspector without
a reasonable excuse from exercising her or his powers under the
Biodiscovery Bill 2004.
The penalty units (100) proposed for this offence equate to a maximum
financial penalty of $7,500 for an individual and $37,500 for a corporation.
These strict penalties have been set to reflect the seriousness of the State's
sovereign responsibility to protect and manage on behalf of all
Queenslanders the State's native biological material. Providing a serious
disincentive should encourage players to operate legally within the
framework set by the Biodiscovery Bill 2004 rather than risk significant
financial penalty.
Sub-clause 93(2) provides that if a person obstructs an inspector and the
inspector wishes to proceed to enforce her or his powers under the
Biodiscovery Bill 2004, the inspector must warn the person that it is an
offence to obstruct without a reasonable excuse and that the inspector
considers the person's actions an obstruction.
Sub-clause 93(3) defines "obstruct" to mean hinder or attempt to
obstruct or hinder.
Clause 94 Impersonating an inspector
This clause creates an offence for pretending to be an inspector
appointed under clause 61.
The penalty units (50) proposed for this offence equate to a maximum
financial penalty of $3,750 for an individual and $18,750 for a corporation.
45
Biodiscovery Bill 2004
PART 9--REVIEW OF DECISIONS
Division 1--Decisions of EPA chief execuive
Clause 95 Application for internal review
This clause provides that where an applicant for a BCA has been advised
in writing by the EPA chief executive of his or her refusal of an application
or the grant of an application on conditions, the applicant may apply for an
internal review of that decision.
Sub-clause 95(2) extends internal review to those applications where the
BCA is deemed to be refused under clause 19.
Clause 96 How to apply for internal review
This clause provides that an application for internal review must be
made to the EPA Minister in the approved form and be supported by
enough information to allow the Minister to decide the application. The
application must be made within 20 business days after the day a person
receiveswritten advice from the chief executive about the decision or
within 20 business days the day the person learns of the decision.
Clause 97 Review decision
This clause provides that the EPA Minister must, within 30 business
days after receiving the application for internal review, review the decision
and advise the applicant in writing of the results of the review and the
reasons for reviewed decision, which may include:
· confirmation of the original decision; or
· amendment of the orginal decision; or
· substitution of the original decision with an alternate decision.
Sub-clause 97(3) provides that if the EPA Minister does not give reasons
for the review decision where the review decision is not the decision sought
by the applicant, the Minister is taken to have confirmed the original
decision of the EPA chief executive.
Clause 98 Restriction on external review
This clause provides that reviews of decisions to refuse an application or
grant a BCA on conditions are restricted to internal reviews to the EPA
Minister. External reviews have not been included for the decision to
allocate the native biological resources on State land or in Queensland
46
Biodiscovery Bill 2004
waters as the Biodiscovery Bill 2004 overides all other statutory provisions
relating to the allocation of these resources. At present, the Nature
Conservation Act 1992 specifically precludes commercial use of natural
resources in national parks and access to rare and threatened wildlife
(unless there is a conservation plan in force). Final determination of access
to the State's native biological resources for the purposes of biodiscovery
on State land and in Queensland waters will rest with the Minister for the
Environment. The Biodiscovery Bill 2004 does not limit who the Minister
for the Environment may consult with in deciding an application for access
to these resources.
Sub-clause 98(3) provides that this clause has no impact on the Judicial
Review Act 1991.
Division 2--Decisions of DSDI chief executive
Clause 99 Application for review
This clause provides that where a biodiscovery entity seeking approval
of a Biodiscovery Plan has been advised in writing by the DSDI chief
executive of a decision on such a matter, the applicant may apply for an
internal review of that decision.
Clause 100 How to apply for internal review
This clause provides that an application for internal review must be
made to the DSDI Minister in respect of a decision regarding a
Biodiscovery Plan in the approved form and be supported by enough
information to allow the Minister to decide the application. The
application must be made within 20 business days after the day on which
the person receives written advice from the DSDI chief executive about the
decision or within 20 business days after the day on which the person
learns of the decision.
Clause 101 Review of decision
This clause provides that the DSDI Minister must, within 30 business
days after receiving the application for internal review, review the decision
and advise the applicant in writing of the results of the review and the
reasons for reviewed decision, which may include:
· confirmation of the original decision; or
· amendment of the orginal decision; or
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Biodiscovery Bill 2004
· substitution of the original decision with an alternate decision.
Sub-clause 101(3) provides that if the DSDI Minister does not give
reasons for the review decision where the review decision is not the
decision sought by the applicant, the Minister is taken to have confirmed
the original decision of the DSDI chief executive, in respect of the
application for approval of a Biodiscovery Plan.
Clause 102 Restriction on external review
This clause restricts reviews of the DSDI chief executive's decision in
relation to an application for approval of Biodiscovery Plans to internal
review to the DSDI Minister. The requirement for internal review protects
political accountability but external reviews in relation to Biodiscovery
Plans are not considered appropriate. The reason for this is that
Biodiscovery Plans will form the basis of negotiations between the State
and biodiscovery entities for Benefit Sharing Agreements. In all
commercial negotiations both parties have a right to either enter into or
cease negotiations and this is reflected in the Biodiscovery Bill 2004.
Expanding the right of external review could also expose confidential
commercial information, a prospect that has been strongly opposed by
industry and research institutions during both rounds of public
consultation.
PART 10--APPEALS
Clause 103 Who may appeal
Applicants who have been granted a BCA which is subsequently
amended, suspended or cancelled have the right of appeal to a Magistrates
Court against such a decision.
Clause 104 Starting an appeal
Filing a notice of appeal with the clerk of the Magistrates Court, giving a
copy of the notice to the EPA chief executive and complying with the rules
of court applicable to the appeal will commence an appeal.
Sub-clause 104(2) provides that the appeal must commence within 20
business days after receiving the notice of the decision.
Sub-clause 104(3) retains the right of the court to extend the time for
filing the notice of appeal.
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Biodiscovery Bill 2004
Clause 105 Stay of operation of decisions
This clause allows for the court to order the stay of the decision pending
the outcome of the appeal.
Clause 106 Hearing procedures
This clause provides that the court, in deciding the appeal, is not bound
by the rules of evidence and is required to comply with natural justice.
Clause 107 Powers of court on appeal
The Magistrates Court has the discretion to confirm, vary, set aside the
decision and substitute another decision or set aside the decision and refer
the matter to the EPA chief executive with directions the court considers
appropriate.
Sub-clause 107(2) restricts the decision a court may make to decisions
that could have been made by the EPA chief executive.
Sub-clause 107(4) allows orders for costs to be made.
PART 11--LEGAL PROCEEDINGS
Division 1--Evidence
Clause 108 Application of div 1
This clause clarifies that a legal proceeding under the Biodiscovery Bill
2004 will be dealt with under Division 1 of Part 10 of the Biodiscovery Bill
2004.
Clause 109 Appointments and authority
This clause provides that in presenting evidence under the Biodiscovery
Bill 2004 it is not necessary to prove the appointment of the EPA Minister,
the DSDI Minister, the EPA chief executive, the DSDI chief executive or an
inspector.
Clause 110 - Signatures
This clause provides that in presenting evidence under the Biodiscovery
Bill 2004 it is not necessary to prove that the signature of the EPA Minister,
49
Biodiscovery Bill 2004
the DSDI Minister, the EPA chief executive, the DSDI chief executive or an
inspector is actually the signature of that person.
Clause 111 Evidentiary matters
This clause provides that the EPA or DSDI chief executive may provide
a signed certificate in relation to certain matters and that such certificates
act as evidence of such matters.
For example, the EPA chief executive may sign a certificate stating that a
particular direction (e.g. a condition under a BCA) or document (e.g. a
Collection Protocol) was issued under the Biodiscovery Bill 2004.
Division 2--Proceedings
Clause 112 Summary proceedings for offences
This clause provides that proceedings for an offence against the
Biodiscovery Bill 2004 must comply with the Justices Act 1886.
Sub-clause 112(2) provides that a proceeding in relation to an offence
against clause 54 of the Biodiscovery Bill 2004 must commence within five
years of the offence or within one year of the complainant gaining
knowledge of the offence and within seven years of the commission of the
offence. In effect, this creates a limitation period for offences under the
Biodiscovery Bill 2004.
Whilst prosecutions for criminal offences (essentially those under the
Criminal Code) are not subject to any time limitation, it is unusual for
prosecutions for breach of statutory duty not to be subject to some ultimate
time limitation. The length of time within which a prosecution under the
Biodiscovery Bill 2004 may be commenced in relation to using native
biological material without a BSA is substantial. However, these time
periods only apply to the use of the native biological material and reflect
the reality that biodiscovery entities: will not publicly disclose their
findings if they are intending to obtain patent protection; will not disclose
them at all if they are relying on trade secret protection; and the long term
nature of biodiscovery commercialisation (up to 15 years). For these
reasons the extended limitation period is considered necessary and should
ensure the State obtains a fair and equitable share in the benefits of
biodiscovery on behalf of all Queenslanders.
Sub-clause 112(3) provides that a proceeding in relation to an offence
under the Biodiscovery Bill 2004 (other than an offence against clause 54)
50
Biodiscovery Bill 2004
must commence within one year of the offence or within one year of the
complainant gaining knowledge of the offence and within two years of the
commission of the offence. In effect, this creates a statue of limitations for
offences under the Biodiscovery Bill 2004.
Clause 113 Allegations of false or misleading information or
documents
This clause provides that alleging information or documents provided
(e.g. as part of an application for a BCA or in negotiation of a BSA) were
false or misleading to a person's knowledge is grounds enough for
investigation of an offence under this clause. Surety that the information
was in fact false or misleading is not required to commence investigation.
Clause 114 Responsibility for acts or omissions of representatives
This clause provides that, where it is relevant to a proceeding to
demonstrate a person's state of mind in respect of a particular act or
omission, it must be shown that the act or omission was done by a
representative of the person within the representative's actual authority (i.e.
the representative was not acting of her or his own volition) and that the
representative had the requisite state of mind.
Sub-clause 114(3) provides that where an act or omission is done by a
person's representative, such activity is taken to be done by the person
unless she or he can prove that they could not, within reason, have
prevented the act or omission.
Sub-clause 114(4) defines "representative" to mean: an executive officer,
employee or agent, for a corporation; or an employee or agent, for an
individual. The sub-clause defines "state of mind" to mean the person's
knowledge, intention, opinion, belief or purpose and the person's reasons
for such.
This clause effectively reverses the onus of proof, since under the law a
person generally cannot be found guilty of an offence unless the
prosecution can establish guilt. The relevant clauses are in a form routinely
employed in many Queensland Bills and provide that where an offence was
carried out by a person's representative, such activity is taken to be done by
the person unless they can prove they could not, within reason, have
prevented the offence. Further it must be shown that the offending
representative was not acting of her or his own volition. This is a reversal
of the onus of proof, but has been included to ensure corporate
responsibility in the Queensland biodiscovery industry and to ensure that
the industry develops in an ethical and accountable manner.
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Biodiscovery Bill 2004
Clause 115 Executive officers must ensure corporation complies with
Act
This clause creates an offence for executive officers failing to ensure a
corporation complies with the Biodiscovery Bill 2004. The clause provides
that if a corporation commits an offence against the Biodiscovery Bill 2004,
each of the executive officers of that corporation is taken to have committed
an offence (i.e. failing to ensure the corporation complied with the
legsilation).
The penalty units proposed for this offence will depend on the relevant
offence (e.g. clause 57 - False or misleading documents by person seeking
benefit sharing agreement) and the maximum financial penalty for each
executive officer will be the maximum amount payable for such offence by
an individual (i.e. 100 penalty units or $7,500).
Sub-clause 115(3) provides that evidence that a corporpation has
committed an offence against the Biodiscovery Bill 2004 is evidence that
each executive officer of that corporation has committed an offence under
this clause.
Sub-clause 115(4) provides that the offence does not apply where an
executive officer can demonstrate that she or he exercised reasonable
diligence to ensure the corporation's compliance with the Biodiscovery Bill
2004 or where an executive officer can demonstrate that she or he was not
in a postion to influence the conduct of the corporation in relation to the
offence. This is a reversal of the onus of proof, but has been included to
ensure corporate responsibility in the Queensland biodiscovery industry
and to ensure that the industry develops in an ethical and accountable
manner. Defences are provided, but must be proved by the defendant
rather than the prosecution proving guilt.
The relevant clauses are in a form routinely employed in many
Queensland Bills and provide that where an offence was carried out by a
person's representative, such activity is taken to be done by the person
unless they can prove they could not, within reason, have prevented the
offence. Further it must be shown that the offending representative was not
acting of her or his own volition. This is a reversal of the onus of proof, but
has been included to ensure corporate responsibility in the Queensland
biodiscovery industry and to ensure that the industry develops in an ethical
and accountable manner. These clauses ensure that officers of corporations
cannot hide behind the corporate veil.
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PART 12--MISCELLANEOUS
Division 1--Protection of confidentiality
Clause 116 Freedom of Information Act 1992 does not apply to
benefit sharing agreement
This clause provides that section 16 of the Freedom of Information Act
1992 does not apply to:
· a BSA;
· records kept about a BSA (e.g. legal advice sought);
· records kept about a BCA (e.g. ecological advice sought);
· a Biodiscovery Plan;
· records kept about a Biodiscovery Plan;
· documents identifying the holder of a BCA
The records referred to must be kept by a relevant department, which is
defined to mean the EPA or DSDI or a consulting chief executive's
department (i.e. DPIF, DNRME).
This protection has been included to protect the commercial in
confidence nature of much of the material and information that will be
dealt with during: finalisation of a Biodiscovery Plan; negotiation of a
BSA; assessment of a BCA application and monitoring of an ensuing
BCA; as well as reports and other records developed and delivered under a
BSA or according to a Biodiscovery Plan. Such protection was requested
by industry and research institutions during both rounds of public
consultation. As this information is commercial in nature and would not
have entered the public domain except for the passage of relevant
provisions of the Biodiscovery Bill 2004, it is questionable whether lack of
a provision removing such information from the public domain is in the
public interest.
Clause 117 Disclosure of information about collection authority,
benefit sharing agreement or biodiscovery plan
This clause creates an offence for the disclosure of information
regarding a BSA; a BCA or a Biodiscovery Plan, unless such disclosure is
permitted. A person who acquires such information whilst performing
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their functions under the Biodiscovery Bill 2004 may disclose this
information only:
· to the extent necessary for the person to perform their functions
under the Biodiscovery Bill 2004;
· if disclosure is allowed under the Biodiscovery Bill 2004 or the
Freedom of Information Act 1992;
· if disclosure is required by law;
· if the party to the relevant BSA consents in writing to disclosure;
or
· if the information is already in the public domain (e.g. it has been
recorded on the register of BCAs or register of BSAs).
The penalty units (100) proposed for this offence equate to a maximum
financial penalty of $7,500 for an individual and $37,500 for a corporation.
No similar protection is provided for a "corresponding authority", as the
protection proposed under this clause is new and designed to protect
commercial in confidednce information. It is not designed to be
retrospective in effect, nor it is designed to prtect information and material
that was not considered or assessed under the Biodiscovery Bil 2003.
Division 2--Protection from liability
Clause 118 Liability of State
This clause provides the granting of a BCA or the executing of a BSA by
the State does not subject the State to legal liability for any act.
Clause 119 Protecting officials from liability
This clause provides that Government officials (i.e. a Minister
responsible for administering the Biodiscovery Bill 2004, a person
authorised to enter a BSA for the State, the EPA or DSDI chief executive,
or an employee of EPA or DSDI or another Government Department) are
not liable for civil proceedings for an act or omission made honestly and
without negligence under this legislation. However, if dishonesty or
negligence can be proved, liability will attach to the State.
Clause 120 Whistleblowers' protection
This clause provides that a person who discloses to an official (i.e. a
Minister responsible for administering the Biodiscovery Bill 2004, a person
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Biodiscovery Bill 2004
authorised to enter a BSA for the State, the EPA or DSDI chief executive)
information about a breach of the Biodiscovery Bill 2004 is not liable for
civil, criminal or administrative proceedings (e.g. disciplinary actions).
This protection applies to defamation proceedings and where the person
might be required under other legislation, oath, rule of law or practice to
maintain confidentiality. However, this protection does not apply to a
person who discloses to an official information about their own conduct
that breaches the Biodiscovery Bill 2004.
Division 3--Other miscellaneous provisions
Clause 121 Review of Act
This clause provides that the EPA and DSDI Ministers must review the
Biodiscovery Bill 2004 within five years of commencement of this clause.
The review will focus on the appropriateness of the provisions. The
Ministers must, as soon as practicable after completing the review, table a
joint report on the outcome(s) of the review in the Legislative Assembly of
the Queensland Parliament.
Clause 122 Approval of forms
Sub-clause 122(1) provides that the EPA chief executive may approve
forms in relation to BCAs and clause 96(1).
Sub-clause 122(2) provides that the DSDI chief executive may approve
forms in relation to BSAs.
Clause 123 Regulation-making power
This clause provides that the Governor-in-Council may make regulations
under this Act.
PART 13--TRANSITIONAL PROVISION
Clause 124 Existing benefit sharing agreements with State
This clause provides that BSAs entered into prior to the commencement
of the Biodiscovery Bill 2004 will be recognised as a BSA under the
Biodiscovery Bill 2004. However, recognising the Queensland
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Parliament's Fundamental Legislative Principle regarding retrospective
legislation, such recognition will not impose criminal liability
retrospectively.
Sub-clause 124(3) provides that biodiscovery entities with an existing
BSA with the State will be allowed one year from date of commencment of
the Biodiscovery Bill 2004 to finalise a Biodiscovery Plan and to come
within the regime established under the Biodiscovery Bill 2004.
Clause 125 Existing permits, licences or other authorities
This clause provides that BCAs obtained prior to the commencement of
the Biodiscovery Bill 2004 will be recognised as a BCA under the
Biodiscovery Bill 2004. This means the Biodiscovery Bill 2004 will not
impact on collections that were obtained legally prior to the
commencement of the legislation.
PART 14--AMENDMENT OF OTHER ACTS
Division 1--Amendment of Fisheries Act 1994
Clause 126 Act amended in div 1
This clause clarifies that the the Fisheries Act 1994 will be amended by
the passage of the Biodiscovery Bill 2004.
Clause 127 Amendment of s 11 (General application of Act)
This clause includes an amendment to the Fisheries Act 1994 to include
the Biodiscovery Bill 2004 in section 11(2) of the that Act. Currently
section 11(2) states:
11 General Application of Act
(2) However, this Act does not apply to--
(a) activities to which a Commonwealth law cooperative fishery
applies; or
(b) the taking of fish, within the meaning of the Torres Strait
Fisheries Act 1984 (Cwlth), for the purposes of a
Commonwealth law Torres Strait cooperative fishery; or
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Biodiscovery Bill 2004
(c) the landing in Queensland of fish taken under a
Commonwealth fishing concession as mentioned in section
10(2)(c) of the Commonwealth Fisheries Act; or
(d) exclusive Commonwealth matters for a State law
cooperative fishery.
Under the proposed amendment the section will read:
11 General Application of Act
(2) However, this Act does not apply to--
(a) activities to which a Commonwealth law cooperative fishery
applies; or
(b) the taking of fish, within the meaning of the Torres Strait
Fisheries Act 1984 (Cwlth), for the purposes of a
Commonwealth law Torres Strait cooperative fishery; or
(c) the landing in Queensland of fish taken under a
Commonwealth fishing concession as mentioned in section
10(2)(c) of the Commonwealth Fisheries Act; or
(d) exclusive Commonwealth matters for a State law
cooperative fishery.
(e) the taking and keeping of fish under a collection authority
issued under the Biodiscovery Act 2004.
This amendment will ensure biodiscovery is not an activity regulated by
the Fisheries Act 1994 and that biodiscovery activities are not prohibited in
Fisheries areas by that Act.
Division 2--Amendment of Forestry Act 1959
Clause 128 Act amended in div 2
This clause clarifies that the the Forestry Act 1959 will be amended by
the passage of the Biodiscovery Bill 2004.
Clause 129 Amendment of s 102 (Saving of certain Acts)
This clause includes as an amendment to the Forestry Act 1959 to
include the Biodiscovery Bill 2004 in section 102(1) of the that Act.
Currently section 102(1) of that Act states:
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Biodiscovery Bill 2004
102 Saving of certain Acts
(1) Unless otherwise expressly provided, the provisions of this Act
are in addition to, and do not limit the operation of, the following
Acts--
(a) Criminal Code;
(b) Nature Conservation Act 1992;
(c) Fire and Rescue Authority Act 1990;
(f) Petroleum (Submerged Lands) Act 1982;
(h) Sawmills Licensing Act 1936;
(i) Timber Utilisation and Marketing Act 1987.
Under the amendment proposed, section 102 will read:
(1) Unless otherwise expressly provided, the provisions of this Act
are in addition to, and do not limit the operation of, the following
Acts--
(a) Biodiscovery Act 2004;
(b) Criminal Code;
(c) Fire and Rescue Authority Act 1990;
(d) Nature Conservation Act 1992;
(e) Petroleum (Submerged Lands) Act 1982;
(f) Sawmills Licensing Act 1936;
(g) Timber Utilisation and Marketing Act 1987.
This amendment will ensure the two pieces of legislation work together
in a seamless manner by updating the Forestry Act 1959 to recognise the
emerging biodiscovery industry and the necessary interaction between the
regulation of forestry in Queensland and biodiscovery.
Division 3--Amendment of Freedom of Information Act 1992
Clause 130 Act amended in div 3
This clause clarifies that the the Freedom of Information Act 1992 will be
amended by the passage of the Biodiscovery Bill 2004.
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Biodiscovery Bill 2004
Clause 131 Amendment of sch 1 (Secrecy provisions giving
exemption)
This clause includes as an amendment to the Freedom of Information Act
1992 inclusion of clause 106 of the Biodiscovery Bill 2004 in Schedule 1 of
that Act.
This protection has been included to protect the commercial in
confidence nature of much of the material and information that will be
dealt with during: finalisation of a Biodiscovery Plan; negotiation of a
BSA; assessment of a BCA applciation and monitoring of an ensuing
BCA; as well as reports and other records developed and delivered under a
BSA or according to a Biodiscovery Plan. Such protection was requested
by industry and research institutions during both rounds of public
consultation. As this information is commercial in nature and would not
have entered the public domain except for the passage of relevant
provisions of the Biodiscovery Bill 2004, it is questionable whether lack of
a a provision removing such information from the public domain is in the
public interest.
Division 4--Amendment of Gene Technology Act 2001
Clause 132 Act amended in div 4
This clause clarifies that the the Gene Technology Act 2001 will be
amended by the passage of the Biodiscovery Bill 2004.
Clause 133 Amendment of s 187 (Confidential commercial
information must not be disclosed)
This clause includes as an amendment effecting a clarification of
protection of commercial-in-confidence, as decalred by the Gene
Technology Regulator under the Gene Technology Act 2001.
Division 5--Amendment of Nature Conservation Act 1992
Clause 134 Act amended in div 5
This clause clarifies that the the Nature Conservation Act 1992 will be
amended by the passage of the Biodiscovery Bill 2004.
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Biodiscovery Bill 2004
Clause 135 Amendment of s 17 (Management principles of national
parks)
This clause includes as an amendment to the Nature Conservation Act
1992 to include a phrase in section 17(1) of that Act. Currently section
17(1) of that Act states:
17 Management principles of national parks
(1) A national park is to be managed to--
(a) provide, to the greatest possible extent, for the permanent
preservation of the area's natural condition and the
protection of the area's cultural resources and values; and
(b) present the area's cultural and natural resources and their
values; and
(c) ensure that the only use of the area is nature-based and
ecologically sustainable.
Under the amendment proposed, section 102 will read:
17 Management principles of national parks
(1) A national park is to be managed to--
(a) provide, to the greatest possible extent, for the permanent
preservation of the area's natural condition and the
protection of the area's cultural resources and values; and
(b) present the area's cultural and natural resources and their
values; and
(c) ensure that the only use of the area is nature-based, or for
biodiscovery under the Biodiscovery Act 2004, and
ecologically sustainable.
This amendment will ensure the two pieces of legislation work together
in a seamless manner by updating the Nature Conservation Act 1992 to:
· take account of the emerging biodiscovery industry; and
· recognise that if such an industry is to grow in Queensland it
must be sustainable (ecologically, economically and socially).
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Biodiscovery Bill 2004
PART 5--REPEAL OF YEAR 2000 INFORMATION
DISCLOSURE ACT 1999
Clause 136 Repeal
This clause clarifies that the the Year 2000 Information Disclosure Act
1999 will be amended by the passage of the Biodiscovery Bill 2004 by
repealing the Act.
The object of the Year 2000 Information Disclosure Act 1999 is to
encourage the voluntary disclosure and exchange of information about year
2000 computer problems and remediation efforts, and for other purposes.
The other purposes effectively support the primary purpose of the Act by
defining year 2000 disclosure statements, providing protection from civil
liability, containing a presumption against amendment of contracts and
exemption from section 45 of the Competition Code.
This Act is now effectively redundant as it has served its primary
purpose. As it does not have a sunset clause regulating its expiry it remains
on the statute books. Repeal of the legislation will satisfy the requirement
that the statute books should be maintained in their highest form by
removing redundant legislation. Rather than prepare a separate Authority
to Prepare and Authority to Introduce submission, it is proposed to effect
the repeal of the Year 2000 Information Disclosure Act via this Authority to
Introduce submission. Office of the Queensland Parliamentary Counsel
support the repeal of this piece of legislation.
© State of Queensland 2004