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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
DRAFT BILL FOR PUBLIC COMMENT
The Government proposes to introduce into
Parliament a Bill to provide for the control of
certain organisms; the use of agricultural and
veterinary chemicals; the identification and
attainment of standards of quality and safety for
agricultural products, animal feeds, fertilisers and
other substances and things; the establishment of
a Declared Pest Account, a Modified Penalties
Revenue Account and accounts for industry
funding schemes; and related matters.
This draft Bill has been prepared for public
comment but it does not necessarily represent the
Government's settled position.
Biosecurity and Agriculture Management
Bill 2005
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Relationship with other Acts 2
4. Act binds the Crown 3
5. Meaning of terms used in this Act 3
6. Meaning of "contaminated" 14
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Biosecurity and Agriculture Management Bill 2005
Contents
7. Meaning of "owner" in relation to land 15
8. Meaning of "animal feed" 16
9. When organism is to be taken to be on land 17
Part 2 -- Biosecurity
Division 1 -- Permitted, prohibited and unlisted
imports
10. Permitted organisms 18
11. Prohibited organisms 18
12. Consultation with other Ministers and Biosecurity
Council 19
13. Unlisted organisms 19
Division 2 -- Importing organisms into Western
Australia
14. Import restrictions 19
15. How to obtain import permit 20
16. Supply of unlawful import 20
17. Possession of unlawful import 21
18. Obligations of commercial passenger carrier 21
19. Obligation of commercial carrier 22
20. Reporting and presenting import 22
Division 3 -- Biosecurity within Western
Australia
21. Declared pests 23
22. Dealing with declared pest 24
23. Introducing or supplying declared pest 25
24. Authorised dealing with declared pest 26
25. Duty to report declared pest 27
26. Pest exclusion notice 28
27. SAT review: pest exclusion notice 29
28. Compliance with pest exclusion notice 29
29. Duty to control declared pest 29
30. Pest control notice 31
31. Compliance with pest control notice 33
32. Apportionment of costs of controlling declared
pests on land 33
33. SAT review: costs of controlling declared pests 34
34. Pest keeping notice 34
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Contents
35. Director General review: pest control notice or pest
keeping notice 35
36. SAT review: pest control notice or pest keeping
notice 36
37. Remedial action by Director General 36
38. Power to control pests 36
39. Agreements to supply pest control materials 36
40. Public authority may assist owner or occupier to
control declared pest 37
41. Department may carry out operational work 37
Division 4 -- Urgent measures
42. Director General may give directions for urgent
measures to control declared pest 38
43. Director General may approve alternative measure
or requirement 38
Division 5 -- Management plans
44. Management plans 39
45. Consultation with affected persons 39
46. Management plans are subject to disallowance 40
Division 6 -- Biosecurity Council
47. Biosecurity Council 40
48. Membership of Biosecurity Council 41
49. Functions of Biosecurity Council 41
50. Annual report 41
Part 3 -- Contaminated land,
chemical products
and adulteration
Division 1 -- Contaminated land
51. When land is contaminated 43
52. Contaminated land notices 43
53. Duration of contaminated land notice 44
54. SAT review: contaminated land notices 44
55. Registration of memorial 44
56. Dealing with certain contaminated land 44
Division 2 -- Chemical products
57. Dealing with chemical products 45
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58. Dealing with things that are treated, or not treated,
with chemical product or are contaminated 46
59. Certain agreements void 47
Division 3 -- Adulteration of agricultural
products or animal feed
60. Meaning of terms used in this Division 48
61. Adulterating goods to cause public alarm or
economic loss 48
62. Threatening to adulterate goods to cause public
alarm or economic loss 49
63. Making false statements concerning adulteration of
goods to cause public alarm or economic loss 49
Part 4 -- Inspection and compliance
Division 1 -- Preliminary
64. Meaning of terms used in this Part 50
Division 2 -- Inspection and other functions
65. Purposes for which an inspection may be carried
out 50
66. Entry and access to place or conveyance, and
inspection powers 51
67. Obtaining records 52
68. Other directions 53
Division 3 -- Entry warrants
69. Applying for entry warrant 55
70. Applications, how they are to be made 56
71. Issuing an entry warrant 57
72. Effect of entry warrant 58
73. Report on entry and search 59
Division 4 -- Seizure, treatment, destruction
and recall powers
74. Power to seize, treat or destroy 59
75. SAT review: seizure 61
76. SAT review: forfeiture 61
77. Power to order that organism or potential carrier be
moved for treatment 62
78. Power to direct person to treat, destroy or dispose
of thing 62
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Contents
79. SAT review: section 78 direction 63
80. Treatment or destruction to prevent risk 64
81. SAT review: treatment or destruction notice 65
82. Provisions do not limit making of regulations 65
83. Inspector may direct removal of organism or
potential carrier 65
84. SAT review: direction to remove from State 66
85. Recall of organism or substance 66
86. Notice may be published 68
87. SAT review: recall notice 68
88. Remedial action 68
Division 5 -- General
89. Time and place for compliance 68
90. Direction may be given orally or in writing 69
91. Exercise of power may be recorded 69
92. Use of force and assistance 69
93. Offences 70
94. Self-incriminating information 70
Division 6 -- Remedial action by Director
General
95. Taking remedial action 71
96. Charge on land to secure cost of remedial action 71
97. Priority of charge 72
98. Dealing with certain charged land 73
99. Recovery of unpaid charge amount 73
100. Certificate of charge amount 74
101. Release of land from charge 74
Division 7 -- Registration of memorials and
notices affecting land
102. Approved form of memorials and notices 75
103. Exemption from stamp duty and registration fees 75
104. Notice to mortgagees 75
Part 5 -- Legal proceedings
Division 1 -- Legal proceedings
105. Prosecutions, who may commence 76
106. Time for bringing prosecution 76
107. Court's power to make ancillary orders on
conviction 76
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Contents
108. Order as to costs of analysis 77
109. Penalties for continuing offences 77
110. Injunctions to ensure compliance with this Act 78
Division 2 -- Responsibility of certain persons
111. Liability of body corporate's officers 79
112. Liability of principal for acts of agent 80
113. Liability of employer for offence of employee 80
Division 3 -- Evidentiary provisions
114. Meaning of "specified" 81
115. Proof of exemptions 82
116. Evidence of place of offence 82
117. Evidence of seller or packer of container 82
118. Evidence of purpose or intent 83
119. Evidence of authorisation and enforcement matters 83
120. Evidence of scientific matters 84
121. Evidence of type or class of organism or thing 85
122. Documentary and signed evidence 86
123. Evidence of documents and service 87
124. Evidence of ownership or occupancy 87
125. Provisions are in addition to the Evidence Act 1906 89
Division 4 -- Modified penalties for certain
offences
126. Meaning of terms used in this Division 89
127. Infringement notices 89
128. Withdrawal of infringement notice 90
129. Effect of payment of modified penalty 90
Part 6 -- Financial provisions
Division 1 -- Declared Pest Account
Subdivision 1 -- General
130. Meaning of terms used in this Division 91
Subdivision 2 -- Rates imposed on land
131. Determination of rate 91
132. Procedure for making rate determination 92
133. Minimum and maximum rates 92
134. Rates amounts 93
135. Application of Taxation Administration Act 2003
and Land Tax Assessment Act 2002 93
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Contents
136. Postponement of rates payable by pensioners 94
Subdivision 3 -- Establishment and operation of
Declared Pest Account
137. Declared Pest Account 95
138. Use of funds in Declared Pest Account 96
139. Appropriations against the Consolidated Fund 96
Division 2 -- Industry funding schemes
140. Terms used in this Division 97
141. Establishment of accounts, management
committees and schemes 97
142. Constitution and administration of prescribed
accounts 98
143. Management committee 98
144. Contributions to account -- prescribed scheme 99
145. Application of prescribed account 99
146. Treasurer may make advances to a prescribed
account in event of a deficiency 101
147. Review of regulations 102
Division 3 -- Modified Penalties Revenue
Account
148. Modified Penalties Revenue Account 102
149. Use of funds in Modified Penalties Revenue
Account 103
Part 7 -- Administration
Division 1 -- The Minister and the Agriculture
Ministerial Body
150. Agriculture Ministerial Body 104
151. Purpose and nature of Ministerial Body 104
152. Powers of Minister 104
153. Treasurer to consider proposals under
section 152(2)(b) 105
154. Intellectual property 106
155. Minister may join any body formed for research
activities 106
156. Execution of documents by Ministerial Body 107
157. Accountability under this Division 108
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Contents
Division 2 -- Compiling and publishing
essential information
158. Publication of certain declarations 109
159. Records of status of various organisms 109
160. The department's electronic site 110
161. Information available on department's electronic
site 110
162. Availability of published information 110
Division 3 -- Inspectors
163. Appointment of inspectors 111
164. Director General has functions of inspector 111
165. Identification cards 112
Division 4 -- Quarantine facilities, inspection
points and other premises
166. Arrangements for provision of quarantine facilities 112
167. Inspection points 112
168. Use of other premises 113
Division 5 -- Advisory groups and recognised
biosecurity groups
169. Advisory groups 113
170. Recognised biosecurity groups 113
171. Funds available to recognised biosecurity groups 113
172. Publication of report by recognised biosecurity
group 115
Division 6 -- Service of documents
173. Service on the Director General 115
174. Method of service 115
175. Alternate methods of service or issue of documents 116
176. Service of notice by publication 117
177. Service where more than one occupier or owner 118
178. Time of service 119
179. Description of person or land 119
180. Documents binding on subsequent owners and
occupiers 120
181. Non-exclusivity of this Division 120
Division 7 -- General
182. Delegation by Minister 120
183. Delegation by Director General 121
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Biosecurity and Agriculture Management Bill 2005
Contents
184. Arrangements with corresponding authorities 121
185. Information sharing 122
186. Results and other matters may be published 124
187. Immunity from tortious liability 125
Part 8 -- Regulations, codes of
practice and local laws
188. Regulations -- general power 127
189. Regulations prescribing high impact organisms 127
190. Regulations and management plans may adopt
codes or legislation and other references 127
191. Regulations: consultation 128
192. Codes of practice 128
193. Local government may make local laws 130
Schedule 1 -- Matters for which
regulations may be made
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[Draft Bill for public comment]
Western Australia
Biosecurity and Agriculture Management
Bill 2005
A draft for public comment of
A Bill for
An Act to provide for --
· the control of certain organisms;
· the use of agricultural and veterinary chemicals;
· the identification and attainment of standards of quality and
safety for agricultural products, animal feeds, fertilisers and
other substances and things;
· the establishment of a Declared Pest Account, a Modified
Penalties Revenue Account and accounts for industry funding
schemes; and
· related matters.
The Parliament of Western Australia enacts as follows:
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Biosecurity and Agriculture Management Bill 2005
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the Biosecurity and Agriculture Management Act 2005.
2. Commencement
5 (1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
3. Relationship with other Acts
(1) Each of the following written laws must be read with this Act as
10 if they formed a single Act --
(a) the Biosecurity and Agriculture Management Rates and
Charges Act 2005;
(b) the Land Tax Assessment Act 2002, in its application to
the assessment of rates payable under Part 6 Division 1
15 Subdivision 2;
(c) the Taxation Administration Act 2003, in its application
to rates payable under Part 6 Division 1 Subdivision 2.
(2) The provisions of this Act are in addition to the provisions of
the following Acts --
20 (a) the Agricultural and Veterinary Chemicals (Western
Australia) Act 1995;
(b) the Animal Welfare Act 2002;
(c) the Exotic Diseases of Animals Act 1993;
(d) the Genetically Modified Crops Free Areas Act 2003;
25 (e) the Health Act 1911;
(f) the Poisons Act 1964;
(g) the Police Act 1892.
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(3) If a provision of this Act is inconsistent with a provision of an
Act referred to in subsection (2), the latter provision prevails to
the extent of the inconsistency.
4. Act binds the Crown
5 This Act binds the Crown in right of the State and, so far as the
legislative power of the State permits, the Crown in all its other
capacities.
5. Meaning of terms used in this Act
In this Act, unless the contrary intention appears --
10 "agricultural activity" includes apiculture, aquaculture,
silviculture and viticulture, and any related activity,
including fallowing or resting land used for an agricultural
activity;
"agricultural product" means --
15 (a) a plant;
(b) stock;
(c) an animal product;
(d) a commodity derived from a plant or an animal
product; or
20 (e) any other product of an agricultural activity;
"Agvet Code of Western Australia" has the meaning given to
that term in the Agricultural and Veterinary Chemicals
(Western Australia) Act 1995;
"analysis" means an examination, biological assay,
25 bacteriological assay, chemical assay or any other assay or
test relevant to determining the classification, quality,
composition or any other particular of an organism,
agricultural product, animal feed, fertiliser, chemical
product or other substance or thing;
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Part 1 Preliminary
s. 5
"animal" means a living or previously living thing except a
human being, plant or micro-organism, and includes --
(a) the ovum, semen or any other genetic material of an
animal; and
5 (b) an animal when in the embryonic or larval stage or
any other immature stage;
"animal feed" has the meaning given in section 8;
"animal product" means --
(a) a carcass or a part of a carcass of an animal;
10 (b) meat, skin, hide, hair, wool, horn, feather, antler, feet,
offal, viscera or blood of an animal;
(c) fat, milk, whey, cream, butter, cheese, egg or part of
an egg, or other food derived from an animal;
(d) honey, beeswax, honeycomb or any other product of
15 bees;
(e) a secretion, excretion, faecal matter or other waste of
an animal; or
(f) any other animal tissue;
"authorisation" includes a licence, permit, registration,
20 approval or accreditation under this Act;
"Biosecurity Council" means the Biosecurity Council
established under section 47;
"breed" includes hatch;
"CALM Act Minister" means the Minister administering the
25 Conservation and Land Management Act 1984;
"charge amount", in relation to land, means the amount
secured by a charge on the land arising under section 96;
"chemical product" means --
(a) an agricultural chemical product as defined in the
30 Agvet Code of Western Australia;
(b) a veterinary chemical product; or
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Preliminary Part 1
s. 5
(c) a substance prescribed for the purposes of this
definition;
"code of practice" means a code of practice issued or approved
under section 192;
5 "container" includes --
(a) a case, box, bag, wrapper or material of any kind
used or intended to be used to cover, contain or
package something; and
(b) a bulk container, or any means of bulk transport, used
10 or intended to be used to cover, contain or package
something;
"contaminated" --
(a) in relation to an animal, agricultural product, animal
feed, fertiliser or other substance or thing, has the
15 meaning given by section 6;
(b) in relation to land, has the meaning given by
section 51;
"contaminated land notice" means a notice given under
section 52;
20 "control", in relation to a declared pest or other organism,
includes eradicate, destroy, prevent the presence or spread
of, manage, examine or test for, survey for or monitor the
presence or spread of, and treat;
"conveyance" means a vehicle, vessel, aircraft or train;
25 "cultivate" includes culture;
"declared pest" means --
(a) a prohibited organism; and
(b) in relation to an area -- an organism for which a
declaration under section 21(2) is in force in relation
30 to the area;
"Declared Pest Account" means the account established under
section 137(1);
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Part 1 Preliminary
s. 5
"department" means the department principally assisting in the
administration of this Act;
"Director General" means the chief executive officer of the
department;
5 "disease" means --
(a) a disease that is capable of having a detrimental
effect on an animal or a plant and includes --
(i) a micro-organism;
(ii) a disease agent;
10 (iii) an infectious agent; and
(iv) a parasite at any stage of its life cycle;
or
(b) a genetic disorder of an animal or plant;
"electronic site", in relation to the department, means --
15 (a) a website on the internet; or
(b) a site on another public electronic system, or other
site approved under the regulations,
established and maintained under section 160;
"environment" --
20 (a) has the meaning given to that term in the
Environmental Protection Act 1986 section 3; and
(b) in relation to land, includes the environment of any
living thing on or near the land, if the environment of
the living thing is being or could be affected by
25 activities or practices undertaken on or in relation to
the land;
"export" means to take out of, or cause to be taken out of,
Western Australia;
"fertiliser" means --
30 (a) a substance containing nitrogen, phosphorus,
potassium or any other element required for plant
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Preliminary Part 1
s. 5
growth, or a compound of such a substance,
manufactured, prepared, produced or supplied for the
purpose of fertilising the soil or supplying nutriments
to plants;
5 (b) a substance used for conditioning the soil for the
purpose of fertilising the soil or supplying nutriments
to plants; or
(c) a substance prescribed for the purposes of this
definition,
10 but does not include --
(d) animal or plant manure or other unmanufactured
refuse except to the extent that the manure or refuse
is mixed with a substance referred to in
paragraph (a), (b) or (c) and is so mixed,
15 manufactured, prepared, produced or supplied as a
fertiliser; or
(e) a substance prescribed not to be a fertiliser;
"fish" has the meaning given to that term in the Fish Resources
Management Act 1994 and includes pearl oyster;
20 "fisheries officer" means a fisheries officer appointed under the
Fish Resources Management Act 1994 section 11;
"high impact organism" means a prohibited organism that has
been prescribed as a high impact organism;
"identification card" means --
25 (a) in relation to an inspector appointed under
section 163 -- the identity card issued to the
inspector under section 165(1); and
(b) in relation to an inspector who is a fisheries officer,
an inspector as that term is defined in the Pearling
30 Act 1990, a wildlife officer or a police officer -- a
like identification issued to the person under the
written law under which the person was appointed as
such an officer or inspector;
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Part 1 Preliminary
s. 5
"identifier" means a brand, stencil, eartag, earmark, electronic
device or other device or marking used to identify an
organism, an agricultural product, a place or a prescribed
potential carrier;
5 "import" means to bring, or cause to be brought, into Western
Australia;
"import permit" means a permit issued under section 15(2);
"infected" means actually infected or liable, by reason of
contact or proximity, to be infected;
10 "infested" means actually infested or liable, by reason of
contact or proximity, to be infested;
"inspection point" means a place designated as an inspection
point under section 167;
"inspector" means --
15 (a) in relation to the identification or movement of
stock -- an inspector appointed under section 163 or
a police officer;
(b) in relation to fish -- an inspector appointed under
section 163, a fisheries officer or an inspector
20 appointed under the Pearling Act 1990 section 35(1);
(c) in relation to a declared pest other than fish -- an
inspector appointed under section 163 or a wildlife
officer; or
(d) in relation to anything else -- an inspector appointed
25 under section 163;
"keep" means have in possession or be in control and includes
exhibit;
"label" means --
(a) when used as a noun -- an identifier or a tag, mark or
30 statement in writing however effected, and whether
or not comprising a trade mark, logo or other
distinguishing or descriptive material; or
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Preliminary Part 1
s. 5
(b) when used as a verb -- to mark a package, container
or other thing to identify it or its contents by affixing
to it or inserting in it an identifier or a tag, stamp,
mark or statement referred to in paragraph (a);
5 "land" means --
(a) all land within the limits of the State;
(b) all marine and other waters within the limits of the
State;
(c) all coastal waters of the State as defined by
10 section 3(1) of the Coastal Waters (State Powers)
Act 1980 of the Commonwealth;
(d) the sea-bed and subsoil beneath, and all islands and
structures within, the waters referred to in
paragraphs (b) and (c); and
15 (e) in respect of fish managed by the State under an
arrangement with the Commonwealth under the Fish
Resources Management Act 1994 Part 3 or the
Pearling Act 1990, the waters of the Australian
fishing zone as defined by the Fisheries Management
20 Act 1991 of the Commonwealth;
"management plan" means a plan that is in force under
section 44 for the management of an area;
"maximum residue limit", in relation to a chemical product or
other prescribed substance, means the maximum residue
25 limit prescribed in respect of that chemical product or
substance in relation to --
(a) an animal, agricultural product, animal feed, fertiliser
or other substance or thing; or
(b) a prescribed organism or other thing from which an
30 agricultural product, animal feed, fertiliser or other
substance or thing may be derived;
"Minister for the Environment" means the Minister
administering the Environmental Protection Act 1986;
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Part 1 Preliminary
s. 5
"Minister for Fisheries" means the Minister administering the
Fish Resources Management Act 1994;
"Ministerial Body" means the Agriculture Ministerial Body
established by section 150;
5 "Modified Penalties Revenue Account" means the account
established under section 148(1);
"occupier", in relation to land, means a person who is in
occupation or control of the land, or is entitled to be in
occupation or control of the land, whether or not that
10 person owns the land;
"operating account" means an operating account of the
department under the Financial Administration and Audit
Act 1985;
"organism" means --
15 (a) a living thing, except a human being or part of a
human being;
(b) a prion or other prescribed organic agent that can
cause disease; or
(c) a disease;
20 "owner" --
(a) in relation to land -- has the meaning given to that
term in section 7 or 130, as the case requires;
(b) in relation to a vehicle -- has the meaning given to
that term in the Road Traffic Act 1974;
25 (c) in relation to a vessel -- has the meaning given to
that term in the Western Australian Marine Act 1982;
(d) in relation to a thing other than land, a vehicle or a
vessel -- includes an agent or manager of the owner,
and any other person who has possession or control
30 of the thing at the material time;
"pearl oyster" has the meaning given to that term in the
Pearling Act 1990;
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Preliminary Part 1
s. 5
"permitted organism" means an organism for which a
declaration is in force under section 10;
"permitted organisms list" means the list made and
maintained under section 159(a);
5 "pest control notice" means a notice under section 30(1);
"pest keeping notice" means a notice under section 34(1);
"pest exclusion notice" means a notice under section 26(1);
"place" means land, premises or a conveyance, or a part of
land, premises or a conveyance;
10 "plant" means any vegetation or fungus and includes --
(a) a cutting or the leaf, flower or flower head of a plant;
(b) the fruit or seed of a plant;
(c) the peel, skin or shell of a fruit or seed of a plant;
(d) genetic material of a plant; or
15 (e) any other product or part of a plant;
"potential carrier" means --
(a) anything that is capable of carrying an organism; or
(b) anything that is capable of carrying anything else that
is capable of carrying an organism;
20 "premises" includes a building or structure, or part of a
building or structure, of any type;
"prescribed" means prescribed under regulations made under
this Act;
"prohibited organism" means an organism for which a
25 declaration is in force under section 11;
"prohibited organisms list" means the list made and
maintained under section 159(b);
"public authority" means --
(a) a Minister of the Crown;
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Part 1 Preliminary
s. 5
(b) an agency or an organisation as those terms are
defined in the Public Sector Management Act 1994;
(c) a body, corporate or unincorporate, that is established
or continued for a public purpose by the State,
5 regardless of the way it is established; or
(d) a local government or regional local government;
"quality assurance scheme" means a scheme relating to
animals, agricultural products, potential carriers, animal
feed or fertilisers that is designed to assure that the animals,
10 plants, agricultural products, potential carriers, animal feed
or fertilisers --
(a) are of a particular quality or grade;
(b) are in a particular condition;
(c) were produced in a particular area or place;
15 (d) were produced in a particular manner;
(e) have been treated in a particular way;
(f) are free from a particular organism, chemical residue,
contaminant or adulterant; or
(g) comply with particular conditions or requirements;
20 "quarantine facility" means a place used or to be used as a
quarantine facility under an arrangement under section 166
or another secure facility used for quarantine purposes;
"record" means a document or record of information,
irrespective of how the information is recorded or stored or
25 able to be recovered and includes --
(a) a thing from which images, sounds or writings can be
reproduced, with or without the aid of anything else;
and
(b) a thing on which information is recorded or stored,
30 whether electronically, magnetically, mechanically or
by some other means;
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"residue", in relation to a chemical product or other prescribed
substance, includes residue of a derivative or metabolite of
the chemical product or other substance;
"stock" means any animal prescribed for the purposes of this
5 definition;
"supply" includes do, or cause or permit the doing of, any of
the following --
(a) sell;
(b) send or deliver for sale or on sale;
10 (c) dispose of under a hire purchase agreement;
(d) give;
(e) offer to do an act that would be a supply (including
an act referred to in any of the above paragraphs),
and includes supply under a contract for work or labour
15 that also involves the supply of any thing;
"treat" includes disinfect, clean, vaccinate or apply other
prophylactic measures;
"unimproved value", in relation to land --
(a) has the meaning given to that term in the Valuation of
20 Land Act 1978; and
(b) in relation to a part of a lot, as that term is defined in
the Land Tax Assessment Act 2002, has the meaning
given in section 13 of that Act;
"unlisted organism" has the meaning given to that term in
25 section 13;
"vehicle" has the meaning given to that term in the Road Traffic
Act 1974;
"veterinary chemical product" means a veterinary chemical
product as defined in the Agvet Code of Western Australia
30 except that --
(a) despite section 5(4) of the Code, it includes a
substance or mixture of substances that is --
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(i) prepared in accordance with the instructions
of a veterinary surgeon by a pharmaceutical
chemist registered under the Pharmacy
Act 1964 in the course of practice as a
5 pharmacist; or
(ii) prepared by a veterinary surgeon in the course
of practice as a veterinary surgeon;
and
(b) it does not include a substance prescribed for the
10 purposes of this definition;
"veterinary surgeon" means a registered veterinary surgeon as
defined in the Veterinary Surgeons Act 1960;
"wildlife officer" means a wildlife officer designated as such
under the Conservation and Land Management Act 1984.
15 6. Meaning of "contaminated"
For the purposes of this Act an animal, agricultural product,
animal feed, fertiliser or other substance or thing is
contaminated if --
(a) it contains more of a chemical product or other
20 substance than the maximum residue limit of that
chemical product or other substance prescribed in
relation to that animal, agricultural product, animal feed,
fertiliser or other substance or thing;
(b) it contains such an amount of a chemical product or
25 other substance that ordinary use of the animal,
agricultural product, animal feed, fertiliser or other
substance or thing is likely to result, directly or
indirectly, in the presence of more than the maximum
residue limit of that chemical product or other substance
30 in another animal, agricultural product, animal feed,
fertiliser or other substance or thing;
(c) it contains a substance or thing, other than a substance
or thing in relation to which a maximum residue limit is
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prescribed, in the circumstances specified by the
regulations in relation to that substance or thing; or
(d) the regulations prescribe circumstances in which an
animal, agricultural product, animal feed, fertiliser or
5 other substance or thing is contaminated, and those
circumstances occur in relation to the animal,
agricultural product, animal feed, fertiliser or other
substance or thing.
7. Meaning of "owner" in relation to land
10 (1) For the purposes of this Act, other than Part 6 Division 1, a
person is an owner of land if the person is --
(a) in relation to land alienated from the Crown, the holder
(at law or in equity) of an estate in fee simple in the
land;
15 (b) in relation to land that the Crown has lawfully agreed to
alienate, the person who is entitled to the benefit of the
agreement;
(c) in relation to land held under a lease lawfully granted by
the Crown, the lessee; or
20 (d) in relation to any other land, the public authority that has
the care, control or management of the land or, if there
is no such public authority, the Crown.
(2) For the purposes of this Act, an owner of land referred to in
subsection (1)(a), (b) or (c) ("private land") is to be taken to be
25 the owner, in addition to that land, of --
(a) the land comprising any road that --
(i) intersects the private land; or
(ii) bounds the private land and is fenced only on the
side further from the common boundary of the
30 road and the private land;
(b) the land comprising half of the width of any road that
bounds the private land and is fenced on both sides
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being the half that is nearer the common boundary of the
road and the private land; and
(c) the land comprising half the width of any road that
separates the private land from other private land being
5 the half that is nearer the common boundary of the road
and the first-mentioned private land.
(3) Subsection (2) does not apply to or in relation to a road
dedicated and open to public use and fenced on both sides.
8. Meaning of "animal feed"
10 (1) In this Act --
"animal feed" means a substance, mixture or compound
consumed or intended for consumption by an animal or
supplied for consumption by an animal, including --
(a) basic animal feed;
15 (b) processed animal feed or manufactured animal feed;
(c) a by-product, additive, supplement or nutrient; and
(d) any other substance that is prescribed for the
purposes of this definition.
(2) In this section --
20 "additive" means a substance or combination of substances
added to basic animal feed for continuous long-term
administration to an animal for a specific purpose;
"basic animal feed" means grain, seeds, hay, meat, fish or milk
used as animal feed, or in the preparation of animal feed;
25 "by-product" means --
(a) a by-product of the production of basic animal feed
or processed animal feed;
(b) a by-product of the production of food for human
consumption; or
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(c) another substance prescribed for the purposes of this
definition;
"manufactured animal feed" means a feed consisting of, or
containing --
5 (a) a feed made mainly or partly of basic animal feed
(but not consisting solely of one or more basic animal
feeds or products derived from milk);
(b) a processed animal feed, additive or supplement; or
(c) a stock lick;
10 "processed animal feed" means --
(a) a basic animal feed that has been changed in form by
chemical, physical or mechanical treatment; or
(b) a by-product.
9. When organism is to be taken to be on land
15 For the purposes of this Act, a reference to an organism being
on land is to be taken to include a reference to an organism that
is --
(a) on or in any water on or under the land; or
(b) in the air above the land.
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Division 1 Permitted, prohibited and unlisted imports
s. 10
Part 2 -- Biosecurity
Division 1 -- Permitted, prohibited and unlisted imports
10. Permitted organisms
(1) The Minister may declare that an organism of a kind or class
5 specified or described in the declaration is a permitted
organism.
(2) Section 158 applies to a declaration made under this section.
11. Prohibited organisms
(1) The Minister may declare that an organism of a kind specified
10 in the declaration is a prohibited organism if there are
reasonable grounds for believing that the organism --
(a) has or may have an adverse affect on --
(i) another organism;
(ii) human beings;
15 (iii) the environment or part of the environment; or
(iv) agricultural activities, fishing or pearling
activities, or related commercial activities, being
activities carried on, or intended to be carried on,
in the State or part of the State;
20 or
(b) may have an adverse effect on any of those things if it
were present in the State or part of the State, or if it were
present in the State or the part in greater numbers or to a
greater extent.
25 (2) Section 158 applies to a declaration made under this section.
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12. Consultation with other Ministers and Biosecurity Council
Before making a declaration under section 10 or 11 the Minister
must consult with --
(a) the Minister for the Environment;
5 (b) the CALM Act Minister;
(c) if the proposed declaration relates to a fish, the Minister
for Fisheries;
(d) any other Minister who in the opinion of the Minister
has a relevant interest; and
10 (e) if the Minister is of the opinion that such consultation is
necessary for the purpose of properly informing himself
or herself as to whether or not the declaration should be
made, the Biosecurity Council.
13. Unlisted organisms
15 An organism that has not been declared as a permitted organism
or as a prohibited organism is an "unlisted organism".
Division 2 -- Importing organisms into Western Australia
14. Import restrictions
(1) A person must not import a prohibited organism except in
20 accordance with an import permit and the regulations.
Penalty:
(a) a fine of $50 000; or
(b) if the organism is a high impact organism, a fine of
$100 000 and imprisonment for 12 months.
25 (2) A person must not import an unlisted organism unless --
(a) the import is permitted under the regulations; and
(b) the unlisted organism is imported in accordance with the
regulations.
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Division 2 Importing organisms into Western Australia
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Penalty: a fine of $20 000.
(3) A person must not import a prescribed potential carrier
unless --
(a) the import is permitted under the regulations; and
5 (b) the prescribed potential carrier is imported in accordance
with the regulations.
Penalty:
(a) a fine of $50 000; or
(b) if the prescribed potential carrier is prescribed as a
10 potential carrier of a high impact organism, a fine of
$100 000 and imprisonment for 12 months.
(4) The regulations may prohibit or regulate the importation of a
permitted organism.
15. How to obtain import permit
15 (1) A person may apply for an import permit in accordance with the
regulations.
(2) The Director General may issue, or refuse to issue, an import
permit.
(3) An import permit may be issued subject to conditions.
20 16. Supply of unlawful import
A person must not supply an organism, the progeny of an
organism, or a potential carrier if the person knows, or ought
reasonably to know, that the organism or potential carrier was
imported in contravention of section 14.
25 Penalty:
(a) a fine of $50 000; or
(b) if the organism is a high impact organism, a fine of
$100 000 and imprisonment for 12 months.
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17. Possession of unlawful import
A person must not receive or possess an organism, the progeny
of an organism, or a potential carrier if the person knows, or
ought reasonably to know, that the organism or potential carrier
5 was imported in contravention of section 14.
Penalty:
(a) a fine of $20 000; or
(b) if the organism is a high impact organism, a fine of
$100 000 and imprisonment for 12 months.
10 18. Obligations of commercial passenger carrier
(1) In this section --
"commercial passenger carrier" means a person who provides
transport for individuals for fee or reward.
(2) A commercial passenger carrier who transports passengers into
15 the State by means of a conveyance from a location outside the
State must not bring the conveyance into the State unless the
carrier has given to the passengers the prescribed information
about importing organisms and potential carriers.
Penalty: a fine of $15 000.
20 (3) A commercial passenger carrier who transports passengers into
the State by means of a conveyance from a location outside the
State must provide a secure facility that complies with the
regulations (if any) for the passengers to deposit any organism
or potential carrier that is or could be imported in contravention
25 of section 14.
Penalty: a fine of $15 000.
(4) If an organism or potential carrier is deposited by a passenger in
a facility provided by the commercial passenger carrier for that
purpose, the commercial passenger carrier must dispose of the
30 organism or potential carrier in accordance with the regulations.
Penalty: a fine of $20 000.
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Division 2 Importing organisms into Western Australia
s. 19
19. Obligation of commercial carrier
(1) In this section --
"commercial carrier" means a person who provides transport
for individuals, or transports freight, for fee or reward.
5 (2) A commercial carrier transporting a prescribed declared pest, a
declared pest of a prescribed class, or a prescribed potential
carrier, into the State from a location outside the State commits
an offence if --
(a) the regulations require that carrier to give notice to the
10 Director General of the transport of that declared pest or
potential carrier; and
(b) the carrier does not give the notice in accordance with
the regulations.
Penalty: a fine of $15 000.
15 20. Reporting and presenting import
(1) If the regulations so require, a person who proposes to import an
organism or prescribed potential carrier must, before the
organism or prescribed potential carrier is imported, give notice,
in accordance with the regulations, of the time and place of
20 entry into the State of the organism or prescribed potential
carrier.
(2) A person who --
(a) imports an organism or prescribed potential carrier; and
(b) fails to comply with subregulation (1) in respect of the
25 organism or prescribed potential carrier,
commits an offence.
Penalty: a fine of $10 000.
(3) A person who imports an organism or prescribed potential
carrier must --
30 (a) if an import permit has been issued in respect of the
organism or prescribed potential carrier or if the
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regulations so require, present the organism or
prescribed potential carrier to an inspector in accordance
with the regulations;
(b) give the inspector any import permit issued in respect of
5 the organism or prescribed potential carrier; and
(c) give the inspector any relevant information the inspector
requires about the organism or prescribed potential
carrier.
Penalty: a fine of $20 000.
10 (4) A person who imports an organism or prescribed potential
carrier must, if the regulations so require, give an inspector a
declaration in accordance with the regulations.
Penalty: a fine of $20 000.
Division 3 -- Biosecurity within Western Australia
15 21. Declared pests
(1) A prohibited organism is a declared pest for the whole of
Western Australia.
(2) The Minister may declare that any other organism is a declared
pest for an area if there are reasonable grounds for believing that
20 the organism --
(a) has or may have an adverse effect on --
(i) another organism in the area;
(ii) human beings in the area;
(iii) the environment, or part of the environment, in
25 the area; or
(iv) agricultural activities, fishing or pearling
activities, or related commercial activities, being
activities carried on, or intended to be carried on,
in the area;
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(b) may have an adverse effect on any of those things if it
were present in the area, or if it were present in the area
in greater numbers or to a greater extent.
(3) A declaration under this section may assign the declared pest to
5 a category designated by the regulations.
(4) Before making a declaration under this section the Minister
must consult with --
(a) the Minister for the Environment;
(b) the CALM Act Minister;
10 (c) if the proposed declaration relates to a fish, the Minister
for Fisheries;
(d) any other Minister who in the opinion of the Minister
has a relevant interest; and
(e) if the Minister is of the opinion that such consultation is
15 necessary for the purpose of properly informing himself
or herself as to whether or not the declaration should be
made, the Biosecurity Council.
(5) The area for which an organism is declared to be a declared pest
may be the whole or part of the State.
20 (6) The declaration may set out or identify a management plan that
must be followed by a person who has a duty under section 29
to control the declared pest.
(7) Section 158 applies to a declaration made under subsection (2).
22. Dealing with declared pest
25 (1) Except as otherwise provided in the regulations or in a
management plan, a person must not, in an area for which an
organism is a declared pest --
(a) keep, breed or cultivate the declared pest;
(b) keep, breed or cultivate an animal, plant, or other thing
30 that is infected or infested with the declared pest; or
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(c) release into the environment the declared pest, or an
animal, plant or other thing that is infected or infested
with the declared pest.
Penalty:
5 (a) a fine of $50 000; or
(b) if the declared pest is a high impact organism, a fine
of $100 000 and imprisonment for 12 months.
(2) The regulations may provide that a person must not move a
declared pest, or an animal or plant that is infected or infested
10 with the declared pest, from the place where it is found.
(3) A person who contravenes a provision referred to in
subsection (2) commits an offence.
Penalty:
(a) a fine of $20 000; or
15 (b) if the contravention is in relation to a declared pest
that is a high impact organism, a fine of $100 000 and
imprisonment for 12 months.
23. Introducing or supplying declared pest
(1) The regulations or a management plan may provide that a
20 person must not bring into an area of the State from another area
of the State --
(a) an organism that is a declared pest for the
first-mentioned area;
(b) an animal, plant or other thing that is infected or infested
25 with an organism that is a declared pest for the
first-mentioned area; or
(c) a specified potential carrier of an organism that is a
declared pest for the first-mentioned area.
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Division 3 Biosecurity within Western Australia
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(2) A person who contravenes a provision referred to in
subsection (1) commits an offence.
Penalty:
(a) a fine of $20 000; or
5 (b) if the contravention is in relation to a declared pest
that is a high impact organism, a fine of $100 000 and
imprisonment for 12 months.
(3) The regulations or a management plan may provide that a
person must not supply to a person in an area of the State --
10 (a) an organism that is a declared pest for the area;
(b) an animal, plant or other thing that is infected or infested
with an organism that is a declared pest for the area; or
(c) a specified potential carrier of an organism that is a
declared pest for the first-mentioned area.
15 (4) A person who contravenes a provision referred to in
subsection (3) commits an offence.
Penalty:
(a) a fine of $20 000; or
(b) if the contravention is in relation to a declared pest
20 that is a high impact organism, a fine of $100 000 and
imprisonment for 12 months.
24. Authorised dealing with declared pest
A person who is authorised under this Act to keep, breed,
cultivate or supply a declared pest must do so in accordance
25 with this Act and the terms and conditions, if any, of the
authorisation.
Penalty:
(a) a fine of $20 000; or
(b) if the declared pest is a high impact organism, a fine
30 of $100 000 and imprisonment for 12 months.
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25. Duty to report declared pest
(1) A person who finds or suspects that there is a declared pest on
or in a place, or that an organism or thing is infected or infested
with a declared pest, must report, in accordance with
5 subsection (2), the presence or suspected presence of the
declared pest to the Director General or an inspector.
Penalty:
(a) a fine of $20 000; or
(b) if the declared pest is a high impact organism, a fine
10 of $100 000 and imprisonment for 12 months.
(2) A report --
(a) may be made orally or in writing;
(b) must indicate, as far as practicable, where the declared
pest, or the infected or infested organism or thing, was
15 found, or the reasons for suspecting its presence;
(c) must give any other relevant information within the
person's knowledge;
(d) must be made within the prescribed period or, if no
period is prescribed, as soon as practicable after finding
20 the pest or suspecting its presence; and
(e) must be made in accordance with the regulations (if
any).
(3) A veterinary surgeon, analyst or other person is not excused
from compliance with subsection (1) on the grounds that he or
25 she found or came to suspect the presence of the declared pest
on or in the land or premises, or found or came to suspect that
the organism or thing was infected or infested, in the course of
giving professional or other advice, or providing professional or
other services, to the owner, occupier or other person in control
30 of the land, organism or thing.
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Division 3 Biosecurity within Western Australia
s. 26
(4) Subsection (3) has effect whether the advice was sought or
given, or the services were provided, in relation to the land,
organism or thing, or in relation to any other matter.
26. Pest exclusion notice
5 (1) If the Director General is of the opinion that measures are
required to be taken to ensure that a place or an agricultural
product remains free from a declared pest, the Director General
may give a pest exclusion notice to any or all of the following
persons --
10 (a) in the case of a notice in respect of land -- the owner or
occupier of the land;
(b) in the case of a notice in respect of another place -- the
owner, occupier or person who has control of the place;
(c) in the case of a notice in respect of an agricultural
15 product -- the owner or person who has control of the
agricultural product.
(2) A pest exclusion notice --
(a) must be in writing;
(b) must identify the declared pest in respect of which the
20 notice is given;
(c) may direct the person to whom it is given to comply
with a code of practice specified in the notice, or to take
the measures set out in the notice or prescribed by the
regulations specified in the notice, for the purpose of
25 keeping the place or agricultural product free from the
declared pest;
(d) must specify the period within which, or for the duration
of which, the person to whom it is given must comply
with the notice; and
30 (e) must inform the person to whom it is given that failure
to comply with the notice could result in a fine, the
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s. 27
Director General taking remedial action under
section 37, or both.
27. SAT review: pest exclusion notice
(1) Subject to the regulations referred to in subsection (2), a person
5 aggrieved by a direction in a pest exclusion notice under
section 26 may apply to the State Administrative Tribunal for a
review of the direction.
(2) The regulations may specify circumstances in which
subsection (1) does not apply.
10 28. Compliance with pest exclusion notice
(1) A person to whom a pest exclusion notice is given must comply
with the notice.
Penalty: a fine of $20 000.
(2) If a public authority does not comply with a pest exclusion
15 notice, the Director General may include, after consultation with
the authority, a summary of the authority's failure in the
department's next annual report.
(3) A summary under subsection (2) --
(a) is to include any explanation offered by the authority in
20 relation to the failure; and
(b) may include recommendations as to how the authority's
failure should be addressed and prevented from
recurring.
29. Duty to control declared pest
25 (1) In this section --
"prescribed control measures", in relation to a declared pest,
means the measures to control that declared pest prescribed
by the regulations or a management plan.
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Division 3 Biosecurity within Western Australia
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(2) The owner or other person in control of an organism or thing
infected or infested with a declared pest must take the
prescribed control measures to control the declared pest.
Penalty: a fine of $20 000.
5 (3) The owner or occupier of land must take the prescribed control
measures to control a declared pest that is present on the land, or
has infected or infested an organism or thing on the land, or is
likely to be present on the land or to infect or infest an organism
or thing on the land.
10 Penalty: a fine of $20 000.
(4) Subsections (2) and (3) apply to a person in relation to a
declared pest regardless of whether the person is also required
to comply with a pest control notice or a pest exclusion notice in
relation to the declared pest.
15 (5) Where an owner and another person are required to take
prescribed control measures under subsection (2), an owner and
an occupier of land are required to take prescribed control
measures under subsection (3), or each of those persons is
required to take prescribed control measures under
20 subsection (2) or (3), in relation to the same organism or thing,
it is a defence to a charge of an offence by any of them under
subsection (2) or (3) to show that another person has complied
with the requirement imposed on that person.
(6) It is a defence to a charge of an offence by a person under
25 subsection (2) or (3) if the person establishes that the person did
not know, and could not reasonably have been expected to
know, at the material time, that the declared pest was present on
the land or was likely to be present or that an organism or thing
was infected or infested or was likely to be infected or infested.
30 (7) If a public authority does not comply with subsection (2) or (3)
the Director General may include, after consultation with the
authority, a summary of the authority's failure in the
department's next annual report.
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(8) A summary under subsection (7) --
(a) is to include any explanation offered by the authority in
relation to the failure; and
(b) may include recommendations as to how the authority's
5 failure should be addressed and prevented from
recurring.
30. Pest control notice
(1) An inspector may give a pest control notice to any or all of the
following persons --
10 (a) an occupier or owner of land if --
(i) a declared pest has been found on or in the
vicinity of the land;
(ii) the keeping of a declared pest on the land is
authorised under this Act; or
15 (iii) there are reasonable grounds for suspecting that a
declared pest is on or in the vicinity of the land;
and
(b) to any other person if --
(i) a declared pest has been found on or in the
20 vicinity of a place or any other thing owned or
occupied by, or under the control, of that person;
(ii) the keeping of a declared pest on a place owned
or occupied by, or under the control of, that
person is authorised under this Act; or
25 (iii) there are reasonable grounds for suspecting that a
declared pest is on or in the vicinity of a place or
any other thing owned or occupied by, or under
the control of, that person.
(2) A pest control notice --
30 (a) must be in writing;
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(b) must identify the declared pest in respect of which the
notice is given, and indicate where the pest was found, is
suspected to be, or is authorised under this Act to be
kept;
5 (c) may direct the person to whom it is given to comply
with a code of practice specified in the notice, or to take
the measures set out in the notice or prescribed by the
regulations or a management plan specified in the
notice, for the purpose of controlling the declared pest
10 or, if the declared pest is authorised to be kept, for the
purpose of keeping the declared pest as authorised under
this Act;
(d) must specify the period within which, or for the duration
of which, the person to whom it is given must comply
15 with the notice; and
(e) inform the person to whom it is given that failure to
comply with the notice could result in a fine, the
Director General taking remedial action under
section 37, or both.
20 (3) The Director General may give a copy of a pest control notice,
for information --
(a) to another person if --
(i) that person is the owner or occupier of land that
is in close proximity to the land, premises or
25 thing in respect of which the pest control notice
is given; and
(ii) there are reasonable grounds for believing the
person's agricultural activities or land would be
adversely affected if the declared pest were to
30 infect or infest the person's land or any plants or
animals on the land, or the premises or any other
thing owned or occupied by, or under the control
or management of, the person;
and
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(b) to a management committee established by regulations
made under section 141(1)(b) if the Director General is
of the opinion that the information is relevant to the
functions of the management committee.
5 31. Compliance with pest control notice
(1) A person to whom a pest control notice is given must comply
with the notice.
Penalty:
(a) a fine of $50 000; or
10 (b) if the declared pest is a high impact organism, a fine
of $100 000 and imprisonment for 12 months.
(2) If a public authority does not comply with a pest control notice
the Director General may include, after consultation with the
authority, a summary of the authority's failure in the
15 department's next annual report.
(3) A summary under subsection (2) --
(a) is to include any explanation offered by the authority in
relation to the failure; and
(b) may include recommendations as to how the authority's
20 failure should be addressed and prevented from
recurring.
32. Apportionment of costs of controlling declared pests on land
(1) As between the owner and occupier or successive owners and
occupiers of land the costs of controlling declared pests on and
25 in relation to the land in accordance with a pest control notice
are, subject to any agreement between the owner or occupier or
successive owners and occupiers, to be borne in such
proportions --
(a) as are prescribed; or
30 (b) if no proportions are prescribed, as determined by the
Director General.
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Division 3 Biosecurity within Western Australia
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(2) A person who has paid more than the proportion of that person
may recover the excess from the other in a court of competent
jurisdiction.
(3) An owner having only a partial interest or a particular estate in
5 the land may apply to the Director General for a declaration as
to what portion of any expense of or in relation to the control of
a declared pest on and in relation to the land paid or to be paid
by the owner must be borne by any other person having a partial
interest or estate in the land.
10 (4) The Director General may make a declaration for the purposes
of subsection (3).
(5) An owner paying, or who has paid, more than that owner's
proportion of the expenses as declared by the Director General
may recover the excess in a court of competent jurisdiction from
15 a person the Director General declares to be liable to pay it.
(6) This section does not apply in relation to land owned by, or
vested in, a public authority or the State.
33. SAT review: costs of controlling declared pests
A person aggrieved by --
20 (a) a determination of the Director General under
section 32(1)(b); or
(b) a declaration of the Director General under section 32(4)
or (5),
may apply to the State Administrative Tribunal for a review of
25 the determination or declaration.
34. Pest keeping notice
(1) The Director General may give a pest keeping notice to a person
if there are reasonable grounds for suspecting that person is not
complying with section 24.
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(2) A pest keeping notice must --
(a) be in writing;
(b) identify the declared pest in respect of which the notice
is given;
5 (c) specify the action the Director General requires to be
taken to keep, breed, cultivate or supply the declared
pest in accordance with section 24;
(d) specify the time within which the action must be taken;
and
10 (e) inform the person to whom the notice is given that
failure to take the action could result in the Director
General taking remedial action under section 37.
35. Director General review: pest control notice or pest keeping
notice
15 (1) A person who has been given a pest control notice or pest
keeping notice may, in writing, request the Director General to
review it.
(2) On receiving such a request the Director General may suspend
the notice pending making a decision under subsection (3).
20 (3) On receiving such a request the Director General must review
the notice and, after doing so, may amend, suspend, cancel or
confirm it.
(4) If the Director General amends a pest control notice or a pest
keeping notice it has effect accordingly.
25 (5) The Director General must give the person who requested the
review written advice of the decision on the review and the
reasons for that decision.
(6) Nothing in this section prejudices any right of review that a
person might have under section 36 but that right of review
30 must not be exercised until a review under this section has been
requested and a decision under subsection (3) has been made.
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Division 3 Biosecurity within Western Australia
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36. SAT review: pest control notice or pest keeping notice
(1) Subject to the regulations referred to in subsection (2) and to
section 35(6), a person aggrieved by a decision of the Director
General to give a pest control notice that is of a class of pest
5 control notices prescribed for the purposes of this section, or a
pest keeping notice, may apply to the State Administrative
Tribunal for a review of the decision.
(2) The regulations may specify circumstances in which
subsection (1) does not apply.
10 37. Remedial action by Director General
If a person does not comply with a requirement of a pest
exclusion notice, a pest control notice or a pest keeping notice,
the Director General may --
(a) take remedial action in accordance with section 95; and
15 (b) recover the cost of taking remedial action from the
person accordingly.
38. Power to control pests
(1) A person required under this Act to take measures to control a
declared pest has full power to do all that is necessary to comply
20 with the requirement.
(2) A person who obstructs a person referred to in subsection (1) in
the exercise of a power under that subsection commits an
offence.
Penalty: a fine of $5 000.
25 39. Agreements to supply pest control materials
(1) The Director General may enter into an agreement with a person
to supply to that person materials, appliances or services for the
control of declared pests.
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(2) An agreement may be discharged, extended or varied as agreed
by the parties.
(3) The Director General may supply poison under subsection (1)
despite anything to the contrary in the Poisons Act 1964.
5 40. Public authority may assist owner or occupier to control
declared pest
Without affecting the operation or effect of any other provision
of this Act, if there is a declared pest on any land, the local
government of the district in which that land is situate, or any
10 other public authority, may render such financial or other
assistance to any owner or occupier of that land as the local
government or other public authority considers necessary or
expedient for the control of that declared pest on and in relation
to that land.
15 41. Department may carry out operational work
(1) In this section --
"operational work" means the doing of such acts, matters and
things as may be necessary for or conducive to the control
of a declared pest;
20 "place" does not include a dwelling as that term is defined in
section 64.
(2) An officer of the department or an inspector may at any time
carry out operational work on or in relation to any place without
cost to the owner or occupier of the place.
25 (3) An officer of the department or an inspector may enter any
place for the purpose of exercising powers under this section.
(4) The provisions of this section are in addition to and not in
derogation of any other written law conferring power to control
declared pests.
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Division 4 Urgent measures
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(5) Nothing in this section limits or otherwise affects the
application of this Act to and in relation to the control of
declared pests if, and to the extent that, declared pests are not
controlled under operational works carried out under this
5 section.
Division 4 -- Urgent measures
42. Director General may give directions for urgent measures to
control declared pest
(1) Where, in the opinion of the Director General, a measure or
10 action must be carried out immediately to control a declared
pest, the Director General may, in writing, direct an inspector to
carry out that measure or action.
(2) A direction referred to in subsection (1) must specify the
measure or action to be carried out.
15 (3) Despite any other provision of this Act or any other law, an
inspector is authorised to carry out a measure or action in
accordance with a direction under this section.
43. Director General may approve alternative measure or
requirement
20 (1) If satisfied that a measure, action or requirement is appropriate,
the Director General may grant temporary approval for an
alternative measure or action to be carried out or requirement
imposed from that prescribed in the regulations or in a
management plan for the control of a declared pest.
25 (2) An approval under subsection (1) must specify --
(a) the alternative measure, action or requirement; and
(b) the period, being not more than 6 months, during which
the approval remains in force.
(3) A measure or requirement approved under this section as an
30 alternative from that prescribed in the regulations or in a
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Biosecurity Part 2
Management plans Division 5
s. 44
management plan has the same effect as if it were prescribed
under the regulations or a management plan.
Division 5 -- Management plans
44. Management plans
5 (1) The Minister may, by instrument published in the Gazette, issue
a plan for the management of an area to provide for the control
of a declared pest in the area.
(2) The area may be the whole or part of the State.
(3) A management plan must --
10 (a) identify the area to which the plan relates;
(b) set out the purposes of the plan;
(c) set out the practices to be followed under the plan;
(d) specify any obligations that are imposed on owners,
occupiers or other persons for the purposes of the plan.
15 (4) A management plan may create offences punishable by a fine
not exceeding $20 000.
(5) The Minister must not issue --
(a) a management plan in relation to fish, or a declared pest
in an aquatic environment, unless the plan is approved
20 by the Fisheries Minister; or
(b) a management plan in relation to a declared pest that is
an animal native to Australia, other than a fish, unless
the plan is approved by the CALM Act Minister.
45. Consultation with affected persons
25 (1) Before issuing a management plan, the Minister must, as far as
is appropriate and reasonably practicable to undertake, consult
with the public authorities and any other persons which or who
appear to the Minister to be likely to be --
(a) required to take part in implementing the plan;
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Division 6 Biosecurity Council
s. 46
(b) put to expense in complying with the plan; or
(c) affected, or interested, in a significant way by the
operation of the plan.
(2) Consultation may be undertaken in any way that the Minister
5 thinks appropriate in the circumstances, having regard to the
proposed management plan and the number of persons which or
who are likely to be affected by its operation.
46. Management plans are subject to disallowance
(1) A management plan is subsidiary legislation for the purposes of
10 the Interpretation Act 1984.
(2) The Interpretation Act 1984 section 42 applies to and in relation
to a management plan as if the plan were regulations made
under this Act.
Division 6 -- Biosecurity Council
15 47. Biosecurity Council
(1) The Minister must establish a Biosecurity Council by an
instrument signed by the Minister that sets out --
(a) the membership, constitution and procedures of the
Council;
20 (b) matters related to biosecurity on which the Council is to
give advice; and
(c) any other matters in relation to the operation of the
Council that the Minister considers appropriate.
(2) The Minister may, by instrument signed by the Minister, amend
25 or cancel an instrument made under subsection (1).
(3) Subject to the instrument made under subsection (1), the
Biosecurity Council may determine its own procedures.
(4) Each member of the Biosecurity Council must be paid such
remuneration and allowances as the Minister, on the
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Biosecurity Part 2
Biosecurity Council Division 6
s. 48
recommendation of the Minister for Public Sector Management,
determines in the case of that member.
48. Membership of Biosecurity Council
(1) The members of the Biosecurity Council must include --
5 (a) persons who, in the opinion of the Minister, have a
general or specific interest and expertise in the
management of biosecurity in the State; and
(b) representatives of community and producer
organisations.
10 (2) The regulations may make provision for the nomination of
members referred to in subsection (1)(b) by prescribed
community and producer organisations.
49. Functions of Biosecurity Council
The functions of the Biosecurity Council are --
15 (a) to advise the Minister and the Director General on any
matter related to biosecurity that is specified in the
instrument made under section 47(1);
(b) to advise the Minister or the Director General, as the
case requires, on any matter related to biosecurity that is
20 referred to the Council by the Minister or the Director
General; and
(c) if the Minister so approves, to advise any other Minister
on any matter related to biosecurity that is specified in
the instrument made under section 47(1).
25 50. Annual report
(1) The Biosecurity Council must on or before 30 November in
each year make and submit to the Minister an annual report of
its proceedings for the year ending on the preceding 30 June.
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Division 6 Biosecurity Council
s. 50
(2) The Minister must cause a copy of the annual report to be laid
before each House of Parliament within 14 sitting days of the
House after the report is received by the Minister.
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Contaminated land, chemical products and adulteration Part 3
Contaminated land Division 1
s. 51
Part 3 -- Contaminated land, chemical products
and adulteration
Division 1 -- Contaminated land
51. When land is contaminated
5 For the purposes of this Act, land is "contaminated" if it is
found to contain such an amount of an organochlorine, another
chemical product or another prescribed substance that an
agricultural product derived from the land would be likely to
contain more than the maximum residue limit of the
10 organochlorine, chemical product or other substance.
52. Contaminated land notices
(1) If land is found to be contaminated, the Director General may
give the owner of the land a contaminated land notice.
(2) A contaminated land notice must --
15 (a) be in a form approved by the Director General; and
(b) advise the owner of the land to whom it is given that the
land is contaminated and that the use of the land for the
production of agricultural products is restricted in
accordance with the regulations.
20 (3) A contaminated land notice remains in force until it is cancelled
under section 53(2).
(4) A contaminated land notice --
(a) while it remains in force, binds each person to whom it
is given; and
25 (b) while a memorial of the contaminated land notice
remains registered under section 102(3), and unless a
notice of release in respect of the memorial is registered
by the Registrar of Titles, binds each successive owner
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Part 3 Contaminated land, chemical products and adulteration
Division 1 Contaminated land
s. 53
of the land to which the contaminated land notice
relates.
53. Duration of contaminated land notice
(1) The Director General must review each contaminated land
5 notice from time to time in accordance with the regulations.
(2) If the Director General is satisfied that land in respect of which
a contaminated land notice has been given is no longer
contaminated, the Director General must cancel the notice.
54. SAT review: contaminated land notices
10 A person aggrieved by a decision of the Director General --
(a) to give a contaminated land notice; or
(b) not to cancel a contaminated land notice,
may apply to the State Administrative Tribunal for a review of
the decision.
15 55. Registration of memorial
(1) The Director General may lodge a memorial in respect of a
contaminated land notice with the Registrar of Titles.
(2) When a contaminated land notice in respect of which a
memorial is registered under section 102(3) ceases to be in
20 force, the Director General must lodge a notice of release in
respect of the memorial with the Registrar of Titles.
56. Dealing with certain contaminated land
(1) A memorial in respect of land lodged under section 55(1) may
provide that, after it is registered, the Registrar of Titles is not to
25 register any dealing with the land without the consent of the
Director General unless a notice of release has been lodged
under section 55(2) and registered under section 102(3).
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Chemical products Division 2
s. 57
(2) The registration of a memorial that prohibits dealing with land
does not --
(a) prevent a person from lodging with the Registrar of
Titles an instrument relating to a dealing with the land;
5 or
(b) prevent the Registrar of Titles from accepting an
instrument relating to a dealing with the land.
(3) If a memorial lodged under section 55(1) prohibits dealing with
land then, on the registration of a notice of release in respect of
10 the memorial, an instrument lodged previously with the
Registrar of Titles has effect as if the memorial had not been
registered.
Division 2 -- Chemical products
57. Dealing with chemical products
15 (1) A person who acquires, supplies, uses, stores, handles or
transports a chemical product commits an offence if --
(a) the regulations require that person to have a prescribed
qualification or authorisation; and
(b) the person does not have that qualification or
20 authorisation.
Penalty: a fine of $50 000.
(2) A person who acquires, supplies, uses, stores, handles or
transports a chemical product commits an offence if --
(a) the regulations require that person to give notice of the
25 acquisition, supply, use, storage, handling or transport of
that chemical product; and
(b) the person does not give the notice in accordance with
the regulations.
Penalty: a fine of $50 000.
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Division 2 Chemical products
s. 58
(3) A person who acquires, supplies, uses, stores, handles or
transports a chemical product commits an offence if --
(a) the regulations require that person to acquire, supply,
use, store, handle or transport the chemical product in
5 accordance with the regulations; and
(b) the person does not comply with those regulations.
Penalty: a fine of $50 000.
(4) A person who advises on the acquisition, supply, use, storage,
handling or transport of a chemical product commits an offence
10 if --
(a) the regulations require that person to provide that advice
in accordance with the regulations; and
(b) the person does not comply with those regulations.
Penalty: a fine of $50 000.
15 (5) A person must not acquire, supply, use, store, handle or
transport a chemical product if the regulations prohibit such
acquisition, supply, use, storage, handling or transport.
Penalty: a fine of $50 000.
(6) A person who acquires, supplies, uses, stores, handles or
20 transports a chemical product commits an offence if --
(a) the regulations require that person to keep prescribed
records of the acquisition, supply, use, storage, handling
or transport of the chemical product; and
(b) the person does not comply with those regulations.
25 Penalty: a fine of $50 000.
58. Dealing with things that are treated, or not treated, with
chemical product or are contaminated
A person who contravenes a regulation providing for duties or
obligations in relation to --
30 (a) the identification, handling, keeping, supply, purchase,
transport or use of an animal, agricultural product,
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Contaminated land, chemical products and adulteration Part 3
Chemical products Division 2
s. 59
animal feed or fertiliser that is treated, or not treated,
with a chemical product or is contaminated; or
(b) the provision of information in relation to that
identification, handling, keeping, supply, purchase,
5 transport or use,
commits an offence.
Penalty: a fine of $50 000.
59. Certain agreements void
(1) An agreement, whether made in the State or elsewhere, relating
10 to the supply of an agricultural product in the State that purports
to exclude any part of the application of this Act in relation to
the treatment of an agricultural product with a chemical product
is void.
(2) A person who agrees or purports to agree to supply an
15 agricultural product under an agreement that is void under this
section commits an offence.
Penalty: a fine of $20 000.
(3) An agreement, whether made in the State or elsewhere, relating
to the supply of an agricultural product in the State that contains
20 a provision to the effect that the agricultural product is treated
with a chemical product or declared not to be treated with a
chemical product is voidable by the purchaser, unless the
requirements imposed under --
(a) this Act in relation to the treatment of the agricultural
25 product with a chemical product; and
(b) any system of declarations or returns in operation under
this Act in relation to a supply of that kind,
have been observed and are met.
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Part 3 Contaminated land, chemical products and adulteration
Division 3 Adulteration of agricultural products or animal feed
s. 60
(4) Despite any other law in force in the State, a purchaser under an
agreement that is, under this section, void or voidable --
(a) is not prevented from making a claim with respect to
damages suffered by the purchaser; and
5 (b) may recover any moneys paid under the agreement.
Division 3 -- Adulteration of agricultural products or
animal feed
60. Meaning of terms used in this Division
(1) In this Division --
10 "adulterate", in relation to an agricultural product or animal
feed, includes --
(a) contaminate the agricultural product or animal feed;
(b) interfere with the agricultural product or animal feed;
or
15 (c) make it appear that the agricultural product or animal
feed has been adulterated.
(2) In this Division, a reference to economic loss includes a
reference to economic loss through --
(a) members of the public not purchasing an agricultural
20 product or animal feed, or an agricultural product
derived from another agricultural product; or
(b) steps taken to avoid public alarm or anxiety or to avoid
harm to members of the public.
61. Adulterating goods to cause public alarm or economic loss
25 A person must not adulterate an agricultural product or animal
feed with the intention of causing, or being reckless as to
whether or not the adulteration would cause --
(a) public alarm or anxiety; or
(b) economic loss.
30 Penalty: a fine of $100 000 and imprisonment for 12 months.
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Contaminated land, chemical products and adulteration Part 3
Adulteration of agricultural products or animal feed Division 3
s. 62
62. Threatening to adulterate goods to cause public alarm or
economic loss
(1) A person must not make a threat that an agricultural product or
animal feed will be adulterated with the intention of causing, or
5 being reckless as to whether or not the threat would cause --
(a) public alarm or anxiety; or
(b) economic loss.
Penalty: a fine of $100 000 and imprisonment for 12 months.
(2) For the purposes of this section, a threat may be made by any
10 conduct, and may be explicit or implicit and conditional or
unconditional.
63. Making false statements concerning adulteration of goods to
cause public alarm or economic loss
(1) A person must not make a statement that the person believes to
15 be false --
(a) with the intention of inducing the person to whom the
statement is made or others to believe that an
agricultural product or animal feed has been adulterated;
and
20 (b) with the intention of thereby causing, or being reckless
as to whether or not the statement would cause --
(i) public alarm or anxiety; or
(ii) economic loss.
Penalty: a fine of $100 000 and imprisonment for 12 months.
25 (2) For the purposes of this section, making a statement includes
conveying information by any means.
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Part 4 Inspection and compliance
Division 1 Preliminary
s. 64
Part 4 -- Inspection and compliance
Division 1 -- Preliminary
64. Meaning of terms used in this Part
In this Part, unless the contrary intention appears --
5 "dwelling" means --
(a) a building, structure or tent, or part of a building,
structure or tent, that is ordinarily used for human
habitation; or
(b) a mobile home,
10 and it does not matter that it is uninhabited from time to
time;
"entry warrant" means a warrant issued under Division 3;
"inspection purposes" means the purposes set out in
section 65;
15 "mobile home" means a conveyance --
(a) that is ordinarily used for human habitation; and
(b) that is permanently or semi-permanently stationary in
a single location.
Division 2 -- Inspection and other functions
20 65. Purposes for which an inspection may be carried out
An inspection may be carried out for any or all of the following
purposes --
(a) to search for or inspect any organism, agricultural
product, animal feed, identifier, chemical product or
25 potential carrier, or anything else regulated by this Act;
(b) to search for or inspect any records that are kept under
or for the purposes of this Act, or that are relevant to
determining whether this Act is being complied with;
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Inspection and other functions Division 2
s. 66
(c) to ascertain whether this Act, or a management plan,
code of practice, direction, notice or other instrument
given, issued, made or adopted under this Act is being
complied with;
5 (d) to search for and seize or otherwise obtain evidence of a
contravention of this Act;
(e) any other prescribed purpose.
66. Entry and access to place or conveyance, and inspection
powers
10 For inspection purposes, an inspector may --
(a) at any time stop, detain, board or enter a conveyance
(except a conveyance that is a mobile home);
(b) at any time enter a place that is not a dwelling;
(c) at any time enter a dwelling with the consent of the
15 person apparently in control of the dwelling;
(d) at any time enter a place in accordance with an entry
warrant;
(e) take onto or into the place any assistants, contractors,
animals, vehicles, instruments, equipment or materials
20 that are needed to carry out the inspection;
(f) remain on or in the place, with the assistants,
contractors, animals, vehicles, instruments, equipment
or materials, for as long as is necessary to complete the
inspection;
25 (g) inspect and open any package, compartment, cupboard
or container of any kind, and inspect its contents;
(h) restrain, muster, round up, yard, draft or otherwise move
or handle any stock or other animal;
(i) patrol and inspect any fence on or bounding land or
30 premises;
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Division 2 Inspection and other functions
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(j) take samples or specimens of or from organisms,
agricultural products, chemical products, animal feed,
fertilisers, water, soil or potential carriers;
(k) survey and mark out land for any purpose relevant to
5 carrying out the inspection;
(l) photograph or film a place or conveyance and anything
in or on the place or conveyance;
(m) label any thing to indicate its identity or contents.
67. Obtaining records
10 (1) In this section --
"relevant record" means a record that --
(a) contains information about the storage, handling,
transport, possession, supply, use or distribution of
organisms, agricultural products, potential carriers,
15 chemical products, animal feed or fertilisers;
(b) is required to be kept under this Act; or
(c) contains information that is relevant to a
contravention of this Act.
(2) For inspection purposes an inspector may do all or any of the
20 following --
(a) direct a person who has the custody or control of a
record to give the inspector the record or a copy of it;
(b) direct a person who has the custody or control of a
record, computer or thing to make or print out a copy of
25 the record or to operate the computer or thing;
(c) operate a computer or other thing on which a record is
or may be stored;
(d) direct a person who is or appears to be in control of a
record that the inspector suspects on reasonable grounds
30 is a relevant record to give the inspector a translation,
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Inspection and other functions Division 2
s. 68
code, password or other information necessary to gain
access to or interpret and understand the record;
(e) take extracts from or make copies of, or download or
print out, or photograph or film, a record that the
5 inspector suspects on reasonable grounds is a relevant
record;
(f) seize and retain, for so long as is necessary for the
purposes of this Act, a computer or other thing on which
a record is or may be stored;
10 (g) seize a record that the inspector suspects on reasonable
grounds is a relevant record and retain it for as long as is
necessary for the purposes of this Act;
(h) take reasonable measures to secure or protect a record,
or computer or other thing on which a record is or may
15 be stored, against damage or unauthorised removal or
interference.
(3) If an inspector seizes or is given a record, the inspector must if
practicable allow a person who otherwise has custody or control
of it to have reasonable access to it.
20 68. Other directions
(1) An inspector may --
(a) for inspection purposes, direct a person who is on or in a
place, or who is or appears to be in possession or control
of a place or thing, to --
25 (i) state his or her full name and residential address
and telephone number, and a local address and
telephone number if the person is away from
home and the inspector thinks it may be
necessary to contact the person before he or she
30 returns home;
(ii) produce evidence of the person's identity;
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Division 2 Inspection and other functions
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(iii) give the inspector any information in the
person's possession or control as to the name and
address of the owner of the place or thing; and
(iv) give the inspector, orally or in writing, any
5 information in the person's possession or control
that is relevant to carrying out the inspection;
(b) for inspection purposes, direct a person who is or
appears to be in possession or control of an organism,
prescribed potential carrier, animal feed, fertiliser or
10 chemical product to give the inspector any information
in the person's possession or control as to the name and
address of any person from whom the organism,
potential carrier, animal feed, fertiliser or chemical
product was obtained or to whom a similar organism,
15 potential carrier, animal feed, fertiliser or chemical
product has been supplied;
(c) direct a person who is or appears to be in control of a
place to give the inspector a plan, or access to a plan, of
the place;
20 (d) direct a person who is or appears to be in control of a
place or thing to give the inspector any assistance that
the inspector reasonably needs to carry out the
inspector's functions in relation to the place or thing;
(e) direct a person who is or appears to be in control of a
25 conveyance to take the conveyance to an inspection
point, quarantine facility or other place for inspection or
treatment;
(f) direct a person who is or could be carrying an organism
or potential carrier to go to an inspection point,
30 quarantine facility or other convenient place for
inspection, or treatment of the organism or potential
carrier;
(g) direct an importer or other person who is or appears to
be in control of a consignment of goods or a potential
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carrier to remove the consignment or potential carrier to
an inspection point, quarantine facility or other place for
inspection or treatment;
(h) direct a person who is or appears to be in control of an
5 organism to do anything necessary to identify the
organism;
(i) direct a person who is or appears to be in control of an
animal to restrain, muster, round up, yard, draft or
otherwise move or handle the animal;
10 (j) direct a person who is or appears to be in control of any
goods, conveyance, package or container to label it to
identify its contents;
(k) direct a person who is or appears to be in control of a
plant, animal or other thing regulated under this Act to
15 keep that plant, animal or other thing in the possession
of that person until further directed by the inspector.
(2) If a person does not comply with a direction under
subsection (1)(e), (f), (g) or (i) the inspector may do anything
the inspector considers necessary to achieve, so far as is
20 practicable, the purpose of the direction.
(3) Without limiting subsection (2), an inspector may move a
conveyance to achieve the purpose of the direction.
Division 3 -- Entry warrants
69. Applying for entry warrant
25 (1) An inspector may apply to a justice for an entry warrant
authorising the entry of a place for inspection purposes.
(2) An inspector may apply for an entry warrant for a place even if,
under Division 2, the inspector may enter the place without an
entry warrant.
30 (3) The application must be in accordance with section 70 and must
include the prescribed information (if any).
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70. Applications, how they are to be made
(1) In this section --
"application" means an application for an entry warrant;
"remote communication" means any way of communicating at
5 a distance including by telephone, fax, email and radio.
(2) A reference in this section to making an application includes a
reference to giving information in support of the application.
(3) An application must be made in person before a justice
unless --
10 (a) the warrant is needed urgently; and
(b) the applicant reasonably suspects that a justice is not
available within a reasonable distance of the applicant,
in which case --
(c) it may be made to the justice by remote communication;
15 and
(d) the justice must not grant it unless satisfied about the
matters in paragraphs (a) and (b).
(4) An application must be made in writing unless --
(a) the application is made by remote communication; and
20 (b) it is not practicable to send the justice written material,
in which case --
(c) it may be made orally; and
(d) the justice must make a written record of the application
and any information given in support of it.
25 (5) An application must be made on oath unless --
(a) the application is made by remote communication; and
(b) it is not practicable for the justice to administer an oath
to the applicant,
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in which case --
(c) it may be made in an unsworn form; and
(d) if the justice issues an entry warrant, the applicant must
as soon as is practicable send the justice an affidavit
5 verifying the application and any information given in
support of it.
(6) If on an application made by remote communication a justice
issues an entry warrant, the justice must if practicable send a
copy of the original warrant to the applicant by remote
10 communication, but otherwise --
(a) the justice must send the applicant by remote
communication any information that must be set out in
the warrant;
(b) the applicant must complete a form of warrant with the
15 information received and give the justice a copy of the
form as soon as is practicable after doing so; and
(c) the justice must attach the copy of the form to the
original warrant and any affidavit received from the
applicant and make them available for collection by the
20 applicant.
(7) The copy of the original warrant sent, or the form of the warrant
completed, as the case may be, under subsection (6) has the
same force and effect as the original warrant.
(8) If an applicant contravenes subsection (5)(d) or (6)(b), any
25 evidence obtained under the entry warrant is not admissible in
proceedings in a court.
71. Issuing an entry warrant
(1) A justice may issue an entry warrant if satisfied that it is
necessary for an inspector to enter a place for inspection
30 purposes.
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(2) An entry warrant must contain --
(a) a reasonably particular description of the place to which
it relates;
(b) a reasonably particular description of the inspection
5 purpose for which entry to the place is required;
(c) the period in which it may be executed;
(d) the date and time when it was issued; and
(e) any other prescribed matter.
72. Effect of entry warrant
10 (1) An entry warrant has effect according to its content and this
section.
(2) An entry warrant may be executed by any inspector.
(3) If in the course of executing an entry warrant an inspector by
chance finds a thing that is not specified in the warrant that the
15 inspector suspects on reasonable grounds is --
(a) a declared pest, an unlisted organism or other thing
prescribed for the purposes of this subsection; or
(b) evidence of a contravention of this Act,
the inspector may seize the thing if the inspector reasonably
20 suspects that it is necessary to do so for one or more of these
purposes --
(c) to prevent the thing from being sold, disposed of,
concealed, damaged, destroyed, interfered with or lost;
(d) to preserve the thing's evidentiary value;
25 (e) to submit the thing to an analysis;
(f) to prevent the thing being used in the commission of an
offence under this Act.
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73. Report on entry and search
An inspector who has entered and searched a place under an
entry warrant must give a written report of the result of the entry
and search to the Director General.
5 Division 4 -- Seizure, treatment, destruction and recall powers
74. Power to seize, treat or destroy
(1) Subject to the regulations (if any) an inspector may --
(a) seize and detain an organism or potential carrier until --
(i) it can be determined whether the organism or
10 potential carrier was imported in contravention
of section 14;
(ii) it can be determined whether the organism is a
declared pest;
(iii) it can be determined whether the organism or
15 potential carrier is infected or infested with a
declared pest or contaminated; or
(iv) the organism or potential carrier is treated,
destroyed, disposed of or otherwise dealt with
under subsection (2);
20 (b) seize and detain an agricultural product, animal feed,
fertiliser, chemical product or other substance or thing
until it can be determined whether it is infected or
infested with a declared pest or contaminated;
(c) without limiting paragraph (a) or (b), seize and detain an
25 organism, potential carrier, agricultural product, animal
feed, fertiliser, chemical product or other substance or
thing until it is treated, destroyed, disposed of or
otherwise dealt with under subsection (2) if there are
reasonable grounds for believing that --
30 (i) an offence under this Act is being or has been
committed in relation to the organism, potential
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carrier, agricultural product, animal feed,
fertiliser, chemical product or other substance or
thing;
(ii) the organism is a declared pest; or
5 (iii) the organism, potential carrier, agricultural
product, animal feed, fertiliser, chemical product
or other substance or thing is infected or infested
with a declared pest or contaminated.
(2) If an inspector seizes a thing under subsection (1), the inspector
10 may do any of the following --
(a) direct the person from whom the thing is seized to keep
the thing in accordance with the directions of the
inspector;
(b) remove and keep the thing so seized;
15 (c) treat the thing so seized to control declared pests or
unlisted organisms or to lessen the risk of the spread of
declared pests or unlisted organisms;
(d) whether or not proceedings have been or are intended to
be taken under this Act in respect of the thing seized, but
20 subject to subsection (4) and the regulations (if any) --
(i) destroy, dispose of or otherwise deal with the
thing;
(ii) direct the person from whom the thing is seized
to destroy, dispose or otherwise deal with the
25 thing; or
(iii) declare anything so seized to be forfeited to the
Crown;
(e) subject to such direction, if any, as the inspector thinks
fit to make under section 78 or 80, restore anything so
30 seized to the person from whom it was seized.
(3) An organism or potential carrier may be treated under
subsection (2)(c) whether or not the organism or potential
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s. 75
carrier is infected or infested with a declared pest or unlisted
organism.
(4) An action must not be taken under subsection (2)(d) before the
expiry of the time within which an application may be made
5 under section 75 for a review of the decision to seize the thing
or, where an application has been so made, before the
determination of the application.
75. SAT review: seizure
(1) Subject to the regulations referred to in subsection (4), a person
10 aggrieved by the seizure of any thing under section 74 may
apply to the State Administrative Tribunal for a review of the
decision to seize the thing.
(2) In dealing with an application under subsection (1) the State
Administrative Tribunal may determine whether the thing
15 seized must be destroyed, disposed of, forfeited to the Crown,
restored to the person from whom it was seized or otherwise
dealt with.
(3) Subsection (2) does not limit the powers that the State
Administrative Tribunal Act 2004 gives the State Administrative
20 Tribunal.
(4) The regulations may specify circumstances in which
subsection (1) does not apply.
76. SAT review: forfeiture
(1) Subject to the regulations referred to in subsection (2), a person
25 aggrieved by a declaration under section 74(2)(d)(iii) may apply
to the State Administrative Tribunal for a review of the
declaration.
(2) The regulations may specify circumstances in which
subsection (1) does not apply.
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Division 4 Seizure, treatment, destruction and recall powers
s. 77
77. Power to order that organism or potential carrier be moved
for treatment
(1) An inspector may --
(a) direct the owner, consignor, consignee or person in
5 control of an organism or potential carrier to take the
organism or potential carrier, in accordance with the
direction, to a place specified in the direction for it to be
treated to control declared pests or unlisted organisms or
to lessen the risk of the spread of declared pests or
10 unlisted organisms; and
(b) at that place treat the organism or potential carrier
accordingly.
(2) A direction may be given under subsection (1)(a), and an
organism or potential carrier may be treated under
15 subsection (1)(b), whether or not the organism or potential
carrier is infected or infested with a declared pest or unlisted
organism.
(3) The direction must --
(a) be in writing; and
20 (b) inform the person to whom the direction is given that
failure to comply with the direction could result in a
fine, the Director General taking remedial action under
section 88, or both.
78. Power to direct person to treat, destroy or dispose of thing
25 (1) An inspector may direct the owner, consignor, consignee or
person in control of an organism, potential carrier, agricultural
product, animal feed, fertiliser, chemical product or other
substance or thing to treat, destroy or otherwise dispose of it if
there are reasonable grounds for believing that --
30 (a) an offence under this Act is being or has been
committed in relation to the organism, potential carrier,
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agricultural product, animal feed, fertiliser, chemical
product or other substance or thing; or
(b) it is infected or infested with a declared pest or unlisted
organism or is contaminated.
5 (2) An inspector may direct a person --
(a) to deliver each or any specified declared pest in the
person's possession to the inspector at a specified time
and place;
(b) to destroy each or any specified declared pest in the
10 person's possession within a specified period and by a
specified means;
(c) to produce evidence that a direction under paragraph (b)
has been complied with.
(3) The direction must --
15 (a) be in writing; and
(b) inform the person to whom the direction is given that
failure to comply with the direction could result in a
fine, the Director General taking remedial action under
section 88, or both.
20 79. SAT review: section 78 direction
(1) Subject to the regulations referred to in subsection (4), a person
aggrieved by a direction under section 78 may apply to the State
Administrative Tribunal for a review of the direction.
(2) The commencement of a proceeding under subsection (1) in
25 respect of a direction to destroy any thing has the effect of
staying the operation of the direction.
(3) Nothing in subsection (2) affects the operation of the State
Administrative Tribunal Act 2004 section 25(2).
(4) The regulations may specify circumstances in which
30 subsection (1) does not apply.
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Division 4 Seizure, treatment, destruction and recall powers
s. 80
80. Treatment or destruction to prevent risk
(1) If --
(a) the Director General --
(i) has reasonable grounds for believing that an
5 organism, a progenitor of that organism or a
potential carrier was imported; and
(ii) is not satisfied that it was imported in accordance
with this Act;
or
10 (b) the Director General --
(i) has reasonable grounds for believing that an
organism, a progenitor of that organism or
potential carrier was brought from one area of
the State into another area of the State; and
15 (ii) is not satisfied that it was brought into that area
in accordance with this Act,
the Director General may, by notice given to the owner, require
the owner to treat or destroy the organism or potential carrier,
and any progeny of the organism or the potential carrier, in the
20 manner and within the time specified in the notice.
(2) Subsection (1) does not apply to the progeny of an organism or
potential carrier if the progeny was imported, or brought into the
relevant area, in accordance with this Act.
(3) The notice must --
25 (a) be in writing; and
(b) inform the person to whom the notice is given that
failure to comply with the notice could result in a fine,
the Director General taking remedial action under
section 88, or both.
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(4) A person to whom a notice is given under this section must not
contravene the notice, unless that person has a lawful excuse for
the contravention.
Penalty: a fine of $20 000.
5 81. SAT review: treatment or destruction notice
(1) Subject to the regulations referred to in subsection (4), a person
aggrieved by a requirement in a notice given by the Director
General under section 80 may apply to the State Administrative
Tribunal for a review of the requirement.
10 (2) The commencement of a proceeding under subsection (1) in
respect of a requirement to destroy any thing has the effect of
staying the operation of the requirement.
(3) Nothing in subsection (2) affects the operation of the State
Administrative Tribunal Act 2004 section 25(2).
15 (4) The regulations may specify circumstances in which
subsection (1) does not apply.
82. Provisions do not limit making of regulations
Nothing in section 74, 78 or 80 limits or restricts the making of
regulations under Schedule 1.
20 83. Inspector may direct removal of organism or potential
carrier
If an inspector has reasonable grounds for believing that --
(a) an organism or prescribed potential carrier has been
imported in contravention of section 14; or
25 (b) an imported organism or an imported prescribed
potential carrier is infected or infested with a declared
pest or an unlisted organism,
the inspector may direct the importer of the organism or
prescribed potential carrier to remove it from the State.
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Division 4 Seizure, treatment, destruction and recall powers
s. 84
84. SAT review: direction to remove from State
(1) Subject to the regulations referred to in subsection (3) a person
aggrieved by a direction under section 83 may apply to the State
Administrative Tribunal for a review of the direction.
5 (2) An organism or prescribed potential carrier the subject of a
direction referred to in subsection (1) may be detained by the
Director General until the direction is reviewed.
(3) The regulations may specify circumstances in which
subsection (1) does not apply.
10 85. Recall of organism or substance
(1) In this section --
"recallable substance" means an agricultural product, animal
feed, fertiliser or other thing, or a batch of an agricultural
product, animal feed, fertiliser or other thing, which is, or
15 appears to the Director General to be, infected or infested
with a declared pest or contaminated.
(2) The Director General may, by notice in writing given to a
person (the "notified person") who has, or has had, possession
or control of a prohibited organism or a recallable substance,
20 require that person to do any one or more of the things
mentioned in subsection (4).
(3) The notice must --
(a) be in writing; and
(b) inform the person to whom it is given that failure to
25 comply with the notice could result in a fine, the
Director General taking remedial action under
section 88, or both.
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(4) The things that a notified person may be required to do under
subsection (2) are as follows --
(a) not to supply, or to stop supplying, the prohibited
organism or recallable substance, either immediately or
5 within a specified period;
(b) to take any action stated in the notice that the notified
person is reasonably capable of taking to recover stocks
of the prohibited organism or recallable substance from
any other person --
10 (i) to whom the prohibited organism or recallable
substance has been supplied by the notified
person; or
(ii) who has possession or control of any such
prohibited organism or recallable substance
15 directly or indirectly because of supply by the
notified person;
(c) to take any action that is specified in the notice, or that
the notified person thinks necessary, to prevent or
reduce any harmful effects that may have resulted from
20 the use of the prohibited organism or recallable
substance;
(d) to destroy, as specified in the notice, stocks of the
prohibited organism or recallable substance in the
possession or control of, or recovered by, the notified
25 person or to deal with them as specified in the notice;
(e) to report to the Director General within the specified
period on the action taken by the notified person under
the notice.
(5) A person to whom a notice is given under this section must
30 comply with the notice, unless that person has a lawful excuse
for failing to do so.
Penalty: a fine of $20 000.
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Division 5 General
s. 86
86. Notice may be published
After giving a notice under section 85, the Director General
may, but is not required to, publish a notice in the Gazette or in
any other manner that the Director General thinks fit setting out
5 a brief statement of the matters to which the notice under
section 85 relates.
87. SAT review: recall notice
(1) Subject to the regulations referred to in subsection (4) a person
aggrieved by a requirement in a notice given by the Director
10 General under section 85 may apply to the State Administrative
Tribunal for a review of the requirement.
(2) The commencement of a proceeding under subsection (1) in
respect of a requirement to destroy any thing has the effect of
staying the operation of the requirement.
15 (3) Nothing in subsection (2) affects the operation of the State
Administrative Tribunal Act 2004 section 25(2).
(4) The regulations may specify circumstances in which
subsection (1) does not apply.
88. Remedial action
20 If a person does not comply with a direction under
section 77(1)(a) or 78, or a requirement of a notice under
section 80 or 85, the Director General may --
(a) take remedial action in accordance with section 95; and
(b) recover the cost of taking remedial action from the
25 person accordingly.
Division 5 -- General
89. Time and place for compliance
An inspector may specify the date and time when, and place
where, a direction must be complied with.
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s. 90
90. Direction may be given orally or in writing
(1) Unless otherwise specified, a direction may be given under this
Part orally or in writing.
(2) A direction given orally must be confirmed in writing within
5 5 working days after it is given, unless within that period it is
complied with or cancelled.
(3) Failure to comply with subsection (2) does not invalidate the
direction.
91. Exercise of power may be recorded
10 An inspector may record the exercise of a power under this Part,
including by making an audiovisual recording.
92. Use of force and assistance
(1) In this section --
"security officer" means a person who holds a security
15 officer's licence under the Security and Related Activities
(Control) Act 1996.
(2) An inspector may use assistance and force that is reasonably
necessary in the circumstances when carrying out a function
under this Act.
20 (3) However, if the use of reasonable force is likely to cause
significant damage to property, the inspector is not entitled to
use force without the authority of the Director General in the
particular case.
(4) An inspector may request a police officer, a security officer, or
25 other person, to assist the inspector in carrying out functions
under this Act.
(5) While a police officer, security officer or other person is
assisting an inspector at the request of the inspector and in
accordance with this Act, the police officer, security officer or
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Division 5 General
s. 93
other person has the same functions as an inspector, and the
same liability and protection as an inspector in relation to
carrying out the functions.
93. Offences
5 A person commits an offence if the person --
(a) without lawful excuse, wilfully obstructs, hinders or
resists an inspector who is carrying out a function under
this Act;
(b) without lawful excuse, wilfully obstructs, hinders or
10 resists a person assisting an inspector who is carrying
out a function under this Act;
(c) without lawful excuse, does not comply with a direction
under this Part;
(d) without lawful excuse, does not comply with any other
15 lawful requirement (however described) of an inspector
under this Act;
(e) wilfully makes a false statement to, or misleads, an
inspector who is carrying out a function under this Act.
Penalty: a fine of $20 000.
20 94. Self-incriminating information
(1) A person is not excused from giving any information to an
inspector in response to a direction or requirement of the
inspector on the ground that the information might tend to
incriminate the person or render the person liable to a penalty.
25 (2) However, if the person gives the information after objecting on
the ground referred to in subsection (1), neither the information
given by the person, nor the fact that it was given by the
individual, is admissible in evidence in any civil or criminal
proceedings against the person except in proceedings for perjury
30 or for an offence under this Act arising out of the person's
giving false or misleading information.
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s. 95
(3) If an objection is made and the information is recorded, in
writing or otherwise, the record must set out the fact of the
objection having been made.
Division 6 -- Remedial action by Director General
5 95. Taking remedial action
(1) For the purpose of taking remedial action under section 37 or 88
or under the regulations the Director General --
(a) may do anything that has not been done by the owner,
occupier or other person required to comply with a
10 notice, direction or other requirement; and
(b) may do anything incidental to doing something under
paragraph (a).
(2) The regulations may make provision as to --
(a) the determination of the costs of remedial action under
15 section 37 or 88 or under the regulations;
(b) the payment of the costs of the remedial action; and
(c) the recovery of the costs payable.
(3) Nothing in this section affects the liability of a person to be
proceeded against for an offence under this Act or the recovery
20 of a penalty in any such proceedings.
96. Charge on land to secure cost of remedial action
(1) The amount payable under section 95 in relation to taking
remedial action in respect of anything that has not been done by
the owner of land is a charge on the land --
25 (a) whether or not the amount is due for payment; and
(b) whether or not a memorial of the charge has been
registered under section 102(3).
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s. 97
(2) If the charge amount is not paid by the due date, the Director
General may lodge a memorial of the charge with the Registrar
of Titles.
(3) If a cheque given in purported payment of the charge amount is
5 dishonoured on first presentation (even though the due date may
not have arrived when the cheque is dishonoured), the amount is
taken not to be paid by the due date for the purposes of
subsection (2).
(4) The liability of the owner to pay the charge amount continues
10 until it is paid, despite any disposition of the land.
(5) If the land is transferred before the charge amount is paid and a
memorial of the charge has been registered under
section 102(3), the succeeding owner becomes liable to pay the
charge amount.
15 (6) If part of the work was carried out on land comprising a number
of separate lots or parcels --
(a) the charge attaches to each separate lot or parcel; and
(b) the charge amount on a lot or parcel is the amount that
is the same proportion of the total charge amount as
20 the unimproved value of the lot or parcel is of the total
unimproved value of the land.
(7) This section does not apply in relation to land owned by, or
vested in, a public authority or the State.
97. Priority of charge
25 (1) When a memorial of a charge on land is registered under
section 102(3), the charge is the first charge on the land and has
priority over all other mortgages, charges and encumbrances
over the land.
(2) However, if there is another statutory charge on the same land
30 that ranks as a first charge under another Act, the relative
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s. 98
priority of the charges must be determined according to the
order of registration.
98. Dealing with certain charged land
(1) A memorial lodged under section 96(2) may provide that, after
5 it is registered, the Registrar of Titles is not to register any
dealing with the land without the consent of the Director
General unless the Director General has lodged a notice of
release from the charge and the notice has been registered.
(2) The registration of a memorial that prohibits dealing with land
10 does not --
(a) prevent a person from lodging with the Registrar of
Titles an instrument relating to a dealing with the land;
or
(b) prevent the Registrar of Titles from accepting an
15 instrument relating to a dealing with the land.
(3) If a memorial of a charge prohibits dealing with land then, on
the registration of a notice of release from the charge, an
instrument lodged previously with the Registrar of Titles has
effect as if the memorial of the charge had not been registered.
20 99. Recovery of unpaid charge amount
(1) If an amount charged on land that is under the operation of the
Transfer of Land Act 1893 remains unpaid after the due date,
the Director General has and may exercise in respect of the land
the powers conferred by that Act on a mortgagee under a
25 mortgage in respect of which a default has been made in
payment.
(2) If an amount charged on land that is alienated from the Crown
but is not under the operation of the Transfer of Land Act 1893
remains unpaid after the due date, the Director General has and
30 may exercise in respect of the land the powers referred to in
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Part 4 Inspection and compliance
Division 6 Remedial action by Director General
s. 100
subsection (1) with such modifications as are necessary because
the land is not under the operation of that Act.
(3) If an amount charged on land that is the subject of a lease or
licence under the Land Administration Act 1997 remains unpaid
5 after the due date, the Director General has and may exercise in
respect of the land the powers conferred by that Act upon a
mortgagee under a mortgage in respect of which a default has
been made in payment.
100. Certificate of charge amount
10 (1) The Director General must, on application by the owner of land
or a purchaser of land, issue a certificate --
(a) stating whether there is a charge on the land under this
Division; and
(b) if there is -- stating the charge amount, or, if the charge
15 amount is yet to be determined, estimating the amount.
(2) If a certificate has been issued the Director General cannot --
(a) assert the existence of a charge not disclosed in the
certificate; or
(b) assert that a charge covered (at the date of the
20 certificate) an amount exceeding the amount disclosed
in the certificate.
(3) However, giving an estimate of the charge amount in the
certificate does not prevent the Director General from
determining a different charge amount if further relevant
25 information becomes available.
(4) The fee (if any) prescribed is payable for the issue of the
certificate.
101. Release of land from charge
If a memorial of a charge on land is registered in the Land Titles
30 Register, then, on payment of the charge amount, the Director
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Inspection and compliance Part 4
Registration of memorials and notices affecting land Division 7
s. 102
General must give a notice of release to the owner of the land to
be lodged for registration under section 102.
Division 7 -- Registration of memorials and notices
affecting land
5 102. Approved form of memorials and notices
(1) A memorial or notice lodged with the Registrar of Titles under
this Act must be in a form approved by the Registrar.
(2) The Registrar of Titles may --
(a) approve the form of memorials and notices lodged with
10 the Registrar under this Act; and
(b) require the Director General to give to the Registrar the
information specified in the form and any further
information required by the Registrar for the purpose of
registering the memorial or notice.
15 (3) When a memorial or notice is lodged under this Act, the
Registrar of Titles must register it in the Register of Land Titles.
103. Exemption from stamp duty and registration fees
The registration of a memorial or notice under this Act is
exempt from stamp duty and registration fees.
20 104. Notice to mortgagees
When a memorial or notice in relation to land is registered, the
Director General must notify all mortgagees who hold
registered mortgages over the land to that effect (but failure to
do so does not invalidate the registration of the memorial).
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Part 5 Legal proceedings
Division 1 Legal proceedings
s. 105
Part 5 -- Legal proceedings
Division 1 -- Legal proceedings
105. Prosecutions, who may commence
A prosecution for an offence under this Act may only be
5 commenced by the Director General or a person authorised to
do so by the Director General.
106. Time for bringing prosecution
(1) A prosecution for an offence under this Act must be
commenced within 5 years after the date on which the offence is
10 alleged to have been committed.
(2) Despite subsection (1), if a prosecution notice alleging an
offence under this Act specifies the day on which evidence of
the alleged offence first came to the attention of a person
authorised to institute the prosecution under section 105 --
15 (a) the prosecution may be commenced within 5 years after
that day; and
(b) the prosecution notice need not contain particulars of the
day on which the offence is alleged to have been
committed.
20 (3) The day on which evidence first came to the attention of a
person authorised to institute a prosecution under section 105 is,
in the absence of evidence to the contrary, the day specified in
the prosecution notice.
107. Court's power to make ancillary orders on conviction
25 If a court convicts a person of an offence under this Act, the
court may, if the court thinks it appropriate in the circumstances
of the case --
(a) order the offender to notify persons specified in the
order, or persons in a class of persons specified in the
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Legal proceedings Part 5
Legal proceedings Division 1
s. 108
order, of the commission of the offence and the
conviction of the offender;
(b) if the offender is a person or public authority required
under a written law to make an annual report -- order
5 the offender to include in the report notice of the
commission of the offence and the conviction of the
offender;
(c) order the offender to take measures specified in the
order, within the time specified in the order --
10 (i) to prevent, control, abate or mitigate damage
caused by the commission of the offence;
(ii) to prevent any continuation or repetition of the
offence;
(d) order the offender to pay the Director General, a public
15 authority or another person the costs reasonably incurred
by the Director General, authority or person in repairing
any damage caused as a result of the commission of the
offence;
(e) make any other order the court thinks appropriate in the
20 circumstances.
108. Order as to costs of analysis
In any proceedings under this Act, if evidence is given of an
analysis made for the purposes of this Act, the court may, in
addition to any penalty or other order as to costs, and without
25 regard to the outcome of the proceedings generally, make an
order as to the costs of and incidental to the obtaining of the
analysis and the giving of evidence as to the analysis.
109. Penalties for continuing offences
For the purposes of the Interpretation Act 1984 section 71, the
30 penalty for each separate and further offence committed by a
person under this Act is --
(a) for an individual, a fine of $1 000;
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Part 5 Legal proceedings
Division 1 Legal proceedings
s. 110
(b) for a body corporate, a fine of $5 000.
110. Injunctions to ensure compliance with this Act
(1) The Director General may apply to the Supreme Court or the
District Court for an injunction restraining a person --
5 (a) from doing something that would, or would be likely to,
constitute an offence under this Act;
(b) from aiding, abetting, counselling, or procuring the
commission of an offence under this Act;
(c) from conspiring with others to contravene or bring about
10 the commission of an offence under this Act; or
(d) from attempting to do anything referred to in
paragraph (a), (b) or (c).
(2) The Director General may apply to the Supreme Court or the
District Court to enjoin a person to do something where the
15 person's omission to do it constitutes or would constitute an
offence under this Act.
(3) The court may grant an injunction whether or not the person has
previously committed the offence, or would, if the injunction is
not granted, be likely to commit or to continue to commit the
20 offence.
(4) An interim injunction may be granted before final determination
of an application under subsection (1).
(5) The court is not to require, as a condition of granting an interim
injunction, that an undertaking be given as to damages or costs.
25 (6) The taking of proceedings against a person for an offence under
this Act is not affected by --
(a) the making of an application for an injunction in relation
to the commission of the offence;
(b) the grant of or refusal to grant an injunction; or
30 (c) the rescission, variation, or expiry of an injunction.
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Legal proceedings Part 5
Responsibility of certain persons Division 2
s. 111
Division 2 -- Responsibility of certain persons
111. Liability of body corporate's officers
(1) In this section --
"officer", in relation to a body corporate, has the same meaning
5 as in the Corporations Act 2001 of the Commonwealth but
does not include an employee of the body corporate unless
the employee was concerned in the management of the
body corporate.
(2) If a body corporate is charged with an offence under this Act,
10 each person who was an officer of the body corporate at the
time of the alleged offence may also be charged with the
offence.
(3) If a body corporate and an officer are charged as permitted by
subsection (2) and the body corporate is convicted of the
15 offence, the officer is to be taken to have also committed the
offence, subject to subsection (6).
(4) If a body corporate commits an offence under this Act, then,
although the body corporate is not charged with the offence,
every person who was an officer of the body corporate at the
20 time the offence was committed may be charged with the
offence.
(5) If an officer is charged as permitted by subsection (4) and it is
proved that the body corporate committed the offence, the
officer is to be taken to have also committed the offence, subject
25 to subsection (6).
(6) If under this section an officer is charged with an offence it is a
defence to prove that --
(a) the offence was committed without the officer's consent
or connivance; and
30 (b) the officer took all the measures to prevent the
commission of the offence that the officer could
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Part 5 Legal proceedings
Division 2 Responsibility of certain persons
s. 112
reasonably be expected to have taken having regard to
the officer's functions and to all the circumstances.
112. Liability of principal for acts of agent
(1) If a person (the "agent") acting, otherwise than as an employee,
5 for or on behalf of another person (the "principal") is charged
with an offence under this Act, the principal may also be
charged with the offence.
(2) If an agent and a principal are charged as permitted by
subsection (1) and the agent is convicted of the offence, the
10 principal is to be taken to have also committed the offence,
subject to subsection (5).
(3) If a person (the "agent") acting, otherwise than as an employee,
for or on behalf of another person (the "principal") commits an
offence under this Act, then, although the agent is not charged
15 with the offence, the principal may be charged with the offence.
(4) If a principal is charged as permitted by subsection (3) and it is
proved that the agent committed the offence, the principal is to
be taken to have committed the offence, subject to
subsection (5).
20 (5) If under this section a principal is charged with an offence it is a
defence to prove that --
(a) the offence was committed without the principal's
consent or connivance; and
(b) the principal took all the measures to prevent the
25 commission of the offence that the principal could
reasonably be expected to have taken having regard to
all the circumstances.
113. Liability of employer for offence of employee
(1) If an employee of another person (the "employer") is charged
30 as an employee with an offence under this Act, the employer
may also be charged with the offence whether or not the
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Legal proceedings Part 5
Evidentiary provisions Division 3
s. 114
employee acted without the employer's authority or contrary to
the employer's orders or instructions.
(2) If an employee and an employer are charged as permitted by
subsection (1) and the employee is convicted of the offence, the
5 employer is to be taken to have also committed the offence,
subject to subsection (5).
(3) If an employee of another person (the "employer") commits an
offence under this Act as an employee, then, although the
employee is not charged with the offence, the employer may be
10 charged with the offence whether or not the employee acted
without the employer's authority or contrary to the employer's
orders or instructions.
(4) If an employer is charged as permitted by subsection (3) and it
is proved that the employee committed the offence, the
15 employer is to be taken to have committed the offence, subject
to subsection (5).
(5) If under this section an employer is charged with an offence it is
a defence to prove that --
(a) the offence was committed without the employer's
20 consent or connivance; and
(b) the employer took all the measures to prevent the
commission of the offence that the employer could
reasonably be expected to have taken having regard to
all the circumstances.
25 Division 3 -- Evidentiary provisions
114. Meaning of "specified"
In this Division --
"specified", in relation to a claim, prosecution notice or other
document, means specified in the claim, prosecution notice
30 or document.
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Part 5 Legal proceedings
Division 3 Evidentiary provisions
s. 115
115. Proof of exemptions
In any proceedings under this Act the onus of proving that --
(a) at the time of the alleged offence a person was exempted
from a provision of this Act;
5 (b) anything was done or omitted to be done with lawful
excuse or authority or reasonable excuse; or
(c) a person, organism or thing was not in the State,
lies upon the person making that assertion.
116. Evidence of place of offence
10 In any proceedings under this Act an allegation in the
prosecution notice --
(a) that an area or place is, or was during a specified period,
within an area described in a declaration, notice or
advertisement published under this Act;
15 (b) that a person, conveyance or other thing referred to in
the prosecution notice was in a specified area or place;
or
(c) that an act occurred in a specified area or place,
is, in the absence of evidence to the contrary, proof that the area
20 or place was within that described area or that the person,
conveyance or thing was in, or that the act occurred in, that
specified area or place, as the case requires.
117. Evidence of seller or packer of container
In any proceedings for an offence under this Act an allegation in
25 the prosecution notice that a person whose name is marked on
the outside or inside of any container, or on the label of a
container, as the seller or packer of the container, is the seller or
packer of the container is, in the absence of evidence to the
contrary, taken to be proved.
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Legal proceedings Part 5
Evidentiary provisions Division 3
s. 118
118. Evidence of purpose or intent
(1) In any proceedings for an offence under this Act an allegation in
the prosecution notice --
(a) that an act occurred for a specified purpose; or
5 (b) that anything was done with a specified intent or
knowledge,
is, on proof of the act occurring or the thing being done and in
the absence of evidence to the contrary, taken to be proved.
(2) In any proceedings for an offence under this Act an allegation in
10 the prosecution notice of the following matters is, in the absence
of evidence to the contrary, taken to be proved --
(a) that a specified thing is or was intended or prepared for
supply or has been supplied;
(b) that the supply or intended supply of a specified thing
15 was to a specified market.
119. Evidence of authorisation and enforcement matters
(1) In proceedings for an offence under this Act, an allegation in the
prosecution notice of any of the following matters is, in the
absence of evidence to the contrary, taken to be proved --
20 (a) that the prosecutor is authorised to commence the
prosecution;
(b) that at a specified time a specified person was an
inspector or a person assisting an inspector under
section 92;
25 (c) that at a specified time a specified person was or was not
authorised to do a specified thing under an authorisation;
(d) that at a specified time a specified person was or was not
the holder of an authorisation;
(e) that at a specified time a place, conveyance or other
30 thing was or was not the subject of an authorisation or
exemption under this Act;
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Division 3 Evidentiary provisions
s. 120
(f) that at a specified time a specified person was or was not
the subject of an authorisation or exemption under
this Act;
(g) that at a specified time an authorisation or exemption
5 was cancelled, suspended or for any other reason of no
effect;
(h) that at a specified time an authorisation or exemption
was subject to any specified condition;
(i) that at a specified time a person held a specified office;
10 (j) that at a specified time a specified amount of costs,
charges or expenses was lawfully incurred for the
purposes of this Act;
(k) that at a specified time a prescribed fee had not been
paid;
15 (l) that something was derived from an organism alleged to
be involved in the commission of an offence, and that it
would not have been so derived but for the conduct
constituting the alleged offence;
(m) that at a specified time a specified thing was seized
20 under this Act;
(n) that at a specified time a person was or was not a
veterinary surgeon or a pharmaceutical chemist.
(2) In proceedings for an offence under this Act a notice,
authorisation or exemption, issued under this Act, including the
25 conditions applying to any such thing, may be proved by
tendering a copy of it certified by the Director General to be a
true copy of the original.
120. Evidence of scientific matters
(1) In this section --
30 "approved analyst" means an analyst, or an analyst in a class
of analyst, approved by the Director General to carry out
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Legal proceedings Part 5
Evidentiary provisions Division 3
s. 121
analysis for the purposes of this Act or specified provisions
of this Act.
(2) In any proceedings for an offence under this Act, a report by an
approved analyst is, in the absence of evidence to the contrary,
5 proof of --
(a) the identity of the thing analysed;
(b) the result of the analysis;
(c) the matters stated in the report; and
(d) the fact that the prescribed method, if any, for carrying
10 out the analysis has been followed by the analyst in
making the analysis.
(3) In any proceedings for an offence under this Act, a report by an
approved analyst that contains a statement that the sample was
taken under this Act is, in the absence of evidence to the
15 contrary, proof of the fact that --
(a) the sample was taken in the manner prescribed, if any;
and
(b) the sample was taken from the material identified in the
report as the material sampled.
20 (4) Where in any proceedings brought under this Act or otherwise
proof is given of the contents of any sample analysed under this
Act and that the sample was taken in accordance with the
regulations, the sample is to be taken to be representative of the
material sampled.
25 121. Evidence of type or class of organism or thing
In proceedings for an offence under this Act, an allegation in the
prosecution notice of any of the following matters is, in the
absence of evidence to the contrary, taken to be proved --
(a) that an organism is of a particular kind;
30 (b) that a thing is a potential carrier;
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Part 5 Legal proceedings
Division 3 Evidentiary provisions
s. 122
(c) that at a specified time a specified organism was a
permitted organism;
(d) that at a specified time a specified organism was a
prohibited organism;
5 (e) that at a specified time a specified organism was an
unlisted organism;
(f) that at a specified time a specified organism was a
declared pest;
(g) that at a specified time a specified organism was a
10 declared pest of a specified category;
(h) that a substance is or is not a chemical product of a
particular kind;
(i) that a substance is or is not an animal feed of a particular
kind or intended as an ingredient of an animal feed;
15 (j) that a substance is or is not a fertiliser;
(k) that a specified maximum residue limit was the relevant
maximum residue limit.
122. Documentary and signed evidence
(1) In proceedings for an offence under this Act, production of a
20 copy of --
(a) a code or other document that has been adopted by the
regulations;
(b) a code of practice; or
(c) a declaration made under section 10, 11 or 21(2),
25 certified by the Director General as a true copy as at any date or
during any period is proof of the contents of the code, document
or declaration as at that date or during that period.
(2) Unless the contrary is proved, it is to be presumed that a
document purporting to have been signed by the Minister, the
30 Director General, an inspector or an analyst appointed under the
regulations was signed by a person who at the time was the
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Legal proceedings Part 5
Evidentiary provisions Division 3
s. 123
Minister, the Director General, an inspector or an approved
analyst (as defined in section 120(1)), as the case may be.
(3) Unless the contrary is proved, it is to be presumed that a
document purporting to have been signed by a delegate of the
5 Minister or the Director General was signed by a person who at
the time was such a delegate and was authorised to sign it.
123. Evidence of documents and service
(1) In proceedings under this Act in which a document issued to a
party has to be proved --
10 (a) the party is to be taken to have received notice to
produce the document; and
(b) unless the contrary is proved --
(i) the document may be proved by the production
of a copy of the original document, certified by a
15 person authorised to issue the original as a true
copy of the original; and
(ii) due service of the document may be proved by
the certification of the person authorised to issue
the original document that the original was given
20 on the date specified in the certificate.
(2) The validity of any document or of its due service is not
affected by any error, misdescription or irregularity which does
not mislead or which is not likely to mislead.
124. Evidence of ownership or occupancy
25 (1) In proceedings under this Act, in addition to other methods of
proof available --
(a) evidence that the person proceeded against is rated
under the Local Government Act 1995 as the owner of
land; or
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Division 3 Evidentiary provisions
s. 124
(b) evidence by the certificate of --
(i) the Registrar of Titles, or an Assistant or Deputy
Registrar of Titles, that any person's name
appears in the Register under the Transfer of
5 Land Act 1893, as the owner of land;
(ii) the Registrar of Deeds and Transfers, or his or
her substitute, or an Assistant Registrar of Deeds
and Transfers, that a person appears from a
memorial of registration of a deed, conveyance
10 or other instrument, to be the owner of land;
(iii) the chief executive officer of the department of
the Public Service principally assisting in the
administration of the Mining Act 1978, that a
person is registered in that department as the
15 owner or occupier of land; or
(iv) the Executive Director of the Department of
Conservation and Land Management, that a
person is the holder of a permit, licence or lease
granted under the Conservation and Land
20 Management Act 1984 Part VIII, or regulations
made under that Act, in respect of land,
is, unless the contrary is proved, evidence that such
person is the owner or occupier, as the case may be, of
the land.
25 (2) All courts and all persons having by law, or by consent of
parties, authority to hear, receive and examine evidence, must,
for the purposes of this Act, take judicial notice of the signature
attached to a certificate referred to in subsection (1)(b).
(3) An averment in a claim, prosecution notice or other document in
30 proceedings under this Act that a person is or was at a specified
time, the owner or occupier of specified land is, in the absence
of evidence to the contrary, taken to be proved.
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Legal proceedings Part 5
Modified penalties for certain offences Division 4
s. 125
125. Provisions are in addition to the Evidence Act 1906
This Division is in addition to and does not affect the operation
of the Evidence Act 1906.
Division 4 -- Modified penalties for certain offences
5 126. Meaning of terms used in this Division
In this Division --
"alleged offender" means a person suspected of having
committed a prescribed offence;
"prescribed offence" means an offence under this Act, or
10 under any regulations or management plan made under this
Act, prescribed by the regulations to be an offence for
which an infringement notice may be issued.
127. Infringement notices
(1) An inspector who has reason to believe that a person has
15 committed a prescribed offence may, within 21 days after the
alleged offence is believed to have been committed, give an
infringement notice to the alleged offender.
(2) An infringement notice must --
(a) be in the prescribed form;
20 (b) contain a description of the alleged offence;
(c) advise that if the alleged offender does not wish to be
prosecuted for the alleged offence, the amount of money
specified in the notice as the modified penalty for the
offence may be paid to the Director General within
25 28 days after the date of the notice; and
(d) inform the alleged offender how and where the money
may be paid.
(3) In an infringement notice the amount specified as the modified
penalty for the alleged offence must be the amount that was the
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Part 5 Legal proceedings
Division 4 Modified penalties for certain offences
s. 128
prescribed modified penalty for that offence at the time that the
alleged offence is believed to have been committed.
(4) The Director General may, in a particular case, extend the
period of 28 days within which the modified penalty may be
5 paid and the extension may be allowed whether or not the
period of 28 days has elapsed.
128. Withdrawal of infringement notice
(1) The Director General may withdraw an infringement notice.
(2) To withdraw an infringement notice the Director General must
10 give the alleged offender a notice in the prescribed form stating
that the infringement notice has been withdrawn.
(3) An infringement notice may be withdrawn whether or not the
modified penalty specified in the notice has been paid.
(4) If an infringement notice is withdrawn after the modified
15 penalty has been paid, the amount paid must be refunded.
129. Effect of payment of modified penalty
(1) If the modified penalty specified in an infringement notice is
paid within 28 days or any further time allowed, and the notice
has not been withdrawn, the bringing of proceedings and the
20 imposition of penalties are prevented to the same extent as they
would be if the alleged offender had been convicted by a court
of, and punished for, the alleged offence.
(2) The payment of an amount as a modified penalty is not to be
regarded as an admission for the purposes of any proceedings,
25 whether civil or criminal.
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Biosecurity and Agriculture Management Bill 2005
Financial provisions Part 6
Declared Pest Account Division 1
s. 130
Part 6 -- Financial provisions
Division 1 -- Declared Pest Account
Subdivision 1 -- General
130. Meaning of terms used in this Division
5 In this Division --
"Commissioner" has the meaning given to that term by the
Taxation Administration Act 2003;
"operating account" means an operating account of the
department under the Financial Administration and Audit
10 Act 1985;
"owner" has the meaning given to that term in the Land Tax
Assessment Act 2002, and includes a person taken to be an
owner of land under section 8 of that Act;
"rate" means a rate determined in relation to land under
15 section 131(1);
"rate determination" means a determination under
section 131(1);
"rates amount" means an amount payable by way of rates
under this Division.
20 Subdivision 2 -- Rates imposed on land
131. Determination of rate
(1) The Minister may, by notice published in the Gazette, determine
a rate that is chargeable for a financial year on land in a
prescribed area.
25 (2) The rate is for the purposes of the Declared Pest Account.
(3) A rate determination must specify the land or the class of land
on which the rate is chargeable.
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Division 1 Declared Pest Account
s. 132
(4) Different rates may be determined in respect of different land
and different classes of land.
(5) The Minister may, in the exercise of the power under
subsection (1), exempt land from the application of the rate.
5 (6) To the extent (if any) that a rate is not a tax imposed by the
Biosecurity and Agriculture Management Rates and Charges
Act 2005, this Act imposes the rate.
(7) The Interpretation Act 1984 section 42 applies to a rate
determination as if the determination were a regulation.
10 132. Procedure for making rate determination
Before determining a rate chargeable on land, the Minister must
consult in accordance with the regulations with the owners of
the land, and other prescribed persons (if any).
133. Minimum and maximum rates
15 (1) The Minister may determine a flat rate, or an ad valorem rate,
chargeable on land.
(2) A flat rate must not exceed $200.
(3) The rates amount payable when calculated by applying the
ad valorem rate to the unimproved value of the land must not
20 exceed --
(a) in the case of land held under a pastoral lease, a sum
equal to 10% of the unimproved value of the land; and
(b) in any other case, a sum equal to 2% of the unimproved
value of the land.
25 (4) The Minister may determine the minimum rates amount payable
and the maximum rates amount payable, irrespective of the
amount payable when calculated by applying the ad valorem
rate to the land.
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Financial provisions Part 6
Declared Pest Account Division 1
s. 134
134. Rates amounts
(1) If a flat rate is determined in respect of land, the rates amount
payable is the amount determined as the rate.
(2) If an ad valorem rate is determined in respect of land, the rates
5 amount payable is, subject to section 133(4), the amount
calculated by applying the rate to the unimproved value of the
land.
(3) Rates amounts are payable to the Commissioner.
135. Application of Taxation Administration Act 2003 and Land
10 Tax Assessment Act 2002
(1) In this section --
"assessment notice" has the meaning given to that term by the
Taxation Administration Act 2003.
(2) The Commissioner does not have to issue an assessment notice
15 under the Taxation Administration Act 2003 section 23 if no tax
is payable under an exemption under section 131(5).
(3) The Taxation Administration Act 2003 Part 6 Divisions 1 and 2
and section 116(1) apply as if the references in those Divisions
and that section to land tax were references to a rates amount.
20 (4) The Land Tax Assessment Act 2002 sections 6, 7, 8, 9, 12, 13
and 43 apply as if the references in those sections to --
(a) "land tax" were references to a rates amount;
(b) "assessment year" were, in relation to a rateable amount,
a reference to the financial year for which the rateable
25 amount is, or is to be assessed;
(c) "taxable land" were references to land in respect of
which a rate is determined;
(d) "land tax Act" were a reference to --
(i) this Division;
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Part 6 Financial provisions
Division 1 Declared Pest Account
s. 136
(ii) the Biosecurity and Agriculture Management
Rates and Charges Act 2005; or
(iii) the Taxation Administration Act 2003, to the
extent that it relates to rateable amounts;
5 and
(e) "this Act" were references to this Division.
136. Postponement of rates payable by pensioners
(1) In this section --
"pensioner" means a person who holds a pensioner concession
10 card;
"pensioner concession card" means a currently valid card,
known by that name, issued on behalf of the
Commonwealth to the holder or, where a card of another
kind is prescribed for the purposes of this definition, that
15 other card.
(2) Subject to subsection (5), a person who is a pensioner may
claim to be exempt from liability for the payment of a rates
amount in respect of land of which the person is in actual
occupation as owner.
20 (3) On receipt of the claim the Commissioner must postpone the
payment of the rates amount to which the claim relates until the
person ceases to own the land or dies, whichever first occurs, or
until the person ceases to be entitled to be exempt from liability
for payment of rates amounts under this Division.
25 (4) Where the payment of a rates amount is postponed under
subsection (3), nothing in the Limitation Act 1935 or any Act
made in substitution for that Act prevents the Commissioner
from recovering any rates amount which but for this subsection
the Commissioner would have been prevented from so doing by
30 that Act.
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Financial provisions Part 6
Declared Pest Account Division 1
s. 137
(5) A person is not entitled to be exempt under this section from
liability for payment of a rates amount in respect of any land
if --
(a) the land is occupied by that person and a person who is
5 neither a pensioner nor a dependant of the
first-mentioned person; or
(b) the land is partly owned by that person and partly owned
by a person who is neither a pensioner nor a dependant
of the first-mentioned person.
10 Subdivision 3 -- Establishment and operation of Declared
Pest Account
137. Declared Pest Account
(1) An account called the Declared Pest Account must be
established --
15 (a) as an operating account; or
(b) as part of an operating account nominated by the
Director General.
(2) The following money must be credited to the Declared Pest
Account --
20 (a) rates collected under Subdivision 2;
(b) unpaid rates recovered by the Commissioner under the
Taxation Administration Act 2003 section 60;
(c) amounts appropriated under section 139 in connection
with a rate determination made for the purposes of the
25 Account;
(d) the proceeds of the sale of any capital asset purchased
using moneys from the Account;
(e) any other amounts lawfully received by the Director
General for the purposes of the Account.
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Part 6 Financial provisions
Division 1 Declared Pest Account
s. 138
138. Use of funds in Declared Pest Account
Money may be debited to the Declared Pest Account for the
following purposes --
(a) to carry out measures to control declared pests on and in
5 relation to prescribed land in prescribed situations (if
any);
(b) to promote public awareness of the measures being
taken or required to be taken to control declared pests;
(c) to purchase capital assets required in connection with
10 the purposes mentioned in paragraphs (a) and (b);
(d) the payment of the costs of assessing and collecting
rates under Subdivision 2 as determined by the
Commissioner;
(e) the credit of amounts under section 139(3).
15 139. Appropriations against the Consolidated Fund
(1) For each financial year for which a rate is determined for the
purposes of the Declared Pest Account, an amount equal to the
rates amounts collected by the Commissioner under the rate
determination is charged to the Consolidated Fund, which this
20 subsection appropriates accordingly.
(2) Despite any other law, for the purposes of this section the
amount of rates treated as having been collected by the
Commissioner in a financial year is to be the amount of the rates
which becomes payable in that financial year.
25 (3) If the Commissioner refunds under the Taxation Administration
Act 2003 section 54 an amount collected by the Commissioner
under this Division, an equivalent amount must be credited to
the Consolidated Fund from the Declared Pest Account.
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Financial provisions Part 6
Industry funding schemes Division 2
s. 140
Division 2 -- Industry funding schemes
140. Terms used in this Division
In this Division --
"management committee" means a management committee
5 established by regulations made under section 141(1)(b);
"prescribed account" means an account established by
regulations made under section 141(1)(a).
141. Establishment of accounts, management committees and
schemes
10 (1) The Governor may make regulations establishing --
(a) an account for a sector of agricultural activity specified
in the regulations;
(b) a management committee for the account consisting of
producers from that sector of agricultural activity; and
15 (c) a scheme requiring or facilitating the payment of
contributions to the account.
(2) Before the regulations are made, the Minister must consult
with --
(a) each organisation (if any) that is prescribed for the
20 purposes of this section;
(b) any other association, union or body that in the opinion
of the Minister is representative of the interests of
producers from the sector of agricultural activity for
which the account is to be established; and
25 (c) such producers from the sector of agricultural activity
for which the account is to be established as the Minister
thinks fit.
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Part 6 Financial provisions
Division 2 Industry funding schemes
s. 142
142. Constitution and administration of prescribed accounts
(1) A prescribed account consists of --
(a) contributions paid or collected in accordance with the
regulations for the purposes of the prescribed account;
5 (b) the proceeds of the sale of any capital assets purchased
using moneys from the prescribed account;
(c) income of the prescribed account from investment; and
(d) any other moneys lawfully paid into the prescribed
account.
10 (2) A prescribed account must be --
(a) identified as an account for the purpose for which it is
established; and
(b) established as an operating account, or part of an
operating account nominated by the Director General.
15 143. Management committee
(1) A management committee must --
(a) advise the Director General on the administration of the
prescribed account; and
(b) exercise such other functions (if any) as are conferred on
20 the management committee under the regulations.
(2) The regulations establishing a management committee may
make provision as to the constitution and procedures of the
management committee.
(3) Except as provided under this Act, a management committee
25 may determine its own procedures.
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Financial provisions Part 6
Industry funding schemes Division 2
s. 144
144. Contributions to account -- prescribed scheme
(1) A scheme established by regulations made under
section 141(1)(c) may provide for --
(a) members of the sector of agricultural activity for which
5 the account was established to make contributions to the
account in the manner and on the basis prescribed; and
(b) the manner of collection of contributions to the account.
(2) The scheme may provide for the circumstances in which
contributions to the account will be refunded.
10 (3) The scheme may allow for the costs of collecting contributions
to be deducted from or paid out of those contributions.
(4) If the regulations provide for the expiry of the regulations on a
fixed day, the regulations may make provisions of a savings or
transitional nature that are to apply on the expiry of regulations.
15 145. Application of prescribed account
(1) A prescribed account may be applied for --
(a) any of the following purposes, if that purpose is set out
in the regulations establishing the account --
(i) the payment of compensation to the owner of an
20 animal, agricultural product or other thing
specified by the regulations that has been
destroyed under this Act because it is infected or
infested with a declared pest specified by the
regulations establishing the account;
25 (ii) the payment of compensation to the owner of an
animal or plant that has died because of infection
or infestation by a declared pest specified by the
regulations establishing the account;
(iii) the costs and expenses of destroying animals,
30 agricultural products or things referred to in
subparagraph (i);
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Part 6 Financial provisions
Division 2 Industry funding schemes
s. 145
(iv) the costs of programs and other measures
approved by the management committee for the
control of a declared pest specified by the
regulations establishing the account;
5 (v) the purchase of capital assets required in
connection with the purposes mentioned in this
paragraph;
(b) the refund of contributions in prescribed circumstances;
(c) the payment of any amount required to be paid under
10 section 146(3) and interest on that amount;
(d) the repayment of an amount charged to the Consolidated
Fund and used for the purpose of controlling a declared
pest specified by the regulations establishing the
account; and
15 (e) the expenses and costs of administering the account.
(2) Compensation and costs and expenses must not be paid under
subsection (1)(a)(i) to (ii) except to an owner who has paid
contributions under the scheme in accordance with the
regulations.
20 (3) The amounts of compensation and costs and expenses referred
to in subsection (1)(a)(i) to (ii) must be determined in
accordance with the regulations.
(4) The amount of costs payable under subsection (1)(c) and (e)
must be approved by the management committee.
25 (5) The amount referred to in subsection (1)(d) may be applied as
set out in that paragraph even though the amount was charged to
the Consolidated Fund before the regulations establishing the
account were made.
(6) The regulations may exclude a person from receiving
30 compensation and costs and expenses from the prescribed
account --
(a) if the person is, according to the regulations, in default;
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Financial provisions Part 6
Industry funding schemes Division 2
s. 146
(b) if the person has been convicted of an offence of failing
to comply with a requirement under a written law to
report the presence or suspected presence of a prescribed
declared pest or to control a prescribed declared pest;
5 (c) if a like benefit is payable under another specified
written law; and
(d) in other prescribed circumstances.
146. Treasurer may make advances to a prescribed account in
event of a deficiency
10 (1) Where the Treasurer is of the opinion that the moneys standing
to the credit of a prescribed account are not sufficient to meet
payments required in accordance with a scheme set out in the
regulations, the Treasurer may advance to the prescribed
account moneys sufficient for the time being to make up the
15 deficiency.
(2) The Treasurer may impose conditions on a payment under
subsection (1), including conditions on the payment of interest,
as the Treasurer considers appropriate.
(3) Moneys paid under subsection (1) must be repaid to the
20 Treasurer and charged to the relevant prescribed account by the
Director General when moneys are available to the account to
make repayment.
(4) Moneys paid under subsection (1), so long as they are not repaid
under subsection (3), are a charge on the relevant prescribed
25 account.
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Biosecurity and Agriculture Management Bill 2005
Part 6 Financial provisions
Division 3 Modified Penalties Revenue Account
s. 147
147. Review of regulations
(1) The Minister must carry out a review of the operation and
effectiveness of any regulations made for the purposes of
establishing a prescribed account as soon as is practicable
5 after --
(a) the fifth anniversary of the day on which the regulations
commence, or such earlier day as is specified in the
regulations; and
(b) every fifth anniversary of that day, or such earlier day as
10 is specified in the regulations.
(2) The Minister must prepare a report based on the review and
must cause it to be laid before each House of Parliament as soon
as is practicable after the report is prepared, and in any event not
later than 12 months after the requirement for the review arose.
15 Division 3 -- Modified Penalties Revenue Account
148. Modified Penalties Revenue Account
(1) An account called the Modified Penalties Revenue Account
must be established --
(a) as an operating account; or
20 (b) as part of an operating account nominated by the
Director General.
(2) The following must be credited to the Modified Penalties
Revenue Account --
(a) money received by the Director General as payment of
25 modified penalties;
(b) any other money received by the Director General in
connection with infringement notices given under
section 127;
(c) any other money lawfully payable to the account.
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Financial provisions Part 6
Modified Penalties Revenue Account Division 3
s. 149
149. Use of funds in Modified Penalties Revenue Account
(1) Money may be debited to the Modified Penalties Revenue
Account for any or all of the following purposes --
(a) the enforcement of this Act, including the operation of
5 the infringement notice system under Part 5 Division 4;
(b) the training of inspectors;
(c) the cost of measures to control declared pests;
(d) the cost of programs to promote public awareness of the
requirements of this Act;
10 (e) purposes approved by the Minister.
(2) The amount that is to be debited to the Modified Penalties
Revenue Account for the purposes referred to in
subsection (1)(a), (b), (c) and (d) must be determined annually
by the Director General and no other amount may be debited to
15 the account for those purposes.
(3) No amount may be debited to the Modified Penalties Revenue
Account for a purpose referred to in subsection (1)(e) except as
determined by the Minister.
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Biosecurity and Agriculture Management Bill 2005
Part 7 Administration
Division 1 The Minister and the Agriculture Ministerial Body
s. 150
Part 7 -- Administration
Division 1 -- The Minister and the Agriculture
Ministerial Body
150. Agriculture Ministerial Body
5 (1) The Agriculture Ministerial Body is established.
(2) The Ministerial Body is a body corporate with perpetual
succession.
(3) Proceedings may be taken by or against the Ministerial Body in
its corporate name.
10 (4) The Ministerial Body is to be governed by the Minister.
(5) The Ministerial Body is an agent of the State and has the status,
immunities, and privileges of the State.
151. Purpose and nature of Ministerial Body
(1) The Ministerial Body is established to provide a body corporate
15 through which the Minister can perform any of the Minister's
functions under this Act or any other Act that can more
conveniently be performed by a body corporate than an
individual.
(2) Despite the employment under the Public Sector Management
20 Act 1994 of ministerial officers for the purpose of assisting the
Minister to perform functions that the Minister performs
through the Ministerial Body, the Ministerial Body and those
officers are not an organisation for the purposes of that Act.
152. Powers of Minister
25 (1) In this section --
"acquire" includes taking on lease or licence or in any other
manner in which an interest in property may be acquired;
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Administration Part 7
The Minister and the Agriculture Ministerial Body Division 1
s. 153
"business arrangement" means a company, a partnership, a
trust, a joint venture, or an arrangement for sharing profits;
"dispose of " includes dispose of by way of lease;
"participate" includes form, promote, establish, enter, manage,
5 dissolve, wind-up, and do anything incidental to
participating in a business arrangement;
"property" means property of every kind, whether real or
personal, tangible or intangible, corporeal or incorporeal,
and any interest in property.
10 (2) The Minister may, for the purpose of furthering the best
interests of biosecurity or agriculture management --
(a) acquire, hold, manage, improve, develop and dispose of
property or an interest in property;
(b) subject to section 153, participate in any business
15 arrangement and acquire, hold and dispose of shares,
units or other interests in, or relating to, a business
arrangement;
(c) enter into a contract or arrangement;
(d) turn to account any resource or intellectual property that
20 is vested in the Minister; and
(e) use the expertise and resources of the department to
provide consultancy, advisory or other services for
profit.
(3) In exercising any power under this section the Minister may act
25 in conjunction with --
(a) any person or firm, or public authority; or
(b) any department of the Public Service, or any agency, of
the Commonwealth.
153. Treasurer to consider proposals under section 152(2)(b)
30 (1) Before the Minister exercises any power conferred by
section 152(2)(b) the Minister must --
(a) notify the Treasurer of the proposal; and
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Biosecurity and Agriculture Management Bill 2005
Part 7 Administration
Division 1 The Minister and the Agriculture Ministerial Body
s. 154
(b) seek the Treasurer's approval to it,
unless it is of a kind that the Treasurer has determined in writing
need not be so notified or is of a kind referred to in section 155.
(2) If the Treasurer approves the proposal, the Treasurer may
5 impose requirements to be complied with by the Minister in
connection with it.
(3) The Treasurer may also give directions to be complied with
generally by the Minister in the exercise of the powers referred
to in subsection (1).
10 154. Intellectual property
(1) Without limiting section 152, the Minister may make
applications for the grant of letters patent or the registration of
designs, or take other measures necessary or convenient for
protecting intellectual property rights or similar rights.
15 (2) Any intellectual property right that is created, acquired or held
for the purposes of this section is vested in the Minister.
155. Minister may join any body formed for research activities
(1) Subject to this Act the Minister may --
(a) become a member of or shareholder in; and
20 (b) contribute funds to,
any body whether incorporated or not (in this section referred to
as "the body") which --
(c) has its principal office within the Commonwealth; and
(d) has among its principal objects the carrying out of
25 research, investigation, inquiries or studies into
biosecurity, an agricultural activity or related matter
within the Commonwealth.
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Administration Part 7
The Minister and the Agriculture Ministerial Body Division 1
s. 156
(2) The Minister may be represented on the body by any officer of
the department authorised in that behalf in writing by the
Minister.
(3) The Minister may --
5 (a) take part in any activities of the body;
(b) carry out any function, investigation and research for or
on behalf of the body either alone or in association with
any other person appointed by the body; and
(c) contribute to the costs of any activity carried on by the
10 body or by any person on its behalf.
156. Execution of documents by Ministerial Body
(1) The Ministerial Body is to have a common seal.
(2) A document is duly executed by the Ministerial Body if --
(a) the common seal of the Ministerial Body is affixed to it
15 in accordance with subsections (3) and (4);
(b) it is signed on behalf of the Ministerial Body by the
Minister; or
(c) it is signed on behalf of the Ministerial Body, as
authorised under subsection (5), by the Director General
20 or another person.
(3) The common seal of the Ministerial Body is not to be affixed to
a document except as authorised by the Ministerial Body.
(4) The common seal of the Ministerial Body is to be affixed to a
document in the presence of the Minister, and the Minister is to
25 sign the document to attest that the common seal was so affixed.
(5) The Ministerial Body may, by writing under its seal, authorise
the Director General or another person to sign documents on
behalf of the Ministerial Body, either generally or subject to any
conditions or restrictions specified in the authorisation.
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Part 7 Administration
Division 1 The Minister and the Agriculture Ministerial Body
s. 157
(6) A document purporting to be executed in accordance with this
section is to be presumed to be duly executed until the contrary
is shown.
(7) A document executed by the Director General or another person
5 under this section without the common seal of the Ministerial
Body is not to be regarded as a deed unless it is executed as a
deed as authorised under subsection (5).
(8) When a document is produced bearing a seal purporting to be
the common seal of the Ministerial Body, it is to be presumed
10 that the seal is the common seal of the Ministerial Body until
the contrary is shown.
(9) For the purposes of this Act, a facsimile of --
(a) the Ministerial Body's seal; or
(b) the signature of the Minister or a person authorised
15 under subsection (5) to execute deeds or other
documents,
may be used, and a deed or other document purporting to be
endorsed with such a facsimile is, until the contrary is shown, to
be regarded as bearing the facsimile under this subsection.
20 157. Accountability under this Division
Any acts or things done by the Minister under this Division are
to be regarded --
(a) as services under the control of the department for the
purposes of the Financial Administration and Audit
25 Act 1985 section 52; and
(b) operations of the department for the purposes of Part II
Division 13 of that Act.
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Biosecurity and Agriculture Management Bill 2005
Administration Part 7
Compiling and publishing essential information Division 2
s. 158
Division 2 -- Compiling and publishing essential information
158. Publication of certain declarations
(1) In this section --
"declaration" means a declaration made under section 10, 11
5 or 21(2).
(2) A declaration is not subsidiary legislation for the purposes of
the Interpretation Act 1984.
(3) The Interpretation Act 1984 sections 43 (other than
subsection (6)) and 44 and Part VIII apply to a declaration as if
10 it were subsidiary legislation.
(4) Publication of a declaration may be effected --
(a) by publishing the declaration in the Gazette; or
(b) by publishing in the Gazette a notice stating that the
declaration has been made and that particulars of the
15 declaration may be obtained from the head office of the
department and the department's electronic site.
159. Records of status of various organisms
The Director General must establish and maintain the
following --
20 (a) a list of all organisms for which a declaration under
section 10 is in force (permitted organisms);
(b) a list of all organisms for which a declaration under
section 11 is in force (prohibited organisms and declared
pests for the whole of the State), including lists of the
25 categories, if any, to which the organisms are assigned;
(c) a list of all organisms for which a declaration under
section 21(2) is in force (declared pests), including lists
of the categories, if any, to which the organisms are
assigned.
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Biosecurity and Agriculture Management Bill 2005
Part 7 Administration
Division 2 Compiling and publishing essential information
s. 160
160. The department's electronic site
The Director General must establish and maintain an electronic
site for the purposes of this Act.
161. Information available on department's electronic site
5 (1) Particulars of the following must be published on, or accessible
through, the department's electronic site --
(a) the permitted organisms list;
(b) the conditions (if any) that apply to importing a
permitted organism or a prescribed potential carrier;
10 (c) the prohibited organisms list;
(d) information about how to apply for an import permit;
(e) a list of declared pests under section 21(2), including the
areas in which the pests are declared and the categories,
if any, to which the declared pests are assigned;
15 (f) any code or subsidiary legislation adopted by
regulations under section 190 and any amendments
made to it from time to time that have been adopted;
(g) each code of practice issued or approved under
section 192;
20 (h) information prescribed by the regulations (if any).
(2) The Director General may publish other information on the
department's electronic site.
162. Availability of published information
The Director General must ensure that all information that is
25 required under this Act to be published on the department's
electronic site is available at all reasonable times for perusal, at
no cost to a member of the public --
(a) on the department's electronic site; and
(b) at the head office of the department.
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Biosecurity and Agriculture Management Bill 2005
Administration Part 7
Inspectors Division 3
s. 163
Division 3 -- Inspectors
163. Appointment of inspectors
(1) In this section --
"criminal record check", in relation to a person, means a
5 document issued by the Police Force of Western Australia,
the Australian Federal Police or the police force of another
State or a Territory that sets out the criminal convictions (if
any) of the person for offences under the law of the State,
the Commonwealth or the other State or Territory.
10 (2) The Director General may, by instrument in writing, appoint a
person as an inspector.
(3) An appointment must not be made for a period longer than
5 years, but a person may be reappointed as an inspector for a
further term.
15 (4) The appointment of an inspector may specify that the
appointment is subject to conditions or restrictions relating to --
(a) the functions that may be performed by the inspector; or
(b) when, where and in what circumstances the inspector
may perform the functions of an inspector.
20 (5) The Director General may obtain a criminal record check for a
person --
(a) before deciding whether or not to appoint or reappoint
the person as an inspector; and
(b) at any time while the person's appointment as an
25 inspector is in force.
164. Director General has functions of inspector
The Director General --
(a) has and may perform all of the functions of an inspector;
and
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Biosecurity and Agriculture Management Bill 2005
Part 7 Administration
Division 4 Quarantine facilities, inspection points and other premises
s. 165
(b) when performing those functions, has all the immunities
of an inspector.
165. Identification cards
(1) The Director General must issue an identification card
5 containing the prescribed details to each inspector appointed
under section 163.
(2) An inspector must --
(a) carry his or her identification card while performing
functions under this Act; and
10 (b) if it is practicable to do so, produce it before exercising a
power of an inspector under this Act.
(3) If the holder of an identification card issued under
subsection (1) stops being an inspector, the person must return
the card to the Director General as soon as is practicable.
15 (4) A person who contravenes subsection (3) without reasonable
excuse, the onus of proving which is on the person, commits an
offence.
Penalty: a fine of $400.
Division 4 -- Quarantine facilities, inspection points and
20 other premises
166. Arrangements for provision of quarantine facilities
The Director General may make arrangements with any public
authority or other person for the provision of a secure place that
can be used, in accordance with the regulations, as a quarantine
25 facility.
167. Inspection points
The Director General may, by notice in the Gazette, designate a
place named or described in the notice as an inspection point for
the purposes of this Act.
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Biosecurity and Agriculture Management Bill 2005
Administration Part 7
Advisory groups and recognised biosecurity groups Division 5
s. 168
168. Use of other premises
The Director General may make arrangements with any public
authority or other person to use the person's premises for the
purposes of this Act.
5 Division 5 -- Advisory groups and recognised
biosecurity groups
169. Advisory groups
(1) The Minister, by instrument signed by the Minister, may
appoint persons to constitute an advisory group.
10 (2) A person is eligible for appointment if the person has a general
or specific interest, or expertise, in a matter regulated under
this Act.
(3) An advisory group has such advisory functions as are specified
in the instrument made under subsection (1).
15 (4) The Minister may, by instrument signed by the Minister, amend
or cancel an instrument made under subsection (1).
170. Recognised biosecurity groups
(1) The Minister, by instrument signed by the Minister, may with
the consent of an existing body of persons, recognise the body
20 as a biosecurity group for the purposes of this section.
(2) A body is eligible for recognition if the body is established for a
purpose which includes controlling declared pests in a specified
area.
(3) The Minister may, by instrument signed by the Minister, amend
25 or cancel an instrument made under subsection (1).
171. Funds available to recognised biosecurity groups
(1) The Minister may, with the consent of a body recognised under
section 170, authorise the Director General to transfer money to
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Division 5 Advisory groups and recognised biosecurity groups
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the body from the Declared Pest Account for a purpose referred
to in section 138(a).
(2) The purpose for which money is transferred under
subsection (1) must relate to the area for which the rates
5 included in the money were collected under Part 6 Division 1
Subdivision 2.
(3) The Director General must give the body written notice of the
transfer specifying --
(a) the purposes for which the money is to be used;
10 (b) directions to the body as to --
(i) the use of the money for those purposes; and
(ii) reporting to the Director General on the use of
the money;
and
15 (c) the period within which those purposes are to be
accomplished.
(4) The Director General may, by notice in writing, vary the
purposes or directions specified in a notice of transfer given
under subsection (3) and may extend the period within which
20 the purposes are to be accomplished.
(5) The body must use the money for the purposes specified in the
notice under subsection (3) --
(a) within the specified period, or within any further time
allowed by the Director General; and
25 (b) in accordance with the specified directions.
Penalty: a fine of $10 000.
(6) If a body does not use any or all of the money in accordance
with subsection (5) --
(a) the body must pay an amount equal to the amount that
30 was not spent in accordance with that subsection to the
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s. 172
Director General within such time as is specified by the
Director General; and
(b) the Director General must credit the amount to the
Declared Pest Account.
5 (7) If a body does not comply with subsection (6), an amount equal
to the amount that was not spent in accordance with
subsection (5) is recoverable from the body in a court of
competent jurisdiction as a debt due to the State.
172. Publication of report by recognised biosecurity group
10 Any report made to the Director General pursuant to directions
under section 171 must be published on the department's
electronic site.
Division 6 -- Service of documents
173. Service on the Director General
15 A document may be given to the Director General --
(a) by lodging the document at the Director General's
office;
(b) by prepaid post;
(c) if the regulations authorise service of the document
20 under this paragraph -- by faxing a copy of the
document to a fax number stated in the regulations; or
(d) if the regulations authorise service of the document
under this paragraph -- by sending computer data from
which the document can be reproduced, in a format
25 prescribed by the regulations, to an address for the
receipt of electronic mail prescribed by the regulations.
174. Method of service
(1) A document required or authorised to be given under this Act
may be given to a person by --
30 (a) giving it to the person personally;
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(b) leaving it at the person's place of residence or business;
(c) sending it by prepaid post (including document
exchange) addressed to the person --
(i) in accordance with the Interpretation Act 1984
5 section 75;
(ii) at an address appearing on recent correspondence
addressed by or on behalf of the person to the
Director General or otherwise notified to the
Director General or published by the person; or
10 (iii) at an address shown in the rate book kept by a
local government under the Local Government
Act 1995 as the address for the service of rate
notices under that Act on that person;
(d) faxing it or emailing it to a fax number or email address
15 provided by the person or appearing on recent
correspondence addressed by or on behalf of the person
to the Director General or otherwise notified to the
Director General or published by the person; or
(e) communicating it in some other way agreed with the
20 person.
(2) Where an address for service cannot be discovered under
subsection (1), the document may be given by advertising the
document at least twice in a newspaper circulating throughout
the State, an interval of at least a week being allowed to elapse
25 between the advertisements.
(3) Service under subsection (2) is to be regarded as effective
whether the notice comes or does not come to the hands or
knowledge of the person for whom it was intended.
175. Alternate methods of service or issue of documents
30 (1) If a person on whom it is desired to serve a document relating to
land is not within the State and has not notified the Director
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s. 176
General of an agent authorised to accept documents on behalf of
the person, then the document may be given to the owner by --
(a) affixing or displaying it on or over a conspicuous part of
the land, and leaving it so affixed or displayed for at
5 least 14 days; and
(b) posting it to the person appearing to be the owner on
search made in the Department within the meaning of
the Transfer of Land Act 1893, the Land Administration
Act 1997 or the Mining Act 1978, or the Register of
10 Deeds, as the case may be, addressed to the person at the
person's place of residence or business, as disclosed by
the search.
(2) An agent of an owner who is absent from the State is to be taken
to represent the agent's principal for the purposes of this Act, so
15 far as regards land which --
(a) the agent is authorised to manage or hold possession; or
(b) the rents and profits of which the agent is authorised to
collect on behalf of the owner.
(3) Service on a person who is taken to represent an owner under
20 subsection (2) of --
(a) a document required or authorised to be given to the
owner under this Act; or
(b) a summons or legal process for the recovery of money
payable by the owner in respect of land under this Act,
25 is to be regarded as effective service on the owner.
176. Service of notice by publication
(1) Without limiting sections 174 and 175, a pest exclusion notice
or a pest control notice may be given by publishing a copy of
the notice in the Gazette and in a newspaper circulating
30 generally in the area where the land, premises or thing to which
the notice relates is situated.
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(2) A notice given under subsection (1) must be published not less
than one month before the date specified in the notice as the
date on or before which the person to whom the notice is given
must commence to comply with the notice.
5 (3) A notice given under subsection (1) --
(a) may be directed to any number of owners or occupiers
of land or other persons; and
(b) is to be taken to be given to the owner and occupier of
any land specified in the notice, and to the owner and
10 occupier, and any person in control or management, of
any premises or any other thing specified in the notice.
177. Service where more than one occupier or owner
(1) If land is owned or occupied by 2 or more owners or occupiers,
the owners or occupiers may, by writing to the Director
15 General, nominate the address of one of them, or the address of
their agent, as their address for service for the purposes of
this Act.
(2) If land is owned or occupied by 2 or more owners or
occupiers --
20 (a) if the owners or occupiers have nominated an address
for service under subsection (1), service by the Director
General of a document on them may be effected by
serving it at that address;
(b) if no nomination is made under subsection (1), service
25 by the Director General of a document on the owners or
the occupiers may be effected by serving it on one
owner or one occupier; and
(c) when service is effected in accordance with
paragraph (a) or (b), the document is to be taken to have
30 been given to each owner or each occupier, as the case
requires.
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(3) If an occupier of land, who is not the owner of the land, is
served with a document under this Act, the occupier must
inform the owner of the fact as soon as practicable after being
served.
5 Penalty: a fine of $2 000.
(4) Non-service on the owner does not affect the validity of service
on the occupier, nor does non-service on the occupier affect the
validity of service on the owner.
178. Time of service
10 (1) Except where a document is sent by post to an address outside
of Western Australia, given personally or the contrary is proved,
a document is taken to be given on the business day following
the day on which the document was sent by post, faxed or
emailed to, or left for, the person to whom it was addressed.
15 (2) A document sent by post to an address within Australia but
outside Western Australia is taken to be given on the business
day 5 days after the day on which the document was sent to the
person to whom it is addressed.
(3) A document sent by post to an address outside Australia is taken
20 to be given on the business day 10 days after the day on which
the document was sent to the person to whom it is addressed.
179. Description of person or land
(1) A document required by this Act to be given to the owner or
occupier of any land may, if the name of the owner or occupier
25 is not known, be addressed to the owner or occupier by the
description of the "owner" or "occupier" of the land, describing
it, in respect of which the notice is given, without further name
or description.
(2) In a document a description of the land affected by it is
30 sufficient if the description allows of no reasonable doubt as to
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s. 180
the land affected, despite the description not particularly
defining the land.
180. Documents binding on subsequent owners and occupiers
A document required or authorised under this Act to be served
5 on an owner or occupier is, if service has been made on an
owner or occupier, binding on every subsequent owner or
occupier to the same extent as if the document had been served
on each subsequent owner or occupier.
181. Non-exclusivity of this Division
10 The provisions of this Division are in addition to, and do not
derogate from, other provisions of an enactment for facilitating
the giving of documents.
Division 7 -- General
182. Delegation by Minister
15 (1) The Minister may delegate to the Director General or some
other officer of the department any power or duty of the
Minister under another provision of this Act.
(2) The delegation must be in writing signed by the Minister.
(3) Without limiting the things that may be delegated under
20 subsection (1), they include things that are to be done in the
course of governing the affairs of the Ministerial Body under
section 150(4).
(4) If a power or duty is delegated to the Director General, the
delegation may expressly authorise the Director General to
25 further delegate the power or duty.
(5) A person exercising or performing a power or duty that has been
delegated to the person under, or as authorised under, this
section, is to be taken to do so in accordance with the terms of
the delegation unless the contrary is shown.
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(6) Nothing in this section limits the ability of the Minister to
perform a function through an officer or agent.
183. Delegation by Director General
(1) The Director General may delegate to a person any power or
5 duty of the Director General under another provision of this Act.
(2) The delegation must be in writing signed by the Director
General.
(3) If a power or duty is delegated to a chief executive officer, the
delegation may expressly authorise the chief executive officer to
10 further delegate the power or duty.
(4) A person exercising or performing a power or duty that has been
delegated to the person under, or as authorised under, this
section, is to be taken to do so in accordance with the terms of
the delegation unless the contrary is shown.
15 (5) Nothing in this section limits the ability of the Director General
to perform a function through an officer or agent.
184. Arrangements with corresponding authorities
(1) In this section --
"corresponding administrator" means a person who is
20 responsible for the day to day administration of a
corresponding law;
"corresponding law", in relation to a written law of the State,
means a law of the Commonwealth, another State or a
Territory that corresponds to the written law of the State;
25 "corresponding Minister" means a Minister of the Crown of
the Commonwealth, another State or a Territory to whom
the administration of a corresponding law of the
Commonwealth, State or Territory is for the time being
committed.
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(2) The Minister or the Director General may make arrangements
with a corresponding Minister or corresponding administrator
respectively about any or all of the following --
(a) recognising import and export certificates issued under
5 the regulations or under a corresponding law;
(b) recognising quality assurance schemes approved or
established under this Act or a corresponding law;
(c) the use for the purposes of this Act of inspection
facilities provided in another State or a Territory;
10 (d) the use for the purposes of a corresponding law of
inspection facilities provided in the State;
(e) the inspection or treatment of a consignment of goods or
potential carrier before it is imported;
(f) payment to a corresponding administrator for costs
15 incurred by the administrator for the purposes of
this Act.
(3) The Director General may recover from an importer or
intending importer, as a debt due, any costs incurred in relation
to the inspection of imported goods, or goods intended to be
20 imported, whether the costs are incurred directly or by way of
payment under subsection (2)(f).
185. Information sharing
(1) In this section --
"authorised officer" means an officer designated under
25 subsection (2);
"guidelines" means guidelines issued under subsection (7);
"information sharing agency" means --
(a) the department principally assisting in the
administration of this Act;
30 (b) the department principally assisting in the
administration of the Health Act 1911;
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General Division 7
s. 185
(c) the department principally assisting in the
administration of the Animal Welfare Act 2002;
(d) the department principally assisting in the
administration of the Environmental Protection
5 Act 1986;
(e) the department principally assisting in the
administration of the Fish Resources Management
Act 1994;
(f) the department principally assisting in the
10 administration of the Wildlife Conservation Act 1950;
(g) the department principally assisting in the
administration of the Conservation and Land
Management Act 1984;
(h) the Police Force;
15 (i) a public authority prescribed for the purposes of this
definition;
"officer", in relation to an information sharing agency,
means --
(a) an officer or employee in or of the agency; or
20 (b) if the agency is the Police Force -- a member of the
Police Force;
"relevant information" means information relevant to the
administration or enforcement of this Act.
(2) The Director General may designate an officer of the
25 department as an authorised officer for the purposes of this
section.
(3) An officer of the department may, in accordance with the
guidelines, disclose relevant information to --
(a) another officer of the department; or
30 (b) an officer of another information sharing agency.
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Division 7 General
s. 186
(4) An authorised officer may, in accordance with the guidelines,
request a public authority which or who holds relevant
information to disclose the information to the authorised officer.
(5) Information may be disclosed under subsection (3), or in
5 compliance with a request under subsection (4), despite any law
of the State relating to secrecy or confidentiality.
(6) If information is disclosed, in good faith, under subsection (3),
or in compliance with a request under subsection (4) --
(a) no civil or criminal liability is incurred in respect of the
10 disclosure;
(b) the disclosure is not to be regarded as a breach of any
duty of confidentiality or secrecy imposed by law; and
(c) the disclosure is not to be regarded as a breach of
professional ethics or standards or as unprofessional
15 conduct.
(7) The Director General must issue guidelines as to the disclosure
of information under subsection (3) and the requesting of
information under subsection (4).
(8) The regulations may include provisions about --
20 (a) receiving and storing information disclosed for the
purposes of this Act; and
(b) restricting access to such information.
186. Results and other matters may be published
(1) If the Director General thinks it desirable to do so in the public
25 interest, the Director General may publish in any manner the
following --
(a) the results of the analysis of any organism, agricultural
product, animal feed, fertiliser or other substance or
thing under this Act;
30 (b) a matter prescribed for the purposes of this section.
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(2) A publication under subsection (1) may include any or all of the
following --
(a) the name and address or place of business of any person
to whom the published matter relates;
5 (b) other particulars and explanation or comment relating to
the published matter;
(c) other prescribed particulars.
(3) No liability is incurred by a person --
(a) for a publication under this section; or
10 (b) for republishing the publication or publishing a fair
report or summary of the publication.
187. Immunity from tortious liability
(1) In this section --
"official" means --
15 (a) the Minister;
(b) the Ministerial Body;
(c) the Director General;
(d) an inspector; or
(e) a person employed in the department.
20 (2) In this section, a reference to the doing of anything includes a
reference to an omission to do anything.
(3) An action in tort does not lie against an official for anything that
the official has done, in good faith, in the performance or
purported performance of a function under this Act.
25 (4) The protection given by subsection (3) applies even though the
thing done as described in that subsection may have been
capable of being done whether or not this Act had been enacted.
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Division 7 General
s. 187
(5) The Crown is also relieved of any liability that it might
otherwise have had for another person having done anything as
described in subsection (3).
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Regulations, codes of practice and local laws Part 8
s. 188
Part 8 -- Regulations, codes of practice and local laws
188. Regulations -- general power
(1) The Governor may make regulations prescribing all matters that
are required or permitted to be prescribed under this Act, or that
5 are necessary or convenient to be prescribed for giving effect to
the purposes of this Act.
(2) Without limiting subsection (1), regulations may provide for,
authorise, prescribe, require, prohibit, restrict or otherwise
regulate all or any of the matters set out in Schedule 1.
10 (3) Regulations made under subsection (1) may authorise any
matter or thing to be from time to time determined, approved,
applied or regulated by the Minister or the Director General.
189. Regulations prescribing high impact organisms
The regulations may prescribe a prohibited organism as a high
15 impact organism only if the Governor is satisfied that --
(a) the organism has the potential to cause severe damage to
human beings, animals, agricultural products, other
aspects of the environment or economic activities; and
(b) the Governor is advised by the Minister that --
20 (i) the organism is not, to the knowledge of the
Minister, present in the State; or
(ii) the organism has been eradicated from the State
or is under effective control.
190. Regulations and management plans may adopt codes or
25 legislation and other references
(1) In this section --
"code" means a code, code of practice, standard, rule,
specification, administrative procedure, quality assurance
scheme or other document, published in or outside
30 Australia by any public authority or other person, including
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Part 8 Regulations, codes of practice and local laws
s. 191
the Minister or the Director General, that does not by itself
have legislative effect in this State;
"subsidiary legislation" includes rules, regulations,
instructions, local laws and by-laws.
5 (2) Regulations and management plans may adopt, either wholly or
in part or with modifications and either specifically or by
reference --
(a) any code; or
(b) any subsidiary legislation made, determined or issued
10 under any other Act or under any Act of the
Commonwealth, another State or a Territory.
(3) If the regulations or management plans adopt a code or
subsidiary legislation, it is adopted as existing or in force from
time to time unless the regulations specify that a particular text
15 is adopted.
191. Regulations: consultation
(1) Before regulations are made under this Act the Minister must, as
far as is appropriate and reasonably practicable to undertake,
consult with public authorities, bodies and other persons which
20 or who appears to the Minister to be likely to be affected, or
interested, in a significant way by the regulations.
(2) Consultation may be undertaken in any way that the Minister
thinks appropriate in the circumstances, having regard to the
number of persons who will be likely to be so affected or
25 interested.
192. Codes of practice
(1) The Minister may issue a code of practice for any or all of the
following purposes --
(a) controlling declared pests;
30 (b) keeping declared pests;
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Regulations, codes of practice and local laws Part 8
s. 192
(c) carrying out agricultural activities or other related
activities so as to minimise the risk of an occurrence or
the spread of a declared pest;
(d) the use and management of chemical products;
5 (e) the import of permitted organisms and prescribed
potential carriers;
(f) the supply and use of animal feed and fertilisers.
(2) The Minister may approve a code of practice issued under
another written law, or issued by an industry body, if the code is
10 appropriate for a purpose mentioned in subsection (1).
(3) Before issuing or approving a code of practice, the Minister
must consult with public authorities, bodies and other persons
which or who in the opinion of the Minister carry out or have an
interest in activities of the kind dealt with in the code of
15 practice.
(4) A code of practice may be approved as existing or in force from
time to time or as existing or in force at a particular time.
(5) A code of practice approved under this section may consist of
any code, standard, rule, specification or provision relating to a
20 purpose mentioned in subsection (1).
(6) A code of practice issued under this section may incorporate by
reference any other code or subsidiary legislation, as those
terms are defined in section 190, as existing or in force from
time to time or as existing or in force at a particular time.
25 (7) The Minister may approve any revision of the whole or any part
of a code of practice issued under this section.
(8) The Minister may cancel a code of practice issued under this
section or cancel the approval of a code of practice.
(9) The Director General must publish a notice in the Gazette
30 giving details of the issue of a code of practice or any approval
or cancellation made under this section.
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Part 8 Regulations, codes of practice and local laws
s. 193
193. Local government may make local laws
(1) In this section --
"pest plant" means a plant that is prescribed by local laws
made by a local government under subsection (2)(a) as a
5 pest plant in that district.
(2) Subject to and in accordance with the Local Government
Act 1995 a local government may, in respect of its district, make
local laws --
(a) prescribing as a pest plant in that district any plant (other
10 than a declared pest) that, in its opinion, is likely to
adversely affect the value of property in the district or
the health, comfort or convenience of the inhabitants of
the district;
(b) requiring the owner or occupier of land (other than an
15 owner of land referred to in section 7(1)(d)) within the
district to control pest plants on and in relation to that
land in a manner and within a time specified in a notice
given by the local government and given to the owner or
occupier of the land;
20 (c) if the owner or occupier does not comply with the notice
given by the local government, for authorising the local
government without payment of compensation to control
the pest plants at the expense of the owner or occupier to
whom the notice was given, and to recover in a court of
25 compensation jurisdiction from the owner or occupier
the amount of the expense.
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Matters for which regulations may be made Schedule 1
Schedule 1 -- Matters for which regulations may be made
[s. 188(1)]
1. Compliance with a code (as defined in section 190) or a standard
prescribed or adopted under the regulations.
5 2. The issue of instructions, specifications and administrative procedures
by the Director General.
3. Without limiting the Interpretation Act 1984 section 43(8)(d),
exemptions from the application of a provision of this Act in a
particular case or class of case, and specifying circumstances in which
10 and conditions subject to which such an exemption applies.
4. Fees and charges payable for services and recovery of expenditure
and costs incurred under this Act, and the recovery of unpaid fees and
charges.
5. The issue of authorisations by the Director General for the purpose of
15 controlling an activity or thing regulated under this Act.
6. The procedures to be followed by inspectors when carrying out
functions under this Act.
7. The import, export, seizure, detention, examination, quarantine,
treatment or destruction of organisms, potential carriers, and
20 agricultural products that are, or are reasonably suspected to be,
infected, infested or contaminated.
8. The establishment and management of inspection points and
quarantine facilities.
9. The movement of animals, plants and potential carriers from one area
25 of the State to another.
10. Categories of declared pests.
11. Measures, whether mechanical, biological, chemical or otherwise, to
be taken to control declared pests in the whole or part of the State.
12. The designation of areas where potential carriers of a declared pest
30 must not be cultivated, bred or kept, or may be cultivated, bred or kept
subject to conditions or restrictions.
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Schedule 1 Matters for which regulations may be made
13. The labelling or other identification of, use, disposal, supply,
purchase, handling and movement of an organism, agricultural
product, animal feed, fertiliser or other thing.
14. With respect to --
5 (a) the entry of persons, organisms, conveyances, machinery, and
other potential carriers into;
(b) the movement of persons, organisms, conveyances,
machinery, and other potential carriers on and from;
(c) the keeping of organisms, conveyances, machinery, and other
10 potential carriers on;
(d) the cultivating of;
(e) the fencing of; and
(f) the use of,
land in or upon which declared pests are, or are suspected to be,
15 present.
15. The keeping, breeding and cultivation of declared pests.
16. The protection of natural enemies of declared pests.
17. The measures to be taken for treating a place or thing infected or
infested, or reasonably suspected to be infected or infested, with a
20 declared pest and for treating a potential carrier.
18. The erection and maintenance of barrier fences as a means of
controlling animals that are declared pests.
19. The use and management of a place or thing infected or infested, or
reasonably suspected to be infected or infested, with a declared pest.
25 20. The supply, acquisition and use of any apparatus, appliance, thing or
substance offered or represented, or which may be offered or
represented as suitable for use, to control a declared pest.
21. The formulation, manufacture, labelling, use, storage, transport,
handling, disposal and supply of animal feed, chemical products and
30 fertilisers.
22. The use and management of land in respect of which a contaminated
land notice is in force, and the sale or other disposal of land in respect
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Matters for which regulations may be made Schedule 1
of which a contaminated land notice is in force and in respect of
which a notice is registered under section 102(3).
23. The supply, purchase, handling, movement and treatment of
agricultural products produced on, or derived from animals or plants
5 produced on, contaminated land.
24. The duties and obligations of veterinary surgeons and other persons in
relation to --
(a) the use of chemical products;
(b) the identification, handling, keeping, supply, purchase,
10 transport and use of animals, agricultural products or animal
feed treated, or not treated, with a chemical product;
(c) the keeping of records and provision of information in
relation to that identification, handling, keeping, supply,
purchase, transport or use.
15 25. The qualifications and training of persons who use, store, handle or
transport, or advise on the use of, chemical products.
26. The keeping and production of records, the giving of notices, and the
making of declarations or returns, in relation to the acquisition,
supply, use, storage, handling or transport of chemical products or the
20 giving of advice in relation to those things.
27. The designation of areas where prescribed chemical products are not
to be used or are to be used subject to conditions or restrictions.
28. (1) The maximum residue limits of a chemical product or other chemical
or prescribed substance permitted in soil, water, animals, agricultural
25 products, animal feed, fertilisers and other substances.
(2) Without limiting subitem (1), a regulation made in relation to a
maximum residue limit --
(a) may provide that the maximum residue limit in respect of a
chemical product or other substance is nil;
30 (b) may provide that where a maximum residue limit in respect
of a chemical product or other substance is not prescribed, the
maximum residue limit in respect of that chemical product or
other substance is to be taken to be nil; and
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Schedule 1 Matters for which regulations may be made
(c) may provide for different maximum residue limits applicable
in different circumstances or according to different factors.
29. The use in agricultural activities of animal manure, other animal
by-products, human excrement, sewage and waste products of
5 agricultural activities.
30. Quality assurance schemes and the administration of, and compliance
with, those schemes.
31. The grade or quality of agricultural products.
32. The labelling and packaging of agricultural products, animal feed,
10 chemical products, fertilisers, and imported potential carriers,
including provisions as to the removal of labels.
33. Warranties, including implied warranties, as to agricultural products,
animal feed, chemical products and fertilisers, and the consequences
of breaching a warranty.
15 34. The issue and use of identifiers.
35. The registration of stock or owners of stock.
36. The certification of places used in relation to the artificial breeding of
stock.
37. Measures to be taken for the prevention and treatment of nutritional
20 deficiencies in stock or plants where those deficiencies may adversely
affect --
(a) the safety or quality of agricultural products derived from that
stock or those plants; or
(b) a determination as to whether stock or plants are infected or
25 infested with a declared pest.
38. The provision of financial assurances by persons importing,
supplying, keeping, breeding or cultivating organisms.
39. The payment of --
(a) rewards to persons who report finding prohibited or unlisted
30 organisms;
(b) rewards for destruction of declared pests.
40. The giving of directions by signs or notices.
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Matters for which regulations may be made Schedule 1
41. The prevention of interference with experiments conducted by or on
behalf of the department on or in relation to declared pests,
including --
(a) prohibiting or regulating entry to a place on which such
5 experiments are being conducted; and
(b) prohibiting the trapping, catching or killing of animals that
are declared pests on any place on which such experiments
are being conducted.
42. The seizure, detention, treatment, forfeiture, destruction and disposal
10 of any organism, agricultural product, animal feed, chemical product,
fertiliser or other thing --
(a) under Part 4 Division 4; or
(b) in respect of which fees or charges have not been paid under
this Act.
15 43. The use of trained animals, and the installation and use of x-ray
machines or any other mechanical or electronic devices, and any other
means of detecting organisms, potential carriers, agricultural products
and animal feed.
44. The inspection, certification and identification of organisms, potential
20 carriers and agricultural products.
45. The analysis of organisms, agricultural products, animal feed,
fertilisers and other substances or things for the presence of declared
pests or chemical residues, or for any other purpose.
46. Applications to the State Administrative Tribunal for review of
25 discretionary decisions, and conditions imposed on discretionary
decisions.
47. Recording and keeping information and other documentation, and
giving information, documentation and notices.
48. The verification and authentication of information, documentation and
30 notices.
49. Offences for which an infringement notice may be issued under Part 4
Division 4 (but not including any offence for which the penalty
includes imprisonment) by setting out the offences or by reference to
the provision creating the offence.
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Schedule 1 Matters for which regulations may be made
50. Modified penalties --
(a) not exceeding 20% of the penalty specified by this Act or the
regulations for an offence prescribed under item 49; and
(b) applicable --
5 (i) in any circumstances in which the offence is
committed; or
(ii) if the offence is committed in circumstances specified
in the regulations.
51. The imposition of fines not exceeding $20 000 for offences under the
10 regulations, with or without a fine for each separate and further
offence committed under the Interpretation Act 1984 section 71 of not
more than $500.
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