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This is a Bill, not an Act. For current law, see the Acts databases.
BIOSECURITY BILL 2012
2010-2011-2012
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Biosecurity Bill 2012
No. , 2012
(Agriculture, Fisheries and Forestry)
A Bill for an Act relating to diseases and pests that
may cause harm to human, animal or plant health
or the environment, and for related purposes
i Biosecurity Bill 2012 No. , 2012
Contents
Chapter 1--Preliminary
1
Part 1--Preliminary
1
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
2
3
Guide to this Act ................................................................................ 2
4
Objects of this Act ............................................................................. 5
5
Appropriate Level of Protection (ALOP) for Australia
against biosecurity risks ..................................................................... 6
6
Act binds the Crown .......................................................................... 6
7
Extension of Act to Christmas Island, Cocos (Keeling)
Islands and other prescribed external Territories ............................... 6
8
Concurrent operation of State and Territory laws .............................. 6
Part 2--Definitions
8
9 Definitions
.........................................................................................
8
10 Meaning
of
approved arrangement ................................................. 28
11 Meaning
of Australian territory ....................................................... 28
12 Meaning
of
biosecurity entry point .................................................. 29
13 Meaning
of
biosecurity industry participant and covered by .......... 29
14 Meaning
of
commercial-in-confidence ............................................ 30
15 Meaning
of
conveyance ................................................................... 30
16 Meaning
of
exposed to ..................................................................... 31
17 Meaning
of
first point of entry ......................................................... 31
18 Meaning
of
goods ............................................................................ 32
19 Meaning
of
installation .................................................................... 32
20 Meaning
of
operator of a conveyance ............................................. 33
21 Meaning
of
person in charge ........................................................... 33
Part 3--Constitutional and international law provisions
35
Division 1--Introduction
35
22
Guide to this Part ............................................................................. 35
Division 2--Constitutional and international law provisions
36
23 Severability
......................................................................................
36
24
Application of this Act in relation to pests that are quarantine
risks or invasive pests ...................................................................... 38
25
Application of this Act in relation to invasive pests ........................ 38
26
Compensation for acquisition of property ....................................... 39
27
Freedom of interstate trade, commerce and intercourse .................. 39
Biosecurity Bill 2012 No. , 2012 ii
28
Commonwealth not to give preference ............................................ 40
29
Application of this Act to foreign aircraft and vessels ..................... 40
Part 4--Principles affecting decisions to exercise certain
powers
41
30
Guide to this Part ............................................................................. 41
31 The
principles
..................................................................................
41
Chapter 2--Managing biosecurity risks: human
health
44
Part 1--General protections and listing human diseases
44
Division 1--Introduction
44
32
Guide to this Part ............................................................................. 44
Division 2--Protections
45
Subdivision A--General protections
45
33 The
principles
..................................................................................
45
34
No interference with urgent or life-threatening medical needs ........ 46
Subdivision B--Protections for children or incapable persons
46
35
Child or incapable person may be accompanied .............................. 46
36
Officer to contact parent, guardian or next of kin of
unaccompanied child or incapable person ....................................... 46
37
Requirement to comply with direction............................................. 47
38
Parent, guardian or next of kin may authorise person to
accompany child or incapable person .............................................. 48
39 Giving
consent
.................................................................................
48
40
Exception for requiring an individual to remain at a place .............. 48
Division 3--Listing human diseases
49
41
Listing human diseases .................................................................... 49
Part 2--Preventing risks to human health
50
Division 1--Introduction
50
42
Guide to this Part ............................................................................. 50
Division 2--Entry and exit requirements
51
43 Entry
requirements
...........................................................................
51
44 Exit
requirements
.............................................................................
52
45
Civil penalties for failing to comply with certain entry and
exit requirements ............................................................................. 54
iii Biosecurity Bill 2012 No. , 2012
Division 3--Contact information for operators
56
46 Requirements
for
operators to provide 24/7 contact
information ...................................................................................... 56
Division 4--Pratique
57
47 Positive
pratique
..............................................................................
57
48 Negative
pratique ............................................................................. 57
49 Pre-departure
reporting
....................................................................
58
Division 5--Preventative biosecurity measures
60
50 Determining
preventative
biosecurity measures .............................. 60
51
Civil penalty for failing to comply with a preventative
biosecurity measure ......................................................................... 61
Division 6--Information gathering powers
62
52
Who may ask questions and require written information ................ 62
53
Asking questions and requiring answers from particular
individuals ....................................................................................... 62
54
Asking questions and requiring answers from any individual ......... 63
55
Requiring an individual to provide written information .................. 64
56
Offence for failing to comply with a requirement ........................... 64
Part 3--Managing risks to human health: human biosecurity
control orders
65
Division 1--Introduction
65
57
Guide to this Part ............................................................................. 65
Division 2--Imposing human biosecurity control orders on
individuals
66
Subdivision A--Imposing, varying and revoking human
biosecurity control orders
66
58
Imposing a human biosecurity control order on an individual ......... 66
59
Contents of a human biosecurity control order ................................ 67
60
Form of a human biosecurity control order ..................................... 68
61
Giving a human biosecurity control order to an individual ............. 68
62
Varying a human biosecurity control order ..................................... 69
63
Giving notice of a variation of a human biosecurity control
order ................................................................................................. 69
64
Revoking a human biosecurity control order ................................... 70
65
Notifying Director of Human Biosecurity of imposition,
variation or revocation of human biosecurity control order ............. 70
Subdivision B--Powers if officer intends to impose human
biosecurity control order
71
66
Requiring an individual to remain at a place ................................... 71
Biosecurity Bill 2012 No. , 2012 iv
67 Providing
contact
information ......................................................... 71
68
Requirement for an individual to notify changes to contact
information ...................................................................................... 72
Subdivision C--When an individual is required to comply with a
biosecurity measure
72
69
Consenting to a biosecurity measure ............................................... 72
70
Director of Human Biosecurity may give direction requiring
compliance ....................................................................................... 73
71
When direction to comply with biosecurity measure ceases
to be in force .................................................................................... 75
72
When individual is required to comply with a biosecurity
measure ............................................................................................ 76
Subdivision D--AAT review of isolation and traveller movement
measures
78
73
Obligation on Director of Human Biosecurity relating to
Administrative Appeals Tribunal application .................................. 78
74 Applications
.....................................................................................
79
75 Reasons
and
documents
...................................................................
80
76
Time period for making a decision .................................................. 81
77
Limitation on Administrative Appeals Tribunal power to
stay etc. decisions ............................................................................ 82
Subdivision E--Other provisions relating to external review of
isolation and traveller movement measures
82
78
Time period for making applications under the
Administrative Decisions (Judicial Review) Act 1977 ..................... 82
79
Judicial review of isolation and traveller movement measures ........ 83
Division 3--Biosecurity measures that may be included in a
human biosecurity control order
84
Subdivision A--General provisions relating to including
biosecurity measures in a human biosecurity
control order
84
80
Who can include a biosecurity measure in a human
biosecurity control order .................................................................. 84
81 Informing
individual of risks ........................................................... 84
82
Test for including a biosecurity measure in a human
biosecurity control order .................................................................. 85
Subdivision B--Biosecurity measures that may be included in a
human biosecurity control order
85
83 Managing
contacts
...........................................................................
85
84 Contacting
officer
with health status ............................................... 85
85 Restricting
behaviour ....................................................................... 86
v Biosecurity Bill 2012 No. , 2012
86 Risk
minimisation
interventions ...................................................... 86
87 Decontamination
..............................................................................
87
88 Undergoing
an
examination ............................................................. 87
89
Requiring body samples for diagnosis ............................................. 87
90
Receiving a vaccination or treatment ............................................... 88
91 Receiving
medication ...................................................................... 88
92
Appropriate medical or other standards to be applied ..................... 89
93
No use of force to require compliance with certain
biosecurity measures ........................................................................ 89
94 Traveller
movement measure ........................................................... 89
95 Isolation
measure
.............................................................................
90
Subdivision C--Provisions relating to traveller movement
measures
90
96 Traveller
movement measure alert ................................................... 90
97
Content of traveller movement measure alert .................................. 92
98
Destruction of traveller movement measure alert ............................ 92
99
Prevention from leaving Australian territory ................................... 92
Division 4--Other provisions relating to human biosecurity
control orders
94
Subdivision A--Consular assistance
94
100
Consular assistance .......................................................................... 94
Subdivision B--Detention
95
101 Detention
.........................................................................................
95
102
Rules relating to detention ............................................................... 96
103
Release from detention .................................................................... 97
104
Offence for escaping from detention ............................................... 97
Subdivision C--Miscellaneous
98
105
Offence for failing to comply with a human biosecurity
control order ..................................................................................... 98
106
Expenses incurred in complying with human biosecurity
control orders ................................................................................... 98
Part 4--Managing risks to human health: other biosecurity
measures
99
Division 1--Introduction
99
107
Guide to this Part ............................................................................. 99
Division 2--Managing deceased individuals
100
108
Human remains brought into Australian territory .......................... 100
109
Officer may give directions for managing human remains ............ 101
110
Individuals who have died in transit or on arrival .......................... 101
Biosecurity Bill 2012 No. , 2012 vi
Division 3--Human health response zones
103
111 Determining
human
health response zones .................................... 103
112 Consultation
requirements ............................................................. 104
113 Notification
requirements .............................................................. 104
114
Civil penalty for failing to comply with a requirement of a
human health response zone determination ................................... 105
Chapter 3--Managing biosecurity risks: goods
106
Part 1--Goods brought into Australian territory
106
Division 1--Introduction
106
115
Guide to this Part ........................................................................... 106
116
Objects of this Part ......................................................................... 107
Division 2--Goods are subject to biosecurity control
108
117
Goods brought into Australian territory are subject to
biosecurity control ......................................................................... 108
Division 3--Notice of goods to be unloaded in Australian
territory
109
118
Notice must be given of goods to be unloaded in Australian
territory .......................................................................................... 109
119
Notice of goods to be unloaded in Australian territory--
requirement to give additional or corrected information ............... 111
Division 4--Assessment of level of biosecurity risk
113
120
Biosecurity risk assessment powers ............................................... 113
121
Direction to secure goods .............................................................. 113
122
Inspecting goods and taking samples ............................................. 113
123 Asking
questions about goods ....................................................... 114
124 Requiring
documents
relating
to goods to be produced ................. 114
125
Movement of goods ....................................................................... 115
126
Biosecurity control notice may be affixed to goods or given
to person in charge of goods .......................................................... 116
127
Unauthorised persons must not move etc. goods in relation to
which direction has been given or notice has been affixed ............ 117
Division 5--Biosecurity measures to manage unacceptable level
of biosecurity risk
118
128
Biosecurity measures may be required in relation to goods ........... 118
129
Movement of goods ....................................................................... 118
130 Treatment
of goods ........................................................................ 118
131 Treatment
that
may damage goods ................................................ 119
132 Export
of
goods
..............................................................................
121
133 Destruction
of goods ...................................................................... 121
vii Biosecurity Bill 2012 No. , 2012
134
Regulations may provide for other biosecurity measures .............. 122
135
Powers of biosecurity officer if biosecurity measures are
required .......................................................................................... 123
136
Biosecurity officer may affix notice to goods ................................ 124
137
Person must comply with direction to take biosecurity
measures ........................................................................................ 125
138 Unauthorised
persons
must
not move etc. goods to which
notice has been affixed .................................................................. 126
Division 6--Unloading goods at landing places or ports
127
139
Application of this Division ........................................................... 127
140
Person in charge may allow goods to be unloaded from
aircraft or vessel subject to direction etc. ....................................... 127
141
Person may unload goods from aircraft or vessel subject to
direction etc. .................................................................................. 128
142
Goods must not be unloaded except at first point of entry for
those goods or with permission ...................................................... 129
143
Permission to unload goods at landing place or port other
than first point of entry for those goods ......................................... 130
144
Goods must be brought to biosecurity entry point for those
goods at first point of entry ............................................................ 132
145
Permission to bring goods to alternative biosecurity entry
point ............................................................................................... 134
146
Unauthorised persons must not move etc. goods that have
been unloaded from aircraft or vessel ............................................ 135
147
Receiving or possessing goods unloaded from aircraft or
vessel in contravention of this Division ......................................... 136
Division 7--Unloading goods from aircraft or vessel displaying
prescribed quarantine signal
138
148
Application of this Division ........................................................... 138
149
Unloading goods from aircraft or vessel displaying
prescribed quarantine signal .......................................................... 138
150
Receiving or possessing goods unloaded from aircraft or
vessel displaying prescribed quarantine signal .............................. 139
Division 8--Reporting biosecurity incidents
141
151
Application of this Division ........................................................... 141
152
Director of Biosecurity may determine acts, omissions or
events to be reportable biosecurity incidents ................................. 141
153
Reporting by person in charge of aircraft or vessel carrying
goods .............................................................................................. 141
154
Reporting by person in charge of goods ........................................ 142
155 How
reports
must be made ............................................................ 143
Biosecurity Bill 2012 No. , 2012 viii
Division 9--Goods exposed to goods that are subject to
biosecurity control
144
156
Application of this Division ........................................................... 144
157
Assessment and management of biosecurity risk associated
with exposed goods ........................................................................ 144
158 Exposed
goods
orders .................................................................... 145
159
Effect of exposed goods order ....................................................... 145
Division 10--Release of goods from biosecurity control
147
160
When goods brought into Australian territory are released
from biosecurity control ................................................................. 147
161
Notice releasing goods from biosecurity control ........................... 148
Part 2--Biosecurity Import Risk Analyses
149
Division 1--Introduction
149
162
Guide to this Part ........................................................................... 149
Division 2--Biosecurity Import Risk Analyses
150
163
What is a Biosecurity Import Risk Analysis (BIRA) ..................... 150
164
Director of Biosecurity may conduct a BIRA ................................ 150
165
Agriculture Minister may direct Director of Biosecurity to
commence a BIRA ......................................................................... 150
166
Process for conducting a BIRA ...................................................... 151
167 Reports
...........................................................................................
151
Part 3--Prohibited goods etc.
153
Division 1--Introduction
153
168
Guide to this Part ........................................................................... 153
169
Exclusion of State and Territory laws ............................................ 154
Division 2--Prohibited goods and conditionally non-prohibited
goods
155
170 Prohibited
goods
............................................................................
155
171 Conditionally
non-prohibited goods .............................................. 156
172
Security may be required in relation to conditionally
non-prohibited goods ..................................................................... 157
Division 3--Permits to bring or import goods into Australian
territory
158
173
Application of this Division ........................................................... 158
174 Person
may
apply for permit .......................................................... 158
175
Director of Biosecurity may grant permit ...................................... 158
176
Conditions of permit ...................................................................... 159
177
Variation, suspension or revocation of permit ............................... 160
ix Biosecurity Bill 2012 No. , 2012
Division 4--Suspended goods
162
178
Director of Biosecurity may suspend bringing or importation
of goods into Australian territory for a period ............................... 162
179
Variation of determination suspending bringing or
importation of goods into Australian territory ............................... 163
180
Effect on permit of suspended goods determination ...................... 163
Division 5--Forfeiture of prohibited goods etc.
165
181
Prohibited goods etc. may be forfeited to the Commonwealth ...... 165
Division 6--Offences and civil penalty provisions
167
182
Bringing or importing prohibited goods etc. into Australian
territory .......................................................................................... 167
183
Bringing or importing prohibited goods etc. into Australian
territory and obtaining commercial advantage ............................... 167
184
Bringing or importing prohibited goods etc. into Australian
territory and causing harm to the environment or economic
consequences ................................................................................. 168
185
Contravening conditions applying to conditionally
non-prohibited goods brought or imported into Australian
territory .......................................................................................... 168
186
Contravening conditions applying to conditionally
non-prohibited goods brought or imported into Australian
territory and obtaining commercial advantage ............................... 169
187 Contravening
conditions of a permit .............................................. 170
188
Receiving or possessing prohibited goods etc. brought or
imported into Australian territory .................................................. 172
Chapter 4--Managing biosecurity risks: conveyances
173
Part 1--Introduction
173
189
Objects of this Chapter .................................................................. 173
Part 2--Conveyances entering Australian territory etc.
174
Division 1--Introduction
174
190
Guide to this Part ........................................................................... 174
Division 2--Conveyances that are subject to biosecurity control
176
191
Aircraft and vessels entering Australian territory .......................... 176
192
Conveyances exposed to other conveyances that are subject
to biosecurity control ..................................................................... 177
Division 3--Pre-arrival reporting etc.
179
193 Pre-arrival
reporting ....................................................................... 179
194
Pre-arrival reporting--requirement to give additional or
corrected information ..................................................................... 180
Biosecurity Bill 2012 No. , 2012 x
195
Persons on incoming aircraft or vessel may be required to
provide information to assess biosecurity risk ............................... 182
Division 4--Assessment of level of biosecurity risk
183
196
Biosecurity risk assessment powers ............................................... 183
197 Securing
conveyance
.....................................................................
183
198 Inspecting
conveyance
...................................................................
183
199 Asking
questions
about conveyance .............................................. 183
200
Requiring documents relating to conveyance to be produced ........ 184
201 Movement
of
conveyance .............................................................. 185
202
Biosecurity control notice may be affixed to conveyance or
given to person in charge of conveyance ....................................... 185
203
Unauthorised persons must not move etc. conveyance in
relation to which direction has been given ..................................... 186
Division 5--Biosecurity measures to manage unacceptable level
of biosecurity risk
188
204 Biosecurity
measures
may
be required in relation to
conveyance .................................................................................... 188
205
Movement of certain aircraft and vessels ...................................... 188
206
Movement of exposed conveyances .............................................. 189
207 Treatment
of
conveyance ............................................................... 189
208 Treatment
that
may
damage conveyance ....................................... 190
209 Destruction
of
conveyance ............................................................. 192
210
Conveyance must not be destroyed during review period ............. 194
211
Regulations may provide for other biosecurity measures .............. 195
212
Powers of biosecurity officer if biosecurity measures are
required .......................................................................................... 196
213
Biosecurity officer may affix notice to conveyance ...................... 197
214
Person must comply with direction to take biosecurity
measures ........................................................................................ 198
215
Unauthorised persons must not move etc. conveyance in
relation to which biosecurity measures have been required ........... 199
Division 6--Boarding and leaving conveyances
201
216
Application of this Division ........................................................... 201
217 Unauthorised
persons
must not board conveyance ........................ 201
218
Person in charge must not allow unauthorised persons to
board conveyance .......................................................................... 202
219
Operator must not allow unauthorised persons to board
conveyance .................................................................................... 204
220
Person in charge of conveyance may leave conveyance
unless directed not to do so ............................................................ 205
xi Biosecurity Bill 2012 No. , 2012
Division 7--Release of conveyances from biosecurity control
207
221
When conveyance is released from biosecurity control ................. 207
Division 8--Miscellaneous
208
222
Information about biosecurity requirements must be given to
persons on board incoming aircraft or vessels ............................... 208
223 Quarantine
signal
...........................................................................
208
Part 3--First points of entry and biosecurity entry points
209
Division 1--Introduction
209
224
Guide to this Part ........................................................................... 209
Division 2--First points of entry and biosecurity entry points for
incoming aircraft and goods
210
225
Determination of landing places that are first points of entry
for aircraft or goods that are subject to biosecurity control ........... 210
226
Biosecurity entry points for aircraft and goods that are
subject to biosecurity control ......................................................... 210
227
Determination may be subject to conditions .................................. 211
228
Determination may have effect for specified period ...................... 211
229
Variation and revocation of determination etc. .............................. 211
230
Determination is a legislative instrument ....................................... 212
Division 3--First points of entry and biosecurity entry points for
incoming vessels and goods
213
231
Determination of ports that are first points of entry for
vessels or goods that are subject to biosecurity control ................. 213
232
Biosecurity entry points for vessels and goods that are
subject to biosecurity control ......................................................... 213
233
Determination may be subject to conditions .................................. 214
234
Determination may have effect for specified period ...................... 214
235
Variation and revocation of determination etc. .............................. 214
236
Determination is a legislative instrument ....................................... 215
Part 4--Entry points for incoming aircraft and vessels
216
Division 1--Introduction
216
237
Guide to this Part ........................................................................... 216
Division 2--Entry points for aircraft that intend to land in
Australian territory
217
238
Application of this Division ........................................................... 217
239
Aircraft must land at first point of entry ........................................ 217
240
Aircraft must be brought to relevant biosecurity entry point
(if any) at first point of entry ......................................................... 219
Biosecurity Bill 2012 No. , 2012 xii
241
Permission for aircraft to land at landing place that is not
first point of entry for aircraft ........................................................ 220
242
Direction requiring aircraft to land, or not to land, at
specified landing place ................................................................... 222
243
Direction requiring aircraft not to land at any landing place
in Australian territory ..................................................................... 223
244
Direction requiring aircraft to land, or not to land, at
specified landing place--management of human health risks ....... 224
245
Person who is given direction must comply with it ....................... 225
Division 3--Entry points for vessels that intend to be moored in
Australian territory
226
246
Application of this Division ........................................................... 226
247
Vessel must be moored at first point of entry ................................ 226
248
Vessel must be brought to relevant biosecurity entry point (if
any) at first point of entry .............................................................. 228
249
Permission for vessel to be moored at port that is not first
point of entry for vessel ................................................................. 229
250 Direction
requiring
vessel to be moored, or not to be moored,
at specified port .............................................................................. 231
251 Direction
requiring vessel not to be moored at any port in
Australian territory ......................................................................... 232
252 Direction
requiring
vessel to be moored, or not to be moored,
at specified port--management of human health risks .................. 233
253
Person who is given direction must comply with it ....................... 234
Division 4--Miscellaneous
235
254
Biosecurity officer etc. may enter landing places or ports ............. 235
Part 5--Ship sanitation
236
Division 1--Introduction
236
255
Guide to this Part ........................................................................... 236
Division 2--Ship sanitation
237
256
Application of this Division ........................................................... 237
257
Regulations may prescribe scheme in relation to ship
sanitation ........................................................................................ 237
258
Declaring ports at which vessels may be inspected for the
purposes of the scheme .................................................................. 238
259
Assessing and managing sanitation health risks ............................ 238
xiii Biosecurity Bill 2012 No. , 2012
Chapter 5--Ballast water and sediment
240
Part 1--Application and interpretation
240
Division 1--Introduction
240
260
Guide to this Part ........................................................................... 240
Division 2--Application and interpretation
241
261
Extension of Chapter to every external Territory .......................... 241
262
Vessels in dry dock in Australia .................................................... 241
263
Foreign vessels in waters adjacent to Australian Antarctic
Territory ......................................................................................... 241
264
References to the person in charge of a vessel do not include
persons exercising certain powers ................................................. 241
265
Permanent ballast water in sealed tanks not subject to this
Chapter ........................................................................................... 241
266
Relationship with other Commonwealth laws ............................... 241
267
Relationship with State and Territory laws .................................... 242
Part 2--Management of discharge of ballast water
243
Division 1--Introduction
243
268
Guide to this Part ........................................................................... 243
Division 2--Offence of discharging ballast water
244
269 Offence--discharging
ballast water in Australian seas.................. 244
Division 3--Exceptions: ballast water management
245
Subdivision A--Exception
245
270
Exception--ballast water has been managed for discharge ........... 245
Subdivision B--Methods of ballast water management
245
271
Approved method of ballast water management ............................ 245
272
Method of ballast water management--application for
approval ......................................................................................... 246
273
Method of ballast water management--approval of method
approved by foreign country .......................................................... 247
274
Prescribing matters by reference to other instruments ................... 247
Subdivision C--Ballast water exchange
247
275
Management by ballast water exchange ........................................ 247
Division 4--Exception: discharge as part of acceptable ballast
water exchange
249
276
Exception--discharge as part of acceptable ballast water
exchange ........................................................................................ 249
Biosecurity Bill 2012 No. , 2012 xiv
Division 5--Exception: approved discharge to ballast water
reception facility
250
277
Exception--approved discharge to ballast water reception
facility ............................................................................................ 250
278
Discharge to ballast water reception facility--application for
approval ......................................................................................... 250
Division 6--Exception: discharge covered by exemption
252
279 Exception--discharge
covered by exemption ................................ 252
280
Director of Biosecurity may grant exemptions .............................. 252
281 Variation
and
revocation of exemption .......................................... 253
Division 7--Exception: taking up and discharging ballast water
at same place
254
282
Exception--taking up and discharging ballast water at same
place ............................................................................................... 254
Division 8--Exceptions and reporting requirements relating to
safety, accidents and pollution
255
283 Exceptions--safety,
accidents and pollution ................................. 255
284
Report of discharge relating to safety, accident or pollution ......... 256
Part 3--Ballast water management plans and ballast water
management certificates
258
Division 1--Introduction
258
285
Guide to this Part ........................................................................... 258
Division 2--Ballast water management plans
259
286
Ballast water management plan ..................................................... 259
287
Approval of ballast water management plan for Australian
vessel ............................................................................................. 259
Division 3--Ballast water management certificates
260
288
Ballast water management certificate ............................................ 260
289
Director of Biosecurity may authorise person to be survey
authority ......................................................................................... 261
290
Issue or endorsement etc. of ballast water management
certificate on behalf of the Commonwealth ................................... 261
Part 4--Ballast water records
263
Division 1--Introduction
263
291
Guide to this Part ........................................................................... 263
Division 2--Australian vessels
264
292
Australian vessel must have ballast water record system .............. 264
293
Recording ballast water operations and disposal of sediment ........ 264
xv Biosecurity Bill 2012 No. , 2012
294 Records
must
be retained ............................................................... 265
295
Appropriate ballast water records for Australian vessel ................ 266
Division 3--Foreign vessels
267
296
Appropriate ballast water records for foreign vessel ..................... 267
Part 5--Offence of disposing of sediment
268
Division 1--Introduction
268
297
Guide to this Part ........................................................................... 268
Division 2--Offence of disposing of sediment
269
298
Offence--disposing of sediment in Australian seas ...................... 269
299 Exceptions--safety,
accidents and pollution ................................. 269
Part 6--Compliance and enforcement
271
Division 1--Introduction
271
300
Guide to this Part ........................................................................... 271
Division 2--Power to require owner of Australian vessel to
provide ballast water records
272
301
Power to require owner of Australian vessel to provide
ballast water records ...................................................................... 272
Division 3--Directions powers
273
302
Directions not to discharge ballast water ....................................... 273
303
Directions about movement of vessel ............................................ 273
304
Directions about movement of vessel--variation or
revocation ...................................................................................... 274
305 Offence--contravening a direction ................................................ 275
306
Manner of giving directions etc. .................................................... 276
Part 7--Miscellaneous
277
307
Compensation for undue detention or delay of vessel ................... 277
Chapter 6--Managing biosecurity risks: monitoring,
control and response
278
Part 1--Introduction
278
308
Guide to this Part ........................................................................... 278
309
Modified meaning of biosecurity risk ............................................ 278
310
Objects of this Chapter .................................................................. 279
311
Application of this Chapter ............................................................ 280
Biosecurity Bill 2012 No. , 2012 xvi
Part 2--Assessment of level of biosecurity risk
281
Division 1--Introduction
281
312
Guide to this Part ........................................................................... 281
Division 2--Circumstances in which biosecurity risk assessment
powers may be exercised
283
313
Reasonable suspicion that disease or pest may pose
unacceptable level of biosecurity risk ............................................ 283
314
Exercise of biosecurity risk assessment powers in premises ......... 283
Division 3--Biosecurity risk assessment powers
285
315
Application of this Division ........................................................... 285
316
Direction to secure goods or conveyance ...................................... 285
317
Inspections and taking samples of goods or premises ................... 285
318 Asking
questions
about goods or premises .................................... 286
319
Requiring documents relating to goods or premises to be
produced ........................................................................................ 287
320
Movement of goods or conveyance ............................................... 288
321
Biosecurity officer may affix notice to goods or conveyance ........ 289
322 Unauthorised
persons
must not move etc. goods or
conveyance to which notice has been affixed ................................ 290
323
Operating electronic equipment on premises ................................. 291
324
Expert assistance to operate electronic equipment ......................... 292
Division 4--Offences
294
325 Contravention
of direction ............................................................. 294
326 Contravention
of
requirement
to answer questions etc. ................. 294
327 Contravention
of
requirement to produce documents .................... 295
328 Unauthorised
persons
must not move etc. goods or
conveyance to which notice has been affixed ................................ 295
Part 3--Biosecurity measures to manage unacceptable level of
biosecurity risk
297
Division 1--Introduction
297
329
Guide to this Part ........................................................................... 297
Division 2--Powers that may be exercised: general
299
Subdivision A--Circumstances in which powers may be exercised
299
330
Circumstances in which powers set out in this Division may
be exercised ................................................................................... 299
Subdivision B--Powers relating to entry to and exit from
premises
299
331
Entry and exit etc. requirements--persons .................................... 299
xvii Biosecurity Bill 2012 No. , 2012
332
Entry and exit etc. requirements--goods and conveyances ........... 301
Subdivision C--Powers relating to treatment of goods,
conveyances and other premises
302
333 Treatment
of goods ........................................................................ 302
334 Treatment
that
may damage goods ................................................ 302
335 Treatment
of
conveyance ............................................................... 304
336 Treatment
that
may
damage conveyance ....................................... 304
337
Treatment of premises (other than a conveyance) ......................... 306
338
Treatment that may damage premises (other than a
conveyance) ................................................................................... 306
339
Dealing with premises (other than a conveyance) if owner
does not agree to treatment etc. ...................................................... 308
Subdivision D--Powers relating to destruction of goods,
conveyances and other premises
309
340 Destruction
of goods ...................................................................... 309
341 Destruction
of
conveyance ............................................................. 310
342 Destruction
of
premises
.................................................................
312
343
High-value goods, conveyances or premises must not be
destroyed during review period ..................................................... 313
Division 3--Powers provided by regulations
316
344
Regulations may provide for other biosecurity measures .............. 316
Division 4--Other powers
318
345
Powers of biosecurity officer if biosecurity measures are
required .......................................................................................... 318
346
Biosecurity officer may affix notice to goods or premises ............ 319
Division 5--Offences and civil penalty provisions
321
347
Contravention of requirement relating to entering or leaving
etc. premises .................................................................................. 321
348 Person
must
comply with direction ................................................ 321
349 Unauthorised
persons
must not move etc. goods or
conveyance to which notice has been affixed ................................ 322
Part 4--Biosecurity control orders
324
Division 1--Introduction
324
350
Guide to this Part ........................................................................... 324
Division 2--Making, varying and revoking biosecurity control
orders
325
351
Director of Biosecurity may make biosecurity control order
to manage unacceptable level of biosecurity risk .......................... 325
352
Content of a biosecurity control order ........................................... 325
Biosecurity Bill 2012 No. , 2012 xviii
353
Form of biosecurity control order .................................................. 327
354
Biosecurity control order to be given to person in charge etc.
of goods or premises or affixed to goods or premises ................... 327
355
Circumstances in which biosecurity control order ceases to
be in force ...................................................................................... 328
356 Variation
of
biosecurity control order ............................................ 328
357 Revocation
of
biosecurity control order ......................................... 330
Division 3--Powers that may be exercised under biosecurity
control order
332
358
Powers that may be exercised--general ........................................ 332
359
Exercise of powers in premises ...................................................... 332
360
Power to secure goods or premises to deal with another
disease or pest ................................................................................ 333
Division 4--Civil penalty provision
335
361
Unauthorised persons must not interfere with etc. biosecurity
control order affixed to goods or premises .................................... 335
Part 5--Biosecurity response zones
336
Division 1--Introduction
336
362
Guide to this Part ........................................................................... 336
Division 2--Biosecurity response zone determinations
337
363
Director of Biosecurity may determine biosecurity response
zone ................................................................................................ 337
364
Content of a biosecurity response zone determination .................. 338
365
Additional powers that may be specified in a biosecurity
response zone determination .......................................................... 339
366 Consultation
requirements ............................................................. 340
367 Notification
requirements .............................................................. 340
Division 3--Powers that may be exercised in biosecurity
response zones
341
368
Powers that may be exercised--general ........................................ 341
369
Exercise of powers in premises ...................................................... 341
370
Power to secure goods or premises to deal with another
disease or pest ................................................................................ 342
Division 4--Offences and civil penalty provisions
344
371
Unauthorised persons must not interfere with etc. notices or
markings identifying biosecurity response zone ............................ 344
372
Unauthorised persons must not interfere with etc. notices or
markings identifying goods or premises in a biosecurity
response zone ................................................................................. 345
373 Person
must
comply with direction ................................................ 345
xix Biosecurity Bill 2012 No. , 2012
374
Unauthorised persons must not interfere with etc. equipment
etc. set up in biosecurity response zone ......................................... 346
Part 6--Biosecurity monitoring zones
348
Division 1--Introduction
348
375
Guide to this Part ........................................................................... 348
Division 2--Permanent biosecurity monitoring zones
350
Subdivision A--Areas that are permanent biosecurity monitoring
zones
350
376 Permanent
biosecurity monitoring zones ....................................... 350
Subdivision B--Powers that may be exercised in permanent
biosecurity monitoring zones
350
377
Powers that may be exercised--general ........................................ 350
378
Exercise of powers in premises ...................................................... 352
Subdivision C--Civil penalty provisions
352
379
Unauthorised persons must not interfere with etc. notices or
markings identifying permanent biosecurity monitoring zone ...... 353
380
Unauthorised persons must not interfere with etc. notices or
markings identifying goods or premises in a permanent
biosecurity monitoring zone .......................................................... 353
381
Unauthorised persons must not interfere with etc. equipment
etc. set up in permanent biosecurity monitoring zone .................... 354
Division 3--Temporary biosecurity monitoring zones
356
Subdivision A--Temporary biosecurity monitoring zone
determinations
356
382
Director of Biosecurity may determine temporary biosecurity
monitoring zone ............................................................................. 356
383
Content of a temporary biosecurity monitoring zone
determination ................................................................................. 356
384
Additional powers that may be specified in a temporary
biosecurity monitoring zone determination ................................... 358
385 Consultation
requirements ............................................................. 359
386 Notification
requirements .............................................................. 359
Subdivision B--Powers that may be exercised in temporary
biosecurity monitoring zones
359
387
Powers that may be exercised--general ........................................ 359
388
Exercise of powers in premises ...................................................... 360
Subdivision C--Civil penalty provisions
361
389
Unauthorised persons must not interfere with etc. notices or
markings identifying temporary biosecurity monitoring zone ....... 361
Biosecurity Bill 2012 No. , 2012 xx
390
Unauthorised persons must not interfere with etc. notices or
markings identifying goods or premises in temporary
biosecurity monitoring zone .......................................................... 362
391
Unauthorised persons must not interfere with etc. equipment
etc. set up in temporary biosecurity monitoring zone .................... 363
Part 7--Biosecurity activity zones
364
Division 1--Introduction
364
392
Guide to this Part ........................................................................... 364
Division 2--Biosecurity activity zone determinations
365
393
Director of Biosecurity may determine biosecurity activity
zone ................................................................................................ 365
394 Consultation
requirements ............................................................. 366
395 Notification
requirements .............................................................. 366
396
Revocation of biosecurity activity zone determination .................. 366
Division 3--Powers that may be exercised in biosecurity activity
zones
367
397 Powers
that
may
be exercised ........................................................ 367
398
Use of force .................................................................................... 368
Division 4--Offences and civil penalty provisions
369
399
Unauthorised persons must not interfere with etc. notices or
markings identifying biosecurity activity zone .............................. 369
400
Unauthorised persons must not interfere with etc. notices or
markings identifying goods or premises in a biosecurity
activity zone ................................................................................... 369
401 Person
must
comply with direction ................................................ 370
Chapter 7--Approved arrangements
372
Part 1--Introduction
372
402
Guide to this Chapter ..................................................................... 372
Part 2--Approval of proposed arrangement
374
403
Person may apply to relevant Director for approval of
proposed arrangement to carry out biosecurity activities ............... 374
404
Relevant Director must decide whether or not to approve
proposed arrangement .................................................................... 374
405
Proposed arrangement may be approved subject to condition
requiring security to be given ........................................................ 375
406 Notice
of
decision
..........................................................................
376
407
Period of effect of approved arrangement ...................................... 376
408
Restrictions on applications for approval of proposed
arrangements etc. ........................................................................... 376
xxi Biosecurity Bill 2012 No. , 2012
409
Transfer of approved arrangement ................................................. 378
Part 3--Variation of approved arrangement
379
Division 1--Application by biosecurity industry participant
379
410
Application for approval of varied arrangement ............................ 379
Division 2--Variation required by relevant Director
380
411
Relevant Director may vary or require variation of approved
arrangement ................................................................................... 380
412 Notice
varying
conditions
of approved arrangement ..................... 380
413
Date of effect of variation of conditions of approved
arrangement ................................................................................... 381
414
Notice requiring approved arrangement to be varied ..................... 381
Part 4--Suspension of approved arrangement
382
Division 1--Suspension requested by biosecurity industry
participant
382
415
Biosecurity industry participant may request relevant
Director to suspend all or part of approved arrangement ............... 382
Division 2--Suspension by relevant Director
384
416
Relevant Director may suspend approved arrangement ................. 384
417
Notice of suspension ...................................................................... 385
418
Period of suspension ...................................................................... 386
419
Management of biosecurity risks during suspension period .......... 386
Part 5--Revocation of approved arrangement
388
Division 1--Revocation requested by biosecurity industry
participant
388
420
Biosecurity industry participant may request relevant
Director to revoke approved arrangement ..................................... 388
Division 2--Revocation by relevant Director
389
421
Relevant Director may revoke approved arrangement ................... 389
422 Notice
of
revocation.......................................................................
390
423
Date of effect of revocation ........................................................... 390
424
Management of biosecurity risks after revocation ......................... 391
Part 6--Powers and obligations of biosecurity industry
participants
393
Division 1--General
393
425
Authorisation to carry out biosecurity activities in
accordance with approved arrangement ......................................... 393
Biosecurity Bill 2012 No. , 2012 xxii
426
Biosecurity industry participant must carry out biosecurity
activities in accordance with approved arrangement etc. ............... 393
427
Biosecurity officer may give direction to biosecurity industry
participant to manage biosecurity risks .......................................... 394
428
Biosecurity industry participant may charge fee in relation to
biosecurity activities carried out .................................................... 395
Division 2--Biosecurity incidents
396
429 Reporting
biosecurity incidents ..................................................... 396
430
Costs of dealing with biosecurity incidents ................................... 397
Part 7--Other provisions
399
Division 1--Applications for approval
399
431 Applications
to
which
this Division applies .................................. 399
432 Requirements
for
applications ....................................................... 399
433
Dealing with applications .............................................................. 399
Division 2--Audit powers
401
434
Relevant Director may require audit to be carried out ................... 401
435 Powers
of
auditors
.........................................................................
402
Division 3--Miscellaneous
404
436
Giving false or misleading information to a biosecurity
industry participant ........................................................................ 404
437
Giving false or misleading documents to a biosecurity
industry participant ........................................................................ 405
438
Obstruction or hindrance of person acting in accordance with
approved arrangement .................................................................... 406
439
Protection from civil proceedings .................................................. 406
Chapter 8--Biosecurity emergencies and human
biosecurity emergencies
408
Part 1--Biosecurity emergencies
408
Division 1--Introduction
408
440
Guide to this Part ........................................................................... 408
Division 2--Declaration of biosecurity emergency
409
441
Governor-General may declare that a biosecurity emergency
exists .............................................................................................. 409
442
Governor-General may extend biosecurity emergency period ...... 410
Division 3--Emergency requirements, directions and actions
412
443
Agriculture Minister may determine emergency requirements
during biosecurity emergencies ..................................................... 412
xxiii Biosecurity Bill 2012 No. , 2012
444
Agriculture Minister may give directions and take actions
during biosecurity emergencies ..................................................... 413
445
Limits on power to give directions and take actions ...................... 415
446
Limit on requiring individuals to be subject to certain
biosecurity measures ...................................................................... 415
447
Person must comply with emergency requirements and
directions ....................................................................................... 416
448
Asking questions relating to biosecurity emergencies ................... 417
449
Requiring documents relating to biosecurity emergencies ............ 418
Division 4--National response agencies
420
450
Agriculture Minister may declare national response agency ......... 420
451
Agriculture Minister may delegate certain emergency powers ...... 420
452
Executive head of national response agency may subdelegate
certain emergency powers ............................................................. 421
453
Delegation does not limit other powers ......................................... 422
454
Notice may be affixed to goods or a conveyance .......................... 422
455
Moving or interfering with goods or conveyance .......................... 423
Division 5--Exercise of powers during biosecurity emergencies
426
456
Modification of this Act during biosecurity emergencies .............. 426
457
Biosecurity risk assessment powers ............................................... 426
458 Application
of
offences during emergencies ................................. 427
459
Biosecurity control orders--making orders ................................... 428
460
Biosecurity control orders--varying orders ................................... 429
461
Biosecurity control orders--revoking orders ................................. 430
462
Modification of Part 4 of Chapter 6 in relation to biosecurity
control orders ................................................................................. 431
463 Biosecurity
response zones ............................................................ 431
464
Setting traps and setting up equipment and other structures .......... 432
465 Notice
requirements
during
biosecurity emergencies .................... 432
466
Other biosecurity measures during biosecurity emergencies ......... 434
467
Merits review during biosecurity emergencies .............................. 434
Division 6--Entry to premises without warrant or consent
during biosecurity emergencies
435
468
Entry to premises without warrant or consent during
biosecurity emergencies ................................................................. 435
469 Modification
of
Chapter 6 .............................................................. 437
470
Entry to adjacent premises without warrant or consent during
biosecurity emergencies ................................................................. 437
Part 2--Human biosecurity emergencies
439
471
Guide to this Part ........................................................................... 439
Biosecurity Bill 2012 No. , 2012 xxiv
472
Health Minister to exercise human biosecurity emergency
powers personally .......................................................................... 439
473
Governor-General may declare that a human biosecurity
emergency exists ............................................................................ 439
474
Governor-General may extend a human biosecurity
emergency period ........................................................................... 441
475
Health Minister may determine emergency requirements
during human biosecurity emergency period ................................. 441
476
Health Minister may give directions during human
biosecurity emergency period ........................................................ 443
477
Person must comply with emergency requirements and
directions ....................................................................................... 445
Chapter 9--Powers and other provisions related to
ensuring compliance with this Act
446
Part 1--Monitoring
446
Division 1--Introduction
446
478
Guide to this Part ........................................................................... 446
Division 2--Monitoring powers
447
479
Biosecurity enforcement officer may enter premises by
consent or under a warrant ............................................................. 447
480
Monitoring powers of biosecurity enforcement officers ................ 447
481 Operating
electronic equipment ..................................................... 448
482
Expert assistance to operate electronic equipment ......................... 449
483
Securing evidence of the contravention of a related provision ...... 451
Part 2--Investigation
453
Division 1--Introduction
453
484
Guide to this Part ........................................................................... 453
Division 2--Investigation powers
454
485
Biosecurity enforcement officer may enter premises by
consent or under a warrant ............................................................. 454
486
Investigation powers of biosecurity enforcement officers ............. 454
487 Operating
electronic equipment ..................................................... 455
488
Expert assistance to operate electronic equipment ......................... 457
489
Seizing evidence of related provisions........................................... 458
Division 3--General provisions relating to seizure
460
490
Copies of seized things to be provided .......................................... 460
491 Receipts
for
seized things .............................................................. 460
492
Return of seized things .................................................................. 460
xxv Biosecurity Bill 2012 No. , 2012
493
Issuing officer may permit a thing to be retained .......................... 461
494 Disposal
of
things .......................................................................... 462
Part 3--General provisions relating to monitoring and
investigation
464
495
Biosecurity enforcement officer may ask questions and seek
production of documents ............................................................... 464
496
When warrants can be executed on aircraft and vessels ................ 465
Part 4--Monitoring, searching and accessing certain premises
466
Division 1--Introduction
466
497
Guide to this Part ........................................................................... 466
Division 2--Monitoring and searching certain premises
467
498 Meaning
of
relevant premises ........................................................ 467
499 Monitoring
premises
......................................................................
467
500 Offence-related
searches and seizures ........................................... 468
Division 3--Entering adjacent premises to gain access to other
premises
469
501 Meaning
of
premises ...................................................................... 469
502
Entering adjacent premises to gain access to other premises ......... 469
503
Entry under adjacent premises warrants ........................................ 469
Part 5--Miscellaneous
471
Division 1--Introduction
471
504
Guide to this Part ........................................................................... 471
Division 2--Fit and proper person test
472
505
Fit and proper person test ............................................................... 472
Division 3--Personal information for applications
474
506 Personal
information
for applications ............................................ 474
Division 4--Civil penalty provisions for false or misleading
information or documents
475
507
Civil penalty provision for false or misleading information .......... 475
508
Civil penalty provision for false or misleading documents ............ 476
Chapter 10--Entry to premises and warrants
477
Part 1--Introduction
477
509
Guide to this Chapter ..................................................................... 477
Biosecurity Bill 2012 No. , 2012 xxvi
Part 2--Issue of warrants
478
Division 1--Ordinary issue of warrants
478
510
Application and issue of warrant ................................................... 478
511
Test to be satisfied for issue of warrant ......................................... 479
512
Content of warrant ......................................................................... 482
Division 2--Issue of certain warrants by telephone, fax etc.
487
513
Application of this Division to certain warrants ............................ 487
514
Issue of certain warrants by telephone, fax etc. ............................. 487
515 Authority
of
warrant
......................................................................
489
516
Fault-based offence relating to warrants by telephone, fax
etc. .................................................................................................. 489
Part 3--Entering premises with a warrant or consent, and
taking possession with a warrant
491
Division 1--Obligations and powers of biosecurity enforcement
officers
491
Subdivision A--Obligations of biosecurity enforcement officers
491
517 Consent
..........................................................................................
491
518
Announcement before execution of warrant .................................. 492
519
Biosecurity enforcement officer to be in possession of
warrant ........................................................................................... 493
520
Details of warrant etc. to be provided ............................................ 494
Subdivision B--Use of force
494
521
Use of force in executing a warrant ............................................... 494
Subdivision C--Completing execution of investigation warrants
495
522
Completing execution of an investigation warrant after
temporary cessation ....................................................................... 495
523
Completing execution of an investigation warrant stopped by
court order ...................................................................................... 496
Division 2--Appropriate person's rights and responsibilities in
relation to warrants
497
524
Appropriate person's right to observe execution of warrant .......... 497
525
Appropriate person to provide facilities and assistance ................. 497
Part 4--Entering premises without a warrant or consent
498
Division 1--Application of this Part
498
526
Application of this Part .................................................................. 498
xxvii Biosecurity Bill 2012 No. , 2012
Division 2--Obligations and powers of biosecurity enforcement
officers in entering premises
499
527 Announcement
before entry ........................................................... 499
528
Use of force in entering premises .................................................. 499
Division 3--Appropriate person's rights and responsibilities on
entry
500
529
Appropriate person is entitled to observe exercise of powers ........ 500
530 Appropriate
person
to provide officers etc. with facilities and
assistance ....................................................................................... 500
Part 5--General provisions
501
531
Persons assisting biosecurity officers or biosecurity
enforcement officers ...................................................................... 501
532 Powers
of
issuing officers .............................................................. 503
533
Compensation for damage to electronic equipment ....................... 503
Chapter 11--Enforcement
505
Part 1--Civil penalty provisions
505
Division 1--Introduction
505
534
Guide to this Part ........................................................................... 505
Division 2--Obtaining a civil penalty order
506
535
Civil penalty orders ........................................................................ 506
536 Civil
enforcement of penalty ......................................................... 507
537
Conduct contravening more than one civil penalty provision ........ 507
538 Multiple
contraventions ................................................................. 507
539
Proceedings may be heard together ............................................... 507
540
Civil evidence and procedure rules for civil penalty orders ........... 508
541
Contravening a civil penalty provision is not an offence ............... 508
Division 3--Civil proceedings and criminal proceedings
509
542
Other enforcement action after criminal proceedings .................... 509
543
Other enforcement action during civil proceedings ....................... 509
544
Other enforcement action after civil proceedings .......................... 510
545
Evidence given in civil proceedings not admissible in
criminal proceedings ...................................................................... 510
Division 4--Miscellaneous
511
546
Ancillary contravention of civil penalty provisions ....................... 511
547
Continuing contraventions of civil penalty provisions .................. 511
548
Mistake of fact ............................................................................... 512
549
Sudden or extraordinary emergency .............................................. 512
Biosecurity Bill 2012 No. , 2012 xxviii
550
State of mind .................................................................................. 513
551 Omissions
......................................................................................
513
552
Burden of proof for exceptions etc. to civil penalty
provisions ....................................................................................... 514
553
Civil penalties for executive officers of bodies corporate .............. 514
554
Reasonable steps to prevent contravention .................................... 515
Part 2--Infringement notices
516
Division 1--Introduction
516
555
Guide to this Part ........................................................................... 516
556 Infringement
notice provisions ...................................................... 516
Division 2--Infringement notices
517
557
When an infringement notice may be given .................................. 517
558
Matters to be included in an infringement notice ........................... 518
559
Extension of time to pay amount ................................................... 520
560
Withdrawal of an infringement notice ........................................... 520
561
Effect of payment of amount ......................................................... 522
562
Effect of this Part ........................................................................... 523
563 Further
provision
by regulation ..................................................... 523
Part 3--Enforceable undertakings
524
Division 1--Introduction
524
564
Guide to this Part ........................................................................... 524
Division 2--Accepting and enforcing undertakings
525
565 Acceptance
of
undertakings ........................................................... 525
566 Enforcement
of
undertakings ......................................................... 525
Part 4--Injunctions
527
Division 1--Introduction
527
567
Guide to this Part ........................................................................... 527
Division 2--Injunctions
528
568
Grant of injunctions ....................................................................... 528
569 Interim
injunctions
.........................................................................
529
570 Discharging
or
varying injunctions ................................................ 529
571
Certain limits on granting injunctions not to apply ........................ 529
572
Other powers of a relevant court unaffected .................................. 530
573 Judicial
review
...............................................................................
530
xxix Biosecurity Bill 2012 No. , 2012
Part 5--Miscellaneous
531
Division 1--Introduction
531
574
Guide to this Part ........................................................................... 531
Division 2--Miscellaneous
532
575 Physical
elements of offences ........................................................ 532
576
Contravening offence and civil penalty provisions ........................ 532
Chapter 12--Governance and officials
533
Part 1--Introduction
533
577
Guide to this Chapter ..................................................................... 533
Part 2--Director of Biosecurity
534
578
Director of Biosecurity .................................................................. 534
579
Functions and powers of Director of Biosecurity .......................... 534
580 Delegation
and
subdelegation ........................................................ 535
581
Agriculture Minister may give general directions to Director
of Biosecurity ................................................................................. 538
Part 3--Director of Human Biosecurity
539
582 Director
of
Human Biosecurity ...................................................... 539
Part 4--Biosecurity officers and biosecurity enforcement
officers
540
Division 1--Authorisation
540
Subdivision A--Authorisation by Director of Biosecurity
540
583
Authorisation by Director of Biosecurity of persons as
biosecurity officers ........................................................................ 540
584 Authorisation
by
Director
of Biosecurity of persons as
biosecurity enforcement officers .................................................... 541
585
Arrangements for State or Territory officers or employees to
be biosecurity officers or biosecurity enforcement officers ........... 541
Subdivision B--Authorisation by Director of Human Biosecurity
542
586
Authorisation by Director of Human Biosecurity of persons
as biosecurity enforcement officers ............................................... 542
587
Arrangements for State or Territory officers or employees to
be biosecurity enforcement officers ............................................... 543
Division 2--Functions and powers
544
Subdivision A--General
544
588
Functions and powers of biosecurity officers ................................ 544
589
Functions and powers of biosecurity enforcement officers ........... 544
Biosecurity Bill 2012 No. , 2012 xxx
590
Directions to assist persons performing functions etc. under
this Act ........................................................................................... 544
591
Biosecurity officers and biosecurity enforcement officers
may be assisted by animals ............................................................ 546
592
Carrying out tests on samples ........................................................ 547
593
Biosecurity officer may direct person in charge of
conveyance to permit biosecurity officer to board ......................... 547
594
Powers that may be exercised by biosecurity officer after
boarding a conveyance ................................................................... 549
595
Biosecurity officer may give permission to engage in certain
conduct ........................................................................................... 549
Subdivision B--Decontamination
550
596 Decontaminating
an individual ...................................................... 550
597
Direction to individual to be decontaminated ................................ 551
598 Decontaminating
clothing
and personal effects ............................. 553
599
Other protections in relation to decontamination ........................... 554
Part 5--Chief human biosecurity officers and human
biosecurity officers
555
Division 1--Authorisation
555
600
Authorisation of chief human biosecurity officers ......................... 555
601
Authorisation of human biosecurity officers ................................. 555
602
Arrangements for State or Territory officers or employees to
be chief human biosecurity officers or human biosecurity
officers ........................................................................................... 556
Division 2--Functions and powers
557
603
Functions and powers of chief human biosecurity officers ............ 557
604
Functions and powers of human biosecurity officers .................... 557
Part 6--Miscellaneous
558
605 Identity
cards--biosecurity officers etc. ........................................ 558
606
Identity cards--human biosecurity officers etc. ............................ 558
607 Offence--failure
to
return identity card ......................................... 558
608
General provisions relating to directions ....................................... 559
Chapter 13--Miscellaneous
560
Part 1--Review of decisions
560
Division 1--Introduction
560
609
Guide to this Part ........................................................................... 560
Division 2--Review of decisions
561
610 Reviewable
decisions ..................................................................... 561
xxxi Biosecurity Bill 2012 No. , 2012
611 Notice
of
decision
..........................................................................
566
612
Internal review of reviewable decisions ......................................... 566
613
Director of Biosecurity may require further information from
applicants ....................................................................................... 568
614
Review by the Administrative Appeals Tribunal ........................... 568
Part 2--Confidentiality of information
569
Division 1--Introduction
569
615
Guide to this Part ........................................................................... 569
Division 2--Confidentiality of information
570
616 Disclosure
of
protected information .............................................. 570
617
Use in accordance with section 616 does not contravene laws
etc. .................................................................................................. 571
618
Authorisation to use information for purposes of proceedings ...... 572
619
Authorisation to use information that is also received from
another source, and use of information by prescribed
agencies ......................................................................................... 572
620
Authorisation to use information required by another law ............ 574
621
Offence relating to protected information ...................................... 575
622
Exception for use of information in good faith .............................. 575
623
Exception for person who does not know that information is
commercial-in-confidence ............................................................. 575
624
Exception for disclosing to the person to whom information
relates, or if the person to whom information relates consents ...... 576
625
Exception for disclosure to person who provided the
information .................................................................................... 577
626 Annual
report
.................................................................................
577
Part 3--Cost recovery
578
Division 1--Introduction
578
627
Guide to this Part ........................................................................... 578
Division 2--Fees
579
628 Fees
................................................................................................
579
629
Notional payments by the Commonwealth .................................... 579
Division 3--Unpaid fees
581
Subdivision A--General
581
630
Late payment fee ............................................................................ 581
631 Recovery
of
fees
............................................................................
581
632
Suspending or revoking permits etc. because of unpaid fees ......... 581
Subdivision B--Dealing with goods to recover unpaid fees
582
633
Fee is a charge on goods ................................................................ 582
Biosecurity Bill 2012 No. , 2012 xxxii
634
Effect of charge on goods .............................................................. 583
635
Biosecurity officer may withhold goods that are subject to
charge ............................................................................................. 583
636
Moving or interfering with withheld goods ................................... 584
637
When goods stop being withheld ................................................... 585
638 Sale
of
withheld goods ................................................................... 586
Subdivision C--Dealing with a conveyance to recover unpaid fees
relating to the conveyance
586
639
Fee is a charge on conveyance ....................................................... 586
640
Effect of charge on conveyance ..................................................... 587
641
Director of Biosecurity may detain conveyance that is
subject to charge ............................................................................ 587
642
Moving or interfering with detained conveyance .......................... 589
643
Release of detained conveyance .................................................... 589
644 Sale
of
detained conveyance .......................................................... 590
Division 4--Power to sell goods and conveyances
592
645
Sale of goods and conveyances ...................................................... 592
646
Dealing with the proceeds of sale .................................................. 592
Division 5--Miscellaneous
594
647
Providing sustenance for animals and plants ................................. 594
648
Agriculture Minister may remit or refund fees .............................. 595
Part 4--Exemptions from and modifications of this Act
596
Division 1--Introduction
596
649
Guide to this Part ........................................................................... 596
Division 2--Exemptions from and modifications of this Act
597
650
Exemptions from and modifications of this Act ............................ 597
651 Exemptions
for
Torres Strait Treaty .............................................. 597
Part 5--Miscellaneous
600
Division 1--Introduction
600
652
Guide to this Part ........................................................................... 600
Division 2--Abandoned or forfeited goods and conveyances
601
653 Abandoned
goods
..........................................................................
601
654 Forfeited
goods
..............................................................................
602
655 Abandoned
conveyances
................................................................
603
656 Forfeited
conveyances
...................................................................
604
Division 3--Damaged and destroyed goods etc.
606
657
Person complying with direction or request must not damage
or destroy goods ............................................................................. 606
xxxiii Biosecurity Bill 2012 No. , 2012
658 Compensation
for
damaged goods ................................................. 607
659
Compensation for destroyed goods, conveyances or other
premises ......................................................................................... 607
660
Claims for, and amount of, compensation ..................................... 609
Division 4--Miscellaneous
611
661
Privilege against self-incrimination ............................................... 611
662 Offence--hindering
compliance with the Act etc. ......................... 612
663 Certificates
given by analyst .......................................................... 613
664
Admission of analyst's certificate in proceedings ......................... 613
665
Power or requirement to do or cause a thing to be done ................ 615
666
Treatment of partnerships .............................................................. 615
667
Treatment of unincorporated associations ..................................... 616
668
Arrangements with States and Territories to assist in carrying
out this Act ..................................................................................... 616
669
Delegation of powers by Agriculture Minister .............................. 617
670
Protection from civil proceedings .................................................. 618
671 Regulations
....................................................................................
619
Biosecurity Bill 2012 No. , 2012 1
A Bill for an Act relating to diseases and pests that
1
may cause harm to human, animal or plant health
2
or the environment, and for related purposes
3
The Parliament of Australia enacts:
4
Chapter 1--Preliminary
5
Part 1--Preliminary
6
7
1 Short title
8
This Act may be cited as the Biosecurity Act 2012.
9
Chapter 1 Preliminary
Part 1 Preliminary
Section 2
2 Biosecurity Bill 2012 No. , 2012
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 and
2 and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Sections 3 to
671
A single day to be fixed by Proclamation.
However, if the provision(s) do not
commence within the period of 12 months
beginning on the day this Act receives the
Royal Assent, they commence on the day
after the end of that period.
Note:
This table relates only to the provisions of this Act as originally
7
enacted. It will not be amended to deal with any later amendments of
8
this Act.
9
(2) Any information in column 3 of the table is not part of this Act.
10
Information may be inserted in this column, or information in it
11
may be edited, in any published version of this Act.
12
3 Guide to this Act
13
This Act is about managing diseases and pests that may cause harm
14
to human, animal or plant health or the environment.
15
This Chapter includes preliminary provisions (such as the
16
extension of this Act to external Territories, and the relationship of
17
this Act with other Australian laws). It also includes the definitions
18
for this Act, provisions that relate to the Constitution and
19
Preliminary Chapter 1
Preliminary Part 1
Section 3
Biosecurity Bill 2012 No. , 2012 3
international law, and principles affecting decisions to exercise
1
certain powers under this Act.
2
Chapter 2 deals with managing risks to human health. That Chapter
3
only deals with diseases (listed human diseases) that are listed in a
4
legislative instrument. The main method of managing risks to
5
human health is by imposing a human biosecurity control order on
6
an individual who may have a listed human disease. However,
7
Chapter 2 also includes requirements in relation to persons entering
8
or leaving Australian territory, and rules relating to managing
9
deceased individuals.
10
Chapter 3 deals with managing biosecurity risks in relation to
11
goods that are brought into Australian territory from outside
12
Australian territory. These goods become subject to biosecurity
13
control when the aircraft or vessel carrying the goods enters
14
Australian territory. Powers may be exercised to assess the level of
15
biosecurity risk associated with the goods, and biosecurity
16
measures may be required to reduce that risk if it is considered to
17
be unacceptable. Chapter 3 also provides a mechanism for
18
prohibiting certain goods from being brought or imported into
19
Australian territory, either absolutely or subject to conditions, and
20
includes provisions dealing with biosecurity import risk analyses
21
and import permits.
22
Chapter 4 deals with managing biosecurity risks in relation to
23
aircraft and vessels that enter Australian territory from outside
24
Australian territory, including by controlling the places where they
25
can land or be moored and their movement while they are in
26
Australian territory. These conveyances become subject to
27
biosecurity control when they enter Australian territory. Powers
28
may be exercised to assess the level of biosecurity risk associated
29
with them, and biosecurity measures may be required to reduce
30
that risk if it is considered to be unacceptable. Chapter 4 also
31
provides for a scheme to deal with ship sanitation for the purposes
32
of the International Health Regulations.
33
Chapter 5 deals with the ballast water and sediment of certain
34
vessels. It includes an offence of discharging ballast water in
35
Australian seas, with a range of exceptions, and an offence of
36
Chapter 1 Preliminary
Part 1 Preliminary
Section 3
4 Biosecurity Bill 2012 No. , 2012
disposing of sediment. It also includes provisions for ballast water
1
management plans and certificates, record-keeping obligations and
2
powers to ensure compliance.
3
Chapter 6 deals with managing biosecurity risks (other than those
4
covered by Chapter 3 or 4) posed by diseases or pests that may be
5
in or on goods or premises in Australian territory. The Chapter
6
provides for powers to be exercised to monitor, respond to and
7
control those risks.
8
Chapter 7 provides for arrangements to be approved authorising
9
and requiring biosecurity industry participants to carry out
10
biosecurity activities to manage biosecurity risks associated with
11
goods, premises or other things for the purposes of this Act.
12
Chapter 8 provides for the Governor-General to declare biosecurity
13
emergencies and human biosecurity emergencies. Part 1 gives the
14
Agriculture Minister special powers to deal with biosecurity
15
emergencies and provides for certain powers to be delegated to
16
national response agencies. Part 1 also includes other modifications
17
of the Act that apply during biosecurity emergencies. Part 2 gives
18
the Health Minister special powers to deal with human biosecurity
19
emergencies, including by giving effect to recommendations of the
20
World Health Organization.
21
Chapter 9 gives officers powers to ensure people are complying
22
with this Act, such as warrants which allow officers to enter
23
premises to either monitor compliance with this Act (monitoring
24
warrants) or seize evidence of a contravention of this Act
25
(investigation warrants). Chapter 9 also allows officers to enter
26
premises in other cases (with or without a warrant). The Chapter
27
includes other provisions which are relevant to ensuring
28
compliance with this Act, such as how to determine whether a
29
person is a fit and proper person.
30
Chapter 10 includes the procedure for obtaining a warrant under
31
this Act. It also includes the obligations on biosecurity enforcement
32
officers, and others, when premises are entered (with or without a
33
warrant or consent), and when a warrant is executed.
34
Preliminary Chapter 1
Preliminary Part 1
Section 4
Biosecurity Bill 2012 No. , 2012 5
Chapter 11 includes rules for enforcing this Act. The methods of
1
enforcement include obtaining civil penalty orders for breaches of
2
civil penalty provisions in this Act, issuing infringement notices,
3
allowing enforceable undertakings to be given, and issuing
4
injunctions.
5
Chapter 12 deals with matters relating to governance and officials.
6
It includes provisions relating to the functions and powers of the
7
Director of Biosecurity, the Director of Human Biosecurity,
8
biosecurity officers, biosecurity enforcement officers, chief human
9
biosecurity officers and human biosecurity officers.
10
Chapter 13 includes miscellaneous provisions, including provisions
11
dealing with review of reviewable decisions under this Act, the
12
confidentiality of information obtained under this Act, fees to be
13
charged, and methods for recovering costs, under this Act,
14
abandoned or forfeited goods and conveyances, and the ability for
15
regulations to modify the operation of this Act.
16
4 Objects of this Act
17
The objects of this Act are the following:
18
(a) to provide for managing the following:
19
(i)
biosecurity
risks;
20
(ii) the risk of contagion of a listed human disease;
21
(iii) the risk of listed human diseases entering Australian
22
territory or a part of Australian territory, or emerging,
23
establishing themselves or spreading in Australian
24
territory or a part of Australian territory;
25
(iv) risks related to ballast water;
26
(v) biosecurity emergencies and human biosecurity
27
emergencies;
28
(b) to give effect to Australia's international rights and
29
obligations, including under the International Health
30
Regulations, the SPS Agreement and the Biodiversity
31
Convention.
32
Note:
The expression biosecurity risk referred to in subparagraph (a)(i) has
33
different meanings depending on whether it is for the purposes of
34
Chapter 1 Preliminary
Part 1 Preliminary
Section 5
6 Biosecurity Bill 2012 No. , 2012
Chapter 6 (managing biosecurity risks: monitoring, control and
1
response) or another part of this Act (see sections 9 and 309).
2
5 Appropriate Level of Protection (ALOP) for Australia against
3
biosecurity risks
4
The
Appropriate Level of Protection (or ALOP) for Australia is a
5
high level of sanitary and phytosanitary protection aimed at
6
reducing biosecurity risks to a very low level, but not to zero.
7
Note 1:
This section is in accordance with Australia's rights and obligations
8
under the SPS Agreement.
9
Note 2:
The ALOP for Australia must be applied in conducting a BIRA (see
10
subsection 164(2)) or a risk assessment for the purpose of deciding
11
whether particular goods, or a particular class of goods, can be
12
brought or imported into Australian territory (see subsections 170(4),
13
171(3), 175(3) and 178(4)).
14
6 Act binds the Crown
15
(1) This Act binds the Crown in each of its capacities.
16
(2) This Act does not make the Crown liable to be:
17
(a) prosecuted for an offence; or
18
(b) subject to civil proceedings for a civil penalty order; or
19
(c) given an infringement notice.
20
7 Extension of Act to Christmas Island, Cocos (Keeling) Islands and
21
other prescribed external Territories
22
(1) This Act extends to Christmas Island and Cocos (Keeling) Islands.
23
(2) The regulations may extend this Act or any provisions of this Act,
24
other than Chapter 5 (ballast water), to any other external Territory
25
that is prescribed by the regulations.
26
Note:
Chapter 5 extends to all the external Territories (see section 261).
27
8 Concurrent operation of State and Territory laws
28
(1) This Act does not exclude or limit the operation of a law of a State
29
or Territory that is capable of operating concurrently with this Act
30
(except as referred to in subsection (2)).
31
Preliminary Chapter 1
Preliminary Part 1
Section 8
Biosecurity Bill 2012 No. , 2012 7
(2) Subsection (1) is subject to the following provisions:
1
(a) section 169 (prohibited goods);
2
(b) section 267 (ballast water);
3
(c) subsections 443(4), 444(4), 475(5) and 476(4) (biosecurity
4
emergencies and human biosecurity emergencies).
5
(3) Without limiting subsection (1), this Act does not exclude or limit
6
the concurrent operation of a law of a State or Territory to the
7
extent that:
8
(a) the law makes an act or omission:
9
(i)
an
offence;
or
10
(ii) subject to a civil penalty; and
11
(b) that (or any similar) act or omission is also:
12
(i) an offence against a provision of this Act; or
13
(ii) subject to a civil penalty under this Act.
14
(4) Subsection (3) applies even if the law of the State or Territory does
15
any one or more of the following, in relation to the offence or civil
16
penalty:
17
(a) provides for a penalty that differs from the penalty provided
18
for in this Act;
19
(b) provides for fault elements that differ from the fault elements
20
applicable to the offence or civil penalty provision created by
21
this Act;
22
(c) provides for defences or exceptions that differ from the
23
defences or exceptions applicable to the offence or civil
24
penalty provision created by this Act.
25
Chapter 1 Preliminary
Part 2 Definitions
Section 9
8 Biosecurity Bill 2012 No. , 2012
Part 2--Definitions
1
2
9 Definitions
3
In this Act:
4
acceptable ballast water exchange has the meaning given by
5
section 275.
6
accompanying person for a child or incapable person means:
7
(a) a parent, guardian or next of kin of the child or incapable
8
person; or
9
(b) a person authorised by a parent, guardian or next of kin of the
10
child or incapable person under section 38.
11
acquisition of property has the same meaning as in paragraph
12
51(xxxi) of the Constitution.
13
adjacent premises warrant means a warrant issued as a result of
14
the test in table item 7 of the table in section 511 being met.
15
Administration of a vessel has the same meaning as in the Ballast
16
Water Convention.
17
Agriculture Department means the Department administered by
18
the Agriculture Minister.
19
Agriculture Minister means the Minister administering the
20
Primary Industries Levies and Charges Collection Act 1991.
21
Agriculture Secretary means the Secretary of the Agriculture
22
Department.
23
aircraft means any machine or craft that can derive support in the
24
atmosphere from the reactions of the air, other than the reactions of
25
the air against the earth's surface.
26
Note:
For the purposes of this Act, a reference to an aircraft does not include
27
a reference to an aircraft that is being carried on board another
28
conveyance (see paragraph 15(2)(b)). An aircraft that is being carried
29
on board another conveyance is generally treated as goods for the
30
purposes of this Act (see subsection 18(2)).
31
Preliminary Chapter 1
Definitions Part 2
Section 9
Biosecurity Bill 2012 No. , 2012 9
ALOP (short for Appropriate Level of Protection) has the meaning
1
given by section 5.
2
animal includes a dead animal and any part of an animal.
3
appropriate ballast water records:
4
(a) for an Australian vessel--has the meaning given by
5
section 295; or
6
(b) for a foreign vessel--has the meaning given by section 296.
7
appropriate person means:
8
(a) for premises to which an entry warrant or a premises
9
possession warrant relates, or premises entered under a
10
provision referred to in section 526--the occupier of the
11
premises, or another person who apparently represents the
12
occupier; or
13
(b) for a conveyance to which a conveyance possession warrant
14
relates--the person responsible for the conveyance, or
15
another person who apparently represents the person
16
responsible for the conveyance.
17
Note:
If an entry warrant relates to a conveyance, the appropriate person is
18
the person occupying the conveyance, or another person who
19
apparently represents that person (see paragraph (a) of the definition
20
of premises in this section).
21
approved arrangement has the meaning given by section 10.
22
Australian law means a law of the Commonwealth, or of a State or
23
Territory.
24
Australian seas means the waters (including the internal waters of
25
Australia) within the outer limits of the territorial sea of Australia
26
(including every external Territory).
27
Note:
This definition is affected by sections 262 (vessels in dry dock) and
28
263 (foreign vessels near the Australian Antarctic Territory).
29
Australian territory has the meaning given by section 11.
30
Australian vessel means a vessel that:
31
(a) has Australian nationality under section 29 of the Shipping
32
Registration Act 1981; or
33
(b) is a vessel whose Administration is the Commonwealth.
34
Chapter 1 Preliminary
Part 2 Definitions
Section 9
10 Biosecurity Bill 2012 No. , 2012
baggage means goods:
1
(a) that are carried on a conveyance by or for a person who is on
2
board the conveyance (including the person in charge and
3
members of the crew of the conveyance); or
4
(b) that a person intended to be so carried.
5
ballast water has the same meaning as Ballast Water has in the
6
Ballast Water Convention.
7
Note:
Chapter 5 (ballast water) does not generally apply to permanent ballast
8
water in sealed tanks (see section 265).
9
Ballast Water Convention means the International Convention for
10
the Control and Management of Ships' Ballast Water and
11
Sediments, done at London on 13 February 2004.
12
Note 1:
The Ballast Water Convention includes the Annex to the Ballast
13
Water Convention.
14
Note 2:
In 2012, the text of the Convention was accessible through the
15
Australian Treaties Library on the AustLII website
16
(www.austlii.edu.au).
17
ballast water exchange means a process involving:
18
(a) the discharge of ballast water from a tank on a vessel; and
19
(b) the uptake of water into the tank simultaneously with, or
20
immediately after, the discharge.
21
ballast water management has the same meaning as Ballast Water
22
Management has in the Ballast Water Convention.
23
ballast water management certificate has the meaning given by
24
section 288.
25
ballast water management plan has the meaning given by
26
section 286.
27
ballast water operation means:
28
(a) taking up ballast water into a vessel (whether deliberately,
29
accidentally or as part of a ballast water exchange); or
30
(b) discharging ballast water from a vessel (whether deliberately,
31
accidentally or as part of a ballast water exchange); or
32
(c) treating or circulating ballast water on a vessel for the
33
purposes of ballast water management.
34
Preliminary Chapter 1
Definitions Part 2
Section 9
Biosecurity Bill 2012 No. , 2012 11
ballast water reception facility means a facility (including a
1
vessel) for receiving ballast water from vessels for treatment or
2
disposal.
3
ballast water record system for a vessel means a system for
4
making and keeping records about the vessel's ballast water and
5
ballast water operations.
6
Biodiversity Convention means the Convention on Biological
7
Diversity, done at Rio de Janeiro on 5 June 1992, as in force for
8
Australia from time to time.
9
Note:
The text of the Convention is set out in Australian Treaty Series 1993
10
No. 32 ([1993] ATS 32). In 2012, the text of a Convention in the
11
Australian Treaty Series was accessible through the Australian
12
Treaties Library on the AustLII website (www.austlii.edu.au).
13
biosecurity activities, in relation to an approved arrangement, has
14
the meaning given by section 403.
15
biosecurity activity zone has the meaning given by subsection
16
393(1).
17
biosecurity activity zone determination means a determination
18
made under subsection 393(1).
19
biosecurity control notice, in relation to goods that are subject to
20
biosecurity control or a conveyance that is subject to biosecurity
21
control, means a notice in the form approved by the Director of
22
Biosecurity that states that the goods or conveyance is subject to
23
biosecurity control.
24
Note:
See sections 126 and 202.
25
biosecurity control order means an order made under section 351.
26
biosecurity control order warrant means a warrant issued as a
27
result of the test in table item 2 of the table in section 511 being
28
met.
29
biosecurity emergency means a biosecurity emergency that is
30
declared to exist under subsection 441(1).
31
biosecurity emergency declaration means a declaration made
32
under subsection 441(1).
33
Chapter 1 Preliminary
Part 2 Definitions
Section 9
12 Biosecurity Bill 2012 No. , 2012
biosecurity emergency period means the period specified under
1
paragraph 441(3)(c) in a biosecurity emergency declaration as the
2
period during which the declaration is in force.
3
biosecurity enforcement officer means a person who is authorised
4
under section 584 or 586 to be a biosecurity enforcement officer
5
under this Act.
6
biosecurity entry point has the meaning given by section 12.
7
biosecurity industry participant has the meaning given by
8
section 13.
9
biosecurity measures means measures to manage any of the
10
following:
11
(a)
biosecurity
risks;
12
(b) the risk of contagion of a listed human disease;
13
(c) the risk of listed human diseases:
14
(i) entering Australian territory or a part of Australian
15
territory; or
16
(ii) emerging, establishing themselves or spreading in
17
Australian territory or a part of Australian territory;
18
(d) biosecurity emergencies and human biosecurity emergencies.
19
biosecurity monitoring zone means:
20
(a) a permanent biosecurity monitoring zone; or
21
(b) a temporary biosecurity monitoring zone.
22
biosecurity monitoring zone warrant means a warrant issued as a
23
result of the test in table item 4 of the table in section 511 being
24
met.
25
biosecurity officer means a person who is authorised under
26
section 583 to be a biosecurity officer under this Act.
27
biosecurity official means any of the following:
28
(a) a biosecurity officer;
29
(b) a biosecurity enforcement officer;
30
(c) the Director of Biosecurity.
31
Preliminary Chapter 1
Definitions Part 2
Section 9
Biosecurity Bill 2012 No. , 2012 13
biosecurity response zone has the meaning given by subsection
1
363(1).
2
Note:
An area may be determined to be a biosecurity response zone under
3
Part 5 of Chapter 6 during a biosecurity emergency period (see
4
section 463).
5
biosecurity response zone determination means a determination
6
made under subsection 363(1).
7
biosecurity response zone warrant means a warrant issued as a
8
result of the test in table item 3 of the table in section 511 being
9
met.
10
biosecurity risk means (except as provided by section 309):
11
(a) the likelihood of a disease or pest:
12
(i) entering Australian territory or a part of Australian
13
territory; or
14
(ii) establishing itself or spreading in Australian territory or
15
a part of Australian territory; and
16
(b) the potential for any of the following:
17
(i) the disease or pest to cause harm to human, animal or
18
plant health;
19
(ii) the disease or pest to cause harm to the environment;
20
(iii) economic consequences associated with the entry,
21
establishment or spread of the disease or pest.
22
Note:
Section 309 provides a modified meaning of biosecurity risk in
23
relation to Chapter 6 (managing biosecurity risks: monitoring, control
24
and response).
25
biosecurity risk assessment warrant means a warrant issued as a
26
result of the test in table item 1 of the table in section 511 being
27
met.
28
BIRA (short for Biosecurity Import Risk Analysis) has the
29
meaning given by section 163.
30
chargeable activity has the meaning given by subsection 628(1).
31
chief human biosecurity officer for a State or Territory means a
32
person who is authorised under section 600 to be a chief human
33
biosecurity officer for the State or Territory.
34
Chapter 1 Preliminary
Part 2 Definitions
Section 9
14 Biosecurity Bill 2012 No. , 2012
child means a person who is less than 18 years old.
1
Christmas Island means the Territory of Christmas Island.
2
civil penalty order has the meaning given by subsection 535(4).
3
civil penalty provision: a provision of this Act is a civil penalty
4
provision if:
5
(a) the provision sets out at its foot a pecuniary penalty, or
6
penalties, indicated by the words "Civil penalty"; and
7
(b) the provision is one of the following:
8
(i) a subsection, or a section that is not divided into
9
subsections;
10
(ii) a subregulation, or a regulation that is not divided into
11
subregulations.
12
Note:
The reference to this Act includes a reference to regulations made
13
under this Act (see the definition of this Act in this section).
14
coastal sea of Australia or an external Territory has the same
15
meaning as in subsection 15B(4) of the Acts Interpretation Act
16
1901.
17
Cocos (Keeling) Islands means the Territory of Cocos (Keeling)
18
Islands.
19
commercial-in-confidence has the meaning given by section 14.
20
Commonwealth body includes a Department of State, or an
21
authority, of the Commonwealth.
22
competent authority has the meaning given by the International
23
Health Regulations.
24
conditionally non-prohibited goods has the meaning given by
25
subsection 171(2).
26
constitutional trade and commerce means the following:
27
(a) trade or commerce between Australia and places outside
28
Australia;
29
(b) trade or commerce among the States;
30
(c) trade or commerce within a Territory, between a State and a
31
Territory or between 2 Territories.
32
Preliminary Chapter 1
Definitions Part 2
Section 9
Biosecurity Bill 2012 No. , 2012 15
conveyance has the meaning given by section 15.
1
conveyance possession warrant means a warrant issued as a result
2
of the test in table item 8 of the table in section 511 being met.
3
covered by, in relation to an approved arrangement, has the
4
meaning given by section 13.
5
damage, in relation to data, includes damage by erasure of data or
6
addition of other data.
7
declaration disease or pest, in relation to a biosecurity emergency
8
declaration and a biosecurity emergency period, means the disease
9
or pest specified under paragraph 441(3)(a) in the biosecurity
10
emergency declaration that specifies the biosecurity emergency
11
period.
12
declaration listed human disease, in relation to a human
13
biosecurity emergency declaration and a human biosecurity
14
emergency period, means the listed human disease specified under
15
paragraph 473(3)(a) in the human biosecurity emergency
16
declaration that specifies the human biosecurity emergency period.
17
Director of Biosecurity means the Director of Biosecurity referred
18
to in section 578.
19
Director of Human Biosecurity means the Director of Human
20
Biosecurity referred to in subsection 582(1).
21
disease means:
22
(a) the signs or symptoms of an illness or infection caused by a
23
disease agent; or
24
(b) a collection of signs or symptoms that is clinically defined,
25
for which the causal agent is unknown; or
26
(c) a disease agent that has the potential to cause, either directly
27
or indirectly, an illness or infection.
28
disease agent includes, but is not limited to, a microorganism, an
29
infectious agent and a parasite.
30
enactment means:
31
(a) an Act of the Commonwealth, a State or a Territory; or
32
Chapter 1 Preliminary
Part 2 Definitions
Section 9
16 Biosecurity Bill 2012 No. , 2012
(b) an instrument (including rules, regulations and by-laws)
1
made under an Act of the Commonwealth, a State or a
2
Territory.
3
engage in conduct means:
4
(a) do an act; or
5
(b) omit to perform an act.
6
entry warrant means any of the following warrants authorising
7
entry to premises:
8
(a) a biosecurity risk assessment warrant;
9
(b) a biosecurity control order warrant;
10
(c) a biosecurity response zone warrant;
11
(d) a biosecurity monitoring zone warrant;
12
(e) a monitoring warrant;
13
(f) an investigation warrant;
14
(g) an adjacent premises warrant.
15
environment includes:
16
(a) ecosystems and their constituent parts; and
17
(b) natural and physical resources.
18
evidential burden, in relation to a matter, means the burden of
19
adducing or pointing to evidence that suggests a reasonable
20
possibility that the matter exists or does not exist.
21
evidential material means a thing in relation to which any of the
22
following conditions are met:
23
(a) an offence against this Act, or an offence against the Crimes
24
Act 1914 or the Criminal Code that relates to this Act, has
25
been committed or is suspected, on reasonable grounds, to
26
have been committed with respect to the thing;
27
(b) a civil penalty provision in this Act has been contravened or
28
is suspected, on reasonable grounds, of having been
29
contravened with respect to the thing;
30
(c) there are reasonable grounds for suspecting that the thing will
31
afford evidence of:
32
Preliminary Chapter 1
Definitions Part 2
Section 9
Biosecurity Bill 2012 No. , 2012 17
(i) the commission of an offence against this Act or an
1
offence against the Crimes Act 1914 or the Criminal
2
Code that relates to this Act; or
3
(ii) the contravention of a civil penalty provision in this
4
Act;
5
(d) there are reasonable grounds for suspecting that the thing is
6
intended to be used for the purpose of:
7
(i) committing an offence against this Act or an offence
8
against the Crimes Act 1914 or the Criminal Code that
9
relates to this Act; or
10
(ii) contravening a civil penalty provision in this Act.
11
exposed conveyance means an exposed conveyance within the
12
meaning of subsection 192(2) or (3).
13
exposed goods has the meaning given by subsection 156(3).
14
exposed goods order means an order made under subsection
15
157(3).
16
exposed to has the meaning given by section 16.
17
Federal Circuit Court means the Federal Circuit Court of
18
Australia.
19
Federal Court means the Federal Court of Australia.
20
Finance Minister means the Minister administering the Financial
21
Management and Accountability Act 1997.
22
first point of entry has the meaning given by section 17.
23
Foreign Affairs Department means the Department administered
24
by the Minister administering the Diplomatic Privileges and
25
Immunities Act 1967.
26
foreign vessel means a vessel that is not an Australian vessel.
27
goods has the meaning given by section 18.
28
harbour means a natural or artificial harbour, and includes:
29
(a) a navigable estuary, river, creek or channel; and
30
Chapter 1 Preliminary
Part 2 Definitions
Section 9
18 Biosecurity Bill 2012 No. , 2012
(b) a haven, roadstead, dock, pier or jetty; and
1
(c) any other place in or at which vessels can obtain shelter or
2
load and unload goods or embark and disembark passengers.
3
Health Department means the Department administered by the
4
Health Minister.
5
Health Minister means the Minister administering the National
6
Health Act 1953.
7
Health Secretary means the Secretary of the Health Department.
8
high-value conveyance means a conveyance of a value that is
9
greater than the amount prescribed by the regulations for the
10
purposes of this definition.
11
high-value goods means goods of a value that is greater than the
12
amount prescribed by the regulations for the purposes of this
13
definition.
14
human biosecurity control order means an order imposed on an
15
individual under section 58.
16
human biosecurity emergency means a human biosecurity
17
emergency that is declared to exist under subsection 473(1).
18
human biosecurity emergency declaration means a declaration
19
made under subsection 473(1).
20
human biosecurity emergency period means the period specified
21
under paragraph 473(3)(c) in a human biosecurity emergency
22
declaration as the period during which the declaration is in force.
23
human biosecurity officer means a person who is authorised under
24
section 601 to be a human biosecurity officer under this Act.
25
human disease means a disease that has the potential:
26
(a) to enter Australian territory or a part of Australian territory,
27
or to emerge, establish itself or spread in Australian territory
28
or a part of Australian territory; and
29
(b) to cause harm to human health.
30
Preliminary Chapter 1
Definitions Part 2
Section 9
Biosecurity Bill 2012 No. , 2012 19
human health response zone has the meaning given by
1
section 111.
2
human health risk means:
3
(a) the likelihood of a disease or pest:
4
(i) entering Australian territory or a part of Australian
5
territory; or
6
(ii) emerging, establishing itself or spreading in Australian
7
territory or a part of Australian territory; and
8
(b) the potential for either of the following:
9
(i) the disease or pest to cause harm to human health;
10
(ii) economic consequences associated with the entry,
11
emergence, establishment or spread of the disease or
12
pest, to the extent that the disease or pest has the
13
potential to cause harm to human health.
14
human remains means the remains of all or any part of a deceased
15
human's body, other than the cremated remains of a deceased
16
human's body.
17
Immigration Department means the Department administered by
18
the Minister administering the Migration Act 1958.
19
import, in relation to goods, does not include unloading the goods
20
for temporary purposes only (for example, to unload other goods).
21
incapable person means a person who:
22
(a) is, or is more than, 18 years old; and
23
(b)
either:
24
(i) is incapable (whether permanently or temporarily) of
25
understanding the general nature and effect of, and
26
purposes of carrying out, a biosecurity measure; or
27
(ii) is incapable (whether permanently or temporarily) of
28
indicating whether he or she consents or does not
29
consent to a biosecurity measure.
30
incoming aircraft or vessel means an aircraft or vessel:
31
(a) that has entered Australian territory during a flight or voyage
32
that commenced outside Australian territory; and
33
Chapter 1 Preliminary
Part 2 Definitions
Section 9
20 Biosecurity Bill 2012 No. , 2012
(b) that intends to arrive, or has arrived, at a landing place or port
1
in Australian territory in accordance with Part 4 of Chapter 4
2
(managing biosecurity risks: conveyances).
3
incoming passenger aircraft or vessel means an incoming aircraft
4
or vessel that is a passenger aircraft or a passenger vessel.
5
infringement notice provision has the meaning given by
6
section 556.
7
installation has the meaning given by section 19.
8
internal waters of Australia has the same meaning as in section 10
9
of the Seas and Submerged Lands Act 1973 and, to avoid doubt,
10
includes waters within the limits of a State.
11
International Health Regulations means the International Health
12
Regulations (2005), done at Geneva on 23 May 2005, as in force
13
for Australia from time to time.
14
Note:
The text of the Regulations is set out in Australian Treaty Series 2007
15
No. 29 ([2007] ATS 29). In 2012, the text of Regulations in the
16
Australian Treaty Series was accessible through the Australian
17
Treaties Library on the AustLII website (www.austlii.edu.au).
18
international mail centre means a place approved by the Chief
19
Executive Officer of Customs under paragraph (f) of the definition
20
of Customs place in subsection 183UA(1) of the Customs Act
21
1901.
22
invasive pest means a pest that:
23
(a) is an alien species (within the meaning of the Biodiversity
24
Convention); but
25
(b) is not capable of:
26
(i) infesting humans, animals or plants; or
27
(ii) acting as a vector for a disease; or
28
(iii) causing disease in any other way.
29
investigation powers has the meaning given by sections 486, 487
30
and 489.
31
investigation warrant means a warrant issued as a result of the test
32
in table item 6 of the table in section 511 being met.
33
Preliminary Chapter 1
Definitions Part 2
Section 9
Biosecurity Bill 2012 No. , 2012 21
isolation measure means the biosecurity measure included in a
1
human biosecurity control order under section 95.
2
issuing officer means:
3
(a) a magistrate; or
4
(b) a Judge of the Federal Court or the Federal Circuit Court.
5
Note:
For conferral of powers on an issuing officer, see section 532.
6
just terms has the same meaning as in paragraph 51(xxxi) of the
7
Constitution.
8
landing place, in relation to an aircraft, means any place where the
9
aircraft can land, including:
10
(a) an area of land or water; and
11
(b) an area on a building or a vessel.
12
late payment fee has the meaning given by section 630.
13
life-threatening situation, in relation to the execution of an
14
investigation warrant in relation to premises, means a situation that
15
the biosecurity enforcement officer or biosecurity officer believes,
16
on reasonable grounds, involves a serious and imminent threat to a
17
person's life, health or safety that requires the officer to leave the
18
premises.
19
listed human disease has the meaning given by section 41.
20
managed for discharge, in relation to ballast water, has the
21
meaning given by sections 271 and 275.
22
medical facility includes a facility (whether permanent or
23
temporary) where medical assessments of individuals are
24
conducted.
25
monitoring powers has the meaning given by sections 480, 481
26
and 483.
27
monitoring warrant means a warrant issued as a result of the test
28
in table item 5 of the table in section 511 being met.
29
National Focal Point has the meaning given by section 9 of the
30
National Health Security Act 2007.
31
Chapter 1 Preliminary
Part 2 Definitions
Section 9
22 Biosecurity Bill 2012 No. , 2012
national response agency means:
1
(a) the Agriculture Department and all biosecurity officers and
2
biosecurity enforcement officers; or
3
(b) a body declared under section 450 to be a national response
4
agency.
5
officer of Customs has the same meaning as in the Customs Act
6
1901.
7
operator of a conveyance has the meaning given by section 20.
8
outgoing aircraft or vessel means an aircraft or vessel that intends
9
to leave Australian territory from a landing place or port in
10
Australian territory.
11
outgoing passenger aircraft or vessel means an outgoing aircraft
12
or vessel that is a passenger aircraft or a passenger vessel.
13
passenger of an aircraft or vessel means a person who is lawfully
14
entitled to be on board the aircraft or vessel, other than a person
15
who is on board the aircraft or vessel for the purpose of performing
16
functions as the person in charge or as a member of the crew of the
17
aircraft or vessel.
18
passenger aircraft means an aircraft that has the capacity to carry
19
6 or more passengers.
20
passenger vessel means a vessel that has the capacity to carry 12 or
21
more passengers.
22
permanent biosecurity monitoring zone has the meaning given by
23
section 376.
24
permissible distance means 400 metres or such greater distance as
25
is prescribed by regulations for the purposes of this definition.
26
permissible purpose means a purpose of promoting the objects of
27
this Act.
28
personal information has the same meaning as in the Privacy Act
29
1988.
30
person assisting has the meaning given by section 531.
31
Preliminary Chapter 1
Definitions Part 2
Section 9
Biosecurity Bill 2012 No. , 2012 23
person in charge has the meaning given by section 21.
1
person responsible for a conveyance means:
2
(a) the owner of the conveyance; or
3
(b) the person in charge of the conveyance; or
4
(c) the operator of the conveyance.
5
pest means a species, strain or biotype of a plant or animal, or a
6
disease agent, that has the potential to cause, either directly or
7
indirectly, harm to:
8
(a) human, animal or plant health; or
9
(b)
the
environment.
10
Note:
For the application of this Act in relation to pests, see sections 24 and
11
25.
12
plant includes a dead plant and any part of a plant.
13
port includes a harbour.
14
possession warrant means a premises possession warrant or a
15
conveyance possession warrant authorising the taking of
16
possession of premises or a conveyance.
17
PPSA security interest means a security interest within the
18
meaning of the Personal Property Securities Act 2009 and to
19
which that Act applies, other than a transitional security interest
20
within the meaning of that Act.
21
Note 1:
The Personal Property Securities Act 2009 applies to certain security
22
interests in personal property. See the following provisions of that
23
Act:
24
(a) section 8 (interests to which the Act does not apply);
25
(b) section 12 (meaning of security interest);
26
(c) Chapter 9 (transitional provisions).
27
Note 2:
For the meaning of transitional security interest, see section 308 of
28
the Personal Property Securities Act 2009.
29
premises includes the following:
30
(a) a structure, building or conveyance;
31
(b) a place (whether or not enclosed or built on), including a
32
place situated underground or under water;
33
(c) a part of a thing referred to in paragraph (a) or (b).
34
Chapter 1 Preliminary
Part 2 Definitions
Section 9
24 Biosecurity Bill 2012 No. , 2012
Note:
Premises does not include a conveyance in certain parts of this Act
1
(see sections 254, 470 and 501).
2
premises possession warrant means a warrant issued as a result of
3
the test in table item 9 of the table in section 511 being met.
4
prescribed contact information means:
5
(a) in relation to section 46--the contact information prescribed
6
by the regulations for the purposes of that section; and
7
(b) in relation to section 67--the contact information prescribed
8
by the regulations for the purposes of that section; and
9
(c) in relation to section 83--the contact information prescribed
10
by the regulations for the purposes of that section.
11
prescribed quarantine signal means the signal prescribed for the
12
purposes of subsection 223(2).
13
prohibited goods has the meaning given by subsection 170(2).
14
protected information means personal information, or information
15
that is commercial-in-confidence, that:
16
(a) is obtained under, or in accordance with, this Act; or
17
(b) is derived from a record of personal information, or
18
information that is commercial-in-confidence, that was made
19
under, or in accordance with, this Act; or
20
(c) is derived from a disclosure or use of personal information,
21
or information that is commercial-in-confidence, that was
22
made under, or in accordance with, this Act.
23
Note:
For the meaning of commercial-in-confidence, see section 14.
24
protected person has the meaning given by subsection 670(6).
25
protected zone has the meaning given by section 651.
26
protected zone area has the meaning given by section 651.
27
protected zone vessel has the meaning given by section 651.
28
related provision means the following:
29
(a) an offence against this Act;
30
(b) a civil penalty provision in this Act;
31
Preliminary Chapter 1
Definitions Part 2
Section 9
Biosecurity Bill 2012 No. , 2012 25
(c) an offence against the Crimes Act 1914 or the Criminal Code
1
that relates to this Act.
2
release from biosecurity control:
3
(a) in relation to goods that are subject to biosecurity control--
4
means release from biosecurity control under section 160;
5
and
6
(b) in relation to a conveyance that is subject to biosecurity
7
control--means release from biosecurity control under
8
section 221.
9
relevant court means:
10
(a) the Federal Court; or
11
(b) the Federal Circuit Court; or
12
(c) a court of a State or Territory that has jurisdiction in relation
13
to matters arising under this Act.
14
relevant Director, in relation to an approved arrangement or a
15
proposed approved arrangement, means:
16
(a) if the arrangement provides for biosecurity activities to be
17
carried out relating only to human health risks--the Director
18
of Human Biosecurity; or
19
(b) in any other case--the Director of Biosecurity.
20
relevant person for a reviewable decision means:
21
(a) for a reviewable decision referred to in column 1 of the table
22
in subsection 610(1)--the person referred to in column 3 of
23
that table in relation to that decision; and
24
(b) for a reviewable decision prescribed under regulations made
25
for the purposes of subsection 610(2)--the person specified
26
by the regulations as the relevant person for that decision.
27
relevant premises has the meaning given by section 498.
28
reportable biosecurity incident:
29
(a) in relation to goods that are subject to biosecurity control--
30
means an act, omission or event that is determined to be a
31
reportable biosecurity incident under section 152; and
32
(b) in relation to an approved arrangement--has the meaning
33
given by subsection 429(1).
34
Chapter 1 Preliminary
Part 2 Definitions
Section 9
26 Biosecurity Bill 2012 No. , 2012
reviewable decision has the meaning given by subsections 610(1)
1
and (2).
2
sanitation health risk has the meaning prescribed for the purposes
3
of paragraph 257(1)(a).
4
sediment has the same meaning as Sediments has in the Ballast
5
Water Convention.
6
sediment reception facility means a facility in Australian territory
7
for receiving sediment from vessels for treatment or disposal in a
8
way authorised under:
9
(a) a law of the Commonwealth; or
10
(b) if the facility is in a State or Territory--a law of the State or
11
Territory.
12
ship's pilot, in relation to a vessel, means a person who does not
13
belong to, but has the conduct of, the vessel.
14
SPS Agreement means the Agreement on the Application of
15
Sanitary and Phytosanitary Measures set out in Annex 1A to the
16
World Trade Organization Agreement, as in force for Australia
17
from time to time.
18
State or Territory body includes a Department of State, or an
19
authority, of a State or Territory.
20
subject to biosecurity control:
21
(a) in relation to goods--means subject to biosecurity control
22
because of subsection 117(2) or (4); and
23
(b) in relation to a conveyance--means subject to biosecurity
24
control because of subsection 191(2) or (4) or 192(2), (3) or
25
(5).
26
survey authority means a person authorised by the Director of
27
Biosecurity under section 289 to be a survey authority.
28
suspended goods has the meaning given by subsection 178(2).
29
tank includes space or compartment.
30
Preliminary Chapter 1
Definitions Part 2
Section 9
Biosecurity Bill 2012 No. , 2012 27
temporary biosecurity monitoring zone has the meaning given by
1
subsection 382(1).
2
temporary biosecurity monitoring zone determination means a
3
determination made under subsection 382(1).
4
this Act includes instruments made under this Act.
5
Torres Strait Treaty has the meaning given by section 651.
6
traditional activities has the meaning given by section 651.
7
traditional inhabitant has the meaning given by section 651.
8
traveller movement measure means the biosecurity measure
9
included in a human biosecurity control order under section 94.
10
unduly detained or delayed has the same meaning as in the Ballast
11
Water Convention.
12
United Nations Convention on the Law of the Sea means the
13
United Nations Convention on the Law of the Sea, done at
14
Montego Bay on 10 December 1982, as in force for Australia from
15
time to time.
16
Note:
The text of the Convention is set out in Australian Treaty Series 1994
17
No. 31 ([1994] ATS 31). In 2012, the text of a Convention in the
18
Australian Treaty Series was accessible through the Australian
19
Treaties Library on the AustLII website (www.austlii.edu.au).
20
vessel:
21
(a) means any kind of vessel used in navigation by water,
22
however propelled or moved, including the following:
23
(i) a barge, lighter or other floating craft;
24
(ii) an air-cushion vehicle, or other similar craft, used
25
wholly or primarily in navigation by water; and
26
(b)
includes:
27
(i) an installation; and
28
(ii) any floating structure.
29
Note:
For the purposes of this Act, a reference to a vessel does not include a
30
reference to a vessel that is being carried on board another conveyance
31
(except in Chapter 5 (ballast water) and any provision of this Act to
32
the extent that it relates to that Chapter) (see paragraph 15(2)(c)). A
33
Chapter 1 Preliminary
Part 2 Definitions
Section 10
28 Biosecurity Bill 2012 No. , 2012
vessel that is being carried on board another conveyance is generally
1
treated as goods for the purposes of this Act (see subsection 18(2)).
2
warrant means any warrant issued under section 510 or 514.
3
World Trade Organization Agreement means the Marrakesh
4
Agreement establishing the World Trade Organization, done at
5
Marrakesh on 15 April 1994.
6
Note:
The text of the Agreement is set out in Australian Treaty Series 1995
7
No. 8 ([1995] ATS 8). In 2012, the text of an Agreement in the
8
Australian Treaty Series was accessible through the Australian
9
Treaties Library on the AustLII website (www.austlii.edu.au).
10
10 Meaning of approved arrangement
11
An
approved arrangement is an arrangement for which an
12
approval is in force under paragraph 404(1)(a) (including a varied
13
arrangement for which an approval is in force under that paragraph
14
as it applies because of subsection 410(3)).
15
11 Meaning of Australian territory
16
A reference in a provision of this Act to Australian territory is a
17
reference to:
18
(a) Australia, Christmas Island, Cocos (Keeling) Islands and any
19
external Territory to which that provision extends; and
20
(b) the airspace over an area covered by paragraph (a); and
21
(c) the coastal sea of Australia, of Christmas Island, of Cocos
22
(Keeling) Islands and of any other external Territory to which
23
that provision extends.
24
Note 1:
Under subsection 7(2), the regulations may extend this Act, or any
25
provisions of this Act, to external Territories.
26
Note 2:
The definition of coastal sea of Australia or an external Territory in
27
subsection 15B(4) of the Acts Interpretation Act 1901 includes the
28
airspace over Australia or the external Territory.
29
Preliminary Chapter 1
Definitions Part 2
Section 12
Biosecurity Bill 2012 No. , 2012 29
12 Meaning of biosecurity entry point
1
Biosecurity entry point for an aircraft
2
(1)
A
biosecurity entry point for an aircraft that is subject to
3
biosecurity control is an area of a landing place that is designated,
4
under paragraph 226(a), as a biosecurity entry point for that aircraft
5
or a class of aircraft that includes that aircraft.
6
Biosecurity entry point for a vessel
7
(2)
A
biosecurity entry point for a vessel that is subject to biosecurity
8
control is an area of a port that is designated, under paragraph
9
232(a), as a biosecurity entry point for that vessel or a class of
10
vessels that includes that vessel.
11
Biosecurity entry point for goods
12
(3)
A
biosecurity entry point for goods that are subject to biosecurity
13
control, or exposed goods in relation to which a biosecurity control
14
order is in force, is:
15
(a) an area of a landing place that is designated, under paragraph
16
226(b), as a biosecurity entry point for those goods or a class
17
of goods that includes those goods; or
18
(b) an area of a port that is designated, under paragraph 232(b),
19
as a biosecurity entry point for those goods or a class of
20
goods that includes those goods.
21
13 Meaning of biosecurity industry participant and covered by
22
A person who is the holder of the approval of an approved
23
arrangement (including a person to whom an approved
24
arrangement has been transferred in the circumstances prescribed
25
by regulations made for the purposes of section 409):
26
(a)
is
a
biosecurity industry participant; and
27
(b)
is
covered by the approved arrangement.
28
Note:
If an approved arrangement is revoked under Part 5 of Chapter 7
29
(approved arrangements), then, for the purposes of this Act, the
30
arrangement ceases to be an approved arrangement and the person
31
who held the approval of the arrangement ceases to be a biosecurity
32
industry participant covered by the arrangement.
33
Chapter 1 Preliminary
Part 2 Definitions
Section 14
30 Biosecurity Bill 2012 No. , 2012
14 Meaning of commercial-in-confidence
1
Information
is
commercial-in-confidence if a person demonstrates
2
to the Director of Biosecurity that:
3
(a) release of the information would cause competitive detriment
4
to the person; and
5
(b) the information is not in the public domain; and
6
(c) the information is not required to be disclosed under another
7
Australian law; and
8
(d) the information is not readily discoverable.
9
15 Meaning of conveyance
10
(1)
Conveyance means any of the following:
11
(a)
an
aircraft;
12
(b)
a
vessel;
13
(c)
a
vehicle;
14
(d) a train (including railway rolling stock);
15
(e) any other means of transport prescribed by the regulations.
16
(2) However, for the purposes of this Act:
17
(a) a reference to a conveyance does not include a reference to a
18
conveyance that is being carried on board another
19
conveyance (except in Part 3 of Chapter 13 (cost recovery)
20
and any provision of this Act to the extent that it relates to
21
that Part); and
22
(b) a reference to an aircraft does not include a reference to an
23
aircraft that is being carried on board another conveyance;
24
and
25
(c) a reference to a vessel does not include a reference to a vessel
26
that is being carried on board another conveyance (except in
27
Chapter 5 (ballast water) and any provision of this Act to the
28
extent that it relates to that Chapter).
29
Note 1:
Examples of conveyances that may be carried on board another
30
conveyance include a lifeboat being carried on a vessel and a vehicle
31
being carried on another vehicle or a train.
32
Note 2:
Except in the provisions referred to in paragraphs (2)(a) and (c), a
33
conveyance that is being carried on board another conveyance is
34
treated as goods for the purposes of this Act (see section 18).
35
Preliminary Chapter 1
Definitions Part 2
Section 16
Biosecurity Bill 2012 No. , 2012 31
16 Meaning of exposed to
1
(1) A person or thing is taken to have been exposed to another person
2
or thing if the first-mentioned person or thing has been, or is likely
3
to have been:
4
(a) in physical contact with; or
5
(b) in close proximity to; or
6
(c) exposed to contamination, infestation or infection from;
7
the other person or thing.
8
(2) In this section:
9
thing includes goods, a conveyance and premises.
10
17 Meaning of first point of entry
11
First point of entry for an aircraft
12
(1)
A
first point of entry for an aircraft that is subject to biosecurity
13
control is a landing place that is determined, under paragraph
14
225(1)(a), to be a first point of entry for that aircraft or a class of
15
aircraft that includes that aircraft.
16
First point of entry for a vessel
17
(2)
A
first point of entry for a vessel that is subject to biosecurity
18
control is a port that is determined, under paragraph 231(1)(a), to
19
be a first point of entry for that vessel or a class of vessels that
20
includes that vessel.
21
First point of entry for goods
22
(3)
A
first point of entry for goods that are subject to biosecurity
23
control, or exposed goods in relation to which an exposed goods
24
order is in force, is:
25
(a) a landing place that is determined, under paragraph
26
225(1)(b), to be a first point of entry for those goods or a
27
class of goods that includes those goods; or
28
Chapter 1 Preliminary
Part 2 Definitions
Section 18
32 Biosecurity Bill 2012 No. , 2012
(b) a port that is determined, under paragraph 231(1)(b), to be a
1
first point of entry for those goods or a class of goods that
2
includes those goods.
3
18 Meaning of goods
4
(1)
Goods includes the following:
5
(a)
an
animal;
6
(b) a plant (whether moveable or not);
7
(c) a sample or specimen of a disease agent;
8
(d)
a
pest;
9
(e)
mail;
10
(f) any other article, substance or thing (including, but not
11
limited to, any kind of moveable property).
12
(2)
Goods also includes a conveyance that is being carried on board
13
another conveyance (except in Part 3 of Chapter 13 (cost recovery)
14
and any provision of this Act to the extent that it relates to that
15
Part).
16
Note:
Conveyances that would be included as goods under this subsection
17
include, for example, a lifeboat being carried on a vessel and a vehicle
18
being carried on another vehicle or a train.
19
(3)
However,
goods does not include:
20
(a) ballast water; or
21
(b) human remains; or
22
(c) except as provided in subsection (2), a conveyance.
23
19 Meaning of installation
24
An installation is a structure that:
25
(a)
is
able:
26
(i) to float or to be floated; and
27
(ii) to move, or to be moved, as an entity from one place to
28
another; and
29
(b) is, or is to be, used wholly or principally in:
30
(i) exploring or exploiting natural resources (such as fish or
31
minerals) with equipment on, or forming part of, the
32
structure; or
33
Preliminary Chapter 1
Definitions Part 2
Section 20
Biosecurity Bill 2012 No. , 2012 33
(ii) operations or activities associated with, or incidental to,
1
activities of the kind referred to in subparagraph (i) of
2
this paragraph; and
3
(c)
either:
4
(i) is attached to, or resting on, the seabed; or
5
(ii) is attached semipermanently or permanently to a
6
structure that is attached to, or resting on, the seabed.
7
Note:
An installation is a vessel for the purposes of this Act (see
8
paragraph (b) of the definition of vessel in section 9).
9
20 Meaning of operator of a conveyance
10
(1) Subject to subsection (2), the operator of a conveyance is:
11
(a) if there is a body corporate or an unincorporated body
12
responsible for the operation of the conveyance--that body;
13
and
14
(b) in any other case--the person in charge of the conveyance.
15
(2) In Chapter 5 (ballast water), and any other provision of this Act to
16
the extent that it relates to that Chapter, the operator of a vessel has
17
the same meaning as Company has in the Annex to the Ballast
18
Water Convention.
19
21 Meaning of person in charge
20
(1)
Person in charge of goods:
21
(a)
means:
22
(i) the owner of the goods; or
23
(ii) a person (other than a biosecurity officer or a
24
biosecurity enforcement officer) who is in possession or
25
control of the goods; and
26
(b) includes a biosecurity industry participant who is in
27
possession or control of the goods as authorised by an
28
approved arrangement covering the biosecurity industry
29
participant.
30
Note:
Person in charge of goods does not include a biosecurity industry
31
participant in certain provisions of this Act (see subsections 131(7),
32
181(7), 334(6) and 653(5)).
33
Chapter 1 Preliminary
Part 2 Definitions
Section 21
34 Biosecurity Bill 2012 No. , 2012
(2)
Person in charge of a conveyance means the person in charge or
1
command of the conveyance, but does not include a ship's pilot.
2
Note:
A conveyance includes an aircraft and a vessel (see section 15).
3
4
Preliminary Chapter 1
Constitutional and international law provisions Part 3
Introduction Division 1
Section 22
Biosecurity Bill 2012 No. , 2012 35
Part 3--Constitutional and international law
1
provisions
2
Division 1--Introduction
3
22 Guide to this Part
4
This Part contains provisions that relate to the Constitution, such
5
as:
6
(a)
the constitutional powers relied on for this Act; and
7
(b)
the application of this Act in relation to pests; and
8
(c)
provisions relating to protections in the
9
Constitution (for example, compensation for any
10
acquisition of property).
11
This Part also ensures that this Act is consistent with the rights that
12
foreign aircraft and vessels have under the United Nations
13
Convention on the Law of the Sea.
14
15
Chapter 1 Preliminary
Part 3 Constitutional and international law provisions
Division 2 Constitutional and international law provisions
Section 23
36 Biosecurity Bill 2012 No. , 2012
Division 2--Constitutional and international law
1
provisions
2
23 Severability
3
(1) Without limiting the effect of this Act apart from this section, this
4
Act also has effect as provided by this section.
5
(2) To avoid doubt, no subsection of this section limits the operation of
6
any other subsection of this section.
7
Quarantine power
8
(3) This Act has the effect it would have if its operation were expressly
9
confined to exercising a power, performing a function, conferring a
10
right, or imposing an obligation, in relation to quarantine (within
11
the meaning of paragraph 51(ix) of the Constitution).
12
External affairs power
13
(4) This Act has the effect it would have if its operation were expressly
14
confined to give effect to Australia's rights and obligations under
15
an agreement with one or more countries.
16
Note:
This subsection is subject to section 25 (application of this Act in
17
relation to invasive pests).
18
(5) This Act has the effect it would have if its operation were expressly
19
confined to acts or omissions that occur beyond the limits of the
20
States and Territories.
21
(6) This Act has the effect it would have if its operation were expressly
22
confined to matters that are of international concern.
23
Trade and commerce power
24
(7) This Act has the effect it would have if its operation were expressly
25
confined to acts or omissions occurring in the course of
26
constitutional trade and commerce.
27
(8) This Act has the effect it would have if references to goods and
28
conveyances were expressly confined to references to goods and
29
conveyances involved in constitutional trade and commerce.
30
Preliminary Chapter 1
Constitutional and international law provisions Part 3
Constitutional and international law provisions Division 2
Section 23
Biosecurity Bill 2012 No. , 2012 37
Fisheries power
1
(9) This Act has the effect it would have if its operation were expressly
2
confined to exercising a power, performing a function, conferring a
3
right, or imposing an obligation, that affects fisheries in Australian
4
waters beyond territorial limits (within the meaning of paragraph
5
51(x) of the Constitution).
6
Aliens power
7
(10) This Act has the effect it would have if its operation were expressly
8
confined to:
9
(a) exercising a power or performing a function that affects an
10
alien (within the meaning of paragraph 51(xix) of the
11
Constitution); or
12
(b) conferring a right or imposing an obligation on such an alien.
13
Corporations power
14
(11) This Act has the effect it would have if its operation were expressly
15
confined to:
16
(a) exercising a power or performing a function that affects a
17
person that is a corporation to which paragraph 51(xx) of the
18
Constitution applies; or
19
(b) conferring a right or imposing an obligation on such a person.
20
Territories and Commonwealth places power
21
(12) This Act has the effect it would have if its operation were expressly
22
confined to exercising a power, performing a function, conferring a
23
right, or imposing an obligation, in relation to a person or thing in:
24
(a) a Territory; or
25
(b) a Commonwealth place (within the meaning of the
26
Commonwealth Places (Application of Laws) Act 1970).
27
Postal power
28
(13) This Act has the effect it would have if its operation were expressly
29
confined to acts using postal, telegraphic, telephonic, and other like
30
services (within the meaning of paragraph 51(v) of the
31
Constitution).
32
Chapter 1 Preliminary
Part 3 Constitutional and international law provisions
Division 2 Constitutional and international law provisions
Section 24
38 Biosecurity Bill 2012 No. , 2012
Sickness benefits power
1
(14) This Act has the effect it would have if its operation were expressly
2
confined to the provision of sickness and hospital benefits, and
3
medical services (but not so as to authorise any form of civil
4
conscription) (within the meaning of paragraph 51(xxiiiA) of the
5
Constitution).
6
Census and statistics power
7
(15) This Act has the effect it would have if its operation were expressly
8
confined to a requirement to answer a question or provide
9
information (whether in a notice, a report or otherwise) for
10
purposes relating to census and statistics (within the meaning of
11
paragraph 51(xi) of the Constitution).
12
24 Application of this Act in relation to pests that are quarantine
13
risks or invasive pests
14
(1) This Act (other than Part 1 of Chapter 8 (biosecurity emergencies))
15
applies in relation to a pest only if:
16
(a) the pest is capable of:
17
(i) infesting humans, animals or plants; or
18
(ii) acting as a vector for a disease; or
19
(iii) causing disease in any other way; or
20
(b) the pest is an invasive pest.
21
Note:
For the application of this Act in relation to invasive pests, see
22
section 25.
23
(2) Part 1 of Chapter 8 applies only in relation to a pest that is referred
24
to in paragraph (1)(a).
25
25 Application of this Act in relation to invasive pests
26
(1) This section applies to the extent that:
27
(a) a provision of this Act:
28
(i) confers a power, function or right; or
29
(ii)
imposes
an
obligation;
30
in relation to an invasive pest; and
31
Preliminary Chapter 1
Constitutional and international law provisions Part 3
Constitutional and international law provisions Division 2
Section 26
Biosecurity Bill 2012 No. , 2012 39
(b) the provision would (apart from this section) exceed the
1
legislative power of the Commonwealth if Australia were not
2
a party to the Biodiversity Convention.
3
(2) The power, function or right is conferred, or the obligation is
4
imposed, only to the extent that the conferral or imposition:
5
(a) is for the purpose of preventing the introduction of, or
6
controlling or eradicating, those invasive pests which
7
threaten ecosystems, habitats or species; and
8
(b) is reasonably capable of being considered appropriate and
9
adapted to give effect to Australia's rights and obligations
10
under Article 7 or 8 of the Biodiversity Convention.
11
(3) This section limits the effect that this Act has apart from this
12
section.
13
26 Compensation for acquisition of property
14
(1) If the operation of this Act would result in an acquisition of
15
property from a person otherwise than on just terms, the
16
Commonwealth is liable to pay a reasonable amount of
17
compensation to the person.
18
Note:
For the definitions of acquisition of property and just terms, see
19
section 9.
20
(2) If the Commonwealth and the person do not agree on the amount
21
of the compensation, the person may institute proceedings in a
22
relevant court for the recovery from the Commonwealth of such
23
reasonable amount of compensation as the court determines.
24
27 Freedom of interstate trade, commerce and intercourse
25
A power or function conferred by this Act must not be exercised or
26
performed in such a way as to contravene:
27
(a) section 92 of the Constitution (trade and commerce among
28
the States to be free); or
29
(b) section 69 of the Australian Capital Territory
30
(Self-Government) Act 1988; or
31
(c) section 49 of the Northern Territory (Self-Government) Act
32
1978.
33
Chapter 1 Preliminary
Part 3 Constitutional and international law provisions
Division 2 Constitutional and international law provisions
Section 28
40 Biosecurity Bill 2012 No. , 2012
28 Commonwealth not to give preference
1
A power or function conferred by this Act must not be exercised or
2
performed in such a way as to give preference to one State or any
3
part of a State in contravention of section 99 of the Constitution.
4
29 Application of this Act to foreign aircraft and vessels
5
This Act does not apply to the extent that its application would be
6
inconsistent with the exercise of rights of foreign aircraft or
7
vessels, in accordance with the United Nations Convention on the
8
Law of the Sea, above or in any of the following:
9
(a) the territorial sea of Australia;
10
(b) the exclusive economic zone;
11
(c) waters of the continental shelf.
12
13
Preliminary Chapter 1
Principles affecting decisions to exercise certain powers Part 4
Section 30
Biosecurity Bill 2012 No. , 2012 41
Part 4--Principles affecting decisions to exercise
1
certain powers
2
3
30 Guide to this Part
4
A biosecurity official who is making a decision to exercise a power
5
under certain provisions of this Act must first consider the
6
principles set out in this Part.
7
The principles aim to ensure that the power is exercised only if
8
exercising the power is likely to be effective in, or to contribute to,
9
achieving the purpose for which the power is to be exercised, is
10
appropriate and adapted for its purpose, and is no more restrictive
11
or intrusive than is required.
12
If the power is to be exercised in relation to a conveyance, the
13
biosecurity official must consider the impact of the exercise of the
14
power on the health and safety of any persons on board the
15
conveyance.
16
31 The principles
17
(1) This section applies (subject to subsection (4)) to a biosecurity
18
official who is making a decision to exercise a power in
19
accordance with a provision of this Act referred to in the following
20
table or an instrument in force under such a provision.
21
22
Provisions to which decision-making principles apply
Item Power
Provision
1
Power of Director of Biosecurity to give
approval for a direction requiring an
aircraft or vessel to be moved to a place
outside Australian territory
Paragraph 205(3)(a)
2
Power of Director of Biosecurity to give
approval to cause an aircraft or vessel to
be moved to a place outside Australian
Paragraph 205(3)(b)
Chapter 1 Preliminary
Part 4 Principles affecting decisions to exercise certain powers
Section 31
42 Biosecurity Bill 2012 No. , 2012
Provisions to which decision-making principles apply
Item Power
Provision
territory
3
Power of Director of Biosecurity to give
approval for a conveyance to be removed
from Australian territory, destroyed or
otherwise disposed of
Paragraph 208(5)(d)
4
Power of Director of Biosecurity to give
approval for a conveyance to be
destroyed
Subsection 209(2) and
paragraph 209(5)(d)
5
Power of Director of Biosecurity to give
approval for a direction requiring an
aircraft not to land at any landing place
in Australian territory
Subsection 243(2)
6
Power of Director of Biosecurity to give
approval for a direction requiring a
vessel not to be moored at any port in
Australian territory
Subsection 251(2)
7
Power of biosecurity officer or
biosecurity enforcement officer to enter
premises at a landing place or port in
Australian territory
Subsection 254(2)
8
Power of Director of Biosecurity to give
a direction about movement of a vessel
that may have been involved in the
commission of an offence against
Chapter 5 (ballast water and sediment)
Section 303
9
Any power that may be exercised by a
biosecurity official
Chapter 6 (managing
biosecurity risks: monitoring,
control and response)
10
Any power that may be exercised by a
biosecurity official
Divisions 5 and 6 of Part 1 of
Chapter 8 (biosecurity
emergencies)
11
Any power that may be exercised by a
biosecurity official
Subdivision B of Division 2 of
Part 4 of Chapter 12
(decontamination)
12
Power of Director of Biosecurity to deal
with an abandoned conveyance
Section 655
Preliminary Chapter 1
Principles affecting decisions to exercise certain powers Part 4
Section 31
Biosecurity Bill 2012 No. , 2012 43
Provisions to which decision-making principles apply
Item Power
Provision
13
Power of Director of Biosecurity to deal
with a forfeited conveyance
Section 656
Principles affecting decision-making
1
(2) Before the biosecurity official makes the decision, the biosecurity
2
official must be satisfied of all of the following:
3
(a) that exercising the power is likely to be effective in, or to
4
contribute to, achieving the purpose for which the power is to
5
be exercised;
6
(b) that exercising the power is appropriate and adapted to
7
achieve that purpose;
8
(c) that the manner in which the power is to be exercised is no
9
more restrictive or intrusive than is required in the
10
circumstances;
11
(d) if the power is to be exercised in relation to an individual--
12
that the power is no more restrictive or intrusive than is
13
required in the circumstances;
14
(e) if the power is to be exercised during a period--that the
15
period is only as long as is necessary.
16
Powers that are to be exercised in relation to a conveyance
17
(3) If the power is to be exercised in relation to a conveyance, the
18
biosecurity official must consider the impact of the exercise of the
19
power on the health and safety of any persons on board the
20
conveyance.
21
Exceptions to application of the principles
22
(4) Subsection (2) does not apply in relation to the making of a
23
biosecurity control order or the making of a legislative instrument
24
under Chapter 6 (including a biosecurity control order or a
25
legislative instrument made under that Chapter in accordance with
26
Division 5 or 6 of Part 1 of Chapter 8 (biosecurity emergencies)).
27
Note:
For principles affecting the exercise of a power under Chapter 2
28
(managing biosecurity risks: human health), see section 33.
29
Chapter 2 Managing biosecurity risks: human health
Part 1 General protections and listing human diseases
Division 1 Introduction
Section 32
44 Biosecurity Bill 2012 No. , 2012
Chapter 2--Managing biosecurity risks:
1
human health
2
Part 1--General protections and listing human
3
diseases
4
Division 1--Introduction
5
32 Guide to this Part
6
Division 2 contains protections for individuals in relation to whom
7
powers are exercised under this Chapter.
8
Any person who exercises a power, or imposes a biosecurity
9
measure, under this Chapter must first consider the principles set
10
out in Division 2. The principles aim to ensure that a power is
11
exercised, or biosecurity measure imposed, only when
12
circumstances are sufficiently serious to justify it, and only if it
13
would be effective, it is appropriate and adapted for its purpose,
14
and it is no more restrictive or intrusive than is required. Division 2
15
also ensures that the requirements of this Chapter do not interfere
16
with an individual's urgent or life-threatening medical needs, and
17
sets out the protections that this Chapter provides for a child or
18
incapable person who is subject to a requirement under this
19
Chapter.
20
Powers in this Chapter are exercised only in relation to human
21
diseases that cause significant harm to human health. Those
22
diseases must be listed in a legislative instrument that is made by
23
the Director of Human Biosecurity under Division 3.
24
25
Managing biosecurity risks: human health Chapter 2
General protections and listing human diseases Part 1
Protections Division 2
Section 33
Biosecurity Bill 2012 No. , 2012 45
Division 2--Protections
1
Subdivision A--General protections
2
33 The principles
3
(1) This section applies (subject to subsections (3) and (4)) to a person
4
who is making a decision to exercise a power in relation to, or
5
impose a biosecurity measure on, an individual under this Chapter,
6
in order to manage the risk of:
7
(a) contagion of a listed human disease; or
8
(b) a listed human disease entering, or emerging, establishing
9
itself or spreading in, Australian territory or a part of
10
Australian territory.
11
Note:
A person may exercise a power in relation to, or impose a biosecurity
12
measure on, an individual under this Chapter during a human
13
biosecurity emergency (see Part 2 of Chapter 8).
14
Principles affecting decision-making
15
(2) Before the person makes the decision, the person must be satisfied
16
of all of the following:
17
(a) that exercising the power, or imposing the biosecurity
18
measure, is likely to be effective in, or to contribute to,
19
managing the risk;
20
(b) that exercising the power, or imposing the biosecurity
21
measure, is appropriate and adapted to manage the risk;
22
(c) that the circumstances are sufficiently serious to justify
23
exercising the power, or imposing the biosecurity measure;
24
(d) that the power, or the biosecurity measure, is no more
25
restrictive or intrusive than is required in the circumstances;
26
(e) that the manner in which the power is to be exercised, or the
27
biosecurity measure is to be imposed, is no more restrictive
28
or intrusive than is required in the circumstances;
29
(f) if the power is to be exercised or the biosecurity measure
30
imposed during a period--that the period is only as long as is
31
necessary.
32
Chapter 2 Managing biosecurity risks: human health
Part 1 General protections and listing human diseases
Division 2 Protections
Section 34
46 Biosecurity Bill 2012 No. , 2012
(3) Subsection (2) does not apply in relation to the making of a
1
legislative instrument under this Chapter in relation to a class of
2
individuals.
3
(4) Subsection (2) does not apply in relation to the making of a
4
decision to require answers to questions or written information
5
under Division 6 of Part 2.
6
34 No interference with urgent or life-threatening medical needs
7
The exercise of a power, or the imposition of a biosecurity
8
measure, in relation to an individual under this Chapter must not
9
interfere with any urgent or life-threatening medical needs of the
10
individual.
11
Subdivision B--Protections for children or incapable persons
12
35 Child or incapable person may be accompanied
13
A child or incapable person who is subject to a requirement under
14
this Chapter may be accompanied by an accompanying person for
15
the child or incapable person.
16
Note:
This subsection is subject to section 40 (exception for requirement to
17
remain at a place).
18
36 Officer to contact parent, guardian or next of kin of
19
unaccompanied child or incapable person
20
(1)
A child or incapable person who is not accompanied by an
21
accompanying person must not be subject to a requirement under
22
this Chapter unless a biosecurity officer, human biosecurity officer
23
or chief human biosecurity officer has taken reasonable steps to
24
contact a parent, guardian or next of kin of the child or incapable
25
person.
26
Note:
This subsection is subject to subsection (2) and section 40 (exception
27
for requirement to remain at a place).
28
(2) If the child or incapable person has urgent or life-threatening
29
medical needs, the officer must meet those needs first. However,
30
the officer must take reasonable steps to contact the parent,
31
Managing biosecurity risks: human health Chapter 2
General protections and listing human diseases Part 1
Protections Division 2
Section 37
Biosecurity Bill 2012 No. , 2012 47
guardian or next of kin of the child or incapable person as soon as
1
possible after those needs have been met.
2
Requirements when contacting parent, guardian or next of kin
3
(3)
On contacting the parent, guardian or next of kin, the officer must:
4
(a)
explain the effects of sections 35 and 38; and
5
(b)
allow an accompanying person to accompany the child or
6
incapable person.
7
(4)
If a parent, guardian or next of kin indicates that he or she wishes
8
the child or incapable person to be accompanied, the child or
9
incapable person must not be subject to a requirement under this
10
Chapter until an accompanying person for the child or incapable
11
person accompanies the child or incapable person.
12
37 Requirement to comply with direction
13
(1) A biosecurity officer, human biosecurity officer or chief human
14
biosecurity officer may give a direction to an accompanying person
15
for a child or incapable person.
16
Note:
See also section 608 (general provisions relating to directions).
17
(2) The direction must be for the purpose of ensuring the child's or
18
incapable person's compliance with a requirement under this
19
Chapter.
20
(3) An accompanying person who is given a direction under
21
subsection (1) must comply with the direction.
22
Fault-based offence
23
(4) A person commits an offence if:
24
(a) the person is an accompanying person; and
25
(b) the person is given a direction under this section; and
26
(c) the person fails to comply with the direction.
27
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
28
Chapter 2 Managing biosecurity risks: human health
Part 1 General protections and listing human diseases
Division 2 Protections
Section 38
48 Biosecurity Bill 2012 No. , 2012
38 Parent, guardian or next of kin may authorise person to
1
accompany child or incapable person
2
A parent, guardian or next of kin of a child or incapable person
3
may authorise another person to be an accompanying person for
4
the child or incapable person for the purposes of this Chapter.
5
39 Giving consent
6
(1) An accompanying person for a child or incapable person may give
7
consent on behalf of the child or incapable person for the purposes
8
of Part 3 of this Chapter (human biosecurity control orders).
9
(2) If the accompanying person gives his or her consent, then, for the
10
purposes of that Part, the child or incapable person is taken to have
11
given his or her consent.
12
(3) If the accompanying person does not give his or her consent, then,
13
for the purposes of that Part, the child or incapable person is taken
14
to have refused to give his or her consent.
15
40 Exception for requiring an individual to remain at a place
16
Despite section 35 and subsections 36(1) and (4), a child or
17
incapable person may be required to remain at a place under
18
section 66 without:
19
(a) being accompanied by an accompanying person; or
20
(b) an officer taking reasonable steps to contact a parent,
21
guardian or next of kin in accordance with section 36.
22
23
Managing biosecurity risks: human health Chapter 2
General protections and listing human diseases Part 1
Listing human diseases Division 3
Section 41
Biosecurity Bill 2012 No. , 2012 49
Division 3--Listing human diseases
1
41 Listing human diseases
2
(1) The Director of Human Biosecurity may, in writing, determine that
3
a human disease is a listed human disease if the Director considers
4
that the disease may:
5
(a) be communicable; and
6
(b) cause significant harm to human health.
7
(2) Before making a determination under this section, the Director of
8
Human Biosecurity must consult with:
9
(a) the chief health officer (however described) for each State
10
and Territory; and
11
(b) the Director of Biosecurity.
12
(3) A determination made under this section is a legislative instrument,
13
but section 42 (disallowance) of the Legislative Instruments Act
14
2003 does not apply to the instrument.
15
16
Chapter 2 Managing biosecurity risks: human health
Part 2 Preventing risks to human health
Division 1 Introduction
Section 42
50 Biosecurity Bill 2012 No. , 2012
Part 2--Preventing risks to human health
1
Division 1--Introduction
2
42 Guide to this Part
3
Division 2 allows the Health Minister to prescribe requirements in
4
relation to individuals, and operators of certain aircraft or vessels,
5
that are entering or leaving Australian territory.
6
Division 3 requires operators of incoming and outgoing passenger
7
aircraft and vessels to provide 24/7 contact information.
8
Pratique is granted under Division 4 for incoming aircraft and
9
vessels. Pratique allows things to be unloaded from, and persons to
10
disembark from, aircraft or vessels. Pratique can be granted by
11
force of this Act (positive pratique) or by a biosecurity officer
12
(negative pratique).
13
Under Division 5, the Health Minister may determine certain
14
biosecurity measures for the purposes of preventing a specified
15
behaviour or practice that causes, or contributes to, the entry into,
16
or the emergence, establishment or spread in, Australian territory
17
or a part of Australian territory of a specified listed human disease.
18
Certain officers and other persons can ask questions and require
19
documents to be provided under Division 6 for various
20
health-related purposes.
21
22
Managing biosecurity risks: human health Chapter 2
Preventing risks to human health Part 2
Entry and exit requirements Division 2
Section 43
Biosecurity Bill 2012 No. , 2012 51
Division 2--Entry and exit requirements
1
43 Entry requirements
2
(1) This section applies for the purpose of preventing a listed human
3
disease from entering, or establishing itself or spreading in,
4
Australian territory or a part of Australian territory.
5
(2) The Health Minister may determine one or more requirements for
6
individuals who are entering Australian territory at a landing place
7
or port in accordance with Division 2 or 3 of Part 4 of Chapter 4.
8
Note:
An individual who fails to comply with a requirement may contravene
9
a civil penalty provision (see section 45).
10
(3) A determination made under subsection (2) is a legislative
11
instrument, but section 42 (disallowance) of the Legislative
12
Instruments Act 2003 does not apply to the instrument.
13
Where requirements apply
14
(4) The determination must specify where the requirements apply.
15
Kinds of determinations that may be specified
16
(5) Without limiting subsection (2), the determination may specify:
17
(a) requirements for all individuals, or classes of individuals; and
18
(b) specific requirements in relation to specified listed human
19
diseases; and
20
(c) general requirements in relation to listed human diseases
21
generally; and
22
(d) requirements relating to the manner in which an individual
23
must comply with a requirement.
24
(6) Without limiting subsection (2), the determination may specify one
25
or more of the following requirements:
26
(a) a requirement for an individual to provide a declaration or
27
evidence that the individual has received a specified
28
vaccination or other prophylaxis within a specified previous
29
period;
30
Chapter 2 Managing biosecurity risks: human health
Part 2 Preventing risks to human health
Division 2 Entry and exit requirements
Section 44
52 Biosecurity Bill 2012 No. , 2012
(b) a requirement for an individual to complete a questionnaire
1
on his or her health, which may include confirmation of
2
whether the individual is undergoing or has undergone
3
specified treatment within a specified previous period;
4
(c) a requirement for an individual to provide a declaration in
5
relation to a specified listed human disease;
6
(d) a requirement for an individual to provide a declaration or
7
evidence of where the individual has been before entering
8
Australian territory;
9
(e) a requirement for an individual to be screened (whether by
10
requiring the individual to be screened by equipment, by
11
providing a declaration, or in any other way).
12
Note 1:
An officer has certain powers in relation to an individual who fails to
13
comply with a requirement in subsection (6) (see section 58 (imposing
14
a human biosecurity control order on an individual)).
15
Note 2:
A person may commit an offence or contravene a civil penalty
16
provision if the person provides false or misleading information or
17
documents (see sections 137.1 and 137.2 of the Criminal Code and
18
sections 507 and 508 of this Act).
19
Note 3:
This section is not subject to the privilege against self-incrimination
20
(see section 661).
21
(7) A determination must not specify as a requirement a biosecurity
22
measure described in Subdivision B of Division 3 of Part 3
23
(biosecurity measures that may be included in a human biosecurity
24
control order).
25
44 Exit requirements
26
(1) This section applies for the following purposes:
27
(a) preventing a listed human disease from spreading to another
28
country;
29
(b) if a recommendation has been made to the Health Minister by
30
the World Health Organization under Part III of the
31
International Health Regulations--purposes relating to that
32
recommendation.
33
(2) The Health Minister may determine one or more requirements:
34
(a) for individuals who are leaving Australian territory; or
35
(b) for operators of outgoing passenger aircraft or vessels.
36
Managing biosecurity risks: human health Chapter 2
Preventing risks to human health Part 2
Entry and exit requirements Division 2
Section 44
Biosecurity Bill 2012 No. , 2012 53
Note:
A person who fails to comply with a requirement may contravene a
1
civil penalty provision (see section 45).
2
(3) A determination made under subsection (2) is a legislative
3
instrument, but section 42 (disallowance) of the Legislative
4
Instruments Act 2003 does not apply to the instrument.
5
Where requirements apply
6
(4) The determination must specify where the requirements apply.
7
Kinds of determinations that may be specified
8
(5) Without limiting subsection (2), the determination may specify:
9
(a) requirements for all individuals or operators, or classes of
10
individuals or operators; and
11
(b) specific requirements in relation to specified listed human
12
diseases; and
13
(c) general requirements in relation to listed human diseases
14
generally; and
15
(d) requirements relating to the manner in which an individual or
16
operator must comply with a requirement.
17
(6) Without limiting subsection (2), the determination may specify one
18
or more of the following requirements:
19
(a) a requirement for an operator of an outgoing passenger
20
aircraft or vessel to provide to passengers, who are intending
21
to leave Australian territory on the operator's aircraft or
22
vessel, specified information about the risks to human health
23
associated with travelling;
24
(b) a requirement for an operator of an outgoing passenger
25
aircraft or vessel to report to a human biosecurity officer or a
26
chief human biosecurity officer if the operator observes that
27
any passenger intending to leave Australian territory on the
28
operator's aircraft or vessel has signs or symptoms of a listed
29
human disease;
30
(c) a requirement for an operator of an outgoing passenger
31
aircraft or vessel to treat the aircraft or vessel in a specified
32
manner;
33
Chapter 2 Managing biosecurity risks: human health
Part 2 Preventing risks to human health
Division 2 Entry and exit requirements
Section 45
54 Biosecurity Bill 2012 No. , 2012
(d) a requirement for an individual to provide a declaration or
1
evidence that the individual has received a specified
2
vaccination or other prophylaxis within a specified previous
3
period;
4
(e) a requirement for an individual to complete a questionnaire
5
on his or her health, which may include confirmation as to
6
whether the individual is undergoing, or has undergone,
7
specified treatment within a specified previous period;
8
(f) a requirement for an individual to provide a declaration in
9
relation to a specified listed human disease;
10
(g) a requirement for an individual to provide a declaration or
11
evidence of where the individual has been before leaving
12
Australian territory;
13
(h) a requirement for an individual to be screened (whether by
14
requiring the individual to be screened by equipment, by
15
providing a declaration, or in any other way).
16
Note 1:
A person may commit an offence or contravene a civil penalty
17
provision if the person provides false or misleading information or
18
documents (see sections 137.1 and 137.2 of the Criminal Code and
19
sections 507 and 508 of this Act).
20
Note 2:
This section is not subject to the privilege against self-incrimination
21
(see section 661).
22
(7) A determination must not specify as a requirement a biosecurity
23
measure described in Subdivision B of Division 3 of Part 3
24
(biosecurity measures that may be included in a human biosecurity
25
control order).
26
45 Civil penalties for failing to comply with certain entry and exit
27
requirements
28
Civil penalty for failing to comply with entry requirement
29
(1) An individual to whom a requirement determined under section 43
30
(entry requirements) applies must comply with the requirement.
31
Civil penalty:
30 penalty units.
32
Managing biosecurity risks: human health Chapter 2
Preventing risks to human health Part 2
Entry and exit requirements Division 2
Section 45
Biosecurity Bill 2012 No. , 2012 55
Civil penalty for failing to comply with exit requirements
1
(2) An operator of an outgoing passenger aircraft or vessel to whom a
2
requirement under paragraph 44(6)(c) (manner of treating aircraft
3
or vessel) applies must comply with the requirement.
4
Civil penalty:
30 penalty units.
5
(3) An individual to whom a requirement under paragraph 44(6)(d),
6
(e), (f), (g) or (h) (exit requirements) applies must comply with the
7
requirement.
8
Civil penalty:
30 penalty units.
9
Contraventions by individuals who are not able to comply
10
(4) To avoid doubt, an individual may contravene subsection (1) or (3)
11
of this section even if the individual is not able to comply with the
12
requirement.
13
Example: An individual who has not received a specified vaccination may
14
contravene subsection (1) or (3) because the individual is not able to
15
comply with a requirement to provide a declaration or evidence that
16
the individual has received that vaccination.
17
18
Chapter 2 Managing biosecurity risks: human health
Part 2 Preventing risks to human health
Division 3 Contact information for operators
Section 46
56 Biosecurity Bill 2012 No. , 2012
Division 3--Contact information for operators
1
46 Requirements for operators to provide 24/7 contact information
2
(1) This section applies for the purposes of:
3
(a) preventing a listed human disease from entering, or
4
establishing itself or spreading in, Australian territory or a
5
part of Australian territory; or
6
(b) preventing a listed human disease from spreading to another
7
country.
8
(2) The operator of an incoming passenger aircraft or vessel, or an
9
outgoing passenger aircraft or vessel, must provide the Director of
10
Human Biosecurity with the prescribed contact information for an
11
individual nominated by the operator.
12
Civil penalty:
120 penalty units.
13
(3) The individual whose contact information is provided under
14
subsection (2) must be reasonably able to be contacted at any time.
15
(4) The operator must ensure that the contact information provided is
16
kept up-to-date.
17
Civil penalty:
120 penalty units.
18
(5) The contact information must be provided in the manner prescribed
19
by the regulations (if any).
20
Civil penalty:
120 penalty units.
21
22
Managing biosecurity risks: human health Chapter 2
Preventing risks to human health Part 2
Pratique Division 4
Section 47
Biosecurity Bill 2012 No. , 2012 57
Division 4--Pratique
1
47 Positive pratique
2
(1)
An operator of an incoming aircraft or vessel that arrives at a
3
landing place or port in Australian territory in accordance with
4
Division 2 or 3 of Part 4 of Chapter 4 must not allow:
5
(a) any thing to be unloaded from or loaded onto the aircraft or
6
vessel; nor
7
(b) any person to disembark from or embark onto the aircraft or
8
vessel;
9
unless pratique has been granted under subsection (2) or 48(4) in
10
relation to the aircraft or vessel.
11
Civil penalty:
120 penalty units.
12
Note:
Even if pratique has been granted, a person may still be prevented
13
from unloading goods under Division 6 of Part 1 of Chapter 3.
14
(2)
Pratique is granted in relation to an incoming aircraft or vessel by
15
force of this subsection at the time the aircraft or vessel arrives at a
16
landing place or port in Australian territory, unless the aircraft or
17
vessel is in a class of aircraft or vessels specified for the purposes
18
of paragraph 48(1)(a).
19
48 Negative pratique
20
(1)
The Director of Human Biosecurity may specify, in writing:
21
(a)
classes of incoming aircraft or vessels in relation to which
22
pratique is to be granted by a biosecurity officer; and
23
(b)
the requirements with which an incoming aircraft or vessel in
24
that class must comply for pratique to be granted by a
25
biosecurity officer.
26
(2) An instrument made under subsection (1) is a legislative
27
instrument, but section 42 (disallowance) of the Legislative
28
Instruments Act 2003 does not apply to the instrument.
29
(3) Requirements specified for the purposes of paragraph (1)(b) must
30
be consistent with Articles 28.2 and 43 of the International Health
31
Regulations.
32
Chapter 2 Managing biosecurity risks: human health
Part 2 Preventing risks to human health
Division 4 Pratique
Section 49
58 Biosecurity Bill 2012 No. , 2012
(4)
A biosecurity officer may grant pratique, in writing, in relation to
1
an incoming aircraft or vessel in a particular class of incoming
2
aircraft or vessel if the aircraft or vessel complies with the
3
requirements specified for the purposes of paragraph (1)(b) for that
4
class of aircraft or vessel.
5
(5) An instrument made under subsection (4) is not a legislative
6
instrument.
7
49 Pre-departure reporting
8
(1)
The Director of Human Biosecurity may, in writing, specify
9
information that is required to be provided by operators of
10
specified outgoing aircraft or vessels.
11
Note:
For reporting in relation to incoming aircraft or vessels, see
12
section 193.
13
(2) An instrument made under subsection (1) is a legislative
14
instrument, but section 42 (disallowance) of the Legislative
15
Instruments Act 2003 does not apply to the instrument.
16
(3)
The Director of Human Biosecurity may specify in the legislative
17
instrument
the manner in which, and the period during which, the
18
information is required to be provided.
19
Incomplete or incorrect information
20
(4)
If the operator or the person in charge of an aircraft or vessel
21
becomes aware that:
22
(a) information was required to be provided under this section in
23
relation to the aircraft or vessel; and
24
(b)
either:
25
(i) the information provided in relation to the aircraft or
26
vessel is incomplete or incorrect; or
27
(ii) no information was provided;
28
the operator must provide the additional or correct information in
29
the manner specified under subsection (3) as soon as reasonably
30
practicable.
31
Managing biosecurity risks: human health Chapter 2
Preventing risks to human health Part 2
Pratique Division 4
Section 49
Biosecurity Bill 2012 No. , 2012 59
Civil penalty
1
(5)
An operator who is required to provide information in accordance
2
with this section must comply with the requirement.
3
Civil penalty:
120 penalty units.
4
5
Chapter 2 Managing biosecurity risks: human health
Part 2 Preventing risks to human health
Division 5 Preventative biosecurity measures
Section 50
60 Biosecurity Bill 2012 No. , 2012
Division 5--Preventative biosecurity measures
1
50 Determining preventative biosecurity measures
2
(1) This section applies for the purposes of preventing a behaviour or
3
practice that:
4
(a) may cause a listed human disease to enter, or emerge,
5
establish itself or spread in, Australian territory or a part of
6
Australian territory; or
7
(b) may contribute to a listed human disease entering, or
8
emerging, establishing itself or spreading in, Australian
9
territory or a part of Australian territory.
10
(2) The Health Minister may make a determination that specifies any
11
one or more of the following biosecurity measures to be taken by
12
specified classes of persons:
13
(a) banning or restricting a behaviour or practice;
14
(b) requiring a behaviour or practice;
15
(c) requiring a specified person to provide a specified report or
16
keep specified records;
17
(d) conducting specified tests on specified goods.
18
Note 1:
A person who fails to comply with a biosecurity measure may
19
contravene a civil penalty provision (see section 51).
20
Note 2:
The Director of Human Biosecurity may authorise State or Territory
21
officers or employees to be biosecurity enforcement officers for the
22
purposes of ensuring compliance with biosecurity measures that are
23
specified (see sections 586 and 587).
24
(3) The determination must specify the behaviour or practice, and the
25
listed human disease, referred to in subsection (1).
26
(4) A determination made under subsection (2) is a legislative
27
instrument, but section 42 (disallowance) of the Legislative
28
Instruments Act 2003 does not apply to the instrument.
29
(5) A biosecurity measure must not be specified in a determination
30
unless the Health Minister is satisfied that the biosecurity measure
31
is appropriate and adapted to prevent, or reduce the risk of, the
32
disease entering, or emerging, establishing itself or spreading in,
33
Australian territory or a part of Australian territory.
34
Managing biosecurity risks: human health Chapter 2
Preventing risks to human health Part 2
Preventative biosecurity measures Division 5
Section 51
Biosecurity Bill 2012 No. , 2012 61
Period of determination
1
(6) A determination must specify the period during which it is in force,
2
which must not be more than 1 year.
3
Consultations before making determination
4
(7) Before making a determination, the Health Minister must consult
5
with:
6
(a) the Minister of each State and Territory with responsibility
7
for human health; and
8
(b) the Director of Biosecurity.
9
51 Civil penalty for failing to comply with a preventative biosecurity
10
measure
11
A person to whom a biosecurity measure specified in accordance
12
with subsection 50(2) applies must comply with the biosecurity
13
measure.
14
Civil penalty:
120 penalty units.
15
16
Chapter 2 Managing biosecurity risks: human health
Part 2 Preventing risks to human health
Division 6 Information gathering powers
Section 52
62 Biosecurity Bill 2012 No. , 2012
Division 6--Information gathering powers
1
52 Who may ask questions and require written information
2
(1) The following persons may require answers to questions, or written
3
information, under this Division:
4
(a) the Director of Human Biosecurity;
5
(b) a chief human biosecurity officer;
6
(c) a human biosecurity officer;
7
(d) a biosecurity officer;
8
(e) a person referred to in subsection 101(3) (detention).
9
Note 1:
An individual who fails to comply with a requirement under this
10
Division may commit an offence (see section 56).
11
Note 2:
Before exercising a power under this Division, a person must be
12
satisfied of the matters referred to in section 33 (the principles).
13
Note 3:
This Division is not subject to the privilege against self-incrimination
14
(see section 661).
15
Note 4:
This Division constitutes an authorisation for the purposes of other
16
laws, such as the Privacy Act 1988.
17
(2) A person referred to in subsection (1) is taken to be an officer for
18
the purposes of this Division.
19
53 Asking questions and requiring answers from particular
20
individuals
21
(1) An officer may require an individual to answer questions, or
22
provide written information, if:
23
(a) a human biosecurity control order is in force in relation to the
24
individual; or
25
(b) the individual is in a human health response zone.
26
Note 1:
If written information is required, see section 55.
27
Note 2:
A person may commit an offence or contravene a civil penalty
28
provision if the person provides false or misleading information or
29
documents (see sections 137.1 and 137.2 of the Criminal Code and
30
sections 507 and 508 of this Act).
31
Managing biosecurity risks: human health Chapter 2
Preventing risks to human health Part 2
Information gathering powers Division 6
Section 54
Biosecurity Bill 2012 No. , 2012 63
(2) The requirement under subsection (1) must be for the purposes of
1
determining the level of risk to human health associated with the
2
individual.
3
54 Asking questions and requiring answers from any individual
4
(1) An officer may require any individual to answer questions, or
5
provide written information, if:
6
(a) the officer is satisfied that an individual (the relevant
7
individual) has one or more signs or symptoms of a listed
8
human disease; or
9
(b) the officer is satisfied that an individual (also the relevant
10
individual) has been exposed to:
11
(i) a listed human disease; or
12
(ii) another individual who has one or more signs or
13
symptoms of a listed human disease; or
14
(c) the questions asked or information sought relates to:
15
(i) human remains; or
16
(ii) an individual who died in transit before arriving in
17
Australian territory; or
18
(iii) an individual who died on arrival in Australian territory.
19
Note 1:
If written information is required, see section 55.
20
Note 2:
A person may commit an offence or contravene a civil penalty
21
provision if the person provides false or misleading information or
22
documents (see sections 137.1 and 137.2 of the Criminal Code and
23
sections 507 and 508 of this Act).
24
(2) The requirement under subsection (1) must be for the purposes of:
25
(a) preventing a listed human disease from entering, or
26
emerging, establishing itself or spreading in, Australian
27
territory or a part of Australian territory; or
28
(b) preventing a listed human disease from spreading to another
29
country; or
30
(c) if paragraph (1)(a) or (b) applies--determining the level of
31
risk to human health associated with the relevant individual.
32
Chapter 2 Managing biosecurity risks: human health
Part 2 Preventing risks to human health
Division 6 Information gathering powers
Section 55
64 Biosecurity Bill 2012 No. , 2012
55 Requiring an individual to provide written information
1
(1) An officer may require an individual to provide written
2
information under this Division:
3
(a) by giving the individual a notice that requires the individual
4
to provide the written information; or
5
(b) by asking the individual orally to provide the written
6
information.
7
(2) An officer may require written information under this Division to
8
be provided within a specified period or immediately.
9
56 Offence for failing to comply with a requirement
10
A person commits an offence of strict liability if:
11
(a) the person is required to answer a question, or provide
12
written information, under this Division; and
13
(b) the person fails to answer the question or provide the
14
information as required.
15
Penalty: 60 penalty units.
16
Note:
For offences of strict liability, see section 6.1 of the Criminal Code.
17
18
Managing biosecurity risks: human health Chapter 2
Managing risks to human health: human biosecurity control orders Part 3
Introduction Division 1
Section 57
Biosecurity Bill 2012 No. , 2012 65
Part 3--Managing risks to human health: human
1
biosecurity control orders
2
Division 1--Introduction
3
57 Guide to this Part
4
Under Division 2, a human biosecurity control order can be
5
imposed on an individual if the individual may have a listed human
6
disease.
7
A human biosecurity control order that is in force in relation to an
8
individual may require the individual to comply with certain
9
biosecurity measures. Division 3 sets out what those measures are,
10
and they include vaccination, restricting the individual's behaviour
11
and ordering the individual to remain isolated.
12
An individual may consent to a biosecurity measure included in a
13
human biosecurity control order that is in force in relation to the
14
individual.
15
An individual who refuses to consent to such a measure (other than
16
an isolation measure or traveller movement measure) is not
17
required to comply unless a direction has been given by the
18
Director of Human Biosecurity requiring the individual to do so.
19
An individual must comply with an isolation measure or a traveller
20
movement measure for the first 72 hours while a direction from the
21
Director of Human Biosecurity is being sought. After that time, the
22
individual is required to comply with the measure only if a
23
direction is given by the Director.
24
Biosecurity measures that are included in a human biosecurity
25
control order are treated in one of 2 ways. For some biosecurity
26
measures, an individual who is given a direction from the Director
27
of Human Biosecurity to comply with the measure must do so
28
immediately. For other biosecurity measures, an individual is given
29
a period to apply for judicial review before being required to
30
comply with the measure.
31
Chapter 2 Managing biosecurity risks: human health
Part 3 Managing risks to human health: human biosecurity control orders
Division 2 Imposing human biosecurity control orders on individuals
Section 58
66 Biosecurity Bill 2012 No. , 2012
Division 2--Imposing human biosecurity control orders on
1
individuals
2
Subdivision A--Imposing, varying and revoking human
3
biosecurity control orders
4
58 Imposing a human biosecurity control order on an individual
5
(1) The following officers may impose a human biosecurity control
6
order on an individual:
7
(a) a chief human biosecurity officer;
8
(b) a human biosecurity officer;
9
(c) a biosecurity officer.
10
Note 1:
An officer who intends to impose a human biosecurity control order
11
on an individual has certain powers under sections 66 and 67.
12
Note 2:
Before imposing a human biosecurity control order, an officer must be
13
satisfied of the matters referred to in section 33 (the principles).
14
Note 3:
The Director of Human Biosecurity must be notified of the imposition
15
of a human biosecurity control order (see section 65).
16
(2) A human biosecurity control order may be imposed on an
17
individual only if the officer is satisfied that:
18
(a) the individual has one or more signs or symptoms of a listed
19
human disease; or
20
(b) the individual has been exposed to:
21
(i) a listed human disease; or
22
(ii) another individual who has one or more signs or
23
symptoms of a listed human disease; or
24
(c) the individual has failed to comply with an entry requirement
25
in subsection 43(6) in relation to a listed human disease.
26
(3) To avoid doubt, an individual may fail to comply with an entry
27
requirement in subsection 43(6) even if the individual is not able to
28
comply with the requirement.
29
Example: An individual who has not received a specified vaccination will not be
30
able to comply with a requirement to provide a declaration or evidence
31
that the individual has received that vaccination.
32
Managing biosecurity risks: human health Chapter 2
Managing risks to human health: human biosecurity control orders Part 3
Imposing human biosecurity control orders on individuals Division 2
Section 59
Biosecurity Bill 2012 No. , 2012 67
(4) An officer may include one or more biosecurity measures specified
1
in Subdivision B of Division 3 in a human biosecurity control
2
order.
3
Note:
For the biosecurity measures that each kind of officer can impose, see
4
section 80.
5
59 Contents of a human biosecurity control order
6
(1) A human biosecurity control order that is in force in relation to an
7
individual must specify the following:
8
(a) the ground in subsection 58(2) under which the order is
9
imposed on the individual;
10
(b) the listed human disease in relation to which the order is
11
imposed on the individual;
12
(c) any signs or symptoms of the listed human disease;
13
(d) the prescribed contact information provided by the individual
14
under section 67 or 68 (as the case requires);
15
(e) a unique identifier for the order;
16
(f) each biosecurity measure (specified in Subdivision B of
17
Division 3) with which the individual must comply, and an
18
explanation of:
19
(i) why each biosecurity measure is required; and
20
(ii) in relation to a biosecurity measure included under
21
section 87 (decontamination), 88 (examination), 89
22
(body samples) or 90 (vaccination or treatment)--how
23
the biosecurity measure is to be undertaken;
24
(g) any information required to be included in the order by
25
Subdivision B of Division 3;
26
(h) the period during which the order is in force, which must not
27
be more than 3 months;
28
(i)
the
following:
29
(i) the effect of section 68 (requirement to notify of
30
changes to contact information);
31
(ii) the effect of section 72 (when an individual is required
32
to comply with a biosecurity measure);
33
(iii) the rights of review in relation to the human biosecurity
34
control order under this Act, the Administrative Appeals
35
Chapter 2 Managing biosecurity risks: human health
Part 3 Managing risks to human health: human biosecurity control orders
Division 2 Imposing human biosecurity control orders on individuals
Section 60
68 Biosecurity Bill 2012 No. , 2012
Tribunal Act 1975 and the Administrative Decisions
1
(Judicial Review) Act 1977;
2
(iv) the effect of section 105 (offence for failing to comply
3
with an order);
4
(j) details of a chief human biosecurity officer who can be
5
contacted for information and support in relation to the order;
6
(k) any other information that the officer imposing the order
7
considers appropriate;
8
(l) any other information required by the regulations.
9
Note:
Despite paragraph (1)(h), an individual might be required to comply
10
with a biosecurity measure for a more limited period of time (see for
11
example section 94 (traveller movement measure)).
12
(2) If a human biosecurity control order ceases to be in force,
13
paragraph (1)(h) does not prevent another human biosecurity
14
control order from being imposed on the same individual.
15
(3) To avoid doubt, a human biosecurity control order that is varied
16
must comply with subsection (1).
17
60 Form of a human biosecurity control order
18
(1) A human biosecurity control order must be in the form approved,
19
in writing, by the Director of Human Biosecurity.
20
(2) A human biosecurity control order is not a legislative instrument.
21
61 Giving a human biosecurity control order to an individual
22
(1) An officer who imposes a human biosecurity control order on an
23
individual must cause the individual to be given a copy of the order
24
as soon as reasonably practicable.
25
(2) The officer who imposes the order on the individual must ensure
26
that the contents of the order are read out to the individual.
27
(3) The order ceases to be in force if:
28
(a) a copy of the order is not given to the individual within 24
29
hours of the order beginning to be in force; or
30
(b) the contents of the order are not read out in accordance with
31
subsection (2).
32
Managing biosecurity risks: human health Chapter 2
Managing risks to human health: human biosecurity control orders Part 3
Imposing human biosecurity control orders on individuals Division 2
Section 62
Biosecurity Bill 2012 No. , 2012 69
62 Varying a human biosecurity control order
1
Who may vary a human biosecurity control order
2
(1) The following officers may vary a human biosecurity control order
3
in accordance with this section:
4
(a) a chief human biosecurity officer;
5
(b) a human biosecurity officer;
6
(c) a biosecurity officer (subject to subsection 80(2)).
7
Note 1:
Before varying a human biosecurity control order, an officer must be
8
satisfied of the matters referred to in section 33 (the principles).
9
Note 2:
The Director of Human Biosecurity must be notified of a variation of
10
a human biosecurity control order (see section 65).
11
Test for varying human biosecurity control order
12
(2) An officer may vary a human biosecurity control order only if the
13
officer is satisfied that:
14
(a) the variation contributes to reducing the risk of:
15
(i) contagion of a listed human disease; or
16
(ii) a listed human disease entering, or emerging,
17
establishing itself or spreading in, Australian territory or
18
a part of Australian territory; or
19
(b) the variation removes or varies a provision that no longer
20
contributes to reducing such a risk; or
21
(c) the variation is of a minor technical nature.
22
When variation takes effect
23
(3) A variation of a human biosecurity control order takes effect
24
immediately after the variation is made.
25
63 Giving notice of a variation of a human biosecurity control order
26
(1) An officer who varies a human biosecurity control order that is in
27
force in relation to an individual must cause the individual to be
28
given a copy of the varied order as soon as reasonably practicable.
29
(2) The officer who varies the order must ensure that the variations of
30
the order are read out to the individual.
31
Chapter 2 Managing biosecurity risks: human health
Part 3 Managing risks to human health: human biosecurity control orders
Division 2 Imposing human biosecurity control orders on individuals
Section 64
70 Biosecurity Bill 2012 No. , 2012
(3) The order ceases to be in force if:
1
(a) a copy of the varied order is not given to the individual
2
within 24 hours of the variation taking effect; or
3
(b) the variations of the order are not read out in accordance with
4
subsection (2).
5
64 Revoking a human biosecurity control order
6
(1) A chief human biosecurity officer or a human biosecurity officer
7
may, by notice, revoke a human biosecurity control order that is in
8
force in relation to an individual only if the officer is satisfied that:
9
(a) the individual is not at risk of contagion; or
10
(b) the order no longer contributes to reducing the risk of a listed
11
human disease entering, or emerging, establishing itself or
12
spreading in, Australian territory or a part of Australian
13
territory.
14
Note:
The Director of Human Biosecurity must be notified of a revocation of
15
a human biosecurity control order (see section 65).
16
(2) A revocation takes effect immediately.
17
Giving notice of revocation
18
(3) An officer who revokes a human biosecurity control order that is in
19
force in relation to an individual must cause the individual to be
20
given a copy of the notice revoking the order.
21
65 Notifying Director of Human Biosecurity of imposition, variation
22
or revocation of human biosecurity control order
23
An officer must notify the Director of Human Biosecurity, as soon
24
as reasonably practicable, if the officer:
25
(a) imposes a human biosecurity control order on an individual;
26
or
27
(b) varies or revokes a human biosecurity control order.
28
Managing biosecurity risks: human health Chapter 2
Managing risks to human health: human biosecurity control orders Part 3
Imposing human biosecurity control orders on individuals Division 2
Section 66
Biosecurity Bill 2012 No. , 2012 71
Subdivision B--Powers if officer intends to impose human
1
biosecurity control order
2
66 Requiring an individual to remain at a place
3
(1) An officer who intends to impose a human biosecurity control
4
order on an individual may require the individual to remain, for a
5
period of no more than 6 hours, at the place where the individual
6
was when the officer became satisfied that a human biosecurity
7
control order should be imposed on the individual.
8
Note 1:
A non-Australian citizen who is required to remain at a place is
9
entitled to consular assistance under section 100.
10
Note 2:
A person who does not comply with the requirement to remain at a
11
place may be detained under Subdivision B of Division 4.
12
(2) Once the period has ended, the individual must not be required
13
under subsection (1) to remain at that place any longer.
14
Note:
However, the individual may be required under subsection 72(4) to
15
remain at that place in order to comply with an isolation measure.
16
67 Providing contact information
17
(1) An officer who intends to impose a human biosecurity control
18
order on an individual may require the individual to provide the
19
officer with prescribed contact information for the individual.
20
(2) The individual must comply with the requirement immediately.
21
Note 1:
A person may commit an offence or contravene a civil penalty
22
provision if the person provides false or misleading information or
23
documents (see sections 137.1 and 137.2 of the Criminal Code and
24
sections 507 and 508 of this Act).
25
Note 2:
This section is not subject to the privilege against self-incrimination
26
(see section 661).
27
Offence
28
(3) An individual commits an offence if:
29
(a) the individual is required to provide an officer with contact
30
information under this section; and
31
(b) the individual fails to comply with the requirement.
32
Chapter 2 Managing biosecurity risks: human health
Part 3 Managing risks to human health: human biosecurity control orders
Division 2 Imposing human biosecurity control orders on individuals
Section 68
72 Biosecurity Bill 2012 No. , 2012
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
1
68 Requirement for an individual to notify changes to contact
2
information
3
(1) An individual in relation to whom a human biosecurity control
4
order is in force must, as soon as reasonably practicable, notify the
5
chief human biosecurity officer referred to in paragraph 59(1)(j) if
6
any of the prescribed contact information provided by the
7
individual under section 67 changes.
8
Note 1:
A person may commit an offence or contravene a civil penalty
9
provision if the person provides false or misleading information or
10
documents (see sections 137.1 and 137.2 of the Criminal Code and
11
sections 507 and 508 of this Act).
12
Note 2:
This section is not subject to the privilege against self-incrimination
13
(see section 661).
14
Offence
15
(2) An individual commits an offence if:
16
(a) the individual is required to notify a chief human biosecurity
17
officer of a change under subsection (1); and
18
(b) the individual fails to notify the officer of the change.
19
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
20
Subdivision C--When an individual is required to comply with
21
a biosecurity measure
22
69 Consenting to a biosecurity measure
23
(1) This section applies in relation to a biosecurity measure that is
24
included in a human biosecurity control order that is in force in
25
relation to an individual.
26
Consent
27
(2) The individual may consent to the measure. If it is practicable to do
28
so, the consent must be recorded in writing on the human
29
biosecurity control order.
30
Managing biosecurity risks: human health Chapter 2
Managing risks to human health: human biosecurity control orders Part 3
Imposing human biosecurity control orders on individuals Division 2
Section 70
Biosecurity Bill 2012 No. , 2012 73
Note:
An accompanying person may give consent for a child or incapable
1
person (see section 39).
2
Refusal to consent
3
(3) If the individual refuses to consent to the measure (including by
4
withdrawing his or her consent), a chief human biosecurity officer,
5
human biosecurity officer or biosecurity officer may request the
6
Director of Human Biosecurity to give a direction in accordance
7
with paragraph 70(5)(a) for the individual to comply with the
8
measure.
9
Note:
For when the individual is required to comply with the measure, see
10
section 72.
11
70 Director of Human Biosecurity may give direction requiring
12
compliance
13
(1) This section applies if:
14
(a) an officer requests, under subsection 69(3), the Director of
15
Human Biosecurity to give a direction in accordance with
16
paragraph (5)(a) of this section for an individual to comply
17
with a biosecurity measure included in a human biosecurity
18
control order; or
19
(b) all of the following apply:
20
(i) the Director of Human Biosecurity gives a direction in
21
accordance with paragraph (5)(a) of this section for an
22
individual to comply with a biosecurity measure
23
included in a human biosecurity control order under
24
section 84 (contacting officer with health status), 85
25
(restricting behaviour), 86 (risk minimisation
26
interventions), 91 (medication) or 95 (isolation
27
measure);
28
(ii) at the end of 25 days after the day the direction is given,
29
the direction is still in force (see section 71);
30
(iii) the individual still refuses to consent to the biosecurity
31
measure.
32
Chapter 2 Managing biosecurity risks: human health
Part 3 Managing risks to human health: human biosecurity control orders
Division 2 Imposing human biosecurity control orders on individuals
Section 70
74 Biosecurity Bill 2012 No. , 2012
Review of measure
1
(2) The Director of Human Biosecurity must review the following
2
matters:
3
(a) the diagnosis (if any) of the listed human disease specified in
4
the human biosecurity control order;
5
(b) the inclusion (or, in the case of paragraph (1)(b), the
6
continued inclusion) of the biosecurity measure in the human
7
biosecurity control order.
8
(3) In conducting the review, the Director of Human Biosecurity:
9
(a) must take into account:
10
(i) any reason the individual gives for refusing to consent
11
to the measure; and
12
(ii) any factors that may affect the health of the individual;
13
and
14
(b) may take into account any other matter that the Director of
15
Human Biosecurity considers relevant.
16
Test for giving direction
17
(4) The Director of Human Biosecurity may give a direction for an
18
individual to comply with a biosecurity measure only if the
19
Director is satisfied, on reasonable grounds, that the biosecurity
20
measure contributes to reducing the risk of:
21
(a) contagion of the listed human disease; or
22
(b) the listed human disease entering, or emerging, establishing
23
itself or spreading in, Australian territory or a part of
24
Australian territory.
25
Note 1:
Before giving a direction, the Director must be satisfied of the matters
26
referred to in section 33 (the principles).
27
Note 2:
If an individual refuses to comply with a direction given under this
28
section, the Director of Human Biosecurity may be able to apply for
29
an injunction under Part 4 of Chapter 11.
30
Giving notice of outcome of review
31
(5) Within 72 hours of the time referred to in subsection (6), the
32
Director must cause a notice to be given to the individual that:
33
(a) directs the individual to comply with the measure; or
34
Managing biosecurity risks: human health Chapter 2
Managing risks to human health: human biosecurity control orders Part 3
Imposing human biosecurity control orders on individuals Division 2
Section 71
Biosecurity Bill 2012 No. , 2012 75
(b) informs the individual that he or she is not required to
1
comply with the measure.
2
Note 1:
An individual may be able to apply for merits or judicial review of a
3
decision to give a direction in accordance with paragraph (5)(a) (see
4
section 74 of this Act and the Administrative Decisions (Judicial
5
Review) Act 1977).
6
Note 2:
After giving a direction in accordance with paragraph (5)(a), the
7
Director of Human Biosecurity has certain obligations under
8
section 73 in relation to an individual's right to apply to the
9
Administrative Appeals Tribunal for review of the decision to give the
10
direction.
11
(6) For the purposes of subsection (5), the time is:
12
(a) if paragraph (1)(a) applies (other than in relation to an
13
isolation measure or a traveller movement measure)--the
14
time when the request is made; or
15
(b) if paragraph (1)(a) applies in relation to an isolation measure
16
or a traveller movement measure--the time when the
17
individual refuses to consent to the measure; or
18
(c) if paragraph (1)(b) applies--12 am on the 26th day (whether
19
or not that day is a business day) after the day the direction is
20
given.
21
Note:
For the definition of business day, see section 2B of the Acts
22
Interpretation Act 1901.
23
(7) The notice must include:
24
(a) the time and the day the notice is given; and
25
(b) the reasons for the decision to give the notice.
26
71 When direction to comply with biosecurity measure ceases to be
27
in force
28
A direction given in accordance with paragraph 70(5)(a) for an
29
individual to comply with a biosecurity measure included in a
30
human biosecurity control order ceases to be in force if:
31
(a) the period of 28 days after the day the direction was given
32
ends; or
33
(b) a new notice is given to the individual in accordance with
34
either paragraph 70(5)(a) or (b); or
35
Chapter 2 Managing biosecurity risks: human health
Part 3 Managing risks to human health: human biosecurity control orders
Division 2 Imposing human biosecurity control orders on individuals
Section 72
76 Biosecurity Bill 2012 No. , 2012
(c) the measure is removed from the human biosecurity control
1
order; or
2
(d) the individual makes an application under the Administrative
3
Decisions (Judicial Review) Act 1977 for an order of review
4
of a decision to give a direction in accordance with paragraph
5
70(5)(a), the application is finally determined, and as a result
6
of the order made in relation to the application the individual
7
is not required to comply with the measure; or
8
(e) in relation to an isolation measure or a traveller movement
9
measure--the decision to give the direction is set aside by the
10
Administrative Appeals Tribunal; or
11
(f) in relation to a traveller movement measure--the measure
12
ceases to be in force; or
13
(g) in any case--the human biosecurity control order ceases to
14
be in force.
15
72 When individual is required to comply with a biosecurity
16
measure
17
Biosecurity measures where compliance is not required before
18
review period has ended
19
(1) Subsection (2) sets out when an individual is required to comply
20
with a biosecurity measure included, under one of the following
21
sections, in a human biosecurity control order that is in force in
22
relation to the individual:
23
(a) section 83 (managing contacts);
24
(b) section 87 (decontamination);
25
(c) section 88 (examination);
26
(d) section 89 (body samples);
27
(e) section 90 (vaccination or treatment).
28
(2) The individual is required to comply with the measure only if:
29
(a) the individual consents to the measure; or
30
(b) the Director of Human Biosecurity has given a direction for
31
the individual to comply with the measure in accordance with
32
paragraph 70(5)(a), and either:
33
Managing biosecurity risks: human health Chapter 2
Managing risks to human health: human biosecurity control orders Part 3
Imposing human biosecurity control orders on individuals Division 2
Section 72
Biosecurity Bill 2012 No. , 2012 77
(i) the period of 7 business days referred to in section 78
1
has ended, and the individual has not made an
2
application under the Administrative Decisions (Judicial
3
Review) Act 1977; or
4
(ii) the individual has made an application in accordance
5
with section 78 for an order of review of the decision to
6
give the direction, the application has been finally
7
determined, and as a result of the order made in relation
8
to the application the individual is required to comply
9
with the measure.
10
Note 1:
A person who fails to comply with a biosecurity measure that the
11
person is required to comply with may commit an offence (see
12
section 105).
13
Note 2:
For expenses incurred in complying with a human biosecurity control
14
order, see section 106.
15
Note 3:
Generally, force must not be used to require compliance with a
16
biosecurity measure (see section 93).
17
Biosecurity measures where compliance is required without review
18
(3) Subsection (4) sets out when an individual is required to comply
19
with a biosecurity measure included, under one of the following
20
sections, in a human biosecurity control order that is in force in
21
relation to the individual:
22
(a) section 84 (contacting officer with health status);
23
(b) section 85 (restricting behaviour);
24
(c) section 86 (risk minimisation interventions);
25
(d) section 91 (medication);
26
(e) section 94 (traveller movement measure);
27
(f) section 95 (isolation measure).
28
(4) The individual is required to comply with the measure only if:
29
(a) the individual consents to the measure; or
30
(b) both of the following apply:
31
(i) the Director of Human Biosecurity has given a direction
32
for the individual to comply with the measure in
33
accordance with paragraph 70(5)(a);
34
(ii) the direction is still in force (see section 71); or
35
Chapter 2 Managing biosecurity risks: human health
Part 3 Managing risks to human health: human biosecurity control orders
Division 2 Imposing human biosecurity control orders on individuals
Section 73
78 Biosecurity Bill 2012 No. , 2012
(c) if the measure is an isolation measure or a traveller
1
movement measure--the individual refuses to consent to the
2
measure, and the period of 72 hours from the time when the
3
individual refused to consent to the measure has not yet
4
ended.
5
Note 1:
A person who fails to comply with a biosecurity measure that the
6
person is required to comply with may commit an offence (see
7
section 105).
8
Note 2:
An individual who has applied for merits or judicial review of a
9
decision to give a direction requiring the individual to comply with a
10
biosecurity measure referred to in subsection (3) must comply with the
11
direction while the review is occurring.
12
Note 3:
A person who does not comply with an isolation measure that the
13
person is required to comply with may be detained under Subdivision
14
B of Division 4.
15
Subdivision D--AAT review of isolation and traveller
16
movement measures
17
73 Obligation on Director of Human Biosecurity relating to
18
Administrative Appeals Tribunal application
19
(1) As soon as possible after the Director of Human Biosecurity gives
20
a direction in accordance with paragraph 70(5)(a) for an individual
21
to comply with an isolation measure, the Director must:
22
(a) inform the individual of the individual's right to apply under
23
section 74 to the Administrative Appeals Tribunal for review
24
of the decision to give the direction; and
25
(b) inform the individual that the individual may communicate,
26
or attempt to communicate, with anyone in relation to that
27
right; and
28
(c) if the individual wishes to apply to the Tribunal for review of
29
the decision, or to communicate in relation to that right--
30
ensure that the individual is provided with reasonable
31
facilities to enable him or her to do so.
32
(2) If the individual makes an application under section 74 for review
33
of the decision to give the direction, the Director of Human
34
Biosecurity must ensure that the individual is also given reasonable
35
facilities to enable the individual to participate in the proceeding.
36
Managing biosecurity risks: human health Chapter 2
Managing risks to human health: human biosecurity control orders Part 3
Imposing human biosecurity control orders on individuals Division 2
Section 74
Biosecurity Bill 2012 No. , 2012 79
74 Applications
1
(1) An application may be made to the Administrative Appeals
2
Tribunal for review of a decision of the Director of Human
3
Biosecurity to give a direction in accordance with paragraph
4
70(5)(a) for an individual to comply with an isolation measure or a
5
traveller movement measure (whether or not the direction is still in
6
force).
7
Note:
For when the direction ceases to be in force, see section 71.
8
(2) Despite paragraph 29(1)(d) of the Administrative Appeals Tribunal
9
Act 1975, the application must be made within 7 business days
10
from the day the decision is made.
11
Applications to cover later decisions
12
(3) Subsection (4) applies if:
13
(a) an application is made under subsection (1) in relation to a
14
decision (the first decision) of the Director of Human
15
Biosecurity to give a direction to an individual in accordance
16
with paragraph 70(5)(a); and
17
(b) while the Administrative Appeals Tribunal is reviewing the
18
first decision, the Director of Human Biosecurity makes a
19
decision (the later decision) to give another direction to the
20
individual in accordance with that paragraph; and
21
(c) the Tribunal does not give the individual a notice under
22
subsection (5).
23
(4) The application that relates to the first decision is also taken to
24
have been made in relation to the later decision for the following
25
purposes:
26
(a) the purposes of this Subdivision, other than subsections 75(2)
27
and 76(1);
28
(b) the purposes of the Administrative Appeals Tribunal Act
29
1975.
30
(5) The Administrative Appeals Tribunal may give a notice to the
31
individual requiring the individual to make a separate application
32
in relation to the later decision if the Tribunal is satisfied that it is
33
reasonable in all the circumstances to do so.
34
Chapter 2 Managing biosecurity risks: human health
Part 3 Managing risks to human health: human biosecurity control orders
Division 2 Imposing human biosecurity control orders on individuals
Section 75
80 Biosecurity Bill 2012 No. , 2012
75 Reasons and documents
1
(1) Section 28 (obtaining reasons for decision) of the Administrative
2
Appeals Tribunal Act 1975 does not apply in relation to a decision
3
to which an application under subsection 74(1) relates.
4
Note:
Under subsection 74(4), an application under subsection 74(1) may be
5
taken to also relate to a later decision.
6
Notification of application
7
(2) The Director of Human Biosecurity must be notified under
8
subsection 29(11) of the Administrative Appeals Tribunal Act 1975
9
of an application for review of a decision referred to in subsection
10
74(1) of this Act as soon as possible after the application is
11
received by the Administrative Appeals Tribunal.
12
Notification of later decision
13
(3) The Director of Human Biosecurity must notify the Administrative
14
Appeals Tribunal as soon as practicable after making a later
15
decision referred to in paragraph 74(3)(b).
16
Requirement to lodge documents
17
(4) The Director of Human Biosecurity must lodge with the
18
Administrative Appeals Tribunal and the individual to whom the
19
direction is given:
20
(a) the reasons for a decision to which an application under
21
subsection 74(1) relates; and
22
(b) every other document or part of a document that is:
23
(i) in the Director's possession or under his or her control;
24
and
25
(ii) relevant to the review of the decision by the Tribunal.
26
Note:
The decision referred to in paragraph (3)(a) of this section may be
27
either:
28
(a) the decision in relation to which the application was made under
29
subsection 74(1); or
30
(b) a later decision referred to in paragraph 74(3)(b) to which the
31
application relates.
32
Managing biosecurity risks: human health Chapter 2
Managing risks to human health: human biosecurity control orders Part 3
Imposing human biosecurity control orders on individuals Division 2
Section 76
Biosecurity Bill 2012 No. , 2012 81
(5) Reasons and documents, or parts of documents, must be lodged
1
under subsection (4):
2
(a) as soon as possible after the following time (as the case
3
requires):
4
(i) the time when the Director of Human Biosecurity is
5
notified of an application for review of a decision
6
referred to in subsection 74(1);
7
(ii) the time when the Director of Human Biosecurity makes
8
a later decision referred to in paragraph 74(3)(b); and
9
(b) in any case:
10
(i) before the end of the second business day after that
11
time; or
12
(ii) within any further period as the Tribunal determines
13
(whether orally or in writing).
14
76 Time period for making a decision
15
(1) Within 7 days after receiving an application under subsection 74(1)
16
for review of a decision, the Administrative Appeals Tribunal must
17
(subject to this section) make a decision on the review.
18
Extending the time period
19
(2) Before the end of that 7-day period, the Administrative Appeals
20
Tribunal may extend the period for making the decision on the
21
review if the Tribunal is satisfied that it is reasonable in all the
22
circumstances to do so. The Tribunal may only extend the period
23
once.
24
(3) If the Administrative Appeals Tribunal extends the period under
25
subsection (2) in relation to an application, the Tribunal must make
26
a decision on the review to which the application relates by the end
27
of the period as extended.
28
Note:
Under subsection 74(4), the application may be taken to also relate to
29
a later decision. The Tribunal must make a decision on the review in
30
relation to all decisions to which the application relates by the end of
31
the period as extended.
32
Chapter 2 Managing biosecurity risks: human health
Part 3 Managing risks to human health: human biosecurity control orders
Division 2 Imposing human biosecurity control orders on individuals
Section 77
82 Biosecurity Bill 2012 No. , 2012
Deemed decision
1
(4) If the Administrative Appeals Tribunal does not make a decision in
2
accordance with subsection (1) or (3) (as the case requires), the
3
Tribunal is taken, at the end of the period referred to in that
4
subsection, to have made a decision under section 43 of the
5
Administrative Appeals Tribunal Act 1975 to affirm the decision
6
under review.
7
No time period for making decision if direction has ceased to be in
8
force
9
(5) The Administrative Appeals Tribunal is not required to make a
10
decision within any specified time period, and is not taken to have
11
made a decision under subsection (4) of this section, if:
12
(a) an application under subsection 74(1) relates to a decision to
13
give a direction to an individual; and
14
(b) the direction has ceased to be in force; and
15
(c) there is no other direction referred to in paragraph 74(3)(b)
16
given to the individual that is still in force.
17
Note:
For when a direction ceases to be in force, see section 71.
18
77 Limitation on Administrative Appeals Tribunal power to stay etc.
19
decisions
20
Despite subsections 41(2) to (6) of the Administrative Appeals
21
Tribunal Act 1975, the Administrative Appeals Tribunal may not
22
make any order staying or otherwise affecting the operation or
23
implementation of a decision to give a direction in accordance with
24
paragraph 70(5)(a).
25
Subdivision E--Other provisions relating to external review of
26
isolation and traveller movement measures
27
78 Time period for making applications under the Administrative
28
Decisions (Judicial Review) Act 1977
29
(1) An application may be made under the Administrative Decisions
30
(Judicial Review) Act 1977, for an order of review of a decision to
31
Managing biosecurity risks: human health Chapter 2
Managing risks to human health: human biosecurity control orders Part 3
Imposing human biosecurity control orders on individuals Division 2
Section 79
Biosecurity Bill 2012 No. , 2012 83
give a direction in accordance with paragraph 70(5)(a) of this Act,
1
within:
2
(a)
7
business days from the day the decision is made; or
3
(b) any further period as the court concerned allows (whether
4
before or after the end of the period referred to in
5
paragraph (a) of this subsection).
6
(2) This section applies despite section 11 of the Administrative
7
Decisions (Judicial Review) Act 1977.
8
79 Judicial review of isolation and traveller movement measures
9
(1) If judicial review is sought in relation to an isolation measure or
10
traveller movement measure, the measure remains in force (subject
11
to this Division) unless a court finally determines the validity of
12
the decision in relation to which review is sought.
13
(2) This section has effect despite any other law.
14
15
Chapter 2 Managing biosecurity risks: human health
Part 3 Managing risks to human health: human biosecurity control orders
Division 3 Biosecurity measures that may be included in a human biosecurity control
order
Section 80
84 Biosecurity Bill 2012 No. , 2012
Division 3--Biosecurity measures that may be included in
1
a human biosecurity control order
2
Subdivision A--General provisions relating to including
3
biosecurity measures in a human biosecurity control
4
order
5
80 Who can include a biosecurity measure in a human biosecurity
6
control order
7
Chief human biosecurity officers and human biosecurity officers
8
(1) A chief human biosecurity officer or human biosecurity officer
9
may include any biosecurity measure set out in Subdivision B of
10
this Division in a human biosecurity control order.
11
Note:
Under Division 6 of Part 2 of this Chapter, an officer may ask
12
questions, or require written information, of an individual in relation
13
to whom a human biosecurity control order is in force.
14
Biosecurity officers
15
(2) A biosecurity officer may include in a human biosecurity control
16
order either of the biosecurity measures set out in the following
17
provisions:
18
(a) section 83 (managing contacts);
19
(b) section 86 (risk minimisation interventions).
20
81 Informing individual of risks
21
(1) Before an officer includes one or more biosecurity measures in a
22
human biosecurity control order that is or is to be in force in
23
relation to an individual, the officer must take reasonable steps to
24
inform the individual of the risk posed by the listed human disease
25
specified in the order to:
26
(a) the individual's health; and
27
(b) the health of the public.
28
(2) To avoid doubt, an officer must comply with subsection (1):
29
(a) at the time of imposing the order; and
30
Managing biosecurity risks: human health Chapter 2
Managing risks to human health: human biosecurity control orders Part 3
Biosecurity measures that may be included in a human biosecurity control order
Division 3
Section 82
Biosecurity Bill 2012 No. , 2012 85
(b) if the officer later varies the order to include a new
1
biosecurity measure.
2
82 Test for including a biosecurity measure in a human biosecurity
3
control order
4
An officer may include a biosecurity measure in a human
5
biosecurity control order only if the officer is satisfied that the
6
biosecurity measure contributes to managing the risk of:
7
(a) contagion of a listed human disease; or
8
(b) a listed human disease entering, or emerging, establishing
9
itself or spreading in, Australian territory or a part of
10
Australian territory.
11
Note 1:
Before including a biosecurity measure in a human biosecurity control
12
order, an officer must be satisfied of the matters referred to in
13
section 33 (the principles).
14
Note 2:
For when an individual is required to comply with a biosecurity
15
measure included in a human biosecurity control order, see
16
Subdivision C of Division 2.
17
Subdivision B--Biosecurity measures that may be included in a
18
human biosecurity control order
19
83 Managing contacts
20
An individual may be required by a human biosecurity control
21
order to provide to a specified biosecurity officer, human
22
biosecurity officer or chief human biosecurity officer the
23
prescribed contact information for any individual with whom the
24
individual has been, or will be, in close proximity.
25
Note 1:
This section constitutes an authorisation for the purposes of the
26
Privacy Act 1988 and other laws.
27
Note 2:
This section is not subject to the privilege against self-incrimination
28
(see section 661).
29
84 Contacting officer with health status
30
(1) An individual may be required by a human biosecurity control
31
order to contact a specified human biosecurity officer or chief
32
Chapter 2 Managing biosecurity risks: human health
Part 3 Managing risks to human health: human biosecurity control orders
Division 3 Biosecurity measures that may be included in a human biosecurity control
order
Section 85
86 Biosecurity Bill 2012 No. , 2012
human biosecurity officer during a specified period to advise the
1
officer of the individual's health.
2
(2)
The
order:
3
(a) must require the individual to report specified signs or
4
symptoms of the listed human disease; and
5
(b) may require the individual to report if specified signs or
6
symptoms disappear.
7
85 Restricting behaviour
8
(1) An individual may be required by a human biosecurity control
9
order to go to, and remain at, the individual's intended place of
10
residence for a specified period.
11
(2) Without limiting subsection (1), if an individual does not reside in
12
Australian territory, the individual's intended place of residence
13
includes a place at which the individual intends to stay while in
14
Australian territory.
15
(3) An individual may be required by a human biosecurity control
16
order not to do either or both of the following for a specified
17
period:
18
(a) visit a specified place, or class of place, where there is an
19
increased risk of contagion of the listed human disease;
20
(b) come into close proximity with a specified class of
21
individuals, where there is an increased risk that the
22
individuals in that class might contract the listed human
23
disease.
24
86 Risk minimisation interventions
25
(1) An individual may be required by a human biosecurity control
26
order to wear either or both specified clothing and equipment that
27
is designed to prevent a disease from emerging, establishing itself
28
or spreading.
29
(2) The order must specify the following:
30
(a) the circumstances in which the individual is required to wear
31
the clothing and equipment;
32
Managing biosecurity risks: human health Chapter 2
Managing risks to human health: human biosecurity control orders Part 3
Biosecurity measures that may be included in a human biosecurity control order
Division 3
Section 87
Biosecurity Bill 2012 No. , 2012 87
(b) the period during which, or the times at which, the individual
1
is required to wear the clothing and equipment;
2
(c) instructions for wearing the clothing and equipment.
3
87 Decontamination
4
(1) An individual may be required by a human biosecurity control
5
order to be decontaminated.
6
(2) An individual may be required by a human biosecurity control
7
order to allow the individual's clothing, and any personal effects
8
that the individual has with him or her, to be decontaminated.
9
(3) Without limiting subsection (2), an individual's personal effects
10
include any baggage that the individual has with him or her that
11
remained under the individual's immediate physical control while
12
the individual was on any aircraft, vessel or other conveyance.
13
(4) The order must specify the following:
14
(a) where and when the decontamination is to take place;
15
(b) who is to conduct the decontamination.
16
88 Undergoing an examination
17
An individual may be required by a human biosecurity control
18
order to undergo, at a specified medical facility, a specified kind of
19
examination relating to determining the presence in the individual
20
of:
21
(a) the listed human disease specified in the order; and
22
(b) any other listed human disease.
23
Note:
For the manner in which this biosecurity measure must be carried out,
24
see section 92.
25
89 Requiring body samples for diagnosis
26
(1) This section applies if an individual has undergone an examination
27
under section 88.
28
(2) The individual may be required by a human biosecurity control
29
order to provide, at a specified medical facility, specified body
30
Chapter 2 Managing biosecurity risks: human health
Part 3 Managing risks to human health: human biosecurity control orders
Division 3 Biosecurity measures that may be included in a human biosecurity control
order
Section 90
88 Biosecurity Bill 2012 No. , 2012
samples for the purpose of determining the presence in the
1
individual of:
2
(a) the listed human disease specified in the order; and
3
(b) any other listed human disease.
4
Note:
For the manner in which this biosecurity measure must be carried out,
5
see section 92.
6
Requirements for samples
7
(3) The regulations must prescribe requirements for taking, storing,
8
transporting, labelling and using body samples provided under
9
subsection (2).
10
Note:
The regulations may prescribe offences and civil penalties in relation
11
to a failure to comply with a prescribed requirement (see subsection
12
671(2)).
13
Giving samples to the World Health Organization
14
(4) The Minister may, at the request of the World Health Organization,
15
give all or part of a sample provided under subsection (2) to the
16
Organization for the purposes of detecting, assessing or responding
17
to a listed human disease.
18
90 Receiving a vaccination or treatment
19
An individual may be required by a human biosecurity control
20
order to receive, at a specified medical facility:
21
(a) a specified vaccination; or
22
(b) a specified form of treatment;
23
in order to manage the listed human disease specified in the order,
24
and any other listed human disease.
25
Note:
For the manner in which this biosecurity measure must be carried out,
26
see section 92.
27
91 Receiving medication
28
(1) An individual may be required by a human biosecurity control
29
order to receive specified medication in order to manage the listed
30
human disease specified in the order, and any other listed human
31
disease.
32
Managing biosecurity risks: human health Chapter 2
Managing risks to human health: human biosecurity control orders Part 3
Biosecurity measures that may be included in a human biosecurity control order
Division 3
Section 92
Biosecurity Bill 2012 No. , 2012 89
Note:
For the manner in which this biosecurity measure must be carried out,
1
see section 92.
2
(2) The order must specify:
3
(a) how much medication is to be taken; and
4
(b) how long the medication is to be taken for.
5
92 Appropriate medical or other standards to be applied
6
A biosecurity measure set out in section 88 (examination), 89
7
(body samples), 90 (vaccination or treatment) or 91 (medication)
8
must be carried out in a manner consistent with either or both of
9
the following (as the case requires):
10
(a) appropriate medical standards;
11
(b) appropriate other relevant professional standards.
12
93 No use of force to require compliance with certain biosecurity
13
measures
14
Force must not be used against an individual to require the
15
individual to comply with a biosecurity measure imposed under
16
any of sections 83 to 91.
17
Note:
Force may be used in preventing an individual leaving Australian
18
territory in contravention of a traveller movement measure (see
19
section 99) or in detaining a person who fails to comply with an
20
isolation measure (see section 102).
21
94 Traveller movement measure
22
(1) An individual may, for a specified period of no more than 28 days,
23
be required by a human biosecurity control order not to leave
24
Australian territory on an outgoing passenger aircraft or vessel.
25
Note:
For provisions relating to traveller movement measures, see
26
Subdivision C.
27
Traveller movement measure ceasing to be in force before human
28
biosecurity control order
29
(2) If a traveller movement measure ceases to be in force,
30
subsection (1) does not prevent another traveller movement
31
Chapter 2 Managing biosecurity risks: human health
Part 3 Managing risks to human health: human biosecurity control orders
Division 3 Biosecurity measures that may be included in a human biosecurity control
order
Section 95
90 Biosecurity Bill 2012 No. , 2012
measure from being included in the same human biosecurity
1
control order.
2
When traveller movement measure ceases to be in force
3
(3)
A traveller movement measure ceases to be in force at the earliest
4
of the following times:
5
(a) at the end of the period specified under subsection (1);
6
(b) the time when the human biosecurity control order ceases to
7
be in force;
8
(c) the time when the order is varied to remove the measure;
9
(d) the time when the order is revoked.
10
95 Isolation measure
11
(1) An individual may be required by a human biosecurity control
12
order to remain isolated at a specified medical facility.
13
Note 1:
A non-Australian citizen who is required to remain isolated is entitled
14
to consular assistance under section 100.
15
Note 2:
A person who does not comply with an isolation measure that the
16
person is required to comply with may be detained under Subdivision
17
B of Division 4.
18
(2) An isolation measure included in a human biosecurity control order
19
under subsection (1) may be made conditional on a person refusing
20
to consent to another biosecurity measure included in the human
21
biosecurity control order.
22
Subdivision C--Provisions relating to traveller movement
23
measures
24
96 Traveller movement measure alert
25
Who Director of Human Biosecurity must notify
26
(1)
The Director of Human Biosecurity must notify the following if a
27
traveller movement measure is included in a human biosecurity
28
control order:
29
(a)
the Agriculture Department;
30
(b)
the Immigration Department;
31
Managing biosecurity risks: human health Chapter 2
Managing risks to human health: human biosecurity control orders Part 3
Biosecurity measures that may be included in a human biosecurity control order
Division 3
Section 96
Biosecurity Bill 2012 No. , 2012 91
(c)
the Foreign Affairs Department;
1
(d)
the Australian Customs and Border Protection Service;
2
(e)
the National Focal Point.
3
Note:
For the content of the notification, see section 97.
4
(2)
A failure to notify a person, body or agency under subsection (1)
5
does not affect the validity of the human biosecurity control order,
6
or the traveller movement measure.
7
Who Director of Human Biosecurity may notify
8
(3)
The Director of Human Biosecurity may (if he or she considers it
9
appropriate) also notify any one or more of the following if a
10
traveller movement measure is included in a human biosecurity
11
control order:
12
(a)
any one or more operators of outgoing passenger aircraft or
13
vessels;
14
(b)
any State or Territory body responsible for the administration
15
of health services in the State or Territory;
16
(c)
any State Party's National IHR Focal Point (within the
17
meaning of the International Health Regulations).
18
Requirement for notification
19
(4)
A notification under subsection (1) or (3):
20
(a)
must be in writing; and
21
(b)
must be made within 24 hours of including the traveller
22
movement measure in the human biosecurity control order.
23
Legislative instruments
24
(5) A notification under subsection (1) or (3) is not a legislative
25
instrument.
26
Notification of cessation of measure
27
(6)
If
a person, body or agency was notified under subsection (1) or (3)
28
of the inclusion of a traveller movement measure, the Director of
29
Human Biosecurity must further notify the person, body or agency
30
if the measure ceases to be in force.
31
Chapter 2 Managing biosecurity risks: human health
Part 3 Managing risks to human health: human biosecurity control orders
Division 3 Biosecurity measures that may be included in a human biosecurity control
order
Section 97
92 Biosecurity Bill 2012 No. , 2012
Note 1:
For when a traveller movement measure ceases to be in force, see
1
subsection 94(3).
2
Note 2:
The original notification of the traveller movement measure must be
3
destroyed in accordance with section 98.
4
97 Content of traveller movement measure alert
5
A notification under section 96 must include the following:
6
(a)
the name of the individual in relation to whom the traveller
7
movement measure is in force, and his or her passport
8
number;
9
(b)
a statement that:
10
(i)
a traveller movement measure is in force in relation to
11
the individual; and
12
(ii)
the individual must not board an outgoing passenger
13
aircraft or vessel while the measure is in force;
14
(c)
the period during which the measure is in force;
15
(d)
any known travel details of the individual;
16
(e)
details of a chief human biosecurity officer who can be
17
contacted for information in relation to the measure;
18
(f)
any other information prescribed by the regulations.
19
Note:
Information disclosed under this section must be dealt with in
20
accordance with the Privacy Act 1988.
21
98 Destruction of traveller movement measure alert
22
A person who is notified of a traveller movement measure under
23
section 96 must destroy the notification within 6 months of being
24
further notified that the measure has ceased to be in force.
25
Civil penalty:
120 penalty units.
26
99 Prevention from leaving Australian territory
27
(1) An officer of Customs may prevent an individual from boarding an
28
outgoing passenger aircraft or vessel if:
29
(a) a traveller movement measure is in force in relation to the
30
individual; and
31
Managing biosecurity risks: human health Chapter 2
Managing risks to human health: human biosecurity control orders Part 3
Biosecurity measures that may be included in a human biosecurity control order
Division 3
Section 99
Biosecurity Bill 2012 No. , 2012 93
(b) the individual would contravene the measure if the individual
1
boarded the aircraft or vessel and left Australian territory.
2
Note:
For the definition of officer of Customs, see section 9.
3
Use of force in detaining person
4
(2) An officer of Customs must not use more force, or subject the
5
person to greater indignity, than is necessary and reasonable to
6
prevent the individual from boarding the aircraft or vessel.
7
8
Chapter 2 Managing biosecurity risks: human health
Part 3 Managing risks to human health: human biosecurity control orders
Division 4 Other provisions relating to human biosecurity control orders
Section 100
94 Biosecurity Bill 2012 No. , 2012
Division 4--Other provisions relating to human biosecurity
1
control orders
2
Subdivision A--Consular assistance
3
100 Consular assistance
4
(1) This section sets out requirements that must be complied with if:
5
(a) either of the following events occurs:
6
(i) an officer requires an individual to remain at a place
7
under section 66;
8
(ii) an officer includes an isolation measure in a human
9
biosecurity control order, requiring an individual to
10
remain isolated; and
11
(b) the individual is not an Australian citizen.
12
(2) As soon as practicable after the event referred to in
13
paragraph (1)(a) occurs, the officer must do the following:
14
(a) inform the individual that he or she may request that the
15
consular office of the following country be notified that the
16
event has occurred:
17
(i) the country of which he or she is a citizen;
18
(ii) the country to which he or she claims a special
19
connection;
20
(b) if the individual so requests--notify that consular office;
21
(c) inform the individual that he or she may communicate, or
22
attempt to communicate, with that consular office;
23
(d) give the individual reasonable facilities to do so;
24
(e) forward any written communication from the individual to
25
that consular office;
26
(f) allow the individual a reasonable time to communicate, or
27
attempt to communicate, with that consular office.
28
Managing biosecurity risks: human health Chapter 2
Managing risks to human health: human biosecurity control orders Part 3
Other provisions relating to human biosecurity control orders Division 4
Section 101
Biosecurity Bill 2012 No. , 2012 95
Subdivision B--Detention
1
101 Detention
2
(1)
An individual may be detained by a person referred to in
3
subsection (3) of this section if:
4
(a)
either:
5
(i) the individual fails to comply with a requirement to
6
remain at a place under section 66; or
7
(ii) the individual fails to comply with an isolation measure
8
that the individual is required to comply with under
9
subsection 72(4); and
10
(b) a human biosecurity officer or chief human biosecurity
11
officer is satisfied:
12
(i) of the matters in paragraphs 33(2)(a) to (f) (the
13
principles); and
14
(ii) that the detention is necessary because, without
15
detention, the individual may pose a significant risk of
16
contagion.
17
Note:
For when an individual must be released from detention, see
18
section 103.
19
(2) An individual who is detained for failing to comply with an
20
isolation measure may be detained only for the purpose of taking
21
the individual to the medical facility referred to in section 95.
22
Who may detain an individual
23
(3)
The individual may be detained by:
24
(a)
a member or special member of the Australian Federal
25
Police; or
26
(b)
a member of the police force of a State or Territory; or
27
(c)
a protective services officer (within the meaning of the
28
Australian Federal Police Act 1979).
29
Agreement of State or Territory required
30
(4) A member of the police force of a State or Territory must not
31
exercise a power under this section unless the exercise of the
32
Chapter 2 Managing biosecurity risks: human health
Part 3 Managing risks to human health: human biosecurity control orders
Division 4 Other provisions relating to human biosecurity control orders
Section 102
96 Biosecurity Bill 2012 No. , 2012
power is in accordance with an agreement between the
1
Commonwealth and the State or Territory concerned.
2
102 Rules relating to detention
3
Use of force in detaining person
4
(1) A person (the officer) referred to in subsection 101(3) must not use
5
more force, or subject an individual (the detainee) to greater
6
indignity, than is necessary and reasonable to detain the detainee or
7
prevent the detainee from escaping.
8
Place of detention
9
(2) The officer who detains a detainee must take the detainee, as soon
10
as possible, to a place that:
11
(a) in the officer's opinion, affords adequate personal privacy to
12
the detainee; and
13
(b)
either:
14
(i) if the detainee was detained for failing to comply with a
15
requirement to remain at a place under section 66--is at
16
the place where the detainee was when the officer
17
referred to in that section became satisfied that a human
18
biosecurity control order should be imposed on the
19
detainee; or
20
(ii) if the detainee was detained for failing to comply with
21
an isolation measure--is at the medical facility
22
specified in the human biosecurity control order that is
23
in force in relation to the detainee.
24
Note:
For when an individual must be released from detention, see
25
section 103.
26
Right to communicate
27
(3) As soon as possible after detaining a detainee, the officer who
28
detains the detainee must inform the detainee that the detainee may
29
communicate, or attempt to communicate, with any person.
30
Managing biosecurity risks: human health Chapter 2
Managing risks to human health: human biosecurity control orders Part 3
Other provisions relating to human biosecurity control orders Division 4
Section 103
Biosecurity Bill 2012 No. , 2012 97
(4) If the detainee wishes to communicate with any person, the officer
1
must, as soon as possible, give the detainee reasonable facilities to
2
enable the detainee to do so.
3
103 Release from detention
4
Release from detention after failure to comply with requirement to
5
remain at a place
6
(1) An individual who has been detained under section 101 for failing
7
to comply with a requirement to remain at a place under section 66
8
must be released at the end of the 6-hour period referred to in
9
section 66.
10
Release from detention after failure to comply with isolation
11
measure
12
(2)
An individual who has been detained under section 101 for failing
13
to comply with an isolation measure must be released from
14
detention at the earlier of the following times:
15
(a) the time when the person has been taken to a place, in
16
accordance with subsection 102(2), at the medical facility
17
specified in the human biosecurity control order that is in
18
force in relation to the individual;
19
(b) the time when the individual is no longer required to comply
20
with an isolation measure under subsection 72(4).
21
Note:
An individual is required to comply with an isolation measure for only
22
72 hours, unless the Director of Human Biosecurity gives a direction
23
under section 70 (see subsection 72(4)).
24
(3) To avoid doubt, an individual may be required to remain isolated at
25
the medical facility even after the individual has been released
26
from detention.
27
104 Offence for escaping from detention
28
An individual commits an offence if the individual escapes from
29
detention under section 101.
30
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
31
Chapter 2 Managing biosecurity risks: human health
Part 3 Managing risks to human health: human biosecurity control orders
Division 4 Other provisions relating to human biosecurity control orders
Section 105
98 Biosecurity Bill 2012 No. , 2012
Subdivision C--Miscellaneous
1
105 Offence for failing to comply with a human biosecurity control
2
order
3
An individual commits an offence if:
4
(a) a human biosecurity control order is in force in relation to the
5
individual; and
6
(b) the individual engages in conduct; and
7
(c) the conduct results in the person failing to comply with a
8
biosecurity measure included in the human biosecurity
9
control order; and
10
(d) the individual is required to comply with the measure under
11
subsection 72(2) or (4).
12
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
13
106 Expenses incurred in complying with human biosecurity control
14
orders
15
The Commonwealth is liable to pay for reasonable expenses
16
incurred by an individual in complying with a biosecurity measure
17
included in a human biosecurity control order.
18
19
Managing biosecurity risks: human health Chapter 2
Managing risks to human health: other biosecurity measures Part 4
Introduction Division 1
Section 107
Biosecurity Bill 2012 No. , 2012 99
Part 4--Managing risks to human health: other
1
biosecurity measures
2
Division 1--Introduction
3
107 Guide to this Part
4
Division 2 allows human remains to be brought into Australian
5
territory. Sometimes, requirements may be specified or directions
6
given in relation to human remains.
7
Division 3 allows the Director of Human Biosecurity to determine
8
human health response zones to which entry and exit requirements
9
apply.
10
11
Chapter 2 Managing biosecurity risks: human health
Part 4 Managing risks to human health: other biosecurity measures
Division 2 Managing deceased individuals
Section 108
100 Biosecurity Bill 2012 No. , 2012
Division 2--Managing deceased individuals
1
108 Human remains brought into Australian territory
2
(1)
Human remains may be brought into Australian territory.
3
Note 1:
In some cases, requirements are specified for bringing human remains
4
into Australian territory (see subsection (2)).
5
Note 2:
Human remains are not goods (see the definition of goods in
6
section 18).
7
(2)
The Director of Human Biosecurity may specify, in writing:
8
(a)
classes of human remains; and
9
(b)
requirements for:
10
(i)
bringing human remains into Australian territory; or
11
(ii)
managing human remains in those classes after bringing
12
them into Australian territory.
13
(3) An instrument made under subsection (2) is a legislative
14
instrument, but section 42 (disallowance) of the Legislative
15
Instruments Act 2003 does not apply to the instrument.
16
(4) A requirement specified for the purposes of paragraph (2)(b) must
17
relate to preventing, or reducing the risk of, a listed human disease
18
entering, or emerging, establishing itself, or spreading in,
19
Australian territory or a part of Australian territory.
20
(5)
This section does not apply to the human remains of an individual
21
who dies:
22
(a) in transit before arriving in Australian territory; or
23
(b) on arrival in Australian territory.
24
Note:
For individuals who have died in transit or on arrival, see section 110.
25
Civil penalty provision
26
(6) A person to whom a requirement under subsection (2) applies must
27
comply with the requirement.
28
Civil penalty:
30 penalty units.
29
Managing biosecurity risks: human health Chapter 2
Managing risks to human health: other biosecurity measures Part 4
Managing deceased individuals Division 2
Section 109
Biosecurity Bill 2012 No. , 2012 101
109 Officer may give directions for managing human remains
1
(1)
A biosecurity officer, human biosecurity officer, or chief human
2
biosecurity officer, may give a direction for managing specified
3
human remains if:
4
(a) the officer is satisfied that those remains are likely to be
5
infected with a listed human disease (whether the remains
6
were brought into Australian territory as mentioned in
7
section 108, or were already in Australian territory); or
8
(b) a person did not comply with a requirement specified under
9
subsection 108(2) in relation to those remains.
10
(2)
The officer must give a written direction to the person who is
11
responsible for the human remains.
12
Note:
See also section 608 (general provisions relating to directions).
13
Civil penalty provision
14
(3)
A person to whom a direction is given under this section must
15
comply with the direction.
16
Civil penalty:
30 penalty units.
17
110 Individuals who have died in transit or on arrival
18
(1)
The Director of Human Biosecurity may specify, in writing,
19
requirements for classes of persons who bring into Australian
20
territory, or who manage, the bodies of deceased individuals who
21
die:
22
(a)
in transit before arriving in Australian territory; or
23
(b)
on arrival in Australian territory.
24
(2) A requirement specified for the purposes of subsection (1) must
25
relate to preventing, or reducing the risk of, a listed human disease
26
entering, or emerging, establishing itself, or spreading in,
27
Australian territory or a part of Australian territory.
28
(3) An instrument made under subsection (1) is a legislative
29
instrument, but section 42 (disallowance) of the Legislative
30
Instruments Act 2003 does not apply to the instrument.
31
Chapter 2 Managing biosecurity risks: human health
Part 4 Managing risks to human health: other biosecurity measures
Division 2 Managing deceased individuals
Section 110
102 Biosecurity Bill 2012 No. , 2012
Civil penalty provision
1
(4) A person to whom a requirement under subsection (1) applies must
2
comply with the requirement.
3
Civil penalty:
30 penalty units.
4
5
Managing biosecurity risks: human health Chapter 2
Managing risks to human health: other biosecurity measures Part 4
Human health response zones Division 3
Section 111
Biosecurity Bill 2012 No. , 2012 103
Division 3--Human health response zones
1
111 Determining human health response zones
2
(1) The Director of Human Biosecurity may determine that a specified
3
area within a State or Territory is a human health response zone if
4
the Director is satisfied that it is necessary to do so for the purposes
5
of preventing, or reducing the risk of, a listed human disease
6
emerging, establishing itself or spreading in Australian territory or
7
a part of Australian territory.
8
Note 1:
For consultation and notification requirements, see sections 112 and
9
113.
10
Note 2:
Under Division 6 of Part 2 of this Chapter, an officer may ask
11
questions, or require written information, of an individual who is in a
12
human health response zone.
13
(2) Without limiting subsection (1), a specified area may consist of the
14
whole or a part of a specified building.
15
Contents of a determination
16
(3) The determination must also specify:
17
(a) the listed human disease to which the determination relates;
18
and
19
(b) either or both of the following:
20
(i) any requirements for individuals who are entering or
21
leaving the zone;
22
(ii) a requirement that specified classes of individuals must
23
not enter the zone; and
24
(c) the period during which the determination is in force, which
25
must not be more than 3 months.
26
Note:
A person who does not comply with a requirement of a human health
27
response zone determination might contravene a civil penalty
28
provision (see section 114).
29
(4) A requirement must not be specified in a determination unless the
30
Director of Human Biosecurity is satisfied that the requirement is
31
appropriate and adapted to prevent, or reduce the risk of, the
32
specified listed human disease emerging, establishing itself or
33
spreading in Australian territory or a part of Australian territory.
34
Chapter 2 Managing biosecurity risks: human health
Part 4 Managing risks to human health: other biosecurity measures
Division 3 Human health response zones
Section 112
104 Biosecurity Bill 2012 No. , 2012
(5) A determination must not specify as a requirement a biosecurity
1
measure described in Subdivision B of Division 3 of Part 3 of this
2
Chapter (biosecurity measures that may be included in a human
3
biosecurity control order).
4
Period of determination
5
(6) If a determination ceases to be in force, the Director of Human
6
Biosecurity may make another determination specifying the same
7
area covered by the previous determination.
8
Determination not subject to disallowance
9
(7) A determination made under subsection (1) is a legislative
10
instrument, but section 42 (disallowance) of the Legislative
11
Instruments Act 2003 does not apply to the determination.
12
112 Consultation requirements
13
Before making a determination under section 111, the Director of
14
Human Biosecurity must consult with:
15
(a) the chief health officer (however described) for the State or
16
Territory in which the human health response zone will lie;
17
and
18
(b) the Director of Biosecurity.
19
113 Notification requirements
20
(1) In addition to the requirement under the Legislative Instruments
21
Act 2003 for the determination to be registered, the Director of
22
Human Biosecurity must ensure that the determination is made
23
public, in any other way he or she thinks fit.
24
(2) A failure to comply with subsection (1) of this section does not
25
affect the validity of the determination.
26
Managing biosecurity risks: human health Chapter 2
Managing risks to human health: other biosecurity measures Part 4
Human health response zones Division 3
Section 114
Biosecurity Bill 2012 No. , 2012 105
114 Civil penalty for failing to comply with a requirement of a
1
human health response zone determination
2
A person to whom a requirement in a determination made under
3
section 111 (human health response zone) applies must comply
4
with the requirement.
5
Civil penalty:
30 penalty units.
6
7
Chapter 3 Managing biosecurity risks: goods
Part 1 Goods brought into Australian territory
Division 1 Introduction
Section 115
106 Biosecurity Bill 2012 No. , 2012
Chapter 3--Managing biosecurity risks:
1
goods
2
Part 1--Goods brought into Australian territory
3
Division 1--Introduction
4
115 Guide to this Part
5
This Part deals with goods that are brought or imported into
6
Australian territory from outside Australian territory.
7
Division 2 provides that the goods become subject to biosecurity
8
control when they enter Australian territory.
9
Division 3 provides for notice to be given of goods that are, or are
10
intended to be, brought into Australian territory and unloaded at a
11
landing place or port.
12
Division 4 sets out powers that may be exercised to assess the level
13
of biosecurity risk associated with goods that are subject to
14
biosecurity control.
15
Division 5 provides for biosecurity measures to be taken in relation
16
to goods that are subject to biosecurity control if the level of
17
biosecurity risk associated with the goods is considered to be
18
unacceptable.
19
Division 6 deals with unloading goods that are subject to
20
biosecurity control at landing places or ports in Australian territory.
21
Division 7 deals with unloading goods that are subject to
22
biosecurity control from an aircraft or vessel that is displaying the
23
prescribed quarantine signal.
24
Division 8 requires biosecurity incidents in relation to goods that
25
are subject to biosecurity control to be reported to a biosecurity
26
officer or the Director of Biosecurity.
27
Managing biosecurity risks: goods Chapter 3
Goods brought into Australian territory Part 1
Introduction Division 1
Section 116
Biosecurity Bill 2012 No. , 2012 107
Division 9 provides for the assessment and management of the
1
level of biosecurity risk associated with goods that are exposed to
2
goods that are subject to biosecurity control.
3
Division 10 deals with releasing goods from biosecurity control.
4
116 Objects of this Part
5
The main objects of this Part are:
6
(a) to provide for the assessment of the level of biosecurity risk
7
associated with goods brought into Australian territory; and
8
(b) to provide for biosecurity measures to be taken in relation to
9
those goods if the level of biosecurity risk associated with
10
them is considered to be unacceptable.
11
Note:
In this Chapter, goods includes a conveyance that is being carried on
12
board another conveyance (for example a lifeboat being carried on a
13
vessel) (see section 18).
14
15
Chapter 3 Managing biosecurity risks: goods
Part 1 Goods brought into Australian territory
Division 2 Goods are subject to biosecurity control
Section 117
108 Biosecurity Bill 2012 No. , 2012
Division 2--Goods are subject to biosecurity control
1
117 Goods brought into Australian territory are subject to
2
biosecurity control
3
(1) This section applies in relation to goods that are brought into
4
Australian territory on an aircraft or vessel that has entered
5
Australian territory during a flight or voyage that commenced
6
outside Australian territory.
7
Note:
Goods that are brought into Australian territory include goods brought
8
into Australian territory with the intention of being imported into
9
Australian territory.
10
(2) The goods become subject to biosecurity control when the aircraft
11
or vessel carrying the goods enters Australian territory.
12
(3) The goods remain subject to biosecurity control until they are
13
released from biosecurity control under Division 10.
14
(4) If the goods are released from biosecurity control under paragraph
15
160(1)(e) by leaving Australian territory on an aircraft or vessel
16
that is on a flight or voyage between places in Australian territory,
17
the goods become subject to biosecurity control again when the
18
aircraft or vessel re-enters Australian territory during that flight or
19
voyage.
20
Note:
Goods are released from biosecurity control under paragraph
21
160(1)(e) if they leave Australian territory.
22
23
Managing biosecurity risks: goods Chapter 3
Goods brought into Australian territory Part 1
Notice of goods to be unloaded in Australian territory Division 3
Section 118
Biosecurity Bill 2012 No. , 2012 109
Division 3--Notice of goods to be unloaded in Australian
1
territory
2
118 Notice must be given of goods to be unloaded in Australian
3
territory
4
(1) A notice must be given of goods that are, or are intended to be:
5
(a) brought into Australian territory; and
6
(b) unloaded at a landing place or port in Australian territory;
7
other than goods originating in Australian territory that leave
8
temporarily for the purpose of travelling between landing places or
9
ports in Australian territory.
10
Note 1:
A person may commit an offence or contravene a civil penalty
11
provision if the person provides false or misleading information or
12
documents (see sections 137.1 and 137.2 of the Criminal Code and
13
sections 507 and 508 of this Act).
14
Note 2:
The obligation in this subsection applies whether or not the person
15
who is required to give the notice is in Australian territory when the
16
notice is required to be given or when the goods are unloaded (see
17
subsection (8) of this section).
18
(2) The notice must be given by a person prescribed by the regulations
19
in relation to the goods.
20
(3) The notice must:
21
(a) include the information in relation to the goods that is
22
prescribed by the regulations; and
23
(b) be given in the manner, and to the person, prescribed by the
24
regulations; and
25
(c) be given at a time, or during the period, prescribed by the
26
regulations (which may be before or after the goods are
27
unloaded as referred to in subsection (1)); and
28
(d) be in a form or forms approved by the Director of
29
Biosecurity.
30
Note:
The regulations may prescribe different requirements for notices for
31
different classes of goods (see subsection 33(3A) of the Acts
32
Interpretation Act 1901).
33
(4) The regulations may prescribe exceptions to the requirement to
34
give a notice under this section.
35
Chapter 3 Managing biosecurity risks: goods
Part 1 Goods brought into Australian territory
Division 3 Notice of goods to be unloaded in Australian territory
Section 118
110 Biosecurity Bill 2012 No. , 2012
Note:
A defendant bears an evidential burden in relation to any exception
1
prescribed for the purposes of this subsection (see subsection 13.3(3)
2
of the Criminal Code and section 552 of this Act).
3
Failure to give notice
4
(5) A person contravenes this subsection if:
5
(a) goods are unloaded as referred to in subsection (1); and
6
(b) the person is a person prescribed for the purposes of
7
subsection (2) in relation to the goods; and
8
(c) the person does not give a notice in relation to the goods in
9
accordance with subsection (3); and
10
(d) no other person gives a notice in relation to the goods in
11
accordance with that subsection.
12
Fault-based offence
13
(6) A person commits an offence if the person contravenes
14
subsection (5).
15
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
16
Note:
See section 575 in relation to the physical elements of an offence.
17
Civil penalty provision
18
(7) A person is liable to a civil penalty if the person contravenes
19
subsection (5).
20
Civil penalty:
120 penalty units.
21
Application to persons within and outside Australian territory
22
(8) Subsections (5), (6) and (7) apply whether or not the person is in
23
Australian territory when the notice is required to be given or when
24
the goods are unloaded.
25
Note:
This section is not subject to the privilege against self-incrimination
26
(see section 661).
27
Managing biosecurity risks: goods Chapter 3
Goods brought into Australian territory Part 1
Notice of goods to be unloaded in Australian territory Division 3
Section 119
Biosecurity Bill 2012 No. , 2012 111
119 Notice of goods to be unloaded in Australian territory--
1
requirement to give additional or corrected information
2
(1)
If:
3
(a) a person gives a notice in relation to goods under section 118;
4
and
5
(b) after giving the notice, the person becomes aware that the
6
information included in the notice was incomplete or
7
incorrect;
8
the person must give the additional or corrected information to a
9
biosecurity officer as soon as practicable.
10
Note 1:
A person may commit an offence or contravene a civil penalty
11
provision if the person provides false or misleading information or
12
documents (see sections 137.1 and 137.2 of the Criminal Code and
13
sections 507 and 508 of this Act).
14
Note 2:
The obligation in this subsection applies whether or not the person is
15
in Australian territory when the person becomes aware that the
16
information included in a notice given under section 118 was
17
incomplete or incorrect (see subsection (5) of this section).
18
Note 3:
See also Division 8 which deals with reporting biosecurity incidents.
19
(2) A person contravenes this subsection if:
20
(a) the person is required to give information to a biosecurity
21
officer under subsection (1); and
22
(b) the person does not give the information to a biosecurity
23
officer as required by that subsection.
24
Fault-based offence
25
(3) A person commits an offence if the person contravenes
26
subsection (2).
27
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
28
Note:
See section 575 in relation to the physical elements of an offence.
29
Civil penalty provision
30
(4) A person is liable to a civil penalty if the person contravenes
31
subsection (2).
32
Civil penalty:
120 penalty units.
33
Chapter 3 Managing biosecurity risks: goods
Part 1 Goods brought into Australian territory
Division 3 Notice of goods to be unloaded in Australian territory
Section 119
112 Biosecurity Bill 2012 No. , 2012
Application to persons within and outside Australian territory
1
(5) Subsections (2), (3) and (4) apply whether or not the person is in
2
Australian territory when the person is required to give the
3
information.
4
Note:
This section is not subject to the privilege against self-incrimination
5
(see section 661).
6
7
Managing biosecurity risks: goods Chapter 3
Goods brought into Australian territory Part 1
Assessment of level of biosecurity risk Division 4
Section 120
Biosecurity Bill 2012 No. , 2012 113
Division 4--Assessment of level of biosecurity risk
1
120 Biosecurity risk assessment powers
2
This Division sets out powers that may be exercised for the
3
purpose of assessing the level of biosecurity risk associated with
4
goods that are subject to biosecurity control.
5
Note:
The powers in this Division may also be exercised in relation to
6
exposed goods and goods in relation to which an exposed goods order
7
is in force (see Division 9).
8
121 Direction to secure goods
9
(1) A biosecurity officer may direct a person in charge of the goods to
10
secure the goods in a manner specified by the biosecurity officer.
11
Civil penalty provision
12
(2) A person who is given a direction under subsection (1) must
13
comply with the direction.
14
Civil penalty:
120 penalty units.
15
Note 1:
If judicial review is sought in relation to a direction given under
16
subsection (1), the direction remains in force unless a court finally
17
determines the validity of the decision to give the direction (see
18
section 573).
19
Note 2:
A person may contravene a civil penalty provision for moving, dealing
20
with or interfering with goods that have been secured in accordance
21
with a direction given under subsection (1) (see section 127).
22
Note 3:
See also section 608 (general provisions relating to directions).
23
122 Inspecting goods and taking samples
24
(1) A biosecurity officer may inspect the goods.
25
(2) A biosecurity officer may:
26
(a) take samples of the goods; or
27
(b) direct a person in charge of the goods to deliver to the
28
biosecurity officer samples of such of those goods as are
29
specified in the direction; or
30
Chapter 3 Managing biosecurity risks: goods
Part 1 Goods brought into Australian territory
Division 4 Assessment of level of biosecurity risk
Section 123
114 Biosecurity Bill 2012 No. , 2012
(c) arrange for another person, with appropriate qualifications or
1
expertise, to take samples of the goods.
2
(3) A biosecurity officer may:
3
(a) carry out tests on any samples taken or delivered under
4
subsection (2); or
5
(b) arrange for another person, with appropriate qualifications or
6
expertise, to carry out tests on any of those samples.
7
Note:
See also section 592 (carrying out tests on samples).
8
Civil penalty provision
9
(4) A person who is given a direction under paragraph (2)(b) must
10
comply with the direction.
11
Civil penalty:
120 penalty units.
12
123 Asking questions about goods
13
(1) A biosecurity officer may require a person who the biosecurity
14
officer suspects, on reasonable grounds, has information in relation
15
to the goods to answer questions, or provide information in writing,
16
in relation to the goods.
17
Note:
A person may commit an offence or contravene a civil penalty
18
provision if the person provides false or misleading information (see
19
section 137.1 of the Criminal Code and section 507 of this Act).
20
Civil penalty provision
21
(2) A person who is required to answer questions, or provide
22
information in writing, under subsection (1) must comply with the
23
requirement.
24
Civil penalty:
120 penalty units.
25
Note:
This section is not subject to the privilege against self-incrimination
26
(see section 661).
27
124 Requiring documents relating to goods to be produced
28
(1) A biosecurity officer may require a person who the biosecurity
29
officer suspects, on reasonable grounds, has the custody or control
30
Managing biosecurity risks: goods Chapter 3
Goods brought into Australian territory Part 1
Assessment of level of biosecurity risk Division 4
Section 125
Biosecurity Bill 2012 No. , 2012 115
of documents in relation to the goods to produce to the biosecurity
1
officer such of those documents as are specified by the biosecurity
2
officer.
3
Note:
A person may commit an offence or contravene a civil penalty
4
provision if the person provides false or misleading documents (see
5
section 137.2 of the Criminal Code and section 508 of this Act).
6
(2) A biosecurity officer:
7
(a) may make copies of, or take extracts from, a document
8
produced under subsection (1); and
9
(b) for that purpose, may remove the document from the place at
10
which it was produced.
11
Civil penalty provision
12
(3) A person who is required to produce documents under
13
subsection (1) must comply with the requirement.
14
Civil penalty:
120 penalty units.
15
Note:
This section is not subject to the privilege against self-incrimination
16
(see section 661).
17
125 Movement of goods
18
(1) A biosecurity officer may:
19
(a) give any of the following directions to a person in charge of
20
the goods:
21
(i) a direction not to move, deal with or interfere with the
22
goods;
23
(ii) a direction to move the goods, as soon as practicable, to
24
a place specified by the biosecurity officer;
25
(iii) any other direction relating to the movement of the
26
goods; or
27
(b) cause the goods to be moved to another place.
28
Civil penalty provision
29
(2) A person who is given a direction under paragraph (1)(a) must
30
comply with the direction.
31
Chapter 3 Managing biosecurity risks: goods
Part 1 Goods brought into Australian territory
Division 4 Assessment of level of biosecurity risk
Section 126
116 Biosecurity Bill 2012 No. , 2012
Civil penalty:
120 penalty units.
1
Note:
A person may contravene a civil penalty provision for moving, dealing
2
with or interfering with goods in relation to which a direction relating
3
to movement has been given under paragraph (1)(a) or that have been
4
moved under paragraph (1)(b) (see section 127).
5
126 Biosecurity control notice may be affixed to goods or given to
6
person in charge of goods
7
(1) A biosecurity officer may:
8
(a) affix a biosecurity control notice to, or as near as reasonably
9
practicable to, the goods; or
10
(b) give a biosecurity control notice to a person in charge of the
11
goods.
12
Civil penalty provision
13
(2) A person is liable to a civil penalty if:
14
(a) a biosecurity control notice is affixed to, or as near as
15
reasonably practicable to, goods under paragraph (1)(a); and
16
(b) the person interferes with, removes or defaces the notice; and
17
(c) none of the following applies:
18
(i) the person is authorised to engage in the conduct
19
referred to in paragraph (b) in accordance with an
20
approved arrangement;
21
(ii) the person needs to engage in that conduct to comply
22
with a direction given under another provision of this
23
Act by a biosecurity official;
24
(iii) the person has been given permission to engage in that
25
conduct under section 595.
26
Civil penalty:
120 penalty units.
27
(3) Subsection (2) does not apply if the person is authorised to engage
28
in the conduct referred to in paragraph (2)(b) under this Act or
29
under another Australian law.
30
Note 1:
A defendant bears an evidential burden in relation to the matter in this
31
subsection (see section 552).
32
Note 2:
A person may contravene a civil penalty provision for moving, dealing
33
with or interfering with goods in relation to which a biosecurity
34
Managing biosecurity risks: goods Chapter 3
Goods brought into Australian territory Part 1
Assessment of level of biosecurity risk Division 4
Section 127
Biosecurity Bill 2012 No. , 2012 117
control notice has been affixed under paragraph (1)(a) (see
1
section 127).
2
127 Unauthorised persons must not move etc. goods in relation to
3
which direction has been given or notice has been affixed
4
(1) This section applies in relation to:
5
(a) goods that have been secured in accordance with a direction
6
given under subsection 121(1); or
7
(b) goods in relation to which a direction relating to movement
8
has been given under paragraph 125(1)(a); or
9
(c) goods that have been moved under paragraph 125(1)(b); or
10
(d) goods in relation to which a biosecurity control notice has
11
been affixed under paragraph 126(1)(a).
12
Civil penalty provision
13
(2) A person is liable to a civil penalty if:
14
(a) the person moves, deals with or interferes with goods in
15
relation to which this section applies; and
16
(b) none of the following applies:
17
(i) the person is authorised to engage in the conduct
18
referred to in paragraph (a) in accordance with an
19
approved arrangement;
20
(ii) the person needs to engage in that conduct to comply
21
with a direction given under another provision of this
22
Act by a biosecurity official;
23
(iii) the person has been given permission to engage in that
24
conduct under section 595.
25
Civil penalty:
120 penalty units.
26
(3) Subsection (2) does not apply if the person is authorised to engage
27
in the conduct referred to in paragraph (2)(a) under this Act or
28
under another Australian law.
29
Note:
A defendant bears an evidential burden in relation to the matter in this
30
subsection (see section 552).
31
32
Chapter 3 Managing biosecurity risks: goods
Part 1 Goods brought into Australian territory
Division 5 Biosecurity measures to manage unacceptable level of biosecurity risk
Section 128
118 Biosecurity Bill 2012 No. , 2012
Division 5--Biosecurity measures to manage unacceptable
1
level of biosecurity risk
2
128 Biosecurity measures may be required in relation to goods
3
If a biosecurity officer suspects, on reasonable grounds, that the
4
level of biosecurity risk associated with goods that are subject to
5
biosecurity control is unacceptable, a biosecurity officer may
6
require biosecurity measures to be taken in relation to the goods as
7
set out in this Division.
8
Note 1:
This Division also applies in relation to exposed goods in relation to
9
which an exposed goods order is in force. This Division applies to
10
those goods as if they were subject to biosecurity control (see
11
subsection 159(1)).
12
Note 2:
Sections 653 and 654 deal with abandoned and forfeited goods in
13
relation to which biosecurity measures have been required under this
14
Division.
15
129 Movement of goods
16
A biosecurity officer may:
17
(a) require the goods to be moved to a specified place, as soon as
18
practicable; or
19
(b) require the goods to be left at a specified place in a specified
20
manner and for a specified period; or
21
(c) require any other action to be taken in relation to the
22
movement of the goods.
23
130 Treatment of goods
24
(1) A biosecurity officer may, subject to subsection (2), require the
25
goods to be treated in a manner specified by the biosecurity officer.
26
Note:
If the treatment might damage the goods, a person in charge of the
27
goods must be asked to agree to the treatment (see section 131).
28
(2) A biosecurity officer must not require high-value goods to be
29
treated in a manner that the biosecurity officer suspects, on
30
reasonable grounds, is likely to damage the goods, without the
31
written approval of the Director of Biosecurity.
32
Managing biosecurity risks: goods Chapter 3
Goods brought into Australian territory Part 1
Biosecurity measures to manage unacceptable level of biosecurity risk Division 5
Section 131
Biosecurity Bill 2012 No. , 2012 119
131 Treatment that may damage goods
1
(1) This section applies if:
2
(a) a biosecurity officer requires goods to be treated in a
3
specified manner under section 130; and
4
(b) a biosecurity officer suspects, on reasonable grounds, that
5
treatment of the goods in that manner is likely to damage the
6
goods.
7
Notice must be given that treatment is likely to damage goods
8
(2) Before any treatment is carried out on the goods, a biosecurity
9
officer must, by notice in writing or orally:
10
(a) inform a person in charge of the goods that:
11
(i) the goods are required to be treated in a specified
12
manner; and
13
(ii) the treatment is likely to damage the goods; and
14
(b) request the person to agree to the treatment of the goods.
15
Note: The
meaning
of
person in charge of goods in this subsection is
16
affected by subsection (7).
17
(3) However, the goods may be treated in the specified manner
18
without notice having been given under subsection (2) if:
19
(a) a biosecurity officer suspects, on reasonable grounds, that
20
there is a high level of biosecurity risk associated with the
21
goods; and
22
(b) the biosecurity officer is satisfied that the goods need to be
23
treated as soon as practicable to reduce that risk to an
24
acceptable level.
25
Dealing with goods if person in charge does not agree to treatment
26
(4)
If:
27
(a) a notice in writing is given to a person in charge of the goods
28
under subsection (2); and
29
(b) a person in charge of the goods does not, within 30 days after
30
receiving the notice, notify a biosecurity officer in writing
31
that the person agrees to the treatment of the goods as
32
specified in the notice;
33
Chapter 3 Managing biosecurity risks: goods
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Division 5 Biosecurity measures to manage unacceptable level of biosecurity risk
Section 131
120 Biosecurity Bill 2012 No. , 2012
a biosecurity officer may, in writing, request a person in charge of
1
the goods to arrange for the goods:
2
(c) to be dealt with, or destroyed, in a manner specified in the
3
request; or
4
(d) to be exported from Australian territory;
5
within the period specified in the request.
6
Note: The
meaning
of
person in charge of goods in paragraphs (4)(a) and
7
(b) is affected by subsection (7).
8
(5)
If:
9
(a) notice is given orally to a person in charge of the goods under
10
subsection (2); and
11
(b) a person in charge of the goods informs a biosecurity officer
12
that the person does not agree to the treatment of the goods in
13
the specified manner;
14
a biosecurity officer may, in writing or orally, request a person in
15
charge of the goods to arrange for the goods:
16
(c) to be dealt with, or destroyed, in a manner specified in the
17
request; or
18
(d) to be exported from Australian territory;
19
within the period specified in the request.
20
Note: The
meaning
of
person in charge of goods in paragraphs (5)(a) and
21
(b) is affected by subsection (7).
22
(6)
If:
23
(a) a request is made under subsection (4) or (5) in relation to the
24
goods; and
25
(b) the goods are not, within the period specified in the request:
26
(i) dealt with, or destroyed, in a manner specified in the
27
request; or
28
(ii) exported from Australian territory;
29
a biosecurity officer may take possession of the goods and cause
30
them to be exported from Australian territory, destroyed or
31
otherwise disposed of.
32
Managing biosecurity risks: goods Chapter 3
Goods brought into Australian territory Part 1
Biosecurity measures to manage unacceptable level of biosecurity risk Division 5
Section 132
Biosecurity Bill 2012 No. , 2012 121
Modified meaning of person in charge of goods
1
(7) In subsection (2) and paragraphs (4)(a) and (b) and (5)(a) and (b),
2
person in charge of goods does not include a biosecurity industry
3
participant who is in possession or control of the goods only
4
because of a direction given to the biosecurity industry participant
5
by a biosecurity officer.
6
132 Export of goods
7
(1) A biosecurity officer may require the goods to be exported from
8
Australian territory.
9
(2) For the purposes of subsection (1), a biosecurity officer may:
10
(a) arrange for the goods to be exported from Australian
11
territory; or
12
(b) direct a person in charge of the goods to arrange for the
13
goods to be exported from Australian territory.
14
Note:
A person who is given a direction under paragraph (2)(b) may commit
15
an offence or contravene a civil penalty provision for failing to
16
comply with the direction (see section 137).
17
133 Destruction of goods
18
(1) If a biosecurity officer considers, on reasonable grounds, that the
19
goods cannot be effectively treated, a biosecurity officer may,
20
subject to subsections (2) and (3), require the goods to be
21
destroyed.
22
(2) A biosecurity officer must not require high-value goods to be
23
destroyed without the written approval of the Director of
24
Biosecurity.
25
Note:
A decision to give approval for high-value goods to be destroyed is a
26
reviewable decision (see Part 1 of Chapter 13).
27
(3) A biosecurity officer must not cause high-value goods to be
28
destroyed until:
29
(a) after the period in which an application may be made for
30
review (including merits or judicial review) of the decision to
31
require the goods to be destroyed; or
32
Chapter 3 Managing biosecurity risks: goods
Part 1 Goods brought into Australian territory
Division 5 Biosecurity measures to manage unacceptable level of biosecurity risk
Section 134
122 Biosecurity Bill 2012 No. , 2012
(b) if an application referred to in paragraph (a) is made--after
1
the review or any related proceeding (including any appeal)
2
have been completed.
3
(4) However, subsection (3) does not apply in relation to high-value
4
goods if a biosecurity officer is satisfied that:
5
(a) there is a high level of biosecurity risk associated with the
6
goods; and
7
(b) the biosecurity risk cannot be managed for long enough to
8
allow a review of the decision to require the goods to be
9
destroyed, and any related proceeding (including any appeal),
10
to be finally determined.
11
(5)
If:
12
(a) in accordance with subsection (4), a biosecurity officer
13
causes the goods to be destroyed before the end of the period
14
referred to in paragraph (3)(a); and
15
(b) no application for review of the decision to require the goods
16
to be destroyed had been made before the goods were
17
destroyed;
18
an application for review of the decision to require the goods to be
19
destroyed must not be made.
20
(6)
If:
21
(a) an application referred to in paragraph (3)(a) has been made
22
in relation to the decision to require the goods to be
23
destroyed; and
24
(b) in accordance with subsection (4), a biosecurity officer
25
causes the goods to be destroyed before the review or any
26
related proceeding (including any appeal) has been finally
27
determined;
28
the review or related proceeding (including any appeal) is taken to
29
be discontinued when the goods are destroyed.
30
134 Regulations may provide for other biosecurity measures
31
(1) The regulations may provide that a biosecurity officer may require
32
a specified kind of biosecurity measure (a prescribed biosecurity
33
measure) to be taken in relation to the goods.
34
Managing biosecurity risks: goods Chapter 3
Goods brought into Australian territory Part 1
Biosecurity measures to manage unacceptable level of biosecurity risk Division 5
Section 135
Biosecurity Bill 2012 No. , 2012 123
(2) Regulations made for the purposes of this section must not provide
1
for a biosecurity officer to require any of the following kinds of
2
biosecurity measures to be taken in relation to the goods:
3
(a) a biosecurity measure of a kind set out in Division 4 of this
4
Part (assessment of level of biosecurity risk);
5
(b) a biosecurity measure of a kind set out in another provision
6
of this Division (biosecurity measures to manage
7
unacceptable level of biosecurity risk);
8
(c) a biosecurity measure of a kind referred to in Subdivision B
9
of Division 2 of Part 4 of Chapter 12 (decontamination).
10
(3) Regulations made for the purposes of this section may also provide
11
for, or in relation to, other matters relating to a prescribed
12
biosecurity measure.
13
(4) Without limiting subsection (3), regulations made for the purposes
14
of this section may do any of the following:
15
(a) provide for persons to be notified, and the circumstances in
16
which the persons must be notified, that a prescribed
17
biosecurity measure is required to be taken in relation to
18
goods;
19
(b) if regulations made for the purposes of subsection 610(2)
20
provide that the decision to require a prescribed biosecurity
21
measure to be taken in relation to the goods is a reviewable
22
decision--provide that, except in the circumstances (if any)
23
prescribed, the prescribed biosecurity measure must not be
24
taken during the period in which a review of that decision, or
25
any related proceeding (including any appeal), has been
26
finally determined.
27
135 Powers of biosecurity officer if biosecurity measures are
28
required
29
(1) If a biosecurity officer requires a biosecurity measure to be taken
30
in relation to goods under section 129 (movement), section 130
31
(treatment), section 133 (destruction) or a regulation made for the
32
purposes of section 134, a biosecurity officer may:
33
(a) direct a person in charge of the goods to carry out the
34
biosecurity measure; or
35
Chapter 3 Managing biosecurity risks: goods
Part 1 Goods brought into Australian territory
Division 5 Biosecurity measures to manage unacceptable level of biosecurity risk
Section 136
124 Biosecurity Bill 2012 No. , 2012
(b) carry out the biosecurity measure; or
1
(c) arrange for another person with appropriate qualifications or
2
expertise to carry out the biosecurity measure.
3
Note 1:
A person who is given a direction under paragraph (1)(a) of this
4
section may commit an offence or contravene a civil penalty provision
5
for failing to comply with the direction (see section 137).
6
Note 2:
See also section 608 (general provisions relating to directions).
7
(2) If, under this section, a biosecurity officer:
8
(a) gives a direction to a person to carry out a biosecurity
9
measure; or
10
(b) arranges for another person with appropriate qualifications or
11
expertise to carry out a biosecurity measure;
12
a biosecurity officer may supervise the taking of the biosecurity
13
measure.
14
136 Biosecurity officer may affix notice to goods
15
(1) A biosecurity officer may affix a notice to, or as near as reasonably
16
practicable to, goods in relation to which biosecurity measures
17
have been required under:
18
(a) this Division; or
19
(b) a regulation made for the purposes of section 134.
20
(2) The notice must state:
21
(a) that the level of biosecurity risk associated with the goods is
22
unacceptable; and
23
(b) that biosecurity measures have been required in relation to
24
the goods, in accordance with this Chapter, for the purpose of
25
managing that biosecurity risk; and
26
(c) the effect of subsections (3) and (4) of this section and
27
section 138.
28
Civil penalty provision
29
(3) A person is liable to a civil penalty if:
30
(a) a notice is affixed to, or as near as reasonably practicable to,
31
goods under subsection (1); and
32
(b) the person interferes with, removes or defaces the notice; and
33
Managing biosecurity risks: goods Chapter 3
Goods brought into Australian territory Part 1
Biosecurity measures to manage unacceptable level of biosecurity risk Division 5
Section 137
Biosecurity Bill 2012 No. , 2012 125
(c) none of the following applies:
1
(i) the person is authorised to engage in the conduct
2
referred to in paragraph (b) in accordance with an
3
approved arrangement;
4
(ii) the person needs to engage in that conduct to comply
5
with a direction given under another provision of this
6
Act by a biosecurity official;
7
(iii) the person has been given permission to engage in that
8
conduct under section 595.
9
Civil penalty:
120 penalty units.
10
(4) Subsection (3) does not apply if the person is authorised to engage
11
in the conduct referred to in paragraph (3)(b) under this Act or
12
under another Australian law.
13
Note:
A defendant bears an evidential burden in relation to the matter in this
14
subsection (see section 552).
15
137 Person must comply with direction to take biosecurity measures
16
(1) A person who is given a direction under paragraph 132(2)(b) or
17
135(1)(a) must comply with the direction.
18
Fault-based offence
19
(2) A person commits an offence if:
20
(a) the person is given a direction under paragraph 132(2)(b) or
21
135(1)(a); and
22
(b) the person engages in conduct; and
23
(c) the conduct contravenes the direction.
24
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
25
Civil penalty provision
26
(3) A person is liable to a civil penalty if the person contravenes
27
subsection (1).
28
Civil penalty:
120 penalty units.
29
Chapter 3 Managing biosecurity risks: goods
Part 1 Goods brought into Australian territory
Division 5 Biosecurity measures to manage unacceptable level of biosecurity risk
Section 138
126 Biosecurity Bill 2012 No. , 2012
138 Unauthorised persons must not move etc. goods to which notice
1
has been affixed
2
(1) A person contravenes this subsection if:
3
(a) a notice has been affixed to, or as near as reasonably
4
practicable to, goods under subsection 136(1); and
5
(b) the person moves, deals with or interferes with the goods;
6
and
7
(c) none of the following applies:
8
(i) the person is authorised to engage in the conduct
9
referred to in paragraph (b) in accordance with an
10
approved arrangement;
11
(ii) the person needs to engage in that conduct to comply
12
with a direction given under another provision of this
13
Act by a biosecurity official;
14
(iii) the person has been given permission to engage in that
15
conduct under section 595.
16
(2) Subsection (1) does not apply if the person is authorised to engage
17
in the conduct referred to in paragraph (1)(b) under this Act or
18
under another Australian law.
19
Note:
A defendant bears an evidential burden in relation to the matter in this
20
subsection (see subsection 13.3(3) of the Criminal Code and
21
section 552 of this Act).
22
Fault-based offence
23
(3) A person commits an offence if the person contravenes
24
subsection (1).
25
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
26
Note:
See section 575 in relation to the physical elements of an offence.
27
Civil penalty provision
28
(4) A person is liable to a civil penalty if the person contravenes
29
subsection (1).
30
Civil penalty:
120 penalty units.
31
Managing biosecurity risks: goods Chapter 3
Goods brought into Australian territory Part 1
Unloading goods at landing places or ports Division 6
Section 139
Biosecurity Bill 2012 No. , 2012 127
Division 6--Unloading goods at landing places or ports
1
139 Application of this Division
2
This Division applies in relation to goods that:
3
(a) are, or will become, subject to biosecurity control; and
4
(b) are intended to be unloaded from an aircraft or vessel at a
5
landing place or port in Australian territory.
6
Note:
This Division also applies in relation to exposed goods in relation to
7
which an exposed goods order is in force. This Division applies to
8
those goods as if they were subject to biosecurity control (see
9
subsection 159(1)).
10
140 Person in charge may allow goods to be unloaded from aircraft
11
or vessel subject to direction etc.
12
(1) The person in charge of the aircraft or vessel may allow the goods
13
to be unloaded from the aircraft or vessel at the landing place or
14
port at which the aircraft or vessel has arrived.
15
Note 1:
Nothing may be unloaded from the aircraft or vessel unless pratique
16
has been granted in relation to the aircraft or vessel (see sections 47
17
and 48).
18
Note 2:
A person may commit an offence or contravene a civil penalty
19
provision if the person moves, deals with or interferes with goods that
20
have been unloaded from the aircraft or vessel (see section 146).
21
(2) Subsection (1) has effect subject to:
22
(a) sections 142, 143, 144, 145 and 149; and
23
(b) any direction given under subsection (3) of this section.
24
(3) A biosecurity officer may give the person in charge of the aircraft
25
or vessel a direction relating to the unloading of the goods from the
26
aircraft or vessel (including a direction not to allow some or all of
27
the goods to be unloaded from the aircraft or vessel).
28
Note:
See also section 608 (general provisions relating to directions).
29
(4) A person who is given a direction under subsection (3) must
30
comply with the direction.
31
Chapter 3 Managing biosecurity risks: goods
Part 1 Goods brought into Australian territory
Division 6 Unloading goods at landing places or ports
Section 141
128 Biosecurity Bill 2012 No. , 2012
Fault-based offence
1
(5) A person commits an offence if:
2
(a) the person is given a direction under subsection (3); and
3
(b) the person engages in conduct; and
4
(c) the conduct contravenes the direction.
5
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
6
Civil penalty provision
7
(6) A person is liable to a civil penalty if the person contravenes
8
subsection (4).
9
Civil penalty:
120 penalty units.
10
(7) Subsections (5) and (6) do not apply if:
11
(a) the person in charge of the aircraft or vessel gave another
12
person a direction (the person in charge's direction) under
13
subsection 141(4); and
14
(b) the person in charge's direction was in the same terms as the
15
direction given under subsection (3) of this section; and
16
(c) the other person did not comply with the person in charge's
17
direction.
18
Note:
A defendant bears an evidential burden in relation to the matters in
19
this subsection (see subsection 13.3(3) of the Criminal Code and
20
section 552 of this Act).
21
141 Person may unload goods from aircraft or vessel subject to
22
direction etc.
23
(1) A person may unload the goods from the aircraft or vessel at the
24
landing place or port at which the aircraft or vessel has arrived.
25
Note 1:
Nothing may be unloaded from the aircraft or vessel unless pratique
26
has been granted in relation to the aircraft or vessel (see sections 47
27
and 48).
28
Note 2:
A person may commit an offence or contravene a civil penalty
29
provision if the person moves, deals with or interferes with goods that
30
have been unloaded from the aircraft or vessel (see section 146).
31
(2) Subsection (1) has effect subject to:
32
Managing biosecurity risks: goods Chapter 3
Goods brought into Australian territory Part 1
Unloading goods at landing places or ports Division 6
Section 142
Biosecurity Bill 2012 No. , 2012 129
(a) sections 142, 143, 144, 145 and 149; and
1
(b) any direction given under subsection (3) or (4) of this section.
2
(3) A biosecurity officer may give a person a direction relating to the
3
unloading of the goods from the aircraft or vessel (including a
4
direction not to unload some or all of the goods from the aircraft or
5
vessel).
6
Note:
See also section 608 (general provisions relating to directions).
7
(4) If the person in charge of the aircraft or vessel has been given a
8
direction under subsection 140(3), the person in charge may, for
9
the purpose of giving effect to that direction, give another person a
10
direction relating to the unloading of the goods from the aircraft or
11
vessel (including a direction not to unload some or all of the goods
12
from the aircraft or vessel).
13
(5) A person who is given a direction under subsection (3) or (4) must
14
comply with the direction.
15
Fault-based offence
16
(6) A person commits an offence if:
17
(a) the person is given a direction under subsection (3) or (4);
18
and
19
(b) the person engages in conduct; and
20
(c) the conduct contravenes the direction.
21
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
22
Civil penalty provision
23
(7) A person is liable to a civil penalty if the person contravenes
24
subsection (5).
25
Civil penalty:
120 penalty units.
26
142 Goods must not be unloaded except at first point of entry for
27
those goods or with permission
28
(1) The person in charge of the aircraft or vessel must not allow the
29
goods to be unloaded from the aircraft or vessel at a landing place
30
Chapter 3 Managing biosecurity risks: goods
Part 1 Goods brought into Australian territory
Division 6 Unloading goods at landing places or ports
Section 143
130 Biosecurity Bill 2012 No. , 2012
or port that is not a first point of entry for those goods, unless
1
permission has been given under subsection 143(2) for the goods to
2
be unloaded at that landing place or port.
3
Fault-based offence
4
(2) The person in charge of an aircraft or vessel commits an offence if:
5
(a) the person allows goods to be unloaded from the aircraft or
6
vessel at a landing place or port in Australian territory; and
7
(b) the goods are subject to biosecurity control; and
8
(c) the landing place or port is not a first point of entry for those
9
goods; and
10
(d) permission has not been given under subsection 143(2) for
11
the goods to be unloaded at that landing place or port.
12
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
13
Civil penalty provision
14
(3) A person is liable to a civil penalty if the person contravenes
15
subsection (1).
16
Civil penalty:
120 penalty units.
17
143 Permission to unload goods at landing place or port other than
18
first point of entry for those goods
19
(1) The person in charge or the operator of the aircraft or vessel may,
20
in writing, request the Director of Biosecurity to give permission
21
for the goods to be unloaded at a landing place or port that is not a
22
first point of entry for those goods.
23
Note:
A request under this subsection may be made at the same time as a
24
request under section 241 or 249 is made for permission to arrive at a
25
landing place or port that is not a first point of entry for the aircraft or
26
vessel.
27
(2) If the Director of Biosecurity receives a request under
28
subsection (1), the Director may, by notice in writing to the person
29
in charge or the operator of the aircraft or vessel, give permission
30
for the goods to be unloaded from the aircraft or vessel at the
31
landing place or port specified in the request.
32
Managing biosecurity risks: goods Chapter 3
Goods brought into Australian territory Part 1
Unloading goods at landing places or ports Division 6
Section 143
Biosecurity Bill 2012 No. , 2012 131
(3) The Director of Biosecurity may give permission under
1
subsection (2) subject to any conditions specified in the notice
2
giving the permission.
3
Fault-based offences
4
(4) A person commits an offence if:
5
(a) the person is the person in charge or the operator of an
6
aircraft or vessel; and
7
(b) the person has been given a permission under subsection (2);
8
and
9
(c) the permission is subject to conditions; and
10
(d) the person engages in conduct; and
11
(e) the conduct contravenes the conditions.
12
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
13
(5) The person in charge of an aircraft or vessel commits an offence if:
14
(a) the operator of the aircraft or vessel has been given a
15
permission under subsection (2); and
16
(b) the permission is subject to conditions; and
17
(c) the conditions are not complied with.
18
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
19
(6) The operator of an aircraft or vessel commits an offence if:
20
(a) the person in charge of the aircraft or vessel has been given a
21
permission under subsection (2); and
22
(b) the permission is subject to conditions; and
23
(c) the conditions are not complied with.
24
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
25
Civil penalty provision
26
(7) The person in charge and the operator of an aircraft or vessel are
27
each liable to a civil penalty if:
28
(a) the person in charge or the operator of the aircraft or vessel
29
has been given a permission under subsection (2); and
30
(b) the permission is subject to conditions; and
31
Chapter 3 Managing biosecurity risks: goods
Part 1 Goods brought into Australian territory
Division 6 Unloading goods at landing places or ports
Section 144
132 Biosecurity Bill 2012 No. , 2012
(c) the conditions are not complied with.
1
Civil penalty:
120 penalty units.
2
144 Goods must be brought to biosecurity entry point for those
3
goods at first point of entry
4
(1) This section applies if:
5
(a) the aircraft or vessel has arrived at a first point of entry for
6
the aircraft or vessel; and
7
(b) there is a biosecurity entry point at the first point of entry for
8
goods that are to be unloaded from the aircraft or vessel.
9
Civil penalty provision
10
(2) The person in charge of the aircraft or vessel must ensure that
11
goods that are to be unloaded from the aircraft or vessel are
12
brought to the biosecurity entry point for those goods as soon as
13
practicable, unless:
14
(a) a biosecurity officer has given a direction under
15
subsection (3) to the person in charge or the operator of the
16
aircraft or vessel to bring the goods to an alternative
17
biosecurity entry point at the first point of entry; or
18
(b) permission has been given under subsection 145(2) for the
19
goods to be brought to an alternative biosecurity entry point
20
at the first point of entry.
21
Civil penalty:
120 penalty units.
22
Note 1:
Nothing may be unloaded from the aircraft or vessel unless pratique
23
has been granted in relation to the aircraft or vessel (see sections 47
24
and 48).
25
Note 2:
Goods must not be unloaded from the aircraft or vessel if:
26
(a) a direction has been given under subsection 140(3) or 141(3) or
27
(4) not to unload the goods from the aircraft or vessel; or
28
(b) the aircraft or vessel is displaying the prescribed quarantine
29
signal (see section 149).
30
(3) A biosecurity officer may give the person in charge or the operator
31
of the aircraft or vessel a direction requiring goods that are to be
32
unloaded from the aircraft or vessel to be brought to a biosecurity
33
entry point that is not a biosecurity entry point for those goods.
34
Managing biosecurity risks: goods Chapter 3
Goods brought into Australian territory Part 1
Unloading goods at landing places or ports Division 6
Section 144
Biosecurity Bill 2012 No. , 2012 133
Note:
See also section 608 (general provisions relating to directions).
1
Fault-based offences
2
(4) A person commits an offence if:
3
(a) the person is the person in charge or the operator of an
4
aircraft or vessel; and
5
(b) the person has been given a direction under subsection (3);
6
and
7
(c) the person engages in conduct; and
8
(d) the conduct contravenes the direction.
9
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
10
(5) The person in charge of an aircraft or vessel commits an offence if:
11
(a) the operator of the aircraft or vessel has been given a
12
direction under subsection (3); and
13
(b) the direction is not complied with.
14
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
15
(6) The operator of an aircraft or vessel commits an offence if:
16
(a) the person in charge of the aircraft or vessel has been given a
17
direction under subsection (3); and
18
(b) the direction is not complied with.
19
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
20
Civil penalty provision
21
(7) The person in charge and the operator of an aircraft or vessel are
22
each liable to a civil penalty if:
23
(a) the person in charge or the operator of the aircraft or vessel
24
has been given a direction under subsection (3); and
25
(b) the direction is not complied with.
26
Civil penalty:
120 penalty units.
27
Chapter 3 Managing biosecurity risks: goods
Part 1 Goods brought into Australian territory
Division 6 Unloading goods at landing places or ports
Section 145
134 Biosecurity Bill 2012 No. , 2012
145 Permission to bring goods to alternative biosecurity entry point
1
(1) The person in charge or the operator of the aircraft or vessel may,
2
in writing, request the Director of Biosecurity to give permission to
3
bring the goods to a biosecurity entry point (the alternative
4
biosecurity entry point) that is not a biosecurity entry point for
5
those goods.
6
(2) If the Director of Biosecurity receives a request under
7
subsection (1), the Director may, by notice in writing to the person
8
in charge or the operator of the aircraft or vessel, give permission
9
for the goods to be brought to the alternative biosecurity entry
10
point.
11
(3) The Director of Biosecurity may give permission under
12
subsection (2) subject to any conditions specified in the notice
13
giving the permission.
14
Fault-based offences
15
(4) A person commits an offence if:
16
(a) the person is the person in charge or the operator of an
17
aircraft or vessel; and
18
(b) the person has been given a permission under subsection (2);
19
and
20
(c) the permission is subject to conditions; and
21
(d) the person engages in conduct; and
22
(e) the conduct contravenes the conditions.
23
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
24
(5) The person in charge of an aircraft or vessel commits an offence if:
25
(a) the operator of the aircraft or vessel has been given a
26
permission under subsection (2); and
27
(b) the permission is subject to conditions; and
28
(c) the conditions are not complied with.
29
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
30
(6) The operator of an aircraft or vessel commits an offence if:
31
Managing biosecurity risks: goods Chapter 3
Goods brought into Australian territory Part 1
Unloading goods at landing places or ports Division 6
Section 146
Biosecurity Bill 2012 No. , 2012 135
(a) the person in charge of the aircraft or vessel has been given a
1
permission under subsection (2); and
2
(b) the permission is subject to conditions; and
3
(c) the conditions are not complied with.
4
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
5
Civil penalty provision
6
(7) The person in charge and the operator of an aircraft or vessel are
7
each liable to a civil penalty if:
8
(a) the person in charge or the operator of the aircraft or vessel
9
has been given a permission under subsection (2); and
10
(b) the permission is subject to conditions; and
11
(c) the conditions are not complied with.
12
Civil penalty:
120 penalty units.
13
146 Unauthorised persons must not move etc. goods that have been
14
unloaded from aircraft or vessel
15
(1) A person contravenes this subsection if:
16
(a) goods have been unloaded from an aircraft or vessel; and
17
(b) the goods are subject to biosecurity control; and
18
(c) the person moves, deals with or interferes with the goods;
19
and
20
(d) none of the following applies:
21
(i) the person is authorised to engage in the conduct
22
referred to in paragraph (c) in accordance with an
23
approved arrangement;
24
(ii) the person needs to engage in that conduct to comply
25
with a direction given under another provision of this
26
Act by a biosecurity official;
27
(iii) the person has been given permission to engage in that
28
conduct under section 595.
29
(2) Subsection (1) does not apply if:
30
Chapter 3 Managing biosecurity risks: goods
Part 1 Goods brought into Australian territory
Division 6 Unloading goods at landing places or ports
Section 147
136 Biosecurity Bill 2012 No. , 2012
(a) the person is authorised to engage in the conduct referred to
1
in paragraph (1)(c) under this Act or under another Australian
2
law; or
3
(b) the person engages in that conduct in circumstances
4
prescribed by regulations made under subsection (3) for the
5
purposes of this paragraph.
6
Note:
A defendant bears an evidential burden in relation to the matters in
7
this subsection (see subsection 13.3(3) of the Criminal Code and
8
section 552 of this Act).
9
(3) The regulations may prescribe circumstances for the purposes of
10
paragraph (2)(b).
11
Fault-based offence
12
(4) A person commits an offence if the person contravenes
13
subsection (1).
14
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
15
Note:
See section 575 in relation to the physical elements of an offence.
16
Civil penalty provision
17
(5) A person is liable to a civil penalty if the person contravenes
18
subsection (1).
19
Civil penalty:
120 penalty units.
20
147 Receiving or possessing goods unloaded from aircraft or vessel
21
in contravention of this Division
22
Civil penalty provision
23
(1) A person contravenes this subsection if:
24
(a) the person receives, or has in the person's possession, goods
25
that have been unloaded from an aircraft or vessel in
26
Australian territory; and
27
(b) any of the following applies in relation to the goods:
28
(i) the goods were unloaded from the aircraft or vessel in
29
contravention of a direction given under subsection
30
140(3), 141(3) or (4) or 144(3);
31
Managing biosecurity risks: goods Chapter 3
Goods brought into Australian territory Part 1
Unloading goods at landing places or ports Division 6
Section 147
Biosecurity Bill 2012 No. , 2012 137
(ii) the goods were unloaded from the aircraft or vessel in
1
contravention of subsection 142(1);
2
(iii) a condition imposed under subsection 143(3) or 145(3)
3
in relation to the goods was contravened;
4
(iv) subsection 144(2) was contravened.
5
Civil penalty:
120 penalty units.
6
(2) Subsection (1) does not apply if the person did not know, and
7
could not reasonably be expected to have known, that:
8
(a) the goods were unloaded from the aircraft or vessel in
9
contravention of a direction given under subsection 140(3),
10
141(3) or (4) or 144(3); or
11
(b) the goods were unloaded from the aircraft or vessel in
12
contravention of subsection 142(1); or
13
(c) a condition imposed under subsection 143(3) or 145(3) in
14
relation to the goods was contravened; or
15
(d) subsection 144(2) was contravened;
16
as the case may be.
17
Note:
A defendant bears an evidential burden in relation to the matters in
18
this subsection (see section 552 of this Act).
19
20
Chapter 3 Managing biosecurity risks: goods
Part 1 Goods brought into Australian territory
Division 7 Unloading goods from aircraft or vessel displaying prescribed quarantine
signal
Section 148
138 Biosecurity Bill 2012 No. , 2012
Division 7--Unloading goods from aircraft or vessel
1
displaying prescribed quarantine signal
2
148 Application of this Division
3
This Division applies in relation to goods that:
4
(a) are subject to biosecurity control; and
5
(b) are unloaded from an aircraft or vessel that is displaying the
6
prescribed quarantine signal.
7
Note:
This Division also applies in relation to exposed goods in relation to
8
which an exposed goods order is in force. This Division applies to
9
those goods as if they were subject to biosecurity control (see
10
subsection 159(1)).
11
149 Unloading goods from aircraft or vessel displaying prescribed
12
quarantine signal
13
(1) A person contravenes this subsection if:
14
(a) the person unloads goods from an aircraft or vessel in
15
Australian territory; and
16
(b) the goods are subject to biosecurity control; and
17
(c) the aircraft or vessel is displaying the prescribed quarantine
18
signal; and
19
(d) none of the following applies:
20
(i) the person is authorised to engage in the conduct
21
referred to in paragraph (a) in accordance with an
22
approved arrangement;
23
(ii) the person needs to engage in that conduct to comply
24
with a direction given under another provision of this
25
Act by a biosecurity official;
26
(iii) the person has been given permission to engage in that
27
conduct under section 595.
28
Note:
See section 223 in relation to when an aircraft or vessel must display
29
the prescribed quarantine signal.
30
(2) Subsection (1) does not apply if the person is authorised to engage
31
in the conduct referred to in paragraph (1)(a) under this Act or
32
under another Australian law.
33
Managing biosecurity risks: goods Chapter 3
Goods brought into Australian territory Part 1
Unloading goods from aircraft or vessel displaying prescribed quarantine signal
Division 7
Section 150
Biosecurity Bill 2012 No. , 2012 139
Note:
A defendant bears an evidential burden in relation to the matter in this
1
subsection (see subsection 13.3(3) of the Criminal Code and
2
section 552 of this Act).
3
Fault-based offence
4
(3) A person commits an offence if the person contravenes
5
subsection (1).
6
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
7
Note:
See section 575 in relation to the physical elements of an offence.
8
Civil penalty provision
9
(4) A person is liable to a civil penalty if the person contravenes
10
subsection (1).
11
Civil penalty:
120 penalty units.
12
150 Receiving or possessing goods unloaded from aircraft or vessel
13
displaying prescribed quarantine signal
14
(1) A person contravenes this subsection if:
15
(a) the person receives, or has in the person's possession, goods;
16
and
17
(b) the goods were unloaded from an aircraft or vessel in
18
Australian territory; and
19
(c) the goods are subject to biosecurity control; and
20
(d) the aircraft or vessel was displaying the prescribed quarantine
21
signal when the goods were unloaded; and
22
(e) none of the following applies:
23
(i) the person is authorised to engage in the conduct
24
referred to in paragraph (a) in accordance with an
25
approved arrangement;
26
..
(ii) the person needs to engage in that conduct to comply
27
with a direction given under another provision of this
28
Act by a biosecurity official;
29
(iii) the person has been given permission to engage in that
30
conduct under section 595.
31
Chapter 3 Managing biosecurity risks: goods
Part 1 Goods brought into Australian territory
Division 7 Unloading goods from aircraft or vessel displaying prescribed quarantine
signal
Section 150
140 Biosecurity Bill 2012 No. , 2012
Note:
See section 223 in relation to when an aircraft or vessel must display
1
the prescribed quarantine signal.
2
(2) Subsection (1) does not apply if:
3
(a) the person is authorised to engage in the conduct referred to
4
in paragraph (1)(a) under this Act or under another Australian
5
law; or
6
(b) the person did not know, and could not reasonably be
7
expected to have known, that the aircraft or vessel was
8
displaying the prescribed quarantine signal when the goods
9
were unloaded.
10
Note:
A defendant bears an evidential burden in relation to the matters in
11
this subsection (see subsection 13.3(3) of the Criminal Code and
12
section 552 of this Act).
13
Fault-based offence
14
(3) A person commits an offence if the person contravenes
15
subsection (1).
16
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
17
Note:
See section 575 in relation to the physical elements of an offence.
18
Civil penalty provision
19
(4) A person is liable to a civil penalty if the person contravenes
20
subsection (1).
21
Civil penalty:
120 penalty units.
22
23
Managing biosecurity risks: goods Chapter 3
Goods brought into Australian territory Part 1
Reporting biosecurity incidents Division 8
Section 151
Biosecurity Bill 2012 No. , 2012 141
Division 8--Reporting biosecurity incidents
1
151 Application of this Division
2
This Division applies in relation to goods that are subject to
3
biosecurity control.
4
Note:
This Division also applies in relation to exposed goods in relation to
5
which an exposed goods order is in force. This Division applies to
6
those goods as if they were subject to biosecurity control (see
7
subsection 159(1)).
8
152 Director of Biosecurity may determine acts, omissions or events
9
to be reportable biosecurity incidents
10
The Director of Biosecurity may, by legislative instrument,
11
determine that an act, omission or event is a reportable biosecurity
12
incident in relation to goods that are subject to biosecurity control.
13
Note:
For variation and revocation of a determination made under this
14
section, see subsection 33(3) of the Acts Interpretation Act 1901.
15
153 Reporting by person in charge of aircraft or vessel carrying
16
goods
17
(1)
If:
18
(a) the goods are, or were, on board an aircraft or vessel; and
19
(b) the person in charge of the aircraft or vessel becomes aware
20
of a reportable biosecurity incident in relation to the goods;
21
the person must, as soon as practicable after becoming aware of the
22
incident, report the incident to a biosecurity officer or the Director
23
of Biosecurity.
24
Note:
The obligation in this subsection applies whether or not the person is
25
in Australian territory when the person becomes aware of the
26
reportable biosecurity incident (see subsection (4)).
27
Fault-based offence
28
(2) The person in charge of an aircraft or vessel commits an offence if:
29
(a) the aircraft or vessel is, or was, carrying goods that are
30
subject to biosecurity control; and
31
Chapter 3 Managing biosecurity risks: goods
Part 1 Goods brought into Australian territory
Division 8 Reporting biosecurity incidents
Section 154
142 Biosecurity Bill 2012 No. , 2012
(b) the person becomes aware of a reportable biosecurity
1
incident in relation to the goods; and
2
(c) the person fails to report the incident as required by
3
subsection (1).
4
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
5
Civil penalty provision
6
(3) A person is liable to a civil penalty if the person contravenes
7
subsection (1).
8
Civil penalty:
120 penalty units.
9
Application to persons within and outside Australian territory
10
(4) Subsections (2) and (3) apply whether or not the person is in
11
Australian territory when the person becomes aware of the
12
reportable biosecurity incident.
13
154 Reporting by person in charge of goods
14
(1) If a person in charge of the goods becomes aware of a reportable
15
biosecurity incident in relation to the goods, the person must, as
16
soon as practicable after becoming aware of the incident, report the
17
incident to a biosecurity officer or the Director of Biosecurity.
18
Note:
The obligation in this subsection applies whether or not the person is
19
in Australian territory when the person becomes aware of the
20
reportable biosecurity incident (see subsection (4)).
21
Fault-based offence
22
(2) A person in charge of goods that are subject to biosecurity control
23
commits an offence if:
24
(a) the person becomes aware of a reportable biosecurity
25
incident in relation to the goods; and
26
(b) the person fails to report the incident as required by
27
subsection (1).
28
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
29
Managing biosecurity risks: goods Chapter 3
Goods brought into Australian territory Part 1
Reporting biosecurity incidents Division 8
Section 155
Biosecurity Bill 2012 No. , 2012 143
Civil penalty provision
1
(3) A person is liable to a civil penalty if the person contravenes
2
subsection (1).
3
Civil penalty:
120 penalty units.
4
Application to persons within and outside Australian territory
5
(4) Subsections (2) and (3) apply whether or not the person is in
6
Australian territory when the person becomes aware of the
7
reportable biosecurity incident.
8
155 How reports must be made
9
(1) The Director of Biosecurity may, by legislative instrument,
10
determine either or both of the following:
11
(a) information that must be included in a report required by
12
subsection 153(1) or 154(1);
13
(b) the way in which the report must be made.
14
(2) If a report of a reportable biosecurity incident does not comply
15
with any requirements in a determination in force under
16
subsection (1), the report is taken, for the purposes of this Division,
17
not to have been made.
18
19
Chapter 3 Managing biosecurity risks: goods
Part 1 Goods brought into Australian territory
Division 9 Goods exposed to goods that are subject to biosecurity control
Section 156
144 Biosecurity Bill 2012 No. , 2012
Division 9--Goods exposed to goods that are subject to
1
biosecurity control
2
156 Application of this Division
3
(1) This Division applies in relation to goods (other than goods that are
4
subject to biosecurity control) if a biosecurity officer suspects, on
5
reasonable grounds, that the goods have been exposed to:
6
(a) goods that are subject to biosecurity control; or
7
(b) a conveyance that is subject to biosecurity control.
8
(2) This Division also applies in relation to goods (other than goods
9
that are subject to biosecurity control) if a biosecurity officer
10
suspects, on reasonable grounds, that the goods have been exposed
11
to other exposed goods.
12
(3) Goods to which this Division applies are exposed goods.
13
Note:
See section 16 for the meaning of exposed to.
14
157 Assessment and management of biosecurity risk associated with
15
exposed goods
16
(1) A biosecurity officer may, subject to subsection (4), exercise the
17
powers in Division 4 (biosecurity risk assessment powers) for the
18
purpose of identifying and assessing the level of biosecurity risk
19
associated with exposed goods.
20
(2) For the purposes of subsection (1), the powers in Division 4 may
21
be exercised in relation to exposed goods as if they were subject to
22
biosecurity control.
23
(3) If a biosecurity officer suspects, on reasonable grounds, that the
24
level of biosecurity risk associated with exposed goods is
25
unacceptable, a biosecurity officer may, subject to subsection (4),
26
make an exposed goods order in relation to the goods.
27
(4) A biosecurity officer must not exercise the powers in Division 4
28
(as applied by subsections (1) and (2)), or make an exposed goods
29
order, in relation to exposed goods unless the goods:
30
(a) are within the precincts of a landing place or port; or
31
Managing biosecurity risks: goods Chapter 3
Goods brought into Australian territory Part 1
Goods exposed to goods that are subject to biosecurity control Division 9
Section 158
Biosecurity Bill 2012 No. , 2012 145
(b) are on board a conveyance that is subject to biosecurity
1
control; or
2
(c) are on premises owned or controlled by the Commonwealth
3
where biosecurity measures can be taken for the purpose of
4
managing biosecurity risks; or
5
(d) are on premises where biosecurity activities are carried out
6
by a biosecurity industry participant in accordance with an
7
approved arrangement covering the biosecurity industry
8
participant.
9
158 Exposed goods orders
10
(1) An exposed goods order must:
11
(a) be in writing; and
12
(b) specify the exposed goods to which the order relates; and
13
(c) specify the period during which the order is to be in force.
14
(2) An exposed goods order is not a legislative instrument.
15
(3) A biosecurity officer must give a copy of an exposed goods order
16
to a person in charge of the exposed goods to which the order
17
relates, if it is practicable to do so.
18
159 Effect of exposed goods order
19
(1) If an exposed goods order is in force in relation to exposed goods,
20
the following provisions (to the extent that they are applicable)
21
apply in relation to the goods as if they were subject to biosecurity
22
control:
23
(a) Division 4 (biosecurity risk assessment powers);
24
(b) Division 5 (biosecurity measures to manage unacceptable
25
level of biosecurity risk);
26
(c) Divisions 6 and 7 (unloading goods);
27
(d) Division 8 (reporting biosecurity incidents);
28
(e) Division 10 (release of goods from biosecurity control).
29
(2) An exposed goods order ceases to be in force in relation to exposed
30
goods if any of the following occurs:
31
(a) the order expires;
32
Chapter 3 Managing biosecurity risks: goods
Part 1 Goods brought into Australian territory
Division 9 Goods exposed to goods that are subject to biosecurity control
Section 159
146 Biosecurity Bill 2012 No. , 2012
(b) the order is revoked;
1
(c) subject to subsection (3), the goods are released from
2
biosecurity control under Division 10.
3
(3)
If:
4
(a) goods to which an exposed goods order is in force are
5
released from biosecurity control under paragraph 160(1)(e)
6
by leaving Australian territory on a conveyance that is on a
7
journey between places in Australian territory; and
8
(b) the exposed goods order has not expired and has not been
9
revoked when the conveyance re-enters Australian territory
10
during that journey;
11
the exposed goods order takes effect again when the conveyance
12
re-enters Australian territory during that journey.
13
Note:
Goods are released from biosecurity control under paragraph
14
160(1)(e) if they leave Australian territory.
15
16
Managing biosecurity risks: goods Chapter 3
Goods brought into Australian territory Part 1
Release of goods from biosecurity control Division 10
Section 160
Biosecurity Bill 2012 No. , 2012 147
Division 10--Release of goods from biosecurity control
1
160 When goods brought into Australian territory are released from
2
biosecurity control
3
(1) Goods that are subject to biosecurity control are released from
4
biosecurity control if:
5
(a) a biosecurity officer notifies a person in charge of the goods,
6
under section 161, that the goods are released from
7
biosecurity control; or
8
(b) a written notice releasing the goods from biosecurity control
9
is given to a person in charge of the goods by a biosecurity
10
industry participant who is authorised to release the goods in
11
accordance with an approved arrangement covering the
12
biosecurity industry participant; or
13
(c) the goods are prescribed goods and the goods leave a
14
designated biosecurity control release area at a first point of
15
entry or an international mail centre; or
16
(d) the goods are destroyed; or
17
(e) the goods leave Australian territory.
18
Note 1:
This Division also applies in relation to exposed goods in relation to
19
which an exposed goods order is in force. This section applies to those
20
goods as if they were subject to biosecurity control (see subsection
21
159(1)).
22
Note 2:
If goods are released from biosecurity control under paragraph (1)(e)
23
by leaving Australian territory on a conveyance that is on a journey
24
between places in Australian territory, the goods become subject to
25
biosecurity control again when the conveyance re-enters Australian
26
territory during that journey (see subsection 117(4)). See also
27
subsection 159(3), which deals with exposed goods in relation to
28
which an exposed goods order is in force.
29
Note 3:
A biosecurity officer may refuse to release goods from biosecurity
30
control if the goods are withheld under section 635 because a fee has
31
not been paid (see subsection 635(4)).
32
(2) Neither of the following is a legislative instrument:
33
(a) a notification that is given in writing under paragraph (1)(a);
34
(b) a notice referred to in paragraph (1)(b).
35
Chapter 3 Managing biosecurity risks: goods
Part 1 Goods brought into Australian territory
Division 10 Release of goods from biosecurity control
Section 161
148 Biosecurity Bill 2012 No. , 2012
(3) The regulations may provide that a specified area at a first point of
1
entry or an international mail centre is a designated biosecurity
2
control release area for the purposes of paragraph (1)(c).
3
161 Notice releasing goods from biosecurity control
4
(1) For the purposes of paragraph 160(1)(a), a notice releasing goods
5
from biosecurity control may be given:
6
(a) in writing (including by an automated electronic system); or
7
(b)
orally.
8
(2) An automated electronic system that is used to produce notices
9
(automated release notices) releasing goods from biosecurity
10
control for the purposes of paragraph 160(1)(a) must comply with
11
the requirements prescribed by the regulations.
12
(3) An automated release notice is taken to have been given by a
13
biosecurity officer.
14
(4) An automated release notice in relation to goods is of no effect to
15
the extent that it is inconsistent with an earlier direction given in
16
relation to the goods by a biosecurity officer under this Act.
17
18
Managing biosecurity risks: goods Chapter 3
Biosecurity Import Risk Analyses Part 2
Introduction Division 1
Section 162
Biosecurity Bill 2012 No. , 2012 149
Part 2--Biosecurity Import Risk Analyses
1
Division 1--Introduction
2
162 Guide to this Part
3
This Part provides for the Director of Biosecurity to conduct
4
Biosecurity Import Risk Analyses (BIRAs) in relation to particular
5
goods, or a particular class of goods, that may be imported, or are
6
proposed to be imported, into Australian territory.
7
A BIRA is an evaluation of the level of biosecurity risk associated
8
with the goods or the class of goods.
9
A BIRA may identify conditions that must be met to manage the
10
level of biosecurity risk associated with the goods, or the class of
11
goods, to a level that achieves the ALOP for Australia.
12
13
Chapter 3 Managing biosecurity risks: goods
Part 2 Biosecurity Import Risk Analyses
Division 2 Biosecurity Import Risk Analyses
Section 163
150 Biosecurity Bill 2012 No. , 2012
Division 2--Biosecurity Import Risk Analyses
1
163 What is a Biosecurity Import Risk Analysis (BIRA)
2
A
Biosecurity Import Risk Analysis (or BIRA) is an evaluation of
3
the level of biosecurity risk associated with particular goods, or a
4
particular class of goods, that may be imported, or are proposed to
5
be imported, into Australian territory, including, if necessary, the
6
identification of conditions that must be met to manage the level of
7
biosecurity risk associated with the goods, or the class of goods, to
8
a level that achieves the ALOP for Australia.
9
164 Director of Biosecurity may conduct a BIRA
10
(1) The Director of Biosecurity may conduct a BIRA in relation to
11
particular goods or a particular class of goods.
12
(2) The Director of Biosecurity must apply the ALOP for Australia in
13
conducting a BIRA.
14
(3) The Director of Biosecurity may determine the order in which
15
BIRAs are to be conducted.
16
(4) Subsection (3) has effect subject to any direction given to the
17
Director of Biosecurity under subsection 165(1).
18
165 Agriculture Minister may direct Director of Biosecurity to
19
commence a BIRA
20
(1) The Agriculture Minister may direct the Director of Biosecurity to
21
commence a BIRA in relation to particular goods, or a particular
22
class of goods, if the Agriculture Minister is satisfied that the
23
BIRA should be commenced.
24
(2) A direction under subsection (1) must:
25
(a) be in writing; and
26
(b) set out the reasons for the direction.
27
(3) A direction under subsection (1) must be tabled in each House of
28
the Parliament no later than 15 sitting days of that House after it is
29
given.
30
Managing biosecurity risks: goods Chapter 3
Biosecurity Import Risk Analyses Part 2
Biosecurity Import Risk Analyses Division 2
Section 166
Biosecurity Bill 2012 No. , 2012 151
(4) A direction under subsection (1) is not a legislative instrument.
1
(5) Except as provided in subsection (1), the Director of Biosecurity is
2
not subject to direction by or on behalf of the Commonwealth
3
Government in relation to the conduct, findings or outcome of a
4
BIRA.
5
Note:
See also subsection 581(3) (directions the Agriculture Minister must
6
not give).
7
166 Process for conducting a BIRA
8
(1) A BIRA must be conducted:
9
(a) in accordance with a process prescribed in the regulations;
10
and
11
(b) taking into account the matters set out in the guidelines (if
12
any) made by the Director of Biosecurity under
13
subsection (2).
14
(2) The Director of Biosecurity may, in writing, make guidelines
15
setting out matters to be taken into account in conducting a BIRA.
16
(3) Guidelines made under subsection (2) must be published on the
17
Agriculture Department's website.
18
(4) Guidelines made under subsection (2) are not legislative
19
instruments.
20
(5) For the purpose of conducting a BIRA in relation to goods, or a
21
class of goods, the Director of Biosecurity may request the
22
Director of Human Biosecurity to prepare a statement of the human
23
health risks associated with the goods or the class of goods.
24
167 Reports
25
(1) The regulations must require the Director of Biosecurity to prepare
26
the following reports as part of the process of conducting a BIRA:
27
(a) a draft BIRA report;
28
(b) a provisional BIRA report;
29
(c) a final BIRA report.
30
(2) A report referred to in subsection (1) must:
31
Chapter 3 Managing biosecurity risks: goods
Part 2 Biosecurity Import Risk Analyses
Division 2 Biosecurity Import Risk Analyses
Section 167
152 Biosecurity Bill 2012 No. , 2012
(a) include the information prescribed by the regulations; and
1
(b) be published in accordance with the regulations.
2
3
Managing biosecurity risks: goods Chapter 3
Prohibited goods etc. Part 3
Introduction Division 1
Section 168
Biosecurity Bill 2012 No. , 2012 153
Part 3--Prohibited goods etc.
1
Division 1--Introduction
2
168 Guide to this Part
3
This Part deals with bringing or importing goods into Australian
4
territory.
5
This Part applies to the exclusion of State and Territory laws to the
6
extent that the laws purport to prohibit or restrict the bringing or
7
importation of particular goods into Australian territory, or into a
8
part of Australian territory, from outside Australian territory for the
9
purpose of managing biosecurity risks associated with the goods.
10
Certain goods (prohibited goods) must not be brought or imported
11
into Australian territory at all.
12
Certain goods (conditionally non-prohibited goods) may be
13
brought or imported into Australian territory subject to conditions.
14
Division 2 provides for the Director of Biosecurity and the Director
15
of Human Biosecurity to jointly determine that certain goods are
16
prohibited goods or conditionally non-prohibited goods.
17
Division 3 deals with permits to bring or import certain
18
conditionally non-prohibited goods into Australian territory.
19
Division 4 provides for the Director of Biosecurity to determine
20
that certain goods (suspended goods) must not be brought or
21
imported into Australian territory for a period of up to 6 months.
22
Division 5 provides that goods may be forfeited to the
23
Commonwealth if they have been brought or imported into
24
Australian territory in contravention of a determination in force
25
under this Part or a condition of a permit applying to the goods.
26
Division 6 sets out offences and civil penalty provisions.
27
Chapter 3 Managing biosecurity risks: goods
Part 3 Prohibited goods etc.
Division 1 Introduction
Section 169
154 Biosecurity Bill 2012 No. , 2012
169 Exclusion of State and Territory laws
1
This Part applies to the exclusion of a law, or a provision of a law,
2
of a State or Territory to the extent that the law or provision
3
purports to prohibit or restrict the bringing or importation of
4
particular goods into Australian territory, or into a part of
5
Australian territory, from outside Australian territory for the
6
purpose of managing biosecurity risks associated with the goods.
7
8
Managing biosecurity risks: goods Chapter 3
Prohibited goods etc. Part 3
Prohibited goods and conditionally non-prohibited goods Division 2
Section 170
Biosecurity Bill 2012 No. , 2012 155
Division 2--Prohibited goods and conditionally
1
non-prohibited goods
2
170 Prohibited goods
3
(1) The Director of Biosecurity and the Director of Human Biosecurity
4
may jointly determine that specified goods, or a specified class of
5
goods, must not be brought or imported into Australian territory.
6
(2) Goods specified in a determination in force under subsection (1),
7
or goods included in a class of goods specified in a determination
8
in force under that subsection, are prohibited goods.
9
(3) The Director of Biosecurity and the Director of Human Biosecurity
10
may make a determination under subsection (1) in relation to
11
specified goods, or a specified class of goods, only if each Director
12
is satisfied that:
13
(a) the level of biosecurity risk associated with the goods, or the
14
class of goods, is unacceptable; and
15
(b) biosecurity measures would not be able to be taken to reduce
16
that level of biosecurity risk to an acceptable level.
17
(4) The Director of Biosecurity and the Director of Human Biosecurity
18
must apply the ALOP for Australia in conducting a risk assessment
19
for the purpose of deciding whether to make a determination under
20
subsection (1) specifying particular goods or a particular class of
21
goods.
22
(5) A determination under subsection (1) is a legislative instrument,
23
but neither section 42 (disallowance) nor Part 6 (sunsetting) of the
24
Legislative Instruments Act 2003 applies to the determination.
25
Note 1:
For variation and revocation of a determination made under
26
subsection (1), see subsection 33(3) of the Acts Interpretation Act
27
1901.
28
Note 2:
Prohibited goods that are brought or imported into Australian territory
29
may be forfeited to the Commonwealth (see Division 5).
30
Note 3:
Division 6 sets out offences and civil penalty provisions relating to
31
bringing or importing prohibited goods into Australian territory.
32
Chapter 3 Managing biosecurity risks: goods
Part 3 Prohibited goods etc.
Division 2 Prohibited goods and conditionally non-prohibited goods
Section 171
156 Biosecurity Bill 2012 No. , 2012
171 Conditionally non-prohibited goods
1
(1) The Director of Biosecurity and the Director of Human Biosecurity
2
may jointly determine that specified classes of goods must not be
3
brought or imported into Australian territory unless specified
4
conditions (including conditions for administrative purposes) are
5
complied with.
6
(2) Goods included in a class of goods specified in a determination in
7
force under subsection (1) are conditionally non-prohibited goods.
8
(3) The Director of Biosecurity and the Director of Human Biosecurity
9
must apply the ALOP for Australia in conducting a risk assessment
10
for the purpose of deciding whether to make a determination under
11
subsection (1) specifying a particular class of goods.
12
(4) Without limiting subsection (1), a determination under that
13
subsection may specify either, or both, of the following in relation
14
to a class of goods specified in the determination:
15
(a) a condition that goods included in that class must not be
16
brought or imported into Australian territory unless a permit
17
authorising the goods to be brought or imported into
18
Australian territory has been granted under Division 3;
19
(b) a condition relating to the use of goods included in that class.
20
Note:
A permit may be granted under Division 3 subject to conditions (see
21
section 176).
22
(5) A determination under subsection (1) is a legislative instrument,
23
but neither section 42 (disallowance) nor Part 6 (sunsetting) of the
24
Legislative Instruments Act 2003 applies to the determination.
25
Note 1:
For variation and revocation of a determination made under
26
subsection (1), see subsection 33(3) of the Acts Interpretation Act
27
1901.
28
Note 2:
The Director of Biosecurity may determine that conditionally
29
non-prohibited goods (suspended goods) must not be brought or
30
imported into Australian territory for a period of up to 6 months (see
31
Division 4).
32
Note 3:
Conditionally non-prohibited goods that are brought or imported into
33
Australian territory may be forfeited to the Commonwealth if a
34
condition applying to the goods has not been complied with (see
35
Division 5).
36
Managing biosecurity risks: goods Chapter 3
Prohibited goods etc. Part 3
Prohibited goods and conditionally non-prohibited goods Division 2
Section 172
Biosecurity Bill 2012 No. , 2012 157
Note 4:
Division 6 sets out offences and civil penalty provisions relating to
1
bringing or importing conditionally non-prohibited goods into
2
Australian territory.
3
172 Security may be required in relation to conditionally
4
non-prohibited goods
5
(1) The Director of Biosecurity may, if he or she considers it
6
appropriate having regard to the criteria (if any) prescribed by the
7
regulations for the purposes of subsection (2), require a security to
8
be given in relation to conditionally non-prohibited goods that are,
9
or are intended to be, brought or imported into Australian territory.
10
(2) The regulations may:
11
(a) prescribe criteria to which the Director of Biosecurity must
12
have regard in considering whether to require a security to be
13
given in relation to conditionally non-prohibited goods that
14
are, or are intended to be, brought or imported into Australian
15
territory; and
16
(b) make provision for, or in relation to, any security that may be
17
required.
18
(3) Without limiting paragraph (2)(b), regulations made for the
19
purposes of that paragraph may deal with any or all of the
20
following:
21
(a) the form of the security;
22
(b) the amount of the security;
23
(c) who must give the security;
24
(d) when the security must be given;
25
(e) the circumstances in which the security may be retained;
26
(f) the circumstances in which the security, or any part of the
27
security, must be repaid.
28
Note:
If a permit to bring or import conditionally non-prohibited goods into
29
Australian territory is required under this Act, the Director of
30
Biosecurity may refuse to consider the application for the permit until
31
the security is given (see subsection 175(5)).
32
33
Chapter 3 Managing biosecurity risks: goods
Part 3 Prohibited goods etc.
Division 3 Permits to bring or import goods into Australian territory
Section 173
158 Biosecurity Bill 2012 No. , 2012
Division 3--Permits to bring or import goods into
1
Australian territory
2
173 Application of this Division
3
This Division applies in relation to conditionally non-prohibited
4
goods that must not be brought or imported into Australian
5
territory unless the Director of Biosecurity has granted a permit
6
authorising the goods to be brought or imported into Australian
7
territory.
8
Note:
A condition specified in a determination under subsection 171(1) in
9
relation to conditionally non-prohibited goods may require a permit to
10
be granted under this Division authorising the goods to be brought or
11
imported into Australian territory.
12
174 Person may apply for permit
13
(1) A person may apply to the Director of Biosecurity for a permit
14
authorising, for the purposes of this Act, the person, or a person
15
acting on behalf of the person, to bring or import particular goods
16
to which this Division applies into Australian territory.
17
(2) An application must:
18
(a) be in the form approved by the Director of Biosecurity; and
19
(b) include the information prescribed by the regulations.
20
Note 1:
Personal information may also be required to be provided with the
21
application (see subsection 506(1)). If personal information is required
22
to be provided with the application and the information is not
23
provided, the application is taken not to have been made (see
24
subsection 506(2)).
25
Note 2:
An application fee may be required (see paragraph 628(4)(e)).
26
175 Director of Biosecurity may grant permit
27
(1) The Director of Biosecurity may, on application by a person under
28
section 174 for a permit in relation to particular goods, grant the
29
permit.
30
Note 1:
The Director of Biosecurity is not subject to direction by the
31
Agriculture Minister in relation to a decision relating to an application
32
for a permit (see subsection 581(3)).
33
Managing biosecurity risks: goods Chapter 3
Prohibited goods etc. Part 3
Permits to bring or import goods into Australian territory Division 3
Section 176
Biosecurity Bill 2012 No. , 2012 159
Note 2:
A decision not to grant a permit is a reviewable decision (see Part 1 of
1
Chapter 13).
2
(2) In deciding whether to grant the permit in relation to the goods, the
3
Director of Biosecurity must consider:
4
(a) the level of biosecurity risk associated with the goods; and
5
(b) whether it would be necessary to impose conditions on the
6
permit to reduce the level of biosecurity risk associated with
7
the goods to an acceptable level; and
8
(c) any personal information that is required to be provided with
9
the application for the permit under section 506.
10
(3) The Director of Biosecurity must apply the ALOP for Australia in
11
conducting a risk assessment for the purpose of deciding whether
12
to grant the permit in relation to the goods.
13
(4) In deciding whether to grant the permit in relation to the goods, the
14
Director of Biosecurity may also consider:
15
(a) whether the applicant is a fit and proper person (having
16
regard to the matters referred to in section 505); and
17
(b) any other matters relating to the goods or the applicant that
18
the Director considers relevant.
19
(5) If a security in relation to the goods is required under section 172,
20
the Director of Biosecurity may refuse to consider the application
21
for the permit until the security is given.
22
(6) A permit must be in writing.
23
176 Conditions of permit
24
(1) A permit may be granted under section 175, subject to such
25
conditions as are specified in the permit.
26
Note 1:
A decision to impose a condition on a permit is a reviewable decision
27
(see Part 1 of Chapter 13).
28
Note 2:
A person who holds a permit granted under section 175 may commit
29
an offence or contravene a civil penalty provision if the person
30
contravenes a condition of the permit (see section 187).
31
(2) The Director of Biosecurity may, in accordance with the
32
regulations:
33
Chapter 3 Managing biosecurity risks: goods
Part 3 Prohibited goods etc.
Division 3 Permits to bring or import goods into Australian territory
Section 177
160 Biosecurity Bill 2012 No. , 2012
(a) vary or revoke a condition of a permit granted under
1
section 175; or
2
(b) impose further conditions on such a permit.
3
Note:
A decision to vary a condition of, or impose a further condition on, a
4
permit is a reviewable decision (see Part 1 of Chapter 13).
5
(3) Without limiting subsections (1) and (2), conditions of a permit
6
granted under section 175:
7
(a) may require the holder of the permit to do specified things in
8
relation to the goods to which the permit relates; and
9
(b) may be required to be met either before or after the goods to
10
which the permit relates are brought or imported into
11
Australian territory.
12
177 Variation, suspension or revocation of permit
13
(1) The Director of Biosecurity may, in accordance with the
14
regulations, do any of the following in relation to a permit granted
15
under section 175:
16
(a) vary the permit;
17
(b) suspend the permit for a specified period;
18
(c) revoke the permit.
19
Note 1:
The Director of Biosecurity is not subject to direction by the
20
Agriculture Minister in relation to a decision relating to a permit (see
21
subsection 581(3)).
22
Note 2:
A decision to vary a permit, to refuse to vary a permit, to suspend a
23
permit for a period, or to revoke a permit is a reviewable decision (see
24
Part 1 of Chapter 13).
25
Note 3:
A permit to bring or import goods into Australian territory may be
26
taken to have been suspended for a period because of a determination
27
in force under subsection 178(1) in relation to the goods (see
28
section 180).
29
(2) A permit granted under section 175 is not in force during any
30
period in which it is suspended.
31
(3)
If:
32
(a) a permit in relation to goods is suspended or revoked; and
33
Managing biosecurity risks: goods Chapter 3
Prohibited goods etc. Part 3
Permits to bring or import goods into Australian territory Division 3
Section 177
Biosecurity Bill 2012 No. , 2012 161
(b) a condition of the permit applied in relation to the goods
1
immediately before the suspension or revocation of the
2
permit;
3
the condition continues to apply in relation to the goods despite the
4
suspension or revocation of the permit.
5
Note 1:
This subsection also applies if a permit is taken to have been
6
suspended under section 180.
7
Note 2:
A person who was the holder of a permit that has been suspended may
8
commit an offence or contravene a civil penalty provision if the
9
person contravenes a condition of the permit that continues to apply
10
because of this subsection (see section 187).
11
12
Chapter 3 Managing biosecurity risks: goods
Part 3 Prohibited goods etc.
Division 4 Suspended goods
Section 178
162 Biosecurity Bill 2012 No. , 2012
Division 4--Suspended goods
1
178 Director of Biosecurity may suspend bringing or importation of
2
goods into Australian territory for a period
3
(1) The Director of Biosecurity may determine that specified goods, or
4
a specified class of goods, (including conditionally non-prohibited
5
goods) must not be brought or imported into Australian territory
6
for a specified period. The period must not be longer than 6
7
months.
8
(2) Goods specified in a determination in force under subsection (1),
9
or goods included in a class of goods specified in a determination
10
in force under that subsection, are suspended goods.
11
(3) The Director of Biosecurity may make a determination under
12
subsection (1) in relation to goods, or a class of goods, only if the
13
Director is satisfied that the level of biosecurity risk associated
14
with the goods, or the class of goods, is unacceptable.
15
(4) The Director must apply the ALOP for Australia in conducting a
16
risk assessment for the purpose of deciding whether to make a
17
determination under subsection (1) specifying particular goods or a
18
particular class of goods.
19
(5) A determination under subsection (1) must set out the reasons for
20
making the determination.
21
(6) A determination under subsection (1) is a legislative instrument,
22
but section 42 (disallowance) of the Legislative Instruments Act
23
2003 does not apply to the determination.
24
(7) If a determination in force under subsection (1) in relation to
25
goods, or a class of goods, is inconsistent with a determination in
26
force under subsection 171(1):
27
(a) the determination under subsection (1) of this section
28
prevails; and
29
(b) the determination under subsection 171(1) has, to the extent
30
of the inconsistency, no effect.
31
Managing biosecurity risks: goods Chapter 3
Prohibited goods etc. Part 3
Suspended goods Division 4
Section 179
Biosecurity Bill 2012 No. , 2012 163
Note 1:
If suspended goods are brought or imported into Australian territory in
1
contravention of a determination in force under subsection (1), the
2
goods may be forfeited to the Commonwealth (see Division 5).
3
Note 2:
Division 6 sets out offences and civil penalty provisions relating to
4
bringing or importing suspended goods into Australian territory.
5
179 Variation of determination suspending bringing or importation
6
of goods into Australian territory
7
(1) The Director of Biosecurity may vary a determination in force
8
under subsection 178(1) to extend the period of suspension
9
specified in the determination for a further period of up to 6
10
months.
11
(2) The Director of Biosecurity may vary a determination under
12
subsection (1) only if the Director is satisfied that the level of
13
biosecurity risk associated with the goods, or the class of goods,
14
specified in the determination continues to be unacceptable.
15
(3) The Director of Biosecurity may extend the period of suspension
16
specified in a determination in force under subsection 178(1) more
17
than once.
18
(4) This section does not limit the application of subsection 33(3) of
19
the Acts Interpretation Act 1901 in relation to a determination in
20
force under subsection 178(1).
21
180 Effect on permit of suspended goods determination
22
If:
23
(a) a determination under subsection 178(1) is in force in relation
24
to goods or a class of goods; and
25
(b) a permit has been granted under section 175 in relation to the
26
goods or goods included in the class of goods;
27
the permit is taken to have been suspended under section 177 for
28
the period specified in the determination, to the extent that the
29
permit relates to those goods.
30
Note 1:
If a condition of the permit applied in relation to the goods
31
immediately before the permit was taken to have been suspended, the
32
condition continues to apply despite the suspension (see subsection
33
177(3)).
34
Chapter 3 Managing biosecurity risks: goods
Part 3 Prohibited goods etc.
Division 4 Suspended goods
Section 180
164 Biosecurity Bill 2012 No. , 2012
Note 2:
A person who was the holder of a permit that is taken to have been
1
suspended may commit an offence or contravene a civil penalty
2
provision if the person contravenes a condition of the permit that
3
continues to apply because of subsection 177(3) (see section 187).
4
5
Managing biosecurity risks: goods Chapter 3
Prohibited goods etc. Part 3
Forfeiture of prohibited goods etc. Division 5
Section 181
Biosecurity Bill 2012 No. , 2012 165
Division 5--Forfeiture of prohibited goods etc.
1
181 Prohibited goods etc. may be forfeited to the Commonwealth
2
(1) This section applies if:
3
(a) goods were brought or imported into Australian territory; and
4
(b) at the time the goods were brought or imported into
5
Australian territory, the goods were:
6
(i) prohibited goods; or
7
(ii) conditionally non-prohibited goods; or
8
(iii) suspended goods; and
9
(c) if the goods were conditionally non-prohibited goods--an
10
applicable condition in relation to the goods has not been
11
complied with.
12
(2) A biosecurity officer may take possession of the goods.
13
(3) The Director of Biosecurity may determine that the goods are
14
forfeited to the Commonwealth. If the determination is made in
15
writing, it is not a legislative instrument.
16
(4) Before making a determination under subsection (3), the Director
17
of Biosecurity must notify, in writing or orally, a person in charge
18
of the goods that:
19
(a) a biosecurity officer may take possession of the goods; and
20
(b) the goods will be forfeited to the Commonwealth;
21
unless a person in charge of the goods arranges, within a specified
22
period:
23
(c) for the goods to be destroyed, removed from Australian
24
territory or otherwise dealt with in a way specified by the
25
Director; and
26
(d) for any other requirements specified by the Director relating
27
to the goods to be complied with.
28
Note:
For the purposes of this section, person in charge of goods has the
29
meaning given by subsection (7).
30
(5) If a determination is made under subsection (3) in relation to the
31
goods, a biosecurity officer may:
32
Chapter 3 Managing biosecurity risks: goods
Part 3 Prohibited goods etc.
Division 5 Forfeiture of prohibited goods etc.
Section 181
166 Biosecurity Bill 2012 No. , 2012
(a) take possession of the goods (if they are not already in the
1
possession or control of the Commonwealth); and
2
(b) cause the goods to be sold, destroyed, removed from
3
Australian territory or otherwise disposed of.
4
(6) A failure to notify a person in charge of the goods of the matters
5
referred to in subsection (4) does not affect the validity of:
6
(a) a determination under subsection (3) in relation to the goods;
7
or
8
(b) the forfeiture of the goods.
9
Note:
If the operation of this section would result in an acquisition of
10
property otherwise than on just terms, the Commonwealth may be
11
liable to pay compensation under section 26.
12
Definitions
13
(7) In this section:
14
applicable condition, in relation to conditionally non-prohibited
15
goods, means:
16
(a) a condition in relation to the goods specified in a
17
determination in force under subsection 171(1); or
18
(b) if the goods were brought or imported into Australian
19
territory as authorised by a permit granted under
20
section 175--a condition specified in the permit.
21
person in charge of goods does not include a biosecurity industry
22
participant who is in possession or control of the goods only
23
because of a direction given to the biosecurity industry participant
24
by a biosecurity officer.
25
26
Managing biosecurity risks: goods Chapter 3
Prohibited goods etc. Part 3
Offences and civil penalty provisions Division 6
Section 182
Biosecurity Bill 2012 No. , 2012 167
Division 6--Offences and civil penalty provisions
1
182 Bringing or importing prohibited goods etc. into Australian
2
territory
3
(1) A person contravenes this subsection if:
4
(a) the person brings or imports goods into Australian territory;
5
and
6
(b) the goods are:
7
(i) prohibited goods; or
8
(ii)
suspended
goods.
9
Fault-based offence
10
(2) A person commits an offence if the person contravenes
11
subsection (1).
12
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
13
Note:
See section 575 in relation to the physical elements of an offence.
14
Civil penalty provision
15
(3) A person is liable to a civil penalty if the person contravenes
16
subsection (1).
17
Civil penalty:
120 penalty units.
18
183 Bringing or importing prohibited goods etc. into Australian
19
territory and obtaining commercial advantage
20
Fault-based offence
21
A person commits an offence if:
22
(a) the person brings or imports goods into Australian territory;
23
and
24
(b) the goods are:
25
(i) prohibited goods; or
26
(ii) suspended goods; and
27
Chapter 3 Managing biosecurity risks: goods
Part 3 Prohibited goods etc.
Division 6 Offences and civil penalty provisions
Section 184
168 Biosecurity Bill 2012 No. , 2012
(c) as a result of bringing or importing the goods into Australian
1
territory, the person obtains, or may obtain, a commercial
2
advantage over the person's competitors or potential
3
competitors.
4
Penalty:
5
(a) if the offender is an individual--imprisonment for 10 years
6
or 2,000 penalty units, or both; and
7
(b) if the offender is a body corporate--10,000 penalty units.
8
184 Bringing or importing prohibited goods etc. into Australian
9
territory and causing harm to the environment or
10
economic consequences
11
Fault-based offence
12
A person commits an offence if:
13
(a) the person brings or imports goods into Australian territory;
14
and
15
(b) the goods are:
16
(i) prohibited goods; or
17
(ii) suspended goods; and
18
(c) the bringing or importation of the goods into Australian
19
territory:
20
(i) has caused, or has the potential to cause, harm to the
21
environment; or
22
(ii) has had, or has the potential to have, economic
23
consequences.
24
Penalty: Imprisonment for 10 years or 600 penalty units, or both.
25
185 Contravening conditions applying to conditionally
26
non-prohibited goods brought or imported into
27
Australian territory
28
(1) A person contravenes this subsection if:
29
(a) the person brings or imports goods into Australian territory;
30
and
31
(b) the goods are conditionally non-prohibited goods; and
32
Managing biosecurity risks: goods Chapter 3
Prohibited goods etc. Part 3
Offences and civil penalty provisions Division 6
Section 186
Biosecurity Bill 2012 No. , 2012 169
(c) a condition in relation to the goods specified in a
1
determination in force under subsection 171(1) has not been
2
complied with.
3
(2) Subsection (1) does not apply if the person:
4
(a) did not do the act, or omit to do the act, that constituted the
5
failure to comply with the condition referred to in
6
paragraph (1)(c); and
7
(b) did not aid, abet, counsel or procure that act or omission; and
8
(c) was not in any way knowingly concerned in, or party to, that
9
act or omission (whether directly or indirectly and whether
10
by any act or omission of the person).
11
Note:
A defendant bears an evidential burden in relation to the matters in
12
this subsection (see subsection 13.3(3) of the Criminal Code and
13
section 552 of this Act).
14
Fault-based offence
15
(3) A person commits an offence if the person contravenes
16
subsection (1).
17
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
18
Note:
See section 575 in relation to the physical elements of an offence.
19
Civil penalty provision
20
(4) A person is liable to a civil penalty if the person contravenes
21
subsection (1).
22
Civil penalty:
120 penalty units.
23
186 Contravening conditions applying to conditionally
24
non-prohibited goods brought or imported into
25
Australian territory and obtaining commercial advantage
26
Fault-based offence
27
(1) A person commits an offence if:
28
(a) the person brings or imports goods into Australian territory;
29
and
30
Chapter 3 Managing biosecurity risks: goods
Part 3 Prohibited goods etc.
Division 6 Offences and civil penalty provisions
Section 187
170 Biosecurity Bill 2012 No. , 2012
(b) the goods are conditionally non-prohibited goods; and
1
(c) a condition in relation to the goods specified in a
2
determination in force under subsection 171(1) has not been
3
complied with; and
4
(d) as a result, the person obtains, or may obtain, a commercial
5
advantage over the person's competitors or potential
6
competitors.
7
Penalty:
8
(a) if the offender is an individual--imprisonment for 10 years
9
or 2,000 penalty units, or both; and
10
(b) if the offender is a body corporate--10,000 penalty units.
11
Note:
The following are examples of a commercial advantage as referred to
12
in paragraph (1)(d):
13
(a) avoiding business costs associated with obtaining an import
14
permit or meeting other requirements under this Act;
15
(b) avoiding delays necessarily involved in complying with
16
applicable biosecurity measures.
17
(2) Subsection (1) does not apply if the person:
18
(a) did not do the act, or omit to do the act, that constituted the
19
failure to comply with the condition referred to in
20
paragraph (1)(c); and
21
(b) did not aid, abet, counsel or procure that act or omission; and
22
(c) was not in any way knowingly concerned in, or party to, that
23
act or omission (whether directly or indirectly and whether
24
by any act or omission of the person).
25
Note:
A defendant bears an evidential burden in relation to the matters in
26
this subsection (see subsection 13.3(3) of the Criminal Code).
27
187 Contravening conditions of a permit
28
Fault-based offence--permits in force
29
(1) A person commits an offence if:
30
(a) the person is the holder of a permit granted under
31
section 175; and
32
(b) the person engages in conduct; and
33
(c) the conduct contravenes a condition of the permit.
34
Managing biosecurity risks: goods Chapter 3
Prohibited goods etc. Part 3
Offences and civil penalty provisions Division 6
Section 187
Biosecurity Bill 2012 No. , 2012 171
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
1
Civil penalty provision--permits in force
2
(2) A person is liable to a civil penalty if:
3
(a) the person is the holder of a permit granted under
4
section 175; and
5
(b) the person contravenes a condition of the permit.
6
Civil penalty:
120 penalty units.
7
Fault-based offence--suspended or revoked permits
8
(3) A person commits an offence if:
9
(a) the person was the holder of a permit granted under
10
section 175; and
11
(b) the permit has been suspended or revoked under section 177;
12
and
13
(c) a condition of the permit continues to apply because of
14
subsection 177(3); and
15
(d) the person engages in conduct; and
16
(e) the conduct contravenes the condition.
17
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
18
Civil penalty provision--suspended or revoked permits
19
(4) A person is liable to a civil penalty if:
20
(a) the person was the holder of a permit granted under
21
section 175; and
22
(b) the permit has been suspended or revoked under section 177;
23
and
24
(c) a condition of the permit continues to apply because of
25
subsection 177(3); and
26
(d) the person contravenes the condition.
27
Civil penalty:
120 penalty units.
28
Chapter 3 Managing biosecurity risks: goods
Part 3 Prohibited goods etc.
Division 6 Offences and civil penalty provisions
Section 188
172 Biosecurity Bill 2012 No. , 2012
188 Receiving or possessing prohibited goods etc. brought or
1
imported into Australian territory
2
Strict liability offence
3
(1) A person commits an offence of strict liability if:
4
(a) the person receives, or has in the person's possession, goods;
5
and
6
(b) the goods are:
7
(i) prohibited goods; or
8
(ii)
suspended
goods.
9
Penalty: 60 penalty units.
10
Note:
For strict liability, see section 6.1 of the Criminal Code.
11
(2) Subsection (1) does not apply if:
12
(a) the goods were not brought or imported into Australian
13
territory; or
14
(b) the goods were brought or imported into Australian territory
15
but, at the time they were brought or imported into Australian
16
territory, they were not:
17
(i) prohibited goods; or
18
(ii) suspended goods; or
19
(c) the goods are the progeny of other goods that were legally
20
brought or imported into Australian territory.
21
Note:
A defendant bears an evidential burden in relation to the matters in
22
this subsection (see subsection 13.3(3) of the Criminal Code).
23
24
Managing biosecurity risks: conveyances Chapter 4
Introduction Part 1
Section 189
Biosecurity Bill 2012 No. , 2012 173
Chapter 4--Managing biosecurity risks:
1
conveyances
2
Part 1--Introduction
3
4
189 Objects of this Chapter
5
The main objects of this Chapter are:
6
(a) to provide for the assessment of the level of biosecurity risk
7
associated with conveyances entering Australian territory
8
from outside Australian territory, including by:
9
(i) controlling the places where those conveyances can land
10
or be moored in Australian territory; and
11
(ii) controlling the movement of conveyances that are
12
subject to biosecurity control while they are in
13
Australian territory; and
14
(b) to provide for biosecurity measures to be taken in relation to
15
conveyances referred to in paragraph (a) if the level of
16
biosecurity risk associated with them is considered to be
17
unacceptable; and
18
(c) to give effect to Australia's rights and obligations in relation
19
to ship sanitation for the purposes of the International Health
20
Regulations.
21
Note:
In this Chapter, a conveyance does not include a conveyance that is
22
being carried on board another conveyance (see section 15). A
23
conveyance that is being carried on board another conveyance (for
24
example a lifeboat being carried on a vessel) is generally treated as
25
goods for the purposes of this Act (see section 18).
26
27
Chapter 4 Managing biosecurity risks: conveyances
Part 2 Conveyances entering Australian territory etc.
Division 1 Introduction
Section 190
174 Biosecurity Bill 2012 No. , 2012
Part 2--Conveyances entering Australian territory
1
etc.
2
Division 1--Introduction
3
190 Guide to this Part
4
This Part deals with conveyances that enter, or intend to enter,
5
Australian territory from outside Australian territory.
6
Division 2 provides for those conveyances to be subject to
7
biosecurity control when they enter Australian territory. Division 2
8
also provides for other conveyances to be subject to biosecurity
9
control if they are exposed to a conveyance that is subject to
10
biosecurity control.
11
Division 3 provides for pre-arrival reports to be given in relation to
12
aircraft or vessels that enter or intend to enter Australian territory
13
from outside Australian territory and aircraft or vessels that intend
14
to be, or are, exposed to conveyances or goods that are subject to
15
biosecurity control. Division 3 also provides for persons on board
16
incoming aircraft or vessels to provide information for the purpose
17
of assessing the level of biosecurity risk associated with them.
18
Division 4 sets out powers that may be exercised to assess the level
19
of biosecurity risk associated with conveyances that are subject to
20
biosecurity control.
21
Division 5 provides for biosecurity measures to be taken if the
22
level of biosecurity risk associated with conveyances that are
23
subject to biosecurity control is considered to be unacceptable.
24
Division 6 deals with boarding and leaving conveyances that have
25
arrived at a landing place or port and are subject to biosecurity
26
control.
27
Division 7 sets out how conveyances that are subject to biosecurity
28
control are released from biosecurity control.
29
Managing biosecurity risks: conveyances Chapter 4
Conveyances entering Australian territory etc. Part 2
Introduction Division 1
Section 190
Biosecurity Bill 2012 No. , 2012 175
Division 8 deals with when a conveyance must display the
1
prescribed quarantine signal and provides for other miscellaneous
2
matters.
3
4
Chapter 4 Managing biosecurity risks: conveyances
Part 2 Conveyances entering Australian territory etc.
Division 2 Conveyances that are subject to biosecurity control
Section 191
176 Biosecurity Bill 2012 No. , 2012
Division 2--Conveyances that are subject to biosecurity
1
control
2
191 Aircraft and vessels entering Australian territory
3
(1) This section applies to an aircraft or vessel that has entered
4
Australian territory during a flight or voyage that commenced
5
outside Australian territory.
6
Note 1:
A reference in this Division to an aircraft does not include an aircraft
7
that is being carried on board another conveyance (see section 15). An
8
aircraft that is being carried on board another conveyance is generally
9
treated as goods for the purposes of this Act (see section 18).
10
Note 2:
A reference in this Division to a vessel does not include a vessel that
11
is being carried on board another conveyance (see section 15). A
12
vessel that is being carried on board another conveyance (for example
13
a lifeboat) is generally treated as goods for the purposes of this Act
14
(see section 18).
15
Note 3:
A vessel includes an installation (see subparagraph (b)(i) of the
16
definition of vessel in section 9, and the definition of installation in
17
section 19).
18
(2) The aircraft or vessel becomes subject to biosecurity control when
19
the aircraft or vessel enters Australian territory.
20
Note:
Part 4 deals with entry points for aircraft and vessels that intend to
21
land or be moored in Australian territory.
22
(3) The aircraft or vessel remains subject to biosecurity control until it
23
is released from biosecurity control.
24
Note:
Division 7 deals with releasing conveyances from biosecurity control.
25
(4) If the aircraft or vessel is released from biosecurity control under
26
paragraph 221(1)(d) by leaving Australian territory during a flight
27
or voyage between places in Australian territory, the aircraft or
28
vessel becomes subject to biosecurity control again when it
29
re-enters Australian territory during that flight or voyage.
30
Note:
An aircraft or vessel is released from biosecurity control under
31
paragraph 221(1)(d) if it leaves Australian territory.
32
Managing biosecurity risks: conveyances Chapter 4
Conveyances entering Australian territory etc. Part 2
Conveyances that are subject to biosecurity control Division 2
Section 192
Biosecurity Bill 2012 No. , 2012 177
192 Conveyances exposed to other conveyances that are subject to
1
biosecurity control
2
(1) This section applies in relation to a conveyance that is not already
3
subject to biosecurity control if:
4
(a) the conveyance is exposed to:
5
(i) an aircraft or vessel that is subject to biosecurity control
6
because of subsection 191(2) or (4); or
7
(ii) a conveyance that is subject to biosecurity control
8
because of subsection (2), (3) or (5) of this section; or
9
(iii) goods that are subject to biosecurity control and are of a
10
kind prescribed by the regulations; or
11
(b) in the course of a journey by the conveyance:
12
(i) the conveyance leaves Australian territory; and
13
(ii) the conveyance is exposed to another conveyance while
14
it is outside Australian territory; and
15
(iii) after being exposed to the other conveyance, the
16
conveyance re-enters Australian territory.
17
Note 1:
In this Chapter, a conveyance does not include a conveyance that is
18
being carried on board another conveyance (see section 15). A
19
conveyance that is being carried on board another conveyance (for
20
example a lifeboat being carried on a vessel) is generally treated as
21
goods for the purposes of this Act (see section 18).
22
Note 2:
See section 16 for the meaning of exposed to.
23
(2) A conveyance (an exposed conveyance) that is exposed to an
24
aircraft or vessel, another conveyance or goods as referred to in
25
paragraph (1)(a) becomes subject to biosecurity control when it is
26
exposed to that aircraft, vessel, other conveyance or goods.
27
(3) A conveyance (also an exposed conveyance) to which
28
paragraph (1)(b) applies becomes subject to biosecurity control
29
when it re-enters Australian territory.
30
(4) An exposed conveyance remains subject to biosecurity control
31
until it is released from biosecurity control.
32
Note:
Division 7 deals with releasing conveyances from biosecurity control.
33
(5) If an exposed conveyance is released from biosecurity control
34
under paragraph 221(1)(d) by leaving Australian territory during a
35
Chapter 4 Managing biosecurity risks: conveyances
Part 2 Conveyances entering Australian territory etc.
Division 2 Conveyances that are subject to biosecurity control
Section 192
178 Biosecurity Bill 2012 No. , 2012
journey between places in Australian territory, the exposed
1
conveyance becomes subject to biosecurity control again when it
2
re-enters Australian territory during that journey.
3
Note:
A conveyance is released from biosecurity control under paragraph
4
221(1)(d) if it leaves Australian territory.
5
(6) The Director of Biosecurity may, by legislative instrument,
6
determine that this section does not apply in relation to:
7
(a) specified conveyances; or
8
(b) specified conveyances in specified circumstances.
9
Note 1:
A determination under this subsection may make different provision
10
with respect to different classes of conveyances (see subsection
11
33(3A) of the Acts Interpretation Act 1901).
12
Note 2:
For variation and revocation, see subsections 33(3) and (3AA) of the
13
Acts Interpretation Act 1901.
14
15
Managing biosecurity risks: conveyances Chapter 4
Conveyances entering Australian territory etc. Part 2
Pre-arrival reporting etc. Division 3
Section 193
Biosecurity Bill 2012 No. , 2012 179
Division 3--Pre-arrival reporting etc.
1
193 Pre-arrival reporting
2
(1) The operator of an aircraft or vessel must give a report if:
3
(a) it is intended that the aircraft or vessel enter, or the aircraft or
4
vessel enters, Australian territory:
5
(i) on a flight or voyage that commenced outside
6
Australian territory; or
7
(ii) after being exposed to another conveyance while outside
8
Australian territory; or
9
(b) it is intended that the aircraft or vessel be, or the aircraft or
10
vessel is, exposed to:
11
(i) a conveyance that is subject to biosecurity control; or
12
(ii) goods referred to in subparagraph 192(1)(a)(iii).
13
Note 1:
A person may commit an offence or contravene a civil penalty
14
provision if the person provides false or misleading information or
15
documents (see sections 137.1 and 137.2 of the Criminal Code and
16
sections 507 and 508 of this Act).
17
Note 2:
The obligation in this subsection applies whether or not the operator of
18
the aircraft or vessel is in Australian territory when the operator is
19
required to give the report (see subsection (7) of this section).
20
(2) The report must:
21
(a) include the information in relation to the aircraft or vessel
22
that is prescribed by the regulations; and
23
(b) be given in the manner, and to the person, prescribed by the
24
regulations; and
25
(c) be given at a time, or during the period, prescribed by the
26
regulations (which may be before or after the aircraft or
27
vessel enters Australian territory, or is exposed to another
28
conveyance in Australian territory, as referred to in
29
subsection (1)); and
30
(d) be in a form or forms approved by the Director of
31
Biosecurity.
32
Note:
The regulations may prescribe different requirements for reports for
33
different classes of aircraft or vessels (see subsection 33(3A) of the
34
Acts Interpretation Act 1901).
35
Chapter 4 Managing biosecurity risks: conveyances
Part 2 Conveyances entering Australian territory etc.
Division 3 Pre-arrival reporting etc.
Section 194
180 Biosecurity Bill 2012 No. , 2012
(3) The regulations may prescribe exceptions to the requirement to
1
give a report under this section.
2
Note:
A defendant bears an evidential burden in relation to any exception
3
prescribed for the purposes of this subsection (see subsection 13.3(3)
4
of the Criminal Code and section 552 of this Act).
5
Failure to give report
6
(4) A person contravenes this subsection if:
7
(a) the person is required to give a report under subsection (1);
8
and
9
(b) the person does not give the report in accordance with
10
subsection (2).
11
Fault-based offence
12
(5) A person commits an offence if the person contravenes
13
subsection (4).
14
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
15
Note:
See section 575 in relation to the physical elements of an offence.
16
Civil penalty provision
17
(6) A person is liable to a civil penalty if the person contravenes
18
subsection (4).
19
Civil penalty:
120 penalty units.
20
Application to persons within and outside Australian territory
21
(7) Subsections (4), (5) and (6) apply whether or not the person is in
22
Australian territory when the person is required to give the report.
23
Note:
This section is not subject to the privilege against self-incrimination
24
(see section 661).
25
194 Pre-arrival reporting--requirement to give additional or
26
corrected information
27
(1)
If:
28
Managing biosecurity risks: conveyances Chapter 4
Conveyances entering Australian territory etc. Part 2
Pre-arrival reporting etc. Division 3
Section 194
Biosecurity Bill 2012 No. , 2012 181
(a) the operator of an aircraft or vessel gives a report in relation
1
to the aircraft or vessel under section 193; and
2
(b) the person in charge or the operator of the aircraft or vessel
3
becomes aware that the information included in the report
4
was incomplete or incorrect;
5
the operator must give the additional or corrected information to a
6
biosecurity officer as soon as practicable.
7
Note 1:
A person may commit an offence or contravene a civil penalty
8
provision if the person provides false or misleading information or
9
documents (see sections 137.1 and 137.2 of the Criminal Code and
10
sections 507 and 508 of this Act).
11
Note 2:
The obligation in this subsection applies whether or not the operator of
12
the aircraft or vessel is in Australian territory when the person in
13
charge or the operator of the aircraft or vessel becomes aware that the
14
information included in a report given under section 193 was
15
incomplete or incorrect (see subsection (5) of this section).
16
Failure to give information
17
(2) A person contravenes this subsection if:
18
(a) the person is required to give information to a biosecurity
19
officer under subsection (1); and
20
(b) the person does not give the information to a biosecurity
21
officer as required by that subsection.
22
Fault-based offence
23
(3) A person commits an offence if the person contravenes
24
subsection (2).
25
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
26
Note:
See section 575 in relation to the physical elements of an offence.
27
Civil penalty provision
28
(4) A person is liable to a civil penalty if the person contravenes
29
subsection (2).
30
Civil penalty:
120 penalty units.
31
Chapter 4 Managing biosecurity risks: conveyances
Part 2 Conveyances entering Australian territory etc.
Division 3 Pre-arrival reporting etc.
Section 195
182 Biosecurity Bill 2012 No. , 2012
Application to persons within and outside Australian territory
1
(5) Subsections (2), (3) and (4) apply whether or not the person is in
2
Australian territory when the person is required to give the
3
information.
4
Note:
This section is not subject to the privilege against self-incrimination
5
(see section 661).
6
195 Persons on incoming aircraft or vessel may be required to
7
provide information to assess biosecurity risk
8
(1) This section applies in relation to a person who:
9
(a) intends to enter, or enters, Australian territory on an
10
incoming aircraft or vessel; and
11
(b) is included in a prescribed class of persons.
12
(2) The Director of Biosecurity may require the person to provide
13
information (including by answering questions) for the purpose of
14
assessing the level of biosecurity risk associated with the person
15
and any goods that the person has with him or her.
16
Note:
A person may commit an offence or contravene a civil penalty
17
provision if the person provides false or misleading information (see
18
section 137.1 of the Criminal Code and section 507 of this Act).
19
(3) The information required under subsection (2) must be provided in
20
the manner approved by the Director of Biosecurity.
21
Civil penalty provision
22
(4) A person who is required to provide information under
23
subsection (2) must comply with the requirement.
24
Civil penalty:
120 penalty units.
25
26
Managing biosecurity risks: conveyances Chapter 4
Conveyances entering Australian territory etc. Part 2
Assessment of level of biosecurity risk Division 4
Section 196
Biosecurity Bill 2012 No. , 2012 183
Division 4--Assessment of level of biosecurity risk
1
196 Biosecurity risk assessment powers
2
This Division sets out powers that may be exercised for the
3
purpose of assessing the level of biosecurity risk associated with a
4
conveyance that is subject to biosecurity control.
5
197 Securing conveyance
6
(1) A biosecurity officer may direct the person in charge or the
7
operator of the conveyance to secure the conveyance in a manner,
8
and for a period (which must not exceed 48 hours), specified by the
9
biosecurity officer.
10
Civil penalty provision
11
(2) A person who is given a direction under subsection (1) must
12
comply with the direction.
13
Civil penalty:
120 penalty units.
14
Note 1:
If judicial review is sought in relation to a direction given under
15
subsection (1), the direction remains in force unless a court finally
16
determines the validity of the decision to give the direction (see
17
section 573).
18
Note 2:
A person may contravene a civil penalty provision for moving, dealing
19
with or interfering with a conveyance that has been secured in
20
accordance with a direction given under subsection (1) (see
21
section 203).
22
Note 3:
See also section 608 (general provisions relating to directions).
23
198 Inspecting conveyance
24
A biosecurity officer may conduct a physical inspection of the
25
conveyance.
26
199 Asking questions about conveyance
27
(1) A biosecurity officer may require a person who the biosecurity
28
officer suspects, on reasonable grounds, has information in relation
29
Chapter 4 Managing biosecurity risks: conveyances
Part 2 Conveyances entering Australian territory etc.
Division 4 Assessment of level of biosecurity risk
Section 200
184 Biosecurity Bill 2012 No. , 2012
to the conveyance to answer questions, or provide information in
1
writing, in relation to the conveyance.
2
Note:
A person may commit an offence or contravene a civil penalty
3
provision if the person provides false or misleading information (see
4
section 137.1 of the Criminal Code and section 507 of this Act).
5
Civil penalty provision
6
(2) A person who is required to answer questions, or provide
7
information in writing, under subsection (1) must comply with the
8
requirement.
9
Civil penalty:
120 penalty units.
10
Note:
This section is not subject to the privilege against self-incrimination
11
(see section 661).
12
200 Requiring documents relating to conveyance to be produced
13
(1) A biosecurity officer may require a person who the biosecurity
14
officer suspects, on reasonable grounds, has the custody or control
15
of documents in relation to the conveyance to produce to the
16
officer such of those documents as are specified by the officer.
17
Note:
A person may commit an offence or contravene a civil penalty
18
provision if the person provides false or misleading documents (see
19
section 137.2 of the Criminal Code and section 508 of this Act).
20
(2) A biosecurity officer:
21
(a) may make copies of, or take extracts from, a document
22
produced under subsection (1); and
23
(b) for that purpose, may remove the document from the place at
24
which it was produced.
25
Civil penalty provision
26
(3) A person who is required to produce documents under
27
subsection (1) must comply with the requirement.
28
Civil penalty:
120 penalty units.
29
Note:
This section is not subject to the privilege against self-incrimination
30
(see section 661).
31
Managing biosecurity risks: conveyances Chapter 4
Conveyances entering Australian territory etc. Part 2
Assessment of level of biosecurity risk Division 4
Section 201
Biosecurity Bill 2012 No. , 2012 185
201 Movement of conveyance
1
(1) A biosecurity officer may:
2
(a) give any of the following directions to the person in charge or
3
the operator of the conveyance:
4
(i) a direction not to move, deal with or interfere with the
5
conveyance;
6
(ii) a direction to move the conveyance, as soon as
7
practicable, to a place specified by the biosecurity
8
officer (except a place outside Australian territory);
9
(iii) any other direction relating to the movement of the
10
conveyance; or
11
(b) cause the conveyance to be moved to another place (except a
12
place outside Australian territory).
13
Civil penalty provision
14
(2) A person who is given a direction under paragraph (1)(a) must
15
comply with the direction.
16
Civil penalty:
120 penalty units.
17
Note 1:
A person may contravene a civil penalty provision for moving, dealing
18
with or interfering with a conveyance in relation to which a direction
19
relating to movement has been given under paragraph (1)(a) or that
20
has been moved under paragraph (1)(b) (see section 203).
21
Note 2:
See also section 608 (general provisions relating to directions).
22
202 Biosecurity control notice may be affixed to conveyance or given
23
to person in charge of conveyance
24
(1) A biosecurity officer may:
25
(a) affix a biosecurity control notice to, or as near as reasonably
26
practicable to, the conveyance; or
27
(b) give a biosecurity control notice to the person in charge of
28
the conveyance.
29
Civil penalty provision
30
(2) A person is liable to a civil penalty if:
31
Chapter 4 Managing biosecurity risks: conveyances
Part 2 Conveyances entering Australian territory etc.
Division 4 Assessment of level of biosecurity risk
Section 203
186 Biosecurity Bill 2012 No. , 2012
(a) a biosecurity control notice is affixed to, or as near as
1
reasonably practicable to, a conveyance under
2
paragraph (1)(a); and
3
(b) the person interferes with, removes or defaces the notice; and
4
(c) none of the following applies:
5
(i) the person is authorised to engage in the conduct
6
referred to in paragraph (b) in accordance with an
7
approved arrangement;
8
(ii) the person needs to engage in that conduct to comply
9
with a direction given under another provision of this
10
Act by a biosecurity official;
11
(iii) the person has been given permission to engage in that
12
conduct under section 595.
13
Civil penalty:
120 penalty units.
14
(3) Subsection (2) does not apply if the person is authorised to engage
15
in the conduct referred to in paragraph (2)(b) under this Act or
16
under another Australian law.
17
Note 1:
A defendant bears an evidential burden in relation to the matter in this
18
subsection (see section 552).
19
Note 2:
A person may contravene a civil penalty provision for moving, dealing
20
with or interfering with a conveyance in relation to which a
21
biosecurity control notice has been affixed under paragraph (1)(a) (see
22
section 203).
23
203 Unauthorised persons must not move etc. conveyance in relation
24
to which direction has been given
25
(1) This section applies in relation to:
26
(a) a conveyance that has been secured in accordance with a
27
direction given under subsection 197(1); or
28
(b) a conveyance in relation to which a direction relating to
29
movement has been given under paragraph 201(1)(a); or
30
(c) a conveyance that has been moved under paragraph
31
201(1)(b); or
32
(d) a conveyance in relation to which a biosecurity control notice
33
has been affixed under paragraph 202(1)(a).
34
Managing biosecurity risks: conveyances Chapter 4
Conveyances entering Australian territory etc. Part 2
Assessment of level of biosecurity risk Division 4
Section 203
Biosecurity Bill 2012 No. , 2012 187
Civil penalty provision
1
(2) A person is liable to a civil penalty if:
2
(a) the person moves, deals with or interferes with a conveyance
3
in relation to which this section applies; and
4
(b) none of the following applies:
5
(i) the person is authorised to engage in the conduct
6
referred to in paragraph (a) in accordance with an
7
approved arrangement;
8
(ii) the person needs to engage in that conduct to comply
9
with a direction given under another provision of this
10
Act by a biosecurity official;
11
(iii) the person has been given permission to engage in that
12
conduct under section 595.
13
Civil penalty:
120 penalty units.
14
(3) Subsection (2) does not apply if the person is authorised to engage
15
in the conduct referred to in paragraph (2)(a) under this Act or
16
under another Australian law.
17
Note:
A defendant bears an evidential burden in relation to the matter in this
18
subsection (see section 552).
19
20
Chapter 4 Managing biosecurity risks: conveyances
Part 2 Conveyances entering Australian territory etc.
Division 5 Biosecurity measures to manage unacceptable level of biosecurity risk
Section 204
188 Biosecurity Bill 2012 No. , 2012
Division 5--Biosecurity measures to manage unacceptable
1
level of biosecurity risk
2
204 Biosecurity measures may be required in relation to conveyance
3
If a biosecurity officer suspects, on reasonable grounds, that the
4
level of biosecurity risk associated with a conveyance that is
5
subject to biosecurity control is unacceptable, a biosecurity officer
6
may require biosecurity measures to be taken in relation to the
7
conveyance as set out in this Division.
8
Note:
Sections 655 and 656 deal with abandoned and forfeited conveyances
9
in relation to which biosecurity measures have been required under
10
this Division.
11
205 Movement of certain aircraft and vessels
12
(1) This section applies in relation to an aircraft or vessel that is
13
subject to biosecurity control because of subsection 191(2) or (4)
14
(aircraft and vessels entering Australian territory).
15
(2) Subject to subsection (3), a biosecurity officer may:
16
(a) give any of the following directions to the person in charge or
17
the operator of the aircraft or vessel:
18
(i) a direction not to move, deal with or interfere with the
19
aircraft or vessel;
20
(ii) a direction to move the aircraft or vessel, as soon as
21
practicable, to a place specified by the biosecurity
22
officer (including a place outside Australian territory);
23
(iii) any other direction relating to the movement of the
24
aircraft or vessel; or
25
(b) cause the aircraft or vessel to be moved to another place
26
(including a place outside Australian territory).
27
Note:
If a direction is given under paragraph (2)(a) in relation to an aircraft
28
or vessel, and the direction is not complied with, the person in charge
29
and the operator of the aircraft or vessel may each commit an offence
30
or contravene a civil penalty provision (see section 214).
31
(3) A biosecurity officer must not, without the written approval of the
32
Director of Biosecurity:
33
Managing biosecurity risks: conveyances Chapter 4
Conveyances entering Australian territory etc. Part 2
Biosecurity measures to manage unacceptable level of biosecurity risk Division 5
Section 206
Biosecurity Bill 2012 No. , 2012 189
(a) give a direction under subparagraph (2)(a)(ii) or (iii)
1
requiring the aircraft or vessel to be moved to a place outside
2
Australian territory; or
3
(b) under paragraph (2)(b), cause the aircraft or vessel to be
4
moved to a place outside Australian territory.
5
Note 1:
Before giving an approval under this subsection, the Director of
6
Biosecurity must be satisfied of the matters referred to in section 31
7
(the principles).
8
Note 2:
See also section 608 (general provisions relating to directions).
9
206 Movement of exposed conveyances
10
(1) This section applies in relation to an exposed conveyance that is
11
subject to biosecurity control because of subsection 192(2), (3) or
12
(5).
13
(2) A biosecurity officer may:
14
(a) give any of the following directions to the person in charge or
15
the operator of the conveyance:
16
(i) a direction not to move, deal with or interfere with the
17
conveyance;
18
(ii) a direction to move the conveyance, as soon as
19
practicable, to a place specified by the biosecurity
20
officer (except a place outside Australian territory);
21
(iii) any other direction relating to the movement of the
22
conveyance; or
23
(b) cause the conveyance to be moved to another place (except a
24
place outside Australian territory).
25
Note 1:
If a direction is given under paragraph (2)(a) in relation to a
26
conveyance, and the direction is not complied with, the person in
27
charge and the operator of the conveyance may each commit an
28
offence or contravene a civil penalty provision (see section 214).
29
Note 2:
See also section 608 (general provisions relating to directions).
30
207 Treatment of conveyance
31
(1) A biosecurity officer may, subject to subsection (2), require the
32
conveyance to be treated in a manner specified by the biosecurity
33
officer.
34
Chapter 4 Managing biosecurity risks: conveyances
Part 2 Conveyances entering Australian territory etc.
Division 5 Biosecurity measures to manage unacceptable level of biosecurity risk
Section 208
190 Biosecurity Bill 2012 No. , 2012
Note:
If the treatment might damage the conveyance, the person in charge or
1
the operator of the conveyance must be asked to agree to the treatment
2
(see section 208).
3
(2) A biosecurity officer must not require a high-value conveyance to
4
be treated in a manner that the biosecurity officer suspects, on
5
reasonable grounds, is likely to damage the conveyance, without
6
the written approval of the Director of Biosecurity.
7
208 Treatment that may damage conveyance
8
(1) This section applies if:
9
(a) a biosecurity officer requires a conveyance to be treated in a
10
specified manner under subsection 207(1); and
11
(b) a biosecurity officer suspects, on reasonable grounds, that
12
treatment of the conveyance in that manner is likely to
13
damage the conveyance.
14
Notice must be given that treatment is likely to damage conveyance
15
(2) Before any treatment is carried out on the conveyance, a
16
biosecurity officer must, by notice in writing:
17
(a) inform the person in charge or the operator of the conveyance
18
that:
19
(i) the conveyance is required to be treated in a specified
20
manner; and
21
(ii) the treatment is likely to damage the conveyance; and
22
(b) request the person in charge or the operator to agree to the
23
treatment of the conveyance.
24
(3) However, the conveyance may be treated in the specified manner
25
without notice having been given under subsection (2) if:
26
(a) a biosecurity officer suspects, on reasonable grounds, that
27
there is a high level of biosecurity risk associated with the
28
conveyance; and
29
(b) the biosecurity officer is satisfied that the conveyance needs
30
to be treated as soon as practicable to reduce that risk to an
31
acceptable level.
32
Managing biosecurity risks: conveyances Chapter 4
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Biosecurity measures to manage unacceptable level of biosecurity risk Division 5
Section 208
Biosecurity Bill 2012 No. , 2012 191
Dealing with conveyance if person in charge or operator does not
1
agree to treatment
2
(4)
If:
3
(a) a notice is given to the person in charge or the operator of the
4
conveyance under subsection (2); and
5
(b) the person in charge or the operator does not, within 30 days
6
after receiving the notice, notify a biosecurity officer in
7
writing that the person or operator agrees to the conveyance
8
being treated as specified in the notice;
9
a biosecurity officer may, in writing, request the person in charge
10
or the operator to arrange for the conveyance:
11
(c) to be dealt with, or destroyed, in a manner specified in the
12
request; or
13
(d) to be removed from Australian territory;
14
within the period specified in the request.
15
(5)
If:
16
(a) a request is made under subsection (4) in relation to the
17
conveyance; and
18
(b) the conveyance is not, within the period specified in the
19
request:
20
(i) dealt with, or destroyed, in a manner specified in the
21
request; or
22
(ii) removed from Australian territory;
23
then:
24
(c) a biosecurity enforcement officer may, subject to
25
subsection (6), take possession of the conveyance; and
26
(d) a biosecurity officer may, with the written approval of the
27
Director of Biosecurity, cause the conveyance to be removed
28
from Australian territory, destroyed or otherwise disposed of.
29
Note:
Before giving approval under paragraph (5)(d), the Director of
30
Biosecurity must be satisfied of the matters referred to in section 31
31
(the principles).
32
(6) A biosecurity enforcement officer must not take possession of the
33
conveyance under subsection (5) unless:
34
(a) the owner of the conveyance has consented in writing to the
35
taking of possession; or
36
Chapter 4 Managing biosecurity risks: conveyances
Part 2 Conveyances entering Australian territory etc.
Division 5 Biosecurity measures to manage unacceptable level of biosecurity risk
Section 209
192 Biosecurity Bill 2012 No. , 2012
(b) the taking of possession is authorised by a conveyance
1
possession warrant.
2
Note:
For the issue of warrants, and the obligations and powers of
3
biosecurity enforcement officers in taking possession of a conveyance
4
under a warrant, see Parts 2 and 3 of Chapter 10.
5
(7) If a conveyance is to be destroyed under this section, a biosecurity
6
officer may cause any goods on board the conveyance to be
7
removed from the conveyance before it is destroyed.
8
209 Destruction of conveyance
9
(1) If a biosecurity officer considers, on reasonable grounds, that the
10
conveyance cannot be effectively treated, a biosecurity officer
11
may, subject to subsections (2) to (7) and section 210, require the
12
conveyance to be destroyed.
13
Director of Biosecurity must approve destruction
14
(2) A biosecurity officer must not require the conveyance to be
15
destroyed without the written approval of the Director of
16
Biosecurity.
17
Note 1:
Before giving approval under this subsection, the Director of
18
Biosecurity must be satisfied of the matters referred to in section 31
19
(the principles).
20
Note 2:
A decision to give approval for a conveyance to be destroyed is a
21
reviewable decision (see Part 1 of Chapter 13).
22
Note 3:
Unless subsection (4) applies, the conveyance must not be destroyed
23
until after any review or related proceeding (including any appeal) has
24
been finally determined (see section 210).
25
Notice must be given that conveyance is required to be destroyed
26
(3) Before causing the conveyance to be destroyed, a biosecurity
27
officer must, by notice in writing:
28
(a) inform the owner or the operator of the conveyance:
29
(i) that the conveyance is required to be destroyed; and
30
(ii) the reasons why the conveyance is required to be
31
destroyed; and
32
(b) request the owner or the operator of the conveyance to
33
arrange for the conveyance:
34
Managing biosecurity risks: conveyances Chapter 4
Conveyances entering Australian territory etc. Part 2
Biosecurity measures to manage unacceptable level of biosecurity risk Division 5
Section 209
Biosecurity Bill 2012 No. , 2012 193
(i) to be removed from Australian territory; or
1
(ii) to be destroyed in a manner specified in the notice;
2
within the period specified in the notice.
3
(4) However, a notice is not required to be given under subsection (3)
4
if a biosecurity officer:
5
(a) has not been able, despite making reasonable efforts, to
6
locate the owner or the operator of the conveyance; and
7
(b) has certified in writing to that effect.
8
Note:
If a biosecurity officer cannot, despite making reasonable efforts,
9
locate the owner or the operator of a conveyance, the conveyance may
10
be forfeited to the Commonwealth (see section 656).
11
Dealing with conveyance if conveyance is not removed from
12
Australian territory or destroyed
13
(5)
If:
14
(a) a notice is given to the owner or the operator of the
15
conveyance under subsection (3) and the conveyance is not,
16
within the period specified in the notice:
17
(i) removed from Australian territory; or
18
(ii) destroyed in a manner specified in the notice; or
19
(b) a certificate in relation to the conveyance has been issued
20
under paragraph (4)(b);
21
then:
22
(c) a biosecurity enforcement officer may, subject to
23
subsection (6), take possession of the conveyance; and
24
(d) a biosecurity officer may, with the written approval of the
25
Director of Biosecurity, cause the conveyance to be
26
destroyed.
27
Note:
Before giving approval under paragraph (5)(d), the Director of
28
Biosecurity must be satisfied of the matters referred to in section 31
29
(the principles).
30
(6) A biosecurity enforcement officer must not take possession of a
31
conveyance under subsection (5) unless:
32
(a) the owner or the operator of the conveyance has consented in
33
writing to the taking of possession; or
34
Chapter 4 Managing biosecurity risks: conveyances
Part 2 Conveyances entering Australian territory etc.
Division 5 Biosecurity measures to manage unacceptable level of biosecurity risk
Section 210
194 Biosecurity Bill 2012 No. , 2012
(b) the taking of possession is authorised by a conveyance
1
possession warrant.
2
Note 1:
This subsection does not apply in relation to a conveyance that has
3
been forfeited to the Commonwealth under section 656.
4
Note 2:
For the issue of warrants, and the obligations and powers of
5
biosecurity enforcement officers in taking possession of a conveyance
6
under a warrant, see Parts 2 and 3 of Chapter 10.
7
(7) If a conveyance is to be destroyed under this section, a biosecurity
8
officer may cause any goods on board the conveyance to be
9
removed from the conveyance before it is destroyed.
10
210 Conveyance must not be destroyed during review period
11
(1) This section applies if a biosecurity officer has given a notice in
12
relation to a conveyance in accordance with subsection 209(3).
13
(2) A biosecurity officer must not cause the conveyance to be
14
destroyed until:
15
(a) after the period in which an application may be made for
16
review (including merits or judicial review) of the decision to
17
require the conveyance to be destroyed; or
18
(b) if an application referred to in paragraph (a) is made--after
19
the review or any related proceeding (including any appeal)
20
has been finally determined.
21
(3) However, subsection (2) does not apply in relation to the
22
conveyance if a biosecurity officer is satisfied that:
23
(a) there is a high level of biosecurity risk associated with the
24
conveyance; and
25
(b) the biosecurity risk cannot be managed for long enough to
26
allow a review of the decision to require the conveyance to
27
be destroyed, and any related proceeding (including any
28
appeal), to be finally determined.
29
(4)
If:
30
(a) in accordance with subsection (3), a biosecurity officer
31
causes the conveyance to be destroyed before the end of the
32
period referred to in paragraph (2)(a); and
33
Managing biosecurity risks: conveyances Chapter 4
Conveyances entering Australian territory etc. Part 2
Biosecurity measures to manage unacceptable level of biosecurity risk Division 5
Section 211
Biosecurity Bill 2012 No. , 2012 195
(b) no application for review of the decision to require the
1
conveyance to be destroyed had been made before the
2
conveyance was destroyed;
3
an application for review of the decision to require the conveyance
4
to be destroyed must not be made.
5
(5)
If:
6
(a) an application referred to in paragraph (2)(a) has been made
7
in relation to the decision to require the conveyance to be
8
destroyed; and
9
(b) in accordance with subsection (3), a biosecurity officer
10
causes the conveyance to be destroyed before the review or
11
any related proceeding (including any appeal) has been
12
finally determined;
13
the review or related proceeding (including any appeal) is taken to
14
be discontinued when the conveyance is destroyed.
15
211 Regulations may provide for other biosecurity measures
16
(1) The regulations may provide that a biosecurity officer may require
17
a specified kind of biosecurity measure (a prescribed biosecurity
18
measure) to be taken in relation to the conveyance.
19
(2) Regulations made for the purposes of this section must not provide
20
for a biosecurity officer to require any of the following kinds of
21
biosecurity measures to be taken in relation to the conveyance:
22
(a) a biosecurity measure of a kind set out in Division 4 of this
23
Part (biosecurity risk assessment powers);
24
(b) a biosecurity measure of a kind set out in another provision
25
of this Division (biosecurity measures to manage
26
unacceptable level of biosecurity risk);
27
(c) a biosecurity measure of a kind referred to in Subdivision B
28
of Division 2 of Part 4 of Chapter 12 (decontamination).
29
(3) Regulations made for the purposes of this section may also provide
30
for, or in relation to, other matters relating to a prescribed
31
biosecurity measure.
32
(4) Without limiting subsection (3), regulations made for the purposes
33
of this section may do any of the following:
34
Chapter 4 Managing biosecurity risks: conveyances
Part 2 Conveyances entering Australian territory etc.
Division 5 Biosecurity measures to manage unacceptable level of biosecurity risk
Section 212
196 Biosecurity Bill 2012 No. , 2012
(a) provide for persons to be notified, and the circumstances in
1
which the persons must be notified, that a prescribed
2
biosecurity measure is required to be taken in relation to a
3
conveyance;
4
(b) if regulations made for the purposes of subsection 610(2)
5
provide that the decision to require a prescribed biosecurity
6
measure to be taken in relation to a conveyance is a
7
reviewable decision--provide that, except in the
8
circumstances (if any) prescribed, the prescribed biosecurity
9
measure must not be taken during the period in which a
10
review of that decision, or any related proceeding (including
11
any appeal), has been finally determined.
12
212 Powers of biosecurity officer if biosecurity measures are
13
required
14
(1) If a biosecurity officer requires a biosecurity measure to be taken
15
in relation to a conveyance under section 207 or 208 (treatment),
16
section 209 (destruction) or a regulation made for the purposes of
17
section 211, a biosecurity officer may:
18
(a) direct the person in charge of the conveyance to carry out the
19
biosecurity measure; or
20
(b) direct the operator of the conveyance to arrange for the
21
biosecurity measure to be carried out; or
22
(c) carry out the biosecurity measure; or
23
(d) arrange for another person with appropriate qualifications or
24
expertise to carry out the biosecurity measure.
25
Note 1:
A person who is given a direction under paragraph (1)(a) or (b) of this
26
section may commit an offence or contravene a civil penalty provision
27
for failing to comply with the direction (see section 214).
28
Note 2:
See also section 608 (general provisions relating to directions).
29
(2) If, under this section, a biosecurity officer:
30
(a) gives a direction to a person to carry out a biosecurity
31
measure; or
32
(b) arranges for another person with appropriate qualifications or
33
expertise to carry out a biosecurity measure;
34
a biosecurity officer may supervise the taking of the biosecurity
35
measure.
36
Managing biosecurity risks: conveyances Chapter 4
Conveyances entering Australian territory etc. Part 2
Biosecurity measures to manage unacceptable level of biosecurity risk Division 5
Section 213
Biosecurity Bill 2012 No. , 2012 197
213 Biosecurity officer may affix notice to conveyance
1
(1) A biosecurity officer may affix a notice to, or as near as reasonably
2
practicable to, a conveyance in relation to which biosecurity
3
measures have been required under:
4
(a) this Division; or
5
(b) a regulation made for the purposes of section 211.
6
(2) The notice must state:
7
(a) that the level of biosecurity risk associated with the
8
conveyance is unacceptable; and
9
(b) that biosecurity measures have been required in relation to
10
the conveyance, in accordance with this Chapter, for the
11
purpose of managing that biosecurity risk; and
12
(c) the effect of subsections (3) and (4) and section 215.
13
Civil penalty provision
14
(3) A person is liable to a civil penalty if:
15
(a) a notice is affixed to, or as near as reasonably practicable to,
16
a conveyance under subsection (1); and
17
(b) the person interferes with, removes or defaces, the notice;
18
and
19
(c) none of the following applies:
20
(i) the person is authorised to engage in the conduct
21
referred to in paragraph (b) in accordance with an
22
approved arrangement;
23
(ii) the person needs to engage in that conduct to comply
24
with a direction given under another provision of this
25
Act by a biosecurity official;
26
(iii) the person has been given permission to engage in that
27
conduct under section 595.
28
Civil penalty:
120 penalty units.
29
(4) Subsection (3) does not apply if the person is authorised to engage
30
in the conduct referred to in paragraph (3)(b) under this Act or
31
under another Australian law.
32
Chapter 4 Managing biosecurity risks: conveyances
Part 2 Conveyances entering Australian territory etc.
Division 5 Biosecurity measures to manage unacceptable level of biosecurity risk
Section 214
198 Biosecurity Bill 2012 No. , 2012
Note:
A defendant bears an evidential burden in relation to the matter in this
1
subsection (see section 552).
2
214 Person must comply with direction to take biosecurity measures
3
(1) A person who is given a direction in relation to a conveyance under
4
paragraph 205(2)(a), 206(2)(a) or 212(1)(a) or (b) must comply
5
with the direction.
6
Fault-based offences
7
(2) A person commits an offence if:
8
(a) the person is the person in charge or the operator of an
9
aircraft or vessel; and
10
(b) the person has been given a direction under paragraph
11
205(2)(a), 206(2)(a) or 212(1)(a) or (b); and
12
(c) the person engages in conduct; and
13
(d) the conduct contravenes the direction.
14
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
15
(3) The person in charge of an aircraft or vessel commits an offence if:
16
(a) the operator of the aircraft or vessel has been given a
17
direction under paragraph 205(2)(a), 206(2)(a) or 212(1)(a)
18
or (b); and
19
(b) the direction is not complied with.
20
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
21
(4) The operator of an aircraft or vessel commits an offence if:
22
(a) the person in charge of the aircraft or vessel has been given a
23
direction under paragraph 205(2)(a), 206(2)(a) or 212(1)(a)
24
or (b); and
25
(b) the direction is not complied with.
26
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
27
Civil penalty provision
28
(5) The person in charge and the operator of an aircraft or vessel are
29
each liable to a civil penalty if:
30
Managing biosecurity risks: conveyances Chapter 4
Conveyances entering Australian territory etc. Part 2
Biosecurity measures to manage unacceptable level of biosecurity risk Division 5
Section 215
Biosecurity Bill 2012 No. , 2012 199
(a) the person in charge or the operator of the aircraft or vessel
1
has been given a direction under paragraph 205(2)(a),
2
206(2)(a) or 212(1)(a) or (b); and
3
(b) the direction is not complied with.
4
Civil penalty:
120 penalty units.
5
215 Unauthorised persons must not move etc. conveyance in relation
6
to which biosecurity measures have been required
7
(1) A person contravenes this subsection if:
8
(a) a notice has been affixed to, or as near as reasonably
9
practicable to, a conveyance under subsection 213(1); and
10
(b) the person moves, deals with or interferes with the
11
conveyance; and
12
(c) none of the following applies:
13
(i) the person is authorised to engage in the conduct
14
referred to in paragraph (b) in accordance with an
15
approved arrangement;
16
(ii) the person needs to engage in that conduct to comply
17
with a direction given under another provision of this
18
Act by a biosecurity official;
19
(iii) the person has been given permission to engage in that
20
conduct under section 595.
21
(2) Subsection (1) does not apply if the person is authorised to engage
22
in the conduct referred to in paragraph (1)(b) under this Act or
23
under another Australian law.
24
Note:
A defendant bears an evidential burden in relation to the matter in this
25
subsection (see subsection 13.3(3) of the Criminal Code and
26
section 552 of this Act).
27
Fault-based offence
28
(3) A person commits an offence if the person contravenes
29
subsection (1).
30
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
31
Note:
See section 575 in relation to the physical elements of an offence.
32
Chapter 4 Managing biosecurity risks: conveyances
Part 2 Conveyances entering Australian territory etc.
Division 5 Biosecurity measures to manage unacceptable level of biosecurity risk
Section 215
200 Biosecurity Bill 2012 No. , 2012
Civil penalty provision
1
(4) A person is liable to a civil penalty if the person contravenes
2
subsection (1).
3
Civil penalty:
120 penalty units.
4
5
Managing biosecurity risks: conveyances Chapter 4
Conveyances entering Australian territory etc. Part 2
Boarding and leaving conveyances Division 6
Section 216
Biosecurity Bill 2012 No. , 2012 201
Division 6--Boarding and leaving conveyances
1
216 Application of this Division
2
This Division applies in relation to a conveyance that is subject to
3
biosecurity control.
4
217 Unauthorised persons must not board conveyance
5
(1) A person contravenes this subsection if:
6
(a) the person boards a conveyance; and
7
(b) the conveyance is subject to biosecurity control; and
8
(c) none of the following applies:
9
(i) the person is authorised to engage in the conduct
10
referred to in paragraph (a) in accordance with an
11
approved arrangement;
12
(ii) the person needs to engage in that conduct to comply
13
with a direction given under another provision of this
14
Act by a biosecurity official;
15
(iii) the person has been given permission to engage in that
16
conduct under section 595.
17
(2) Subsection (1) does not apply if:
18
(a) the person is authorised to engage in the conduct referred to
19
in paragraph (1)(a) under this Act or under another Australian
20
law; or
21
(b) the person engages in that conduct in circumstances
22
prescribed by regulations made under subsection (3) for the
23
purposes of this paragraph; or
24
(c) the person did not know, and could not reasonably be
25
expected to have known, that the conveyance was subject to
26
biosecurity control when the person engaged in that conduct;
27
or
28
(d) the person engaged in that conduct with the permission of the
29
person in charge or the operator of the conveyance.
30
Note 1:
A person must not board an incoming aircraft or vessel unless pratique
31
has been granted in relation to the aircraft or vessel (see sections 47
32
and 48).
33
Chapter 4 Managing biosecurity risks: conveyances
Part 2 Conveyances entering Australian territory etc.
Division 6 Boarding and leaving conveyances
Section 218
202 Biosecurity Bill 2012 No. , 2012
Note 2:
A biosecurity officer may direct the person in charge or the operator
1
of a conveyance that is subject to biosecurity control to permit the
2
biosecurity officer to board the conveyance (see section 593).
3
Note 3:
A defendant bears an evidential burden in relation to the matters in
4
this subsection (see subsection 13.3(3) of the Criminal Code and
5
section 552 of this Act).
6
(3) The regulations may prescribe circumstances for the purposes of
7
paragraph (2)(b).
8
Fault-based offence
9
(4) A person commits an offence if the person contravenes
10
subsection (1).
11
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
12
Note:
See section 575 in relation to the physical elements of an offence.
13
Civil penalty provision
14
(5) A person is liable to a civil penalty if the person contravenes
15
subsection (1).
16
Civil penalty:
120 penalty units.
17
218 Person in charge must not allow unauthorised persons to board
18
conveyance
19
(1) The person in charge of a conveyance that is subject to biosecurity
20
control contravenes this subsection if:
21
(a) the person in charge of the conveyance allows another person
22
(the other person) to board the conveyance; and
23
(b) none of the following applies:
24
(i) the person in charge of the conveyance is authorised to
25
engage in the conduct referred to in paragraph (a) in
26
accordance with an approved arrangement;
27
(ii) the person in charge of the conveyance needs to engage
28
in that conduct to comply with a direction given under
29
another provision of this Act by a biosecurity official;
30
(iii) the person in charge of the conveyance has been given
31
permission to engage in that conduct under section 595;
32
Managing biosecurity risks: conveyances Chapter 4
Conveyances entering Australian territory etc. Part 2
Boarding and leaving conveyances Division 6
Section 218
Biosecurity Bill 2012 No. , 2012 203
(iv) the other person has been given permission to board the
1
conveyance under section 595.
2
(2) Subsection (1) does not apply if:
3
(a) the person in charge of the conveyance is authorised to
4
engage in the conduct referred to in paragraph (1)(a) under
5
this Act or under another Australian law; or
6
(b) the other person is permitted to board the conveyance in
7
circumstances prescribed by regulations made under
8
subsection (3) for the purposes of this paragraph; or
9
(c) the person in charge of the conveyance told the other person
10
that the other person was not permitted to board the
11
conveyance.
12
Note 1:
A person must not board an incoming aircraft or vessel unless pratique
13
has been granted in relation to the aircraft or vessel (see sections 47
14
and 48).
15
Note 2:
A biosecurity officer may direct the person in charge or the operator
16
of a conveyance that is subject to biosecurity control to permit the
17
biosecurity officer to board the conveyance (see section 593).
18
Note 3:
A defendant bears an evidential burden in relation to the matters in
19
this subsection (see subsection 13.3(3) of the Criminal Code and
20
section 552 of this Act).
21
(3) The regulations may prescribe circumstances for the purposes of
22
paragraph (2)(b).
23
Fault-based offence
24
(4) A person commits an offence if the person contravenes
25
subsection (1).
26
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
27
Note:
See section 575 in relation to the physical elements of an offence.
28
Civil penalty provision
29
(5) A person is liable to a civil penalty if the person contravenes
30
subsection (1).
31
Civil penalty:
120 penalty units.
32
Chapter 4 Managing biosecurity risks: conveyances
Part 2 Conveyances entering Australian territory etc.
Division 6 Boarding and leaving conveyances
Section 219
204 Biosecurity Bill 2012 No. , 2012
219 Operator must not allow unauthorised persons to board
1
conveyance
2
(1) The operator of a conveyance that is subject to biosecurity control
3
contravenes this subsection if:
4
(a) the operator of the conveyance allows another person (the
5
other person) to board the conveyance; and
6
(b) none of the following applies:
7
(i) the operator of the conveyance is authorised to engage
8
in the conduct referred to in paragraph (a) in accordance
9
with an approved arrangement;
10
(ii) the operator of the conveyance needs to engage in that
11
conduct to comply with a direction given under another
12
provision of this Act by a biosecurity official;
13
(iii) the operator of the conveyance has been given
14
permission to engage in that conduct under section 595;
15
(iv) the other person has been given permission to board the
16
conveyance under section 595.
17
(2) Subsection (1) does not apply if:
18
(a) the operator of the conveyance is authorised to engage in the
19
conduct referred to in paragraph (1)(a) under this Act or
20
under another Australian law; or
21
(b) the other person is permitted to board the conveyance in
22
circumstances prescribed by regulations made under
23
subsection (3) for the purposes of this paragraph; or
24
(c) the operator of the conveyance told the other person that the
25
other person was not permitted to board the conveyance.
26
Note 1:
A person must not board an incoming aircraft or vessel unless pratique
27
has been granted in relation to the aircraft or vessel (see sections 47
28
and 48).
29
Note 2:
A biosecurity officer may direct the person in charge or the operator
30
of a conveyance that is subject to biosecurity control to permit the
31
biosecurity officer to board the conveyance (see section 593).
32
Note 3:
A defendant bears an evidential burden in relation to the matters in
33
this subsection (see subsection 13.3(3) of the Criminal Code and
34
section 552 of this Act).
35
(3) The regulations may prescribe circumstances for the purposes of
36
paragraph (2)(b).
37
Managing biosecurity risks: conveyances Chapter 4
Conveyances entering Australian territory etc. Part 2
Boarding and leaving conveyances Division 6
Section 220
Biosecurity Bill 2012 No. , 2012 205
Fault-based offence
1
(4) A person commits an offence if the person contravenes
2
subsection (1).
3
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
4
Note:
See section 575 in relation to the physical elements of an offence.
5
Civil penalty provision
6
(5) A person is liable to a civil penalty if the person contravenes
7
subsection (1).
8
Civil penalty:
120 penalty units.
9
220 Person in charge of conveyance may leave conveyance unless
10
directed not to do so
11
(1) The person in charge of a conveyance that is subject to biosecurity
12
control may leave the conveyance unless a biosecurity officer has
13
directed the person not to leave the conveyance.
14
Note:
If the conveyance is an incoming aircraft or vessel, the person in
15
charge of the aircraft or vessel must not leave the aircraft or vessel
16
unless pratique has been granted in relation to the aircraft or vessel
17
(see sections 47 and 48).
18
(2) A biosecurity officer may direct the person in charge of the
19
conveyance not to leave the conveyance for a specified period. The
20
period must not be longer than 24 hours.
21
Note:
See also section 608 (general provisions relating to directions).
22
(3) A person who is given a direction under subsection (2) must
23
comply with the direction.
24
Fault-based offence
25
(4) A person commits an offence if:
26
(a) the person is given a direction under subsection (2); and
27
(b) the person engages in conduct; and
28
(c) the conduct contravenes the direction.
29
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
30
Chapter 4 Managing biosecurity risks: conveyances
Part 2 Conveyances entering Australian territory etc.
Division 6 Boarding and leaving conveyances
Section 220
206 Biosecurity Bill 2012 No. , 2012
Civil penalty provision
1
(5) A person is liable to a civil penalty if the person contravenes
2
subsection (3).
3
Civil penalty:
120 penalty units.
4
5
Managing biosecurity risks: conveyances Chapter 4
Conveyances entering Australian territory etc. Part 2
Release of conveyances from biosecurity control Division 7
Section 221
Biosecurity Bill 2012 No. , 2012 207
Division 7--Release of conveyances from biosecurity
1
control
2
221 When conveyance is released from biosecurity control
3
(1) A conveyance that is subject to biosecurity control is released from
4
biosecurity control if:
5
(a) a biosecurity officer notifies, in writing or orally, the person
6
in charge of the conveyance, the owner of the conveyance or
7
the operator of the conveyance that the conveyance is
8
released from biosecurity control; or
9
(b) a written notice releasing the conveyance from biosecurity
10
control is given to the person in charge of the conveyance by
11
a biosecurity industry participant who is authorised to release
12
the conveyance in accordance with an approved arrangement
13
covering the biosecurity industry participant; or
14
(c) the conveyance is destroyed; or
15
(d) the conveyance leaves Australian territory.
16
Note:
If a conveyance is released from biosecurity control under
17
paragraph (1)(d) by leaving Australian territory during a journey
18
between places in Australian territory, the conveyance becomes
19
subject to biosecurity control again when it re-enters Australian
20
territory during that journey (see subsections 191(4) and 192(5)).
21
(2) Neither of the following is a legislative instrument:
22
(a) a notification that is given in writing under paragraph (1)(a);
23
(b) a notice referred to in paragraph (1)(b).
24
25
Chapter 4 Managing biosecurity risks: conveyances
Part 2 Conveyances entering Australian territory etc.
Division 8 Miscellaneous
Section 222
208 Biosecurity Bill 2012 No. , 2012
Division 8--Miscellaneous
1
222 Information about biosecurity requirements must be given to
2
persons on board incoming aircraft or vessels
3
(1) The person in charge or the operator of an incoming aircraft or
4
vessel that is subject to biosecurity control because of subsection
5
191(2) or (4) must ensure that each person (including a member of
6
the crew) on board the aircraft or vessel is given information about
7
biosecurity requirements under the laws of the Commonwealth.
8
Civil penalty:
120 penalty units.
9
(2) The content and form of information given under subsection (1)
10
must have been approved by the Director of Biosecurity or the
11
Director of Human Biosecurity.
12
(3) The information may be given in writing or orally, including by
13
means of an audio, or audio-visual, recording.
14
223 Quarantine signal
15
(1) The person in charge of a conveyance that is within Australian
16
territory must ensure that the prescribed quarantine signal is
17
displayed on the conveyance in the circumstances and in the
18
manner prescribed by the regulations.
19
(2) The regulations must prescribe:
20
(a) the quarantine signal; and
21
(b) the circumstances in which the quarantine signal must be
22
displayed on a conveyance within Australian territory; and
23
(c) the manner in which the quarantine signal must be displayed.
24
Strict liability offence
25
(3) A person commits an offence of strict liability if the person
26
contravenes subsection (1).
27
Penalty for contravention of this subsection: 50 penalty units.
28
Note:
For strict liability, see section 6.1 of the Criminal Code.
29
Managing biosecurity risks: conveyances Chapter 4
First points of entry and biosecurity entry points Part 3
Introduction Division 1
Section 224
Biosecurity Bill 2012 No. , 2012 209
Part 3--First points of entry and biosecurity entry
1
points
2
Division 1--Introduction
3
224 Guide to this Part
4
This Part deals with first points of entry and biosecurity entry
5
points for conveyances and goods that are subject to biosecurity
6
control.
7
Division 2 provides for the Director of Biosecurity or the Director
8
of Human Biosecurity to determine the landing places in
9
Australian territory that are first points of entry for certain aircraft
10
and goods that are subject to biosecurity control.
11
Division 2 also provides for an area of a landing place that is a first
12
point of entry to be designated as a biosecurity entry point for
13
certain aircraft and goods that are subject to biosecurity control.
14
Division 3 provides for the Director of Biosecurity or the Director
15
of Human Biosecurity to determine the ports in Australian territory
16
that are first points of entry for certain vessels and goods that are
17
subject to biosecurity control.
18
Division 3 also provides for an area of a port that is a first point of
19
entry to be designated as a biosecurity entry point for vessels and
20
goods that are subject to biosecurity control.
21
22
Chapter 4 Managing biosecurity risks: conveyances
Part 3 First points of entry and biosecurity entry points
Division 2 First points of entry and biosecurity entry points for incoming aircraft and
goods
Section 225
210 Biosecurity Bill 2012 No. , 2012
Division 2--First points of entry and biosecurity entry
1
points for incoming aircraft and goods
2
225 Determination of landing places that are first points of entry for
3
aircraft or goods that are subject to biosecurity control
4
(1) The Director of Biosecurity or the Director of Human Biosecurity
5
may determine that a specified landing place in Australian territory
6
is a first point of entry for any of the following:
7
(a) aircraft generally, or a specified class of aircraft, that are
8
subject to biosecurity control;
9
(b) specified goods, or a specified class of goods:
10
(i) that are subject to biosecurity control; or
11
(ii) in relation to which an exposed goods order is in force.
12
(2) The Director of Biosecurity or the Director of Human Biosecurity
13
may make a determination under subsection (1) in relation to a
14
landing place only if the Director who is proposing to make the
15
determination is satisfied that:
16
(a) the requirements (if any) prescribed by the regulations in
17
relation to the landing place are met; and
18
(b) the level of biosecurity risk associated with operations
19
carried out at the landing place is acceptable.
20
(3) For the purpose of being satisfied of the matters referred to in
21
subsection (2), the Director of Biosecurity or the Director of
22
Human Biosecurity (as the case may be) may have regard to any
23
matter that the Director considers relevant.
24
Note: A
determination
under
subsection
(1) may be varied under section 228
25
or 229 or revoked under section 229. Subsection 33(3) of the Acts
26
Interpretation Act 1901 does not apply in relation to this section.
27
226 Biosecurity entry points for aircraft and goods that are subject
28
to biosecurity control
29
A determination under subsection 225(1) in relation to a landing
30
place may designate a specified area of the landing place as a
31
biosecurity entry point for any of the following:
32
Managing biosecurity risks: conveyances Chapter 4
First points of entry and biosecurity entry points Part 3
First points of entry and biosecurity entry points for incoming aircraft and goods
Division 2
Section 227
Biosecurity Bill 2012 No. , 2012 211
(a) aircraft generally, or a specified class of aircraft, as referred
1
to in paragraph 225(1)(a);
2
(b) specified goods, or a specified class of goods, as referred to
3
in paragraph 225(1)(b).
4
227 Determination may be subject to conditions
5
(1) A determination under subsection 225(1) in relation to a landing
6
place may be expressed to be subject to conditions specified in the
7
determination.
8
(2) Without limiting subsection (1), the conditions may relate to any of
9
the following:
10
(a) an owner or lessee of the landing place;
11
(b) a person or body that is responsible for carrying out
12
operations at the landing place;
13
(c) the operations carried out at the landing place.
14
228 Determination may have effect for specified period
15
(1) A determination under subsection 225(1) may be expressed to have
16
effect for a specified period.
17
(2) If a determination under subsection 225(1) is expressed to have
18
effect for a specified period, the Director who made the
19
determination may vary the determination to extend or shorten the
20
period.
21
229 Variation and revocation of determination etc.
22
If a determination is made under subsection 225(1) in relation to a
23
landing place, the Director who made the determination may vary
24
or revoke the determination, or vary the conditions specified in the
25
determination (including by imposing new conditions), if the
26
Director is satisfied that:
27
(a) one or more requirements prescribed by regulations made for
28
the purposes of paragraph 225(2)(a) in relation to the landing
29
place are no longer being met; or
30
(b) the level of biosecurity risk associated with operations
31
carried out at the landing place has become unacceptable; or
32
Chapter 4 Managing biosecurity risks: conveyances
Part 3 First points of entry and biosecurity entry points
Division 2 First points of entry and biosecurity entry points for incoming aircraft and
goods
Section 230
212 Biosecurity Bill 2012 No. , 2012
(c) a condition specified in the determination under section 227
1
has not been, or is not being, met; or
2
(d) the landing place is no longer required to be a first point of
3
entry for aircraft or goods to which the determination relates;
4
or
5
(e) a circumstance prescribed by the regulations has occurred.
6
230 Determination is a legislative instrument
7
Each of the following is a legislative instrument, but neither
8
section 42 (disallowance) nor Part 6 (sunsetting) of the Legislative
9
Instruments Act 2003 applies to the instrument:
10
(a) a determination made under subsection 225(1);
11
(b) an instrument that varies or revokes a determination made
12
under subsection 225(1).
13
14
Managing biosecurity risks: conveyances Chapter 4
First points of entry and biosecurity entry points Part 3
First points of entry and biosecurity entry points for incoming vessels and goods
Division 3
Section 231
Biosecurity Bill 2012 No. , 2012 213
Division 3--First points of entry and biosecurity entry
1
points for incoming vessels and goods
2
231 Determination of ports that are first points of entry for vessels
3
or goods that are subject to biosecurity control
4
(1) The Director of Biosecurity or the Director of Human Biosecurity
5
may determine that a specified port in Australian territory is a first
6
point of entry for any of the following:
7
(a) vessels generally, or a specified class of vessels, that are
8
subject to biosecurity control;
9
(b) specified goods, or a specified class of goods:
10
(i) that are subject to biosecurity control; or
11
(ii) in relation to which an exposed goods order is in force.
12
(2) The Director of Biosecurity or the Director of Human Biosecurity
13
may make a determination under subsection (1) in relation to a port
14
only if the Director who is proposing to make the determination is
15
satisfied that:
16
(a) the requirements (if any) prescribed by the regulations in
17
relation to the port are met; and
18
(b) the level of biosecurity risk associated with operations
19
carried out at the port is acceptable.
20
(3) For the purpose of being satisfied of the matters referred to in
21
subsection (2), the Director of Biosecurity or the Director of
22
Human Biosecurity (as the case may be) may have regard to any
23
matter that the Director considers relevant.
24
Note: A
determination
under
subsection
(1) may be varied under section 234
25
or 235 or revoked under section 235. Subsection 33(3) of the Acts
26
Interpretation Act 1901 does not apply in relation to this section.
27
232 Biosecurity entry points for vessels and goods that are subject to
28
biosecurity control
29
A determination under subsection 231(1) in relation to a port may
30
designate a specified area of the port as a biosecurity entry point
31
for any of the following:
32
Chapter 4 Managing biosecurity risks: conveyances
Part 3 First points of entry and biosecurity entry points
Division 3 First points of entry and biosecurity entry points for incoming vessels and
goods
Section 233
214 Biosecurity Bill 2012 No. , 2012
(a) vessels generally, or a specified class of vessels, as referred
1
to in paragraph 231(1)(a);
2
(b) specified goods, or a specified class of goods, as referred to
3
in paragraph 231(1)(b).
4
233 Determination may be subject to conditions
5
(1) A determination under subsection 231(1) in relation to a port may
6
be expressed to be subject to conditions specified in the
7
determination.
8
(2) Without limiting subsection (1), the conditions may relate to any of
9
the following:
10
(a) an owner or lessee of the port;
11
(b) a person or body that is responsible for carrying out
12
operations at the port;
13
(c) the operations carried out at the port.
14
234 Determination may have effect for specified period
15
(1) A determination under subsection 231(1) may be expressed to have
16
effect for a specified period.
17
(2) If a determination under subsection 231(1) is expressed to have
18
effect for a specified period, the Director who made the
19
determination may vary the determination to extend or shorten the
20
period.
21
235 Variation and revocation of determination etc.
22
If a determination is made under subsection 231(1) in relation to a
23
port, the Director who made the determination may vary or revoke
24
the determination, or vary the conditions specified in the
25
determination (including by imposing new conditions), if the
26
Director is satisfied that:
27
(a) one or more requirements prescribed by regulations made for
28
the purposes of paragraph 231(2)(a) in relation to the port are
29
no longer being met; or
30
(b) the level of biosecurity risk associated with operations
31
carried out at the port has become unacceptable; or
32
Managing biosecurity risks: conveyances Chapter 4
First points of entry and biosecurity entry points Part 3
First points of entry and biosecurity entry points for incoming vessels and goods
Division 3
Section 236
Biosecurity Bill 2012 No. , 2012 215
(c) a condition specified in the determination under section 233
1
has not been, or is not being, met; or
2
(d) the port is no longer required to be a first point of entry for
3
vessels or goods to which the determination relates; or
4
(e) a circumstance prescribed by the regulations has occurred.
5
236 Determination is a legislative instrument
6
Each of the following is a legislative instrument, but neither
7
section 42 (disallowance) nor Part 6 (sunsetting) of the Legislative
8
Instruments Act 2003 applies to the instrument:
9
(a) a determination made under subsection 231(1);
10
(b) an instrument that varies or revokes a determination made
11
under subsection 231(1).
12
13
Chapter 4 Managing biosecurity risks: conveyances
Part 4 Entry points for incoming aircraft and vessels
Division 1 Introduction
Section 237
216 Biosecurity Bill 2012 No. , 2012
Part 4--Entry points for incoming aircraft and
1
vessels
2
Division 1--Introduction
3
237 Guide to this Part
4
This Part makes provision in relation to the places (the entry
5
points) in Australian territory where incoming aircraft and vessels
6
can land or be moored.
7
Division 2 deals with entry points for aircraft. Unless permitted or
8
directed to do otherwise, an aircraft must land at a first point of
9
entry for the aircraft and, if there is a biosecurity entry point for the
10
aircraft at that first point of entry, the aircraft must be brought to
11
that biosecurity entry point.
12
Division 3 deals with entry points for vessels. Unless permitted or
13
directed to do otherwise, a vessel must be moored at a first point of
14
entry for the vessel and, if there is a biosecurity entry point for the
15
vessel at that first point of entry, the vessel must be brought to that
16
biosecurity entry point.
17
Division 4 provides for biosecurity officers and biosecurity
18
enforcement officers to enter landing places or ports where an
19
aircraft or vessel that is subject to biosecurity control has arrived,
20
or intends to arrive, for the purpose of performing functions or
21
exercising powers under this Act.
22
23
Managing biosecurity risks: conveyances Chapter 4
Entry points for incoming aircraft and vessels Part 4
Entry points for aircraft that intend to land in Australian territory Division 2
Section 238
Biosecurity Bill 2012 No. , 2012 217
Division 2--Entry points for aircraft that intend to land in
1
Australian territory
2
238 Application of this Division
3
This Division applies in relation to an aircraft that intends to land
4
at a landing place in Australian territory.
5
Note:
A reference in this Division to an aircraft does not include an aircraft
6
that is being carried on board another conveyance (see section 15). An
7
aircraft that is being carried on board another conveyance is generally
8
treated as goods for the purposes of this Act (see section 18).
9
239 Aircraft must land at first point of entry
10
(1) An aircraft that is subject to biosecurity control must not land at a
11
landing place in Australian territory that is not a first point of entry
12
for the aircraft, unless:
13
(a) permission has been given under subsection 241(2) for the
14
aircraft to land at that landing place; or
15
(b) a direction has been given under paragraph 242(1)(a) or
16
244(1)(a) requiring the aircraft to land at that landing place.
17
Fault-based offences
18
(2) A person commits an offence if:
19
(a) the person is the person in charge or the operator of an
20
aircraft; and
21
(b) the aircraft is subject to biosecurity control; and
22
(c) the person permits the aircraft to land at a landing place in
23
Australian territory that is not a first point of entry for the
24
aircraft; and
25
(d) neither of the following applies:
26
(i) permission has been given under subsection 241(2) for
27
the aircraft to land at that landing place;
28
(ii) a direction has been given under paragraph 242(1)(a) or
29
244(1)(a) requiring the aircraft to land at that landing
30
place.
31
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
32
Chapter 4 Managing biosecurity risks: conveyances
Part 4 Entry points for incoming aircraft and vessels
Division 2 Entry points for aircraft that intend to land in Australian territory
Section 239
218 Biosecurity Bill 2012 No. , 2012
(3) The person in charge of an aircraft commits an offence if:
1
(a) the aircraft is subject to biosecurity control; and
2
(b) the operator of the aircraft permits the aircraft to land at a
3
landing place in Australian territory that is not a first point of
4
entry for the aircraft; and
5
(c) neither of the following applies:
6
(i) permission has been given under subsection 241(2) for
7
the aircraft to land at that landing place;
8
(ii) a direction has been given under paragraph 242(1)(a) or
9
244(1)(a) requiring the aircraft to land at that landing
10
place.
11
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
12
(4) The operator of an aircraft commits an offence if:
13
(a) the aircraft is subject to biosecurity control; and
14
(b) the person in charge of the aircraft permits the aircraft to land
15
at a landing place in Australian territory that is not a first
16
point of entry for the aircraft; and
17
(c) neither of the following applies:
18
(i) permission has been given under subsection 241(2) for
19
the aircraft to land at that landing place;
20
(ii) a direction has been given under paragraph 242(1)(a) or
21
244(1)(a) requiring the aircraft to land at that landing
22
place.
23
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
24
Civil penalty provision
25
(5) The person in charge and the operator of an aircraft are each liable
26
to a civil penalty if:
27
(a) the aircraft is subject to biosecurity control; and
28
(b) the aircraft lands at a landing place in Australian territory that
29
is not a first point of entry for the aircraft; and
30
(c) neither of the following applies:
31
(i) permission has been given under subsection 241(2) for
32
the aircraft to land at that landing place;
33
Managing biosecurity risks: conveyances Chapter 4
Entry points for incoming aircraft and vessels Part 4
Entry points for aircraft that intend to land in Australian territory Division 2
Section 240
Biosecurity Bill 2012 No. , 2012 219
(ii) a direction has been given under paragraph 242(1)(a) or
1
244(1)(a) requiring the aircraft to land at that landing
2
place.
3
Civil penalty:
120 penalty units.
4
240 Aircraft must be brought to relevant biosecurity entry point (if
5
any) at first point of entry
6
(1)
If:
7
(a) an aircraft that is subject to biosecurity control has landed at
8
a first point of entry for the aircraft; and
9
(b) there is a biosecurity entry point for the aircraft at the first
10
point of entry;
11
the aircraft must be brought to that biosecurity entry point as soon
12
as practicable.
13
Note:
Goods that are to be unloaded from the aircraft must generally be
14
brought to a biosecurity entry point (if any) for the goods (see
15
sections 144 and 145).
16
Fault-based offences
17
(2) A person commits an offence if:
18
(a) the person is the person in charge or the operator of an
19
aircraft; and
20
(b) the aircraft is subject to biosecurity control; and
21
(c) the aircraft has landed at a first point of entry for the aircraft;
22
and
23
(d) there is a biosecurity entry point for the aircraft at the first
24
point of entry; and
25
(e) the person does not ensure that the aircraft is brought to that
26
biosecurity entry point as soon as practicable.
27
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
28
(3) The person in charge of an aircraft commits an offence if:
29
(a) the aircraft is subject to biosecurity control; and
30
(b) the aircraft has landed at a first point of entry for the aircraft;
31
and
32
Chapter 4 Managing biosecurity risks: conveyances
Part 4 Entry points for incoming aircraft and vessels
Division 2 Entry points for aircraft that intend to land in Australian territory
Section 241
220 Biosecurity Bill 2012 No. , 2012
(c) there is a biosecurity entry point for the aircraft at the first
1
point of entry; and
2
(d) the operator of the aircraft does not ensure that the aircraft is
3
brought to that biosecurity entry point as soon as practicable.
4
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
5
(4) The operator of an aircraft commits an offence if:
6
(a) the aircraft is subject to biosecurity control; and
7
(b) the aircraft has landed at a first point of entry for the aircraft;
8
and
9
(c) there is a biosecurity entry point for the aircraft at the first
10
point of entry; and
11
(d) the person in charge of the aircraft does not ensure that the
12
aircraft is brought to that biosecurity entry point as soon as
13
practicable.
14
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
15
Civil penalty provision
16
(5) The person in charge and the operator of an aircraft are each liable
17
to a civil penalty if:
18
(a) the aircraft is subject to biosecurity control; and
19
(b) the aircraft has landed at a first point of entry for the aircraft;
20
and
21
(c) there is a biosecurity entry point for the aircraft at the first
22
point of entry; and
23
(d) the aircraft is not brought to that biosecurity entry point as
24
soon as practicable.
25
Civil penalty:
120 penalty units.
26
241 Permission for aircraft to land at landing place that is not first
27
point of entry for aircraft
28
(1) The person in charge or the operator of an aircraft that intends to
29
land at a landing place in Australian territory may, in writing,
30
request the Director of Biosecurity or the Director of Human
31
Biosecurity to give permission for the aircraft to land at a specified
32
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Entry points for aircraft that intend to land in Australian territory Division 2
Section 241
Biosecurity Bill 2012 No. , 2012 221
landing place in Australian territory that is not a first point of entry
1
for the aircraft.
2
Note:
The person in charge and the operator of the aircraft may also request
3
permission for goods to be unloaded at the specified landing place (see
4
section 143).
5
(2) If the Director of Biosecurity or the Director of Human Biosecurity
6
receives a request under subsection (1), the Director may, by
7
written notice to the person in charge or the operator of the aircraft,
8
give permission for the aircraft to land at the landing place
9
specified in the request.
10
(3) The Director of Biosecurity or the Director of Human Biosecurity
11
may give permission under subsection (2) subject to any conditions
12
specified in the notice giving the permission.
13
Fault-based offences
14
(4) A person commits an offence if:
15
(a) the person is the person in charge or the operator of an
16
aircraft; and
17
(b) the person has been given a permission under subsection (2);
18
and
19
(c) the permission is subject to conditions; and
20
(d) the person engages in conduct; and
21
(e) the conduct contravenes the conditions.
22
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
23
(5) The person in charge of an aircraft commits an offence if:
24
(a) the operator of the aircraft has been given a permission under
25
subsection (2); and
26
(b) the permission is subject to conditions; and
27
(c) the conditions are not complied with.
28
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
29
(6) The operator of an aircraft commits an offence if:
30
(a) the person in charge of the aircraft has been given a
31
permission under subsection (2); and
32
(b) the permission is subject to conditions; and
33
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Division 2 Entry points for aircraft that intend to land in Australian territory
Section 242
222 Biosecurity Bill 2012 No. , 2012
(c) the conditions are not complied with.
1
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
2
Civil penalty provision
3
(7) The person in charge and the operator of an aircraft are each liable
4
to a civil penalty if:
5
(a) the person in charge or the operator of the aircraft has been
6
given a permission under subsection (2); and
7
(b) the permission is subject to conditions; and
8
(c) the conditions are not complied with.
9
Civil penalty:
120 penalty units.
10
242 Direction requiring aircraft to land, or not to land, at specified
11
landing place
12
(1) Subject to subsections (2) and (3), a biosecurity officer may give
13
the person in charge or the operator of an aircraft that intends to
14
land at a landing place in Australian territory:
15
(a) a direction requiring the aircraft to land at a specified landing
16
place in Australian territory; or
17
(b) a direction requiring the aircraft not to land at one or more
18
specified landing places in Australian territory.
19
Note:
The person in charge or the operator of the aircraft may commit an
20
offence or contravene a civil penalty provision for failing to comply
21
with a direction given under this subsection (see section 245).
22
(2) A direction may be given under paragraph (1)(a) or (b) only if a
23
biosecurity officer is satisfied that the direction is necessary to
24
manage biosecurity risks associated with the aircraft or any person
25
or thing on board the aircraft.
26
(3) A direction must not be given under paragraph (1)(b) requiring the
27
aircraft not to land at any landing place in Australian territory.
28
Note:
A direction of this kind may be given under section 243.
29
(4) A biosecurity officer must revoke a direction given under
30
paragraph (1)(b) if a biosecurity officer is satisfied that the
31
direction is no longer necessary to manage biosecurity risks
32
Managing biosecurity risks: conveyances Chapter 4
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Section 243
Biosecurity Bill 2012 No. , 2012 223
associated with the aircraft or any person or thing on board the
1
aircraft.
2
(5) Subsection (4) does not, by implication, limit the power of a
3
biosecurity officer to revoke a direction given under
4
paragraph (1)(b).
5
243 Direction requiring aircraft not to land at any landing place in
6
Australian territory
7
(1) Subject to subsections (2) and (3), a biosecurity officer may give
8
the person in charge or the operator of an aircraft that intends to
9
land at a landing place in Australian territory a direction requiring
10
the aircraft not to land at any landing place in Australian territory.
11
Note:
The person in charge or the operator of the aircraft may commit an
12
offence or contravene a civil penalty provision for failing to comply
13
with a direction given under this subsection (see section 245).
14
(2) A biosecurity officer must not give a direction under subsection (1)
15
without the written approval of the Director of Biosecurity.
16
Note:
Before giving approval under this subsection, the Director of
17
Biosecurity must be satisfied of the matters referred to in
18
subsection (3) and the matters referred to in section 31 (the
19
principles).
20
(3) The Director of Biosecurity must not give approval for a direction
21
to be given under subsection (1) unless the Director is satisfied, on
22
reasonable grounds, that:
23
(a) the level of biosecurity risk associated with the aircraft or any
24
person or thing on board the aircraft is unacceptable; and
25
(b) biosecurity measures cannot be taken to reduce that level of
26
biosecurity risk to an acceptable level.
27
(4) The Director of Biosecurity must not give approval for a direction
28
to be given under subsection (1) for the purpose of managing
29
human health risks associated with the aircraft or any person or
30
thing on board the aircraft.
31
(5) A biosecurity officer must revoke a direction given under
32
subsection (1) if the Director of Biosecurity is satisfied that:
33
Chapter 4 Managing biosecurity risks: conveyances
Part 4 Entry points for incoming aircraft and vessels
Division 2 Entry points for aircraft that intend to land in Australian territory
Section 244
224 Biosecurity Bill 2012 No. , 2012
(a) the level of biosecurity risk associated with the aircraft or any
1
person or thing on board the aircraft is no longer
2
unacceptable; or
3
(b) biosecurity measures can be taken to reduce the level of
4
biosecurity risk associated with the aircraft or any person or
5
thing on board the aircraft to an acceptable level; or
6
(c) the direction should be revoked for any other reason.
7
Note:
See also section 608 (general provisions relating to directions).
8
244 Direction requiring aircraft to land, or not to land, at specified
9
landing place--management of human health risks
10
(1) Subject to subsections (2) and (3), a chief human biosecurity
11
officer or a human biosecurity officer may give the person in
12
charge or the operator of an aircraft that intends to land at a landing
13
place in Australian territory:
14
(a) a direction requiring the aircraft to land at a specified landing
15
place in Australian territory; or
16
(b) a direction requiring the aircraft not to land at one or more
17
specified landing places in Australian territory.
18
Note:
The person in charge or the operator of the aircraft may commit an
19
offence or contravene a civil penalty provision for failing to comply
20
with a direction given under this subsection (see section 245).
21
(2) A direction may be given under paragraph (1)(a) or (b) only if a
22
chief human biosecurity officer or a human biosecurity officer is
23
satisfied, on reasonable grounds, that the direction is necessary to
24
manage human health risks associated with the aircraft or any
25
person or thing on board the aircraft.
26
(3) A direction must not be given under paragraph (1)(b) requiring the
27
aircraft not to land at any landing place in Australian territory.
28
(4) A chief human biosecurity officer or a human biosecurity officer
29
must revoke a direction given under paragraph (1)(b) if the officer
30
is satisfied that the direction is no longer necessary to manage
31
human health risks associated with the aircraft or any person or
32
thing on board the aircraft.
33
Managing biosecurity risks: conveyances Chapter 4
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Section 245
Biosecurity Bill 2012 No. , 2012 225
(5) Subsection (4) does not, by implication, limit the power of a chief
1
human biosecurity officer or a human biosecurity officer to revoke
2
a direction given under paragraph (1)(b).
3
245 Person who is given direction must comply with it
4
(1) A person who is given a direction under a provision of this
5
Division must comply with the direction.
6
Fault-based offence
7
(2) A person commits an offence if:
8
(a) the person is given a direction under a provision of this
9
Division; and
10
(b) the person engages in conduct; and
11
(c) the conduct contravenes the direction.
12
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
13
Civil penalty provision
14
(3) A person is liable to a civil penalty if the person contravenes
15
subsection (1).
16
Civil penalty:
120 penalty units.
17
18
Chapter 4 Managing biosecurity risks: conveyances
Part 4 Entry points for incoming aircraft and vessels
Division 3 Entry points for vessels that intend to be moored in Australian territory
Section 246
226 Biosecurity Bill 2012 No. , 2012
Division 3--Entry points for vessels that intend to be
1
moored in Australian territory
2
246 Application of this Division
3
This Division applies in relation to a vessel that intends to be
4
moored at a port in Australian territory.
5
Note 1:
A reference in this Division to a vessel does not include a vessel that
6
is being carried on board another conveyance (see section 15). A
7
vessel that is being carried on board another conveyance (for example
8
a lifeboat) is generally treated as goods for the purposes of this Act
9
(see section 18).
10
Note 2:
A vessel includes an installation (see paragraph (b) of the definition of
11
vessel in section 9, and the definition of installation in section 19).
12
247 Vessel must be moored at first point of entry
13
(1) A vessel that is subject to biosecurity control must not be moored
14
at a port in Australian territory that is not a first point of entry for
15
the vessel, unless:
16
(a) permission has been given under subsection 249(2) for the
17
vessel to be moored at that port; or
18
(b) a direction has been given under paragraph 250(1)(a) or
19
252(1)(a) requiring the vessel to be moored at that port.
20
Fault-based offences
21
(2) A person commits an offence if:
22
(a) the person is the person in charge or the operator of a vessel;
23
and
24
(b) the vessel is subject to biosecurity control; and
25
(c) the person permits the vessel to be moored at a port in
26
Australian territory that is not a first point of entry for the
27
vessel; and
28
(d) neither of the following applies:
29
(i) permission has been given under subsection 249(2) for
30
the vessel to be moored at that port;
31
(ii) a direction has been given under paragraph 250(1)(a) or
32
252(1)(a) requiring the vessel to be moored at that port.
33
Managing biosecurity risks: conveyances Chapter 4
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Section 247
Biosecurity Bill 2012 No. , 2012 227
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
1
(3) The person in charge of a vessel commits an offence if:
2
(a) the vessel is subject to biosecurity control; and
3
(b) the operator of the vessel permits the vessel to be moored at a
4
port in Australian territory that is not a first point of entry for
5
the vessel; and
6
(c) neither of the following applies:
7
(i) permission has been given under subsection 249(2) for
8
the vessel to be moored at that port;
9
(ii) a direction has been given under paragraph 250(1)(a) or
10
252(1)(a) requiring the vessel to be moored at that port.
11
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
12
(4) The operator of a vessel commits an offence if:
13
(a) the vessel is subject to biosecurity control; and
14
(b) the person in charge of the vessel permits the vessel to be
15
moored at a port in Australian territory that is not a first point
16
of entry for the vessel; and
17
(c) neither of the following applies:
18
(i) permission has been given under subsection 249(2) for
19
the vessel to be moored at that port;
20
(ii) a direction has been given under paragraph 250(1)(a) or
21
252(1)(a) requiring the vessel to be moored at that port.
22
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
23
Civil penalty provision
24
(5) The person in charge and the operator of a vessel are each liable to
25
a civil penalty if:
26
(a) the vessel is subject to biosecurity control; and
27
(b) the vessel is moored at a port in Australian territory that is
28
not a first point of entry for the vessel; and
29
(c) neither of the following applies:
30
(i) permission has been given under subsection 249(2) for
31
the vessel to be moored at that port;
32
Chapter 4 Managing biosecurity risks: conveyances
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Division 3 Entry points for vessels that intend to be moored in Australian territory
Section 248
228 Biosecurity Bill 2012 No. , 2012
(ii) a direction has been given under paragraph 250(1)(a) or
1
252(1)(a) requiring the vessel to be moored at that port.
2
Civil penalty:
120 penalty units.
3
248 Vessel must be brought to relevant biosecurity entry point (if
4
any) at first point of entry
5
(1)
If:
6
(a) a vessel that is subject to biosecurity control has been moored
7
at a first point of entry for the vessel; and
8
(b) there is a biosecurity entry point for the vessel at the first
9
point of entry;
10
the vessel must be brought to that biosecurity entry point as soon as
11
practicable.
12
Note:
Goods that are to be unloaded from the vessel must generally be
13
brought to a biosecurity entry point (if any) for the goods (see
14
sections 144 and 145).
15
Fault-based offences
16
(2) A person commits an offence if:
17
(a) the person is the person in charge or the operator of a vessel;
18
and
19
(b) the vessel is subject to biosecurity control; and
20
(c) the vessel has been moored at a first point of entry for the
21
vessel; and
22
(d) there is a biosecurity entry point for the vessel at the first
23
point of entry; and
24
(e) the person does not ensure that the vessel is brought to that
25
biosecurity entry point as soon as practicable.
26
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
27
(3) The person in charge of a vessel commits an offence if:
28
(a) the vessel is subject to biosecurity control; and
29
(b) the vessel has been moored at a first point of entry for the
30
vessel; and
31
Managing biosecurity risks: conveyances Chapter 4
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Section 249
Biosecurity Bill 2012 No. , 2012 229
(c) there is a biosecurity entry point for the vessel at the first
1
point of entry; and
2
(d) the operator of the vessel does not ensure that the vessel is
3
brought to that biosecurity entry point as soon as practicable.
4
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
5
(4) The operator of a vessel commits an offence if:
6
(a) the vessel is subject to biosecurity control; and
7
(b) the vessel has been moored at a first point of entry for the
8
vessel; and
9
(c) there is a biosecurity entry point for the vessel at the first
10
point of entry; and
11
(d) the person in charge of the vessel does not ensure that the
12
vessel is brought to that biosecurity entry point as soon as
13
practicable.
14
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
15
Civil penalty provision
16
(5) The person in charge and the operator of a vessel are each liable to
17
a civil penalty if:
18
(a) the vessel is subject to biosecurity control; and
19
(b) the vessel has been moored at a first point of entry for the
20
vessel; and
21
(c) there is a biosecurity entry point for the vessel at the first
22
point of entry; and
23
(d) the vessel is not brought to that biosecurity entry point as
24
soon as practicable.
25
Civil penalty:
120 penalty units.
26
249 Permission for vessel to be moored at port that is not first point
27
of entry for vessel
28
(1) The person in charge or the operator of a vessel that intends to be
29
moored at a port in Australian territory may, in writing, request the
30
Director of Biosecurity or the Director of Human Biosecurity to
31
Chapter 4 Managing biosecurity risks: conveyances
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Division 3 Entry points for vessels that intend to be moored in Australian territory
Section 249
230 Biosecurity Bill 2012 No. , 2012
give permission for the vessel to be moored at a specified port in
1
Australian territory that is not a first point of entry for the vessel.
2
Note:
The person in charge or the operator of the vessel may also request
3
permission for goods to be unloaded at the specified port (see
4
section 143).
5
(2) If the Director of Biosecurity or the Director of Human Biosecurity
6
receives a request under subsection (1), the Director may, by
7
written notice to the person in charge or the operator of the vessel,
8
give permission for the vessel to be moored at the port specified in
9
the request.
10
(3) The Director of Biosecurity or the Director of Human Biosecurity
11
may give permission under subsection (2) subject to any conditions
12
specified in the notice giving the permission.
13
Fault-based offences
14
(4) A person commits an offence if:
15
(a) the person is the person in charge or the operator of a vessel;
16
and
17
(b) the person has been given a permission under subsection (2);
18
and
19
(c) the permission is subject to conditions; and
20
(d) the person engages in conduct; and
21
(e) the conduct contravenes the conditions.
22
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
23
(5) The person in charge of a vessel commits an offence if:
24
(a) the operator of the vessel has been given a permission under
25
subsection (2); and
26
(b) the permission is subject to conditions; and
27
(c) the conditions are not complied with.
28
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
29
(6) The operator of a vessel commits an offence if:
30
(a) the person in charge of the vessel has been given a
31
permission under subsection (2); and
32
(b) the permission is subject to conditions; and
33
Managing biosecurity risks: conveyances Chapter 4
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Entry points for vessels that intend to be moored in Australian territory Division 3
Section 250
Biosecurity Bill 2012 No. , 2012 231
(c) the conditions are not complied with.
1
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
2
Civil penalty provision
3
(7) The person in charge and the operator of a vessel are each liable to
4
a civil penalty if:
5
(a) the person in charge or the operator of the vessel has been
6
given a permission under subsection (2); and
7
(b) the permission is subject to conditions; and
8
(c) the conditions are not complied with.
9
Civil penalty:
120 penalty units.
10
250 Direction requiring vessel to be moored, or not to be moored, at
11
specified port
12
(1) Subject to subsections (2) and (3), a biosecurity officer may give
13
the person in charge or the operator of a vessel that intends to be
14
moored at a port in Australian territory:
15
(a) a direction requiring the vessel to be moored at a specified
16
port in Australian territory; or
17
(b) a direction requiring the vessel not to be moored at one or
18
more specified ports in Australian territory.
19
Note:
The person in charge or the operator of the vessel may commit an
20
offence or contravene a civil penalty provision for failing to comply
21
with a direction given under this subsection (see section 253).
22
(2) A direction may be given under paragraph (1)(a) or (b) only if a
23
biosecurity officer is satisfied that the direction is necessary to
24
manage biosecurity risks associated with the vessel or any person
25
or thing on board the vessel.
26
(3) A direction must not be given under paragraph (1)(b) requiring the
27
vessel not to be moored at any port in Australian territory.
28
Note:
A direction of this kind may be given under section 251.
29
(4) A biosecurity officer must revoke a direction given under
30
paragraph (1)(b) if a biosecurity officer is satisfied that the
31
direction is no longer necessary to manage biosecurity risks
32
Chapter 4 Managing biosecurity risks: conveyances
Part 4 Entry points for incoming aircraft and vessels
Division 3 Entry points for vessels that intend to be moored in Australian territory
Section 251
232 Biosecurity Bill 2012 No. , 2012
associated with the vessel or any person or thing on board the
1
vessel.
2
(5) Subsection (4) does not, by implication, limit the power of a
3
biosecurity officer to revoke a direction given under
4
paragraph (1)(b).
5
251 Direction requiring vessel not to be moored at any port in
6
Australian territory
7
(1) Subject to subsections (2) and (3), a biosecurity officer may give
8
the person in charge or the operator of a vessel that intends to be
9
moored at a port in Australian territory a direction requiring the
10
vessel not to be moored at any port in Australian territory.
11
Note:
The person in charge or the operator of the vessel may commit an
12
offence or contravene a civil penalty provision for failing to comply
13
with a direction given under this subsection (see section 253).
14
(2) A biosecurity officer must not give a direction under subsection (1)
15
without the written approval of the Director of Biosecurity.
16
Note:
Before giving approval under this subsection, the Director of
17
Biosecurity must be satisfied of the matters referred to in
18
subsection (3) and the matters referred to in section 31 (the
19
principles).
20
(3) The Director of Biosecurity must not give approval for a direction
21
to be given under subsection (1) unless the Director is satisfied, on
22
reasonable grounds, that:
23
(a) the level of biosecurity risk associated with the vessel or any
24
person or thing on board the vessel is unacceptable; and
25
(b) biosecurity measures cannot be taken to reduce that level of
26
biosecurity risk to an acceptable level.
27
(4) A direction must not be given under subsection (1) for the purpose
28
of managing human health risks associated with the vessel or any
29
person or thing on board the vessel.
30
(5) A biosecurity officer must revoke a direction given under
31
subsection (1) if the Director of Biosecurity is satisfied that:
32
Managing biosecurity risks: conveyances Chapter 4
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Section 252
Biosecurity Bill 2012 No. , 2012 233
(a) the level of biosecurity risk associated with the vessel or any
1
person or thing on board the vessel is no longer unacceptable;
2
or
3
(b) biosecurity measures can be taken to reduce the level of
4
biosecurity risk associated with the vessel or any person or
5
thing on board the vessel to an acceptable level; or
6
(c) the direction should be revoked for any other reason.
7
Note:
See also section 608 (general provisions relating to directions).
8
252 Direction requiring vessel to be moored, or not to be moored, at
9
specified port--management of human health risks
10
(1) Subject to subsections (2) and (3), a chief human biosecurity
11
officer or a human biosecurity officer may give the person in
12
charge or the operator of a vessel that intends to be moored at a
13
port in Australian territory:
14
(a) a direction requiring the vessel to be moored at a specified
15
port in Australian territory; or
16
(b) a direction requiring the vessel not to be moored at one or
17
more specified ports in Australian territory.
18
Note:
The person in charge or the operator of the vessel may commit an
19
offence or contravene a civil penalty provision for failing to comply
20
with a direction given under this subsection (see section 253).
21
(2) A direction may be given under paragraph (1)(a) or (b) only if a
22
chief human biosecurity officer or a human biosecurity officer is
23
satisfied, on reasonable grounds, that the direction is necessary to
24
manage human health risks associated with the vessel or any
25
person or thing on board the vessel.
26
(3) A direction must not be given under paragraph (1)(b) requiring the
27
vessel not to be moored at any port in Australian territory.
28
(4) A chief human biosecurity officer or a human biosecurity officer
29
must revoke a direction given under paragraph (1)(b) if the officer
30
is satisfied that the direction is no longer necessary to manage
31
human health risks associated with the vessel or any person or
32
thing on board the vessel.
33
Chapter 4 Managing biosecurity risks: conveyances
Part 4 Entry points for incoming aircraft and vessels
Division 3 Entry points for vessels that intend to be moored in Australian territory
Section 253
234 Biosecurity Bill 2012 No. , 2012
(5) Subsection (4) does not, by implication, limit the power of a chief
1
human biosecurity officer or a human biosecurity officer to revoke
2
a direction given under paragraph (1)(b).
3
253 Person who is given direction must comply with it
4
(1) A person who is given a direction under a provision of this
5
Division must comply with the direction.
6
Fault-based offence
7
(2) A person commits an offence if:
8
(a) the person is given a direction under a provision of this
9
Division; and
10
(b) the person engages in conduct; and
11
(c) the conduct contravenes the direction.
12
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
13
Civil penalty provision
14
(3) A person is liable to a civil penalty if the person contravenes
15
subsection (1).
16
Civil penalty:
120 penalty units.
17
18
Managing biosecurity risks: conveyances Chapter 4
Entry points for incoming aircraft and vessels Part 4
Miscellaneous Division 4
Section 254
Biosecurity Bill 2012 No. , 2012 235
Division 4--Miscellaneous
1
254 Biosecurity officer etc. may enter landing places or ports
2
(1) This section applies in relation to the following premises:
3
(a) a landing place in Australian territory where an aircraft that is
4
subject to biosecurity control has landed or intends to land;
5
(b) a port in Australian territory where a vessel that is subject to
6
biosecurity control has been moored or intends to be moored.
7
(2) A biosecurity officer or a biosecurity enforcement officer may
8
enter the premises at any time for the purpose of performing
9
functions, or exercising powers, under this Act.
10
Note 1:
Before entering premises under this subsection, a biosecurity official
11
must be satisfied of the matters referred to in section 31 (the
12
principles).
13
Note 2:
For the obligations and powers of biosecurity enforcement officers
14
entering premises under this section, see Part 4 of Chapter 10.
15
(3) However, a biosecurity officer is not authorised to enter premises
16
under subsection (2) unless a biosecurity enforcement officer
17
accompanies the biosecurity officer.
18
(4) In this section, premises does not include a conveyance.
19
Note:
A biosecurity enforcement officer may also enter a landing place or
20
port that is a first point of entry for monitoring and searching purposes
21
(see Division 2 of Part 4 of Chapter 9).
22
23
Chapter 4 Managing biosecurity risks: conveyances
Part 5 Ship sanitation
Division 1 Introduction
Section 255
236 Biosecurity Bill 2012 No. , 2012
Part 5--Ship sanitation
1
Division 1--Introduction
2
255 Guide to this Part
3
This Part provides for the regulations to prescribe a scheme to give
4
effect to Australia's rights and obligations in relation to ship
5
sanitation for the purposes of the International Health Regulations.
6
7
Managing biosecurity risks: conveyances Chapter 4
Ship sanitation Part 5
Ship sanitation Division 2
Section 256
Biosecurity Bill 2012 No. , 2012 237
Division 2--Ship sanitation
1
256 Application of this Division
2
This Division applies in relation to vessels that are in Australian
3
territory and that:
4
(a) have entered Australian territory during a voyage that
5
commenced outside Australian territory; or
6
(b) intend to leave Australian territory.
7
257 Regulations may prescribe scheme in relation to ship sanitation
8
(1) The regulations may prescribe a scheme providing for the
9
following:
10
(a) the meaning of sanitation health risk;
11
(b) determining the level of sanitation health risk associated with
12
a vessel;
13
(c) the circumstances in which the level of sanitation health risk
14
associated with a vessel is unacceptable;
15
(d) certificates (to be called ship sanitation certificates) to be
16
issued in relation to the level of sanitation health risk
17
associated with a vessel;
18
(e) recognising such certificates issued by, or on behalf of,
19
competent authorities;
20
(f) the circumstances in which a vessel in a port declared under
21
section 258 may, at the request of the operator of the vessel,
22
be inspected for the purposes of the scheme;
23
(g) measures that the operator of a vessel may take to manage
24
sanitation health risks associated with the vessel for the
25
purposes of certification under the scheme;
26
(h) the circumstances in which section 259 (assessing and
27
managing sanitation health risks) applies to a vessel in a port
28
in Australian territory;
29
(i) without limiting section 616, disclosing information obtained
30
under the scheme to any of the following:
31
(i) a Commonwealth body;
32
(ii) a State or Territory body;
33
(iii) a biosecurity industry participant;
34
Chapter 4 Managing biosecurity risks: conveyances
Part 5 Ship sanitation
Division 2 Ship sanitation
Section 258
238 Biosecurity Bill 2012 No. , 2012
(iv) a competent authority;
1
(j) classes of vessels to which the scheme does not apply.
2
Note:
The regulations may prescribe decisions made under the scheme that
3
are reviewable decisions (see subsection 610(2)).
4
(2) Without limiting subsection (1), the scheme may provide for the
5
following matters in relation to the certificates referred to in
6
paragraphs (1)(d) and (e):
7
(a) extending the period for which a certificate remains in force;
8
(b) who may issue or extend a certificate;
9
(c) the form and content of a certificate;
10
(d) making notes on a certificate.
11
Giving effect to International Health Regulations
12
(3) The scheme must be appropriate and adapted to give effect to
13
Australia's rights and obligations in relation to ship sanitation
14
under the International Health Regulations.
15
258 Declaring ports at which vessels may be inspected for the
16
purposes of the scheme
17
(1) The Director of Human Biosecurity may declare that a port in
18
Australian territory is a port at which a vessel may be inspected for
19
the purposes of the scheme referred to in subsection 257(1).
20
(2) The Director of Human Biosecurity must consult the Director of
21
Biosecurity before making a declaration under subsection (1).
22
(3) A declaration made under subsection (1) is a legislative instrument,
23
but section 42 (disallowance) of the Legislative Instruments Act
24
2003 does not apply to the declaration.
25
259 Assessing and managing sanitation health risks
26
(1) This section applies to a vessel in a port in Australian territory in
27
the circumstances provided for by the scheme under paragraph
28
257(1)(h).
29
(2) The following provisions of this Act (the applied provisions) apply
30
in relation to the vessel, subject to the modifications set out in
31
Managing biosecurity risks: conveyances Chapter 4
Ship sanitation Part 5
Ship sanitation Division 2
Section 259
Biosecurity Bill 2012 No. , 2012 239
subsections (4) to (6), in the same way as those provisions apply in
1
relation to a vessel that is subject to biosecurity control because of
2
subsection 191(2):
3
(a) Division 4 of Part 2 of this Chapter (assessment of level of
4
biosecurity risk);
5
(b) Division 5 of Part 2 of this Chapter (biosecurity measures to
6
manage unacceptable level of biosecurity risk), other than the
7
following provisions:
8
(i) section 207 (to the extent that that section permits a
9
biosecurity officer to require a conveyance to be treated
10
in a manner that is likely to damage the conveyance);
11
(ii) section 208 (treatment that may damage conveyance);
12
(iii) section 209 (destruction of conveyance);
13
(c) sections 590 to 595 (functions and powers of biosecurity
14
officers and biosecurity enforcement officers);
15
(d) sections 655 and 656 (abandoned and forfeited conveyances);
16
(e) any other provision of this Act to the extent that it relates to
17
the provisions applied by paragraphs (a) to (d).
18
(3) The application of the applied provisions under this section is in
19
addition to, and does not limit, any application that the applied
20
provisions would otherwise have in relation to the vessel.
21
Modifications of the applied provisions
22
(4) A reference in the applied provisions to the level of biosecurity risk
23
associated with the vessel is taken to be a reference to the level of
24
sanitation health risk associated with the vessel.
25
(5) A reference in the applied provisions to biosecurity measures is
26
taken to be a reference to measures to manage sanitation health
27
risks.
28
(6) A reference in the applied provisions to a biosecurity officer is
29
taken to include a reference to a human biosecurity officer, and a
30
reference to the Director of Biosecurity is taken to include a
31
reference to the Director of Human Biosecurity.
32
33
Chapter 5 Ballast water and sediment
Part 1 Application and interpretation
Division 1 Introduction
Section 260
240 Biosecurity Bill 2012 No. , 2012
Chapter 5--Ballast water and sediment
1
Part 1--Application and interpretation
2
Division 1--Introduction
3
260 Guide to this Part
4
This Part describes how the scheme in this Chapter, which deals
5
with the ballast water and sediment of vessels, applies.
6
This Part also gives special meanings to certain expressions used in
7
this Chapter, and sets out the relationship between this Chapter and
8
other laws of the Commonwealth and States and Territories.
9
10
Ballast water and sediment Chapter 5
Application and interpretation Part 1
Application and interpretation Division 2
Section 261
Biosecurity Bill 2012 No. , 2012 241
Division 2--Application and interpretation
1
261 Extension of Chapter to every external Territory
2
This Chapter extends to every external Territory.
3
262 Vessels in dry dock in Australia
4
For the purposes of this Chapter, a vessel that is in dry dock in
5
Australia is taken to be in Australian seas.
6
263 Foreign vessels in waters adjacent to Australian Antarctic
7
Territory
8
For the purposes of this Chapter, a foreign vessel that is within the
9
outer limits of the territorial sea of the Australian Antarctic
10
Territory is taken not to be in Australian seas.
11
264 References to the person in charge of a vessel do not include
12
persons exercising certain powers
13
For the purposes of this Chapter, a reference to the person in
14
charge of a vessel does not include a reference to a person
15
exercising powers under an Australian law.
16
265 Permanent ballast water in sealed tanks not subject to this
17
Chapter
18
This Chapter does not apply in relation to permanent ballast water
19
that is in a sealed tank on a vessel and is not discharged from the
20
vessel.
21
266 Relationship with other Commonwealth laws
22
The provisions of this Chapter are in addition to, not in substitution
23
for, any other law of the Commonwealth.
24
Chapter 5 Ballast water and sediment
Part 1 Application and interpretation
Division 2 Application and interpretation
Section 267
242 Biosecurity Bill 2012 No. , 2012
267 Relationship with State and Territory laws
1
(1) This Chapter applies (subject to subsection (2)) to the exclusion of
2
a law, or a provision of a law, of a State or Territory to the extent
3
that the law or provision deals with biosecurity risks associated
4
with ballast water or sediment.
5
(2) This Chapter does not exclude or limit the concurrent operation of
6
a law, or a provision of a law, of a State or Territory to the extent
7
that the law or provision deals with the treatment or disposal of
8
ballast water or sediment after it has been removed from a vessel.
9
10
Ballast water and sediment Chapter 5
Management of discharge of ballast water Part 2
Introduction Division 1
Section 268
Biosecurity Bill 2012 No. , 2012 243
Part 2--Management of discharge of ballast water
1
Division 1--Introduction
2
268 Guide to this Part
3
Division 2 provides an offence of discharging ballast water in
4
Australian seas.
5
The rest of this Part sets out exceptions to the offence that apply if:
6
(a)
the ballast water was managed for discharge by an
7
approved method of ballast water management, or
8
by ballast water exchange (Division 3); or
9
(b)
the discharge was part of an acceptable ballast
10
water exchange (Division 4); or
11
(c)
the discharge was an approved discharge of ballast
12
water to a ballast water reception facility
13
(Division 5); or
14
(d)
the discharge was covered by an exemption
15
(Division 6, which also provides for the Director of
16
Biosecurity to grant exemptions); or
17
(e)
the ballast water was discharged at or near the
18
place where it was taken up into the vessel
19
(Division 7); or
20
(f)
the ballast water was discharged for reasons of
21
safety, by accident or in order to avoid or minimise
22
pollution (Division 8, which also sets out reporting
23
requirements for such discharges).
24
25
Chapter 5 Ballast water and sediment
Part 2 Management of discharge of ballast water
Division 2 Offence of discharging ballast water
Section 269
244 Biosecurity Bill 2012 No. , 2012
Division 2--Offence of discharging ballast water
1
269 Offence--discharging ballast water in Australian seas
2
(1) A person contravenes this subsection if:
3
(a) the person is the person in charge or the operator of a vessel;
4
and
5
(b) the vessel is in Australian seas; and
6
(c) the vessel discharges ballast water.
7
Note:
This section does not apply to certain discharges of ballast water (see
8
Divisions 3 to 8 of this Part).
9
Fault-based offence
10
(2) A person commits an offence if the person contravenes
11
subsection (1).
12
Penalty: 2,000 penalty units.
13
Note:
See section 575 in relation to the physical elements of an offence.
14
Strict liability offence
15
(3) A person commits an offence of strict liability if the person
16
contravenes subsection (1).
17
Penalty for contravention of this subsection: 500 penalty units.
18
Note:
For offences of strict liability, see section 6.1 of the Criminal Code.
19
20
Ballast water and sediment Chapter 5
Management of discharge of ballast water Part 2
Exceptions: ballast water management Division 3
Section 270
Biosecurity Bill 2012 No. , 2012 245
Division 3--Exceptions: ballast water management
1
Subdivision A--Exception
2
270 Exception--ballast water has been managed for discharge
3
Section 269 does not apply to a discharge of ballast water from a
4
vessel if the ballast water has been managed for discharge in
5
accordance with this Division.
6
Note:
A defendant bears an evidential burden in relation to the matter in this
7
section (see subsection 13.3(3) of the Criminal Code).
8
Subdivision B--Methods of ballast water management
9
271 Approved method of ballast water management
10
Ballast water discharged from a vessel has been managed for
11
discharge if:
12
(a) the ballast water has been managed using a method of ballast
13
water management approved by the Director of Biosecurity
14
under section 272 or 273; and
15
(b) at the time the ballast water is discharged:
16
(i) the vessel has a ballast water management plan; and
17
(ii) a ballast water management certificate is in force for the
18
vessel; and
19
(iii) the vessel has appropriate ballast water records; and
20
(c) the management of the ballast water was carried out in
21
accordance with the ballast water management plan; and
22
(d) the requirements (if any) prescribed by the regulations are
23
met in relation to the management and discharge of the
24
ballast water.
25
Note 1:
For when a vessel has appropriate ballast water records, see
26
sections 295 (for Australian vessels) and 296 (for foreign vessels).
27
Note 2:
The regulations may prescribe matters by reference to other
28
instruments as in force or existing from time to time (see section 274).
29
Chapter 5 Ballast water and sediment
Part 2 Management of discharge of ballast water
Division 3 Exceptions: ballast water management
Section 272
246 Biosecurity Bill 2012 No. , 2012
272 Method of ballast water management--application for approval
1
(1) An application may be made, in accordance with the regulations,
2
for the Director of Biosecurity to approve a method of ballast water
3
management.
4
Note 1:
A method of ballast water management may be a ballast water
5
treatment system, a prototype ballast water treatment system or some
6
other method.
7
Note 2:
An application fee may be required (see paragraph 628(4)(e)).
8
(2) The Director of Biosecurity may, by written notice to the applicant:
9
(a) grant the approval; or
10
(b) refuse to grant the approval.
11
Note:
A decision to refuse to grant an approval is a reviewable decision (see
12
Part 1 of Chapter 13).
13
(3) The Director of Biosecurity must make a decision under
14
subsection (2) in accordance with the regulations.
15
Note:
The regulations may prescribe matters by reference to other
16
instruments as in force or existing from time to time (see section 274).
17
(4) The Director of Biosecurity must make a decision and give notice
18
under subsection (2) before the end of 28 days after the application
19
was made.
20
(5) If the Director of Biosecurity does not give notice under
21
subsection (2) within the 28-day period referred to in
22
subsection (4), the Director is taken to have refused to grant the
23
approval at the end of that period.
24
(6) A copy of a notice granting an approval under subsection (2) must
25
be published on the Agriculture Department's website.
26
Director of Biosecurity may require further information
27
(7) The Director of Biosecurity may, by written notice, require a
28
person who has made an application under subsection (1) to give
29
the Director further information about the application.
30
(8) If a notice is given under subsection (7):
31
Ballast water and sediment Chapter 5
Management of discharge of ballast water Part 2
Exceptions: ballast water management Division 3
Section 273
Biosecurity Bill 2012 No. , 2012 247
(a) the 28-day period referred to in subsection (4) stops on the
1
day the notice is given; and
2
(b) that period begins again on the day after the information is
3
given to the Director.
4
273 Method of ballast water management--approval of method
5
approved by foreign country
6
(1) The Director of Biosecurity may, by legislative instrument,
7
approve a method of ballast water management if the method has
8
been approved by a foreign country in accordance with the Ballast
9
Water Convention as if it were in force for the foreign country
10
(whether or not the foreign country has signed the Convention).
11
(2) The Director of Biosecurity must make a decision to approve a
12
method of ballast water management under subsection (1) in
13
accordance with the regulations.
14
Note:
The regulations may prescribe matters by reference to other
15
instruments as in force or existing from time to time (see section 274).
16
274 Prescribing matters by reference to other instruments
17
Despite subsection 14(2) of the Legislative Instruments Act 2003,
18
regulations made for the purposes of this Subdivision may make
19
provision in relation to a matter by applying, adopting or
20
incorporating any matter contained in an instrument or other
21
writing as in force or existing from time to time.
22
Subdivision C--Ballast water exchange
23
275 Management by ballast water exchange
24
(1) Ballast water discharged from a tank on a vessel has been
25
managed for discharge if:
26
(a) at least the prescribed proportion (by volume) of the ballast
27
water in the tank immediately before the discharge had been
28
taken up in an acceptable ballast water exchange; and
29
(b) at the time the ballast water is discharged, the vessel has
30
appropriate ballast water records.
31
Chapter 5 Ballast water and sediment
Part 2 Management of discharge of ballast water
Division 3 Exceptions: ballast water management
Section 275
248 Biosecurity Bill 2012 No. , 2012
Note 1:
For when a vessel has appropriate ballast water records, see
1
sections 295 (for Australian vessels) and 296 (for foreign vessels).
2
Note 2:
For tank, see section 9.
3
(2) The regulations may prescribe a method for working out whether,
4
for the purposes of subsection (1), the prescribed proportion of the
5
ballast water in the tank of a vessel has been taken up.
6
(3) A ballast water exchange is an acceptable ballast water exchange
7
if it is conducted:
8
(a) in an area declared by the Director of Biosecurity under
9
subsection (4) to be an acceptable location for ballast water
10
exchange; and
11
(b) in the circumstances (if any) specified in the declaration for
12
that area; and
13
(c) in accordance with the requirements (if any) prescribed by
14
the regulations.
15
Note:
A person does not commit an offence under section 269 for
16
discharging ballast water as part of an acceptable ballast water
17
exchange, even if that ballast water has not been managed for
18
discharge (see section 276).
19
Declaration
20
(4) The Director of Biosecurity may, by legislative instrument, declare
21
that:
22
(a) a specified area is an acceptable location for ballast water
23
exchange; or
24
(b) an area that meets requirements specified in the declaration is
25
an acceptable location for ballast water exchange.
26
(5) A declaration of an area under subsection (4) may specify, for the
27
purposes of paragraph (3)(b), circumstances in which an acceptable
28
ballast water exchange may be conducted in the area.
29
30
Ballast water and sediment Chapter 5
Management of discharge of ballast water Part 2
Exception: discharge as part of acceptable ballast water exchange Division 4
Section 276
Biosecurity Bill 2012 No. , 2012 249
Division 4--Exception: discharge as part of acceptable
1
ballast water exchange
2
276 Exception--discharge as part of acceptable ballast water
3
exchange
4
Section 269 does not apply to a discharge of ballast water from a
5
vessel if the discharge is part of an acceptable ballast water
6
exchange.
7
Note:
A defendant bears an evidential burden in relation to the matter in this
8
section (see subsection 13.3(3) of the Criminal Code).
9
10
Chapter 5 Ballast water and sediment
Part 2 Management of discharge of ballast water
Division 5 Exception: approved discharge to ballast water reception facility
Section 277
250 Biosecurity Bill 2012 No. , 2012
Division 5--Exception: approved discharge to ballast
1
water reception facility
2
277 Exception--approved discharge to ballast water reception
3
facility
4
Section 269 does not apply to a discharge of ballast water from a
5
vessel if:
6
(a) the ballast water is discharged to a ballast water reception
7
facility in accordance with an approval given by the Director
8
of Biosecurity under section 278; and
9
(b) the ballast water is treated or disposed of at the facility in
10
accordance with the approval.
11
Note:
A defendant bears an evidential burden in relation to the matters in
12
this section (see subsection 13.3(3) of the Criminal Code).
13
278 Discharge to ballast water reception facility--application for
14
approval
15
(1) An application may be made, in accordance with the regulations,
16
for the Director of Biosecurity to approve:
17
(a) a discharge of ballast water to a ballast water reception
18
facility in Australian territory; and
19
(b) the manner in which the ballast water is to be treated or
20
disposed of at the facility.
21
Note:
An application fee may be required (see paragraph 628(4)(e)).
22
(2) The Director of Biosecurity may, by written notice to the applicant:
23
(a) grant the approval; or
24
(b) refuse to grant the approval.
25
Note:
A decision to refuse to grant an approval is a reviewable decision (see
26
Part 1 of Chapter 13).
27
(3) The Director of Biosecurity:
28
(a) must make a decision under subsection (2) in accordance
29
with the regulations; and
30
Ballast water and sediment Chapter 5
Management of discharge of ballast water Part 2
Exception: approved discharge to ballast water reception facility Division 5
Section 278
Biosecurity Bill 2012 No. , 2012 251
(b) must not approve a manner of treating or disposing of the
1
ballast water that would contravene a law of a State or
2
Territory.
3
Note:
For the relationship between this Chapter and State and Territory laws,
4
see section 267.
5
(4) The Director of Biosecurity must make a decision and give notice
6
under subsection (2) before the end of 28 days after the application
7
was made.
8
(5) If the Director of Biosecurity does not give notice under
9
subsection (2) within the 28-day period referred to in
10
subsection (4), the Director is taken to have refused to grant the
11
approval at the end of that period.
12
Director of Biosecurity may require further information
13
(6) The Director of Biosecurity may, by written notice, require a
14
person who has made an application under subsection (1) to give
15
the Director further information about the application.
16
(7) If a notice is given under subsection (6):
17
(a) the 28-day period referred to in subsection (4) stops on the
18
day the notice is given; and
19
(b) that period begins again on the day after the information is
20
given to the Director.
21
22
Chapter 5 Ballast water and sediment
Part 2 Management of discharge of ballast water
Division 6 Exception: discharge covered by exemption
Section 279
252 Biosecurity Bill 2012 No. , 2012
Division 6--Exception: discharge covered by exemption
1
279 Exception--discharge covered by exemption
2
Section 269 does not apply to a discharge of ballast water from a
3
vessel if:
4
(a) the discharge is covered by an exemption granted under
5
section 280; and
6
(b) the conditions of the exemption (if any) have been complied
7
with.
8
Note:
A defendant bears an evidential burden in relation to the matters in
9
this section (see subsection 13.3(3) of the Criminal Code).
10
280 Director of Biosecurity may grant exemptions
11
(1) An application may be made, in a manner acceptable to the
12
Director of Biosecurity, for an exemption for one or more
13
discharges of ballast water from a vessel that:
14
(a) are to be connected with one or more of the vessel's voyages
15
between specified ports or locations; and
16
(b) are to occur within a specified period of not more than 5
17
years.
18
Note:
An application fee may be required (see paragraph 628(4)(e)).
19
(2) The Director of Biosecurity may, by written notice to the applicant:
20
(a) grant the exemption:
21
(i) in whole or in part; and
22
(ii) subject to the conditions (if any) specified in the notice;
23
or
24
(b) refuse to grant the exemption.
25
Note 1:
A decision to refuse to grant an exemption, or a decision to impose a
26
condition on an exemption, is a reviewable decision (see Part 1 of
27
Chapter 13).
28
Note 2:
An exemption may be varied or revoked under section 281.
29
Subsection 33(3) of the Acts Interpretation Act 1901 does not apply in
30
relation to subsection (2) of this section.
31
(3) The Director of Biosecurity must make a decision under
32
subsection (2) in accordance with the regulations.
33
Ballast water and sediment Chapter 5
Management of discharge of ballast water Part 2
Exception: discharge covered by exemption Division 6
Section 281
Biosecurity Bill 2012 No. , 2012 253
(4) The Director of Biosecurity must make a decision and give notice
1
under subsection (2) before the end of 28 days after the application
2
was made.
3
(5) If the Director of Biosecurity does not give notice under
4
subsection (2) within the 28-day period referred to in
5
subsection (4), the Director is taken to have refused to grant the
6
exemption at the end of that period.
7
Decisions made by computer
8
(6) The Director of Biosecurity may arrange for the use, under the
9
Director's control, of computer programs for making decisions on
10
the granting or refusal of exemptions or the conditions to be
11
imposed on exemptions.
12
(7) A decision made by the operation of a computer program under an
13
arrangement made under subsection (6) is taken to be a decision
14
made by the Director of Biosecurity.
15
281 Variation and revocation of exemption
16
The Director of Biosecurity may, at any time, vary or revoke an
17
exemption granted under section 280, by writing given to the
18
owner, person in charge or operator of the vessel to which the
19
exemption relates, or to an agent of the vessel, if the Director is
20
satisfied that:
21
(a) a condition of the exemption has been contravened; or
22
(b) the exemption would not be granted if an application for the
23
exemption were made at that time.
24
Note:
A decision to vary or revoke an exemption is a reviewable decision
25
(see Part 1 of Chapter 13).
26
27
Chapter 5 Ballast water and sediment
Part 2 Management of discharge of ballast water
Division 7 Exception: taking up and discharging ballast water at same place
Section 282
254 Biosecurity Bill 2012 No. , 2012
Division 7--Exception: taking up and discharging ballast
1
water at same place
2
282 Exception--taking up and discharging ballast water at same
3
place
4
Section 269 does not apply to a discharge of ballast water from a
5
vessel if:
6
(a) all the ballast water discharged was taken up at a port or
7
another point; and
8
(b) that ballast water was not mixed with other ballast water that
9
had not been managed for discharge in accordance with
10
Division 3 of this Part; and
11
(c) the discharge occurs at the port, or within 1 nautical mile of
12
the other point, where the ballast water was taken up.
13
Note:
A defendant bears an evidential burden in relation to the matters in
14
this section (see subsection 13.3(3) of the Criminal Code).
15
16
Ballast water and sediment Chapter 5
Management of discharge of ballast water Part 2
Exceptions and reporting requirements relating to safety, accidents and pollution
Division 8
Section 283
Biosecurity Bill 2012 No. , 2012 255
Division 8--Exceptions and reporting requirements
1
relating to safety, accidents and pollution
2
283 Exceptions--safety, accidents and pollution
3
Safety
4
(1) Section 269 does not apply to a discharge of ballast water from a
5
vessel if the discharge is necessary for the purpose of:
6
(a) ensuring the safety of the vessel in an emergency; or
7
(b) saving life at sea.
8
Note:
A defendant bears an evidential burden in relation to the matters in
9
this subsection (see subsection 13.3(3) of the Criminal Code).
10
Accidents
11
(2) Section 269 does not apply to a discharge of ballast water from a
12
vessel if:
13
(a) the discharge is accidental and results from damage to the
14
vessel or its equipment; and
15
(b) all reasonable precautions to prevent or minimise the
16
discharge are taken at the following times:
17
(i) before and after the occurrence of the damage;
18
(ii) before and after the discovery of the damage;
19
(iii) before and after the discovery of the discharge; and
20
(c) none of the following intentionally caused the damage, or
21
was reckless as to the occurrence of the damage:
22
(i) the person in charge of the vessel;
23
(ii) the owner of the vessel;
24
(iii) the operator of the vessel.
25
Note:
A defendant bears an evidential burden in relation to the matters in
26
this subsection (see subsection 13.3(3) of the Criminal Code).
27
Avoiding or minimising pollution
28
(3) Section 269 does not apply to a discharge of ballast water from a
29
vessel if the discharge is for the purpose of avoiding or minimising
30
pollution from the vessel.
31
Chapter 5 Ballast water and sediment
Part 2 Management of discharge of ballast water
Division 8 Exceptions and reporting requirements relating to safety, accidents and
pollution
Section 284
256 Biosecurity Bill 2012 No. , 2012
Note:
A defendant bears an evidential burden in relation to the matter in this
1
subsection (see subsection 13.3(3) of the Criminal Code).
2
284 Report of discharge relating to safety, accident or pollution
3
Report of discharge must be made to Director of Biosecurity
4
(1) The person in charge or the operator of a vessel must make a report
5
to the Director of Biosecurity if:
6
(a) the vessel discharges ballast water in Australian seas; and
7
(b) the discharge is:
8
(i) for the purpose of ensuring the safety of the vessel in an
9
emergency or saving life at sea; or
10
(ii)
accidental;
or
11
(iii) for the purpose of avoiding or minimising pollution
12
from the vessel.
13
(2) The report must:
14
(a) set out the reason for the discharge; and
15
(b) be made as soon as practicable, and in any case within 24
16
hours, after a member of the vessel's crew becomes aware of
17
the discharge.
18
(3) Subsection (1) does not apply in relation to a discharge of ballast
19
water if the discharge is covered by an exception referred to in
20
section 270, 276, 277, 279 or 282.
21
Note 1:
Those sections deal with ballast water that has been managed for
22
discharge, ballast water discharged as part of an acceptable ballast
23
water exchange, ballast water discharged to a ballast water reception
24
facility, discharges covered by exemptions and ballast water taken up
25
and discharged at the same place.
26
Note 2:
A defendant bears an evidential burden in relation to the matter in this
27
subsection (see subsection 13.3(3) of the Criminal Code).
28
Strict liability offence
29
(4) A person commits an offence of strict liability if:
30
(a) the person is the person in charge or the operator of a vessel;
31
and
32
Ballast water and sediment Chapter 5
Management of discharge of ballast water Part 2
Exceptions and reporting requirements relating to safety, accidents and pollution
Division 8
Section 284
Biosecurity Bill 2012 No. , 2012 257
(b) a report under subsection (1) is required to be made in
1
relation to the vessel; and
2
(c) the report is not made in accordance with this section.
3
Penalty for contravention of this subsection: 500 penalty units.
4
Note:
For offences of strict liability, see section 6.1 of the Criminal Code.
5
6
Chapter 5 Ballast water and sediment
Part 3 Ballast water management plans and ballast water management certificates
Division 1 Introduction
Section 285
258 Biosecurity Bill 2012 No. , 2012
Part 3--Ballast water management plans and
1
ballast water management certificates
2
Division 1--Introduction
3
285 Guide to this Part
4
This Part provides for ballast water management plans and ballast
5
water management certificates for vessels to be issued, endorsed
6
and recognised.
7
Division 2 sets out what a ballast water management plan is, and
8
provides for the regulations to prescribe a scheme for the Director
9
of Biosecurity to approve ballast water management plans for
10
Australian vessels.
11
Division 3 sets out what a ballast water management certificate is,
12
and provides for the regulations to prescribe a scheme for the
13
Director of Biosecurity and survey authorities to survey vessels for
14
the purposes of certification.
15
16
Ballast water and sediment Chapter 5
Ballast water management plans and ballast water management certificates Part 3
Ballast water management plans Division 2
Section 286
Biosecurity Bill 2012 No. , 2012 259
Division 2--Ballast water management plans
1
286 Ballast water management plan
2
(1)
A
ballast water management plan for an Australian vessel is a
3
document:
4
(a) that deals with ballast water management for the vessel and
5
the disposal of sediments from the vessel's ballast water; and
6
(b) for which an approval by the Director of Biosecurity is in
7
force under section 287.
8
(2)
A
ballast water management plan for a foreign vessel is a
9
document:
10
(a) that deals with ballast water management for the vessel and
11
the disposal of sediments from the vessel's ballast water; and
12
(b) that meets the requirements prescribed by the regulations;
13
and
14
(c) for which an approval by the Administration of the vessel is
15
in force.
16
287 Approval of ballast water management plan for Australian
17
vessel
18
The regulations may prescribe a scheme for the Director of
19
Biosecurity to do any of the following in relation to an Australian
20
vessel:
21
(a) approve a ballast water management plan for the vessel;
22
(b) approve an amendment of the vessel's ballast water
23
management plan;
24
(c) cancel the approval of the vessel's ballast water management
25
plan.
26
Note:
A decision to refuse to approve a ballast water management plan, a
27
decision to refuse to approve an amendment of a plan or a decision to
28
cancel a plan is a reviewable decision (see Part 1 of Chapter 13).
29
30
Chapter 5 Ballast water and sediment
Part 3 Ballast water management plans and ballast water management certificates
Division 3 Ballast water management certificates
Section 288
260 Biosecurity Bill 2012 No. , 2012
Division 3--Ballast water management certificates
1
288 Ballast water management certificate
2
(1)
A
ballast water management certificate for an Australian vessel is
3
a document that:
4
(a) certifies that the vessel has a ballast water management plan
5
for which an approval by the Director of Biosecurity is in
6
force under section 287; and
7
(b) certifies that the vessel, and any equipment on the vessel, is
8
capable of giving effect to the plan; and
9
(c) is issued or endorsed:
10
(i) by the Director of Biosecurity, or a survey authority,
11
under section 290; or
12
(ii) by or on behalf of the government of a foreign country
13
on request by the Commonwealth; and
14
(d) if subparagraph (c)(ii) of this subsection applies--meets the
15
requirements prescribed by regulations made for the purposes
16
of paragraph (2)(d).
17
(2)
A
ballast water management certificate for a foreign vessel is a
18
document that:
19
(a) certifies that the vessel has a ballast water management plan
20
for which an approval by the vessel's Administration is in
21
force; and
22
(b) certifies that the vessel, and any equipment on the vessel, is
23
capable of giving effect to the plan; and
24
(c) is issued or endorsed:
25
(i) by or on behalf of the vessel's Administration; or
26
(ii) by the Director of Biosecurity, or a survey authority,
27
under section 290 on request by the vessel's
28
Administration; and
29
(d) meets the requirements prescribed by the regulations.
30
Ballast water and sediment Chapter 5
Ballast water management plans and ballast water management certificates Part 3
Ballast water management certificates Division 3
Section 289
Biosecurity Bill 2012 No. , 2012 261
289 Director of Biosecurity may authorise person to be survey
1
authority
2
(1) The Director of Biosecurity may, in writing, authorise a person to
3
be a survey authority if the Director is satisfied the person has
4
suitable qualifications to perform the functions of a survey
5
authority under section 290.
6
(2) An authorisation made under subsection (1) is not a legislative
7
instrument.
8
(3) A survey authority may charge a fee in relation to anything done
9
under this Division.
10
(4) A fee must not be such as to amount to taxation.
11
290 Issue or endorsement etc. of ballast water management
12
certificate on behalf of the Commonwealth
13
Australian vessels
14
(1) The regulations may prescribe a scheme for the Director of
15
Biosecurity or a survey authority to do, on behalf of the
16
Commonwealth, any of the following in relation to an Australian
17
vessel:
18
(a) survey the vessel to determine whether a ballast water
19
management certificate should be issued or endorsed for the
20
vessel;
21
(b) issue a ballast water management certificate for the vessel;
22
(c) endorse a ballast water management certificate for the vessel;
23
(d) withdraw a ballast water management certificate for the
24
vessel;
25
(e) extend the period during which a ballast water management
26
certificate for the vessel is in force;
27
(f) amend the expiry date on a ballast water management
28
certificate for the vessel.
29
Note:
A decision to refuse to issue, endorse or amend a ballast water
30
management certificate for an Australian vessel, a decision to refuse to
31
extend the period during which such a certificate is in force or a
32
decision to withdraw such a certificate is a reviewable decision (see
33
Part 1 of Chapter 13).
34
Chapter 5 Ballast water and sediment
Part 3 Ballast water management plans and ballast water management certificates
Division 3 Ballast water management certificates
Section 290
262 Biosecurity Bill 2012 No. , 2012
Foreign vessels
1
(2) The scheme prescribed for the purposes of subsection (1) may also
2
provide for the Director of Biosecurity or a survey authority to do,
3
on behalf of the Commonwealth, any of the following in relation to
4
a foreign vessel on request by the vessel's Administration:
5
(a) survey the vessel to determine whether a ballast water
6
management certificate should be issued or endorsed for the
7
vessel;
8
(b) issue a ballast water management certificate for the vessel;
9
(c) endorse a ballast water management certificate for the vessel.
10
Note:
A decision to refuse to issue or endorse a ballast water management
11
certificate for a foreign vessel is a reviewable decision (see Part 1 of
12
Chapter 13).
13
Certificate is not a legislative instrument
14
(3) A ballast water management certificate issued or endorsed under
15
this section is not a legislative instrument.
16
17
Ballast water and sediment Chapter 5
Ballast water records Part 4
Introduction Division 1
Section 291
Biosecurity Bill 2012 No. , 2012 263
Part 4--Ballast water records
1
Division 1--Introduction
2
291 Guide to this Part
3
This Part sets out how vessels are to keep records of their ballast
4
water operations.
5
Division 2 sets out record-keeping requirements for Australian
6
vessels, and the circumstances in which an Australian vessel has
7
appropriate ballast water records for the purposes of using certain
8
methods of ballast water management.
9
Division 3 sets out the circumstances in which a foreign vessel has
10
appropriate ballast water records for the purposes of using certain
11
methods of ballast water management.
12
13
Chapter 5 Ballast water and sediment
Part 4 Ballast water records
Division 2 Australian vessels
Section 292
264 Biosecurity Bill 2012 No. , 2012
Division 2--Australian vessels
1
292 Australian vessel must have ballast water record system
2
(1) An Australian vessel that is capable of carrying ballast water must
3
have on board a ballast water record system that complies with the
4
requirements (if any) prescribed by the regulations.
5
Note:
A ballast water record system is a system for making and keeping
6
records of details about the vessel's ballast water and ballast water
7
operations (see section 9).
8
Strict liability offence
9
(2) A person commits an offence of strict liability if:
10
(a) the person is the person in charge of an Australian vessel; and
11
(b) the vessel is capable of carrying ballast water; and
12
(c) the vessel does not have a ballast water record system as
13
required by subsection (1).
14
Penalty for contravention of this subsection: 200 penalty units.
15
Note:
For offences of strict liability, see section 6.1 of the Criminal Code.
16
293 Recording ballast water operations and disposal of sediment
17
(1) A record must be made if an Australian vessel (whether in or
18
outside Australian seas):
19
(a) conducts a ballast water operation; or
20
(b) disposes of sediment.
21
Note:
A vessel conducts a ballast water operation if ballast water is taken up
22
into the vessel, discharged from the vessel, or treated or circulated on
23
the vessel for the purposes of ballast water management (see
24
section 9).
25
(2) A record required under subsection (1) must:
26
(a) be made using the vessel's ballast water record system; and
27
(b) be made as soon as practicable after the ballast water
28
operation is conducted or the sediment is disposed of; and
29
(c) comply with the requirements (if any) prescribed by the
30
regulations.
31
Ballast water and sediment Chapter 5
Ballast water records Part 4
Australian vessels Division 2
Section 294
Biosecurity Bill 2012 No. , 2012 265
Strict liability offence--failure to make record in accordance with
1
this section
2
(3) A person commits an offence of strict liability if:
3
(a) the person is the person in charge of an Australian vessel; and
4
(b) subsection (1) requires a record to be made; and
5
(c) the record is not made in accordance with this section.
6
Penalty: 200 penalty units.
7
Note:
For offences of strict liability, see section 6.1 of the Criminal Code.
8
Fault-based offence--making a false or misleading record
9
(4) A person commits an offence if:
10
(a) the person makes a record using an Australian vessel's ballast
11
water record system; and
12
(b) the record is false or misleading in a material particular.
13
Penalty for contravention of this subsection: 200 penalty units.
14
294 Records must be retained
15
(1) Each record made using an Australian vessel's ballast water record
16
system must be retained on board the vessel for 2 years after the
17
record is made.
18
(2) Each record made using an Australian vessel's ballast water record
19
system must be retained:
20
(a) on board the vessel; or
21
(b) in the control of the owner of the vessel;
22
for a further 3 years starting at the end of the 2-year period referred
23
to in subsection (1).
24
(3) For the purposes of subsections (1) and (2), if an Australian vessel
25
is being towed by another vessel and has no crew on board, a
26
record that is on board the other vessel is taken to be on board the
27
Australian vessel.
28
Strict liability offence
29
(4) A person commits an offence of strict liability if:
30
Chapter 5 Ballast water and sediment
Part 4 Ballast water records
Division 2 Australian vessels
Section 295
266 Biosecurity Bill 2012 No. , 2012
(a) the person is the owner of an Australian vessel; and
1
(b) subsection (1) or (2) requires a record to be retained; and
2
(c) the record is not retained in accordance with this section.
3
Penalty: 200 penalty units.
4
Note:
For offences of strict liability, see section 6.1 of the Criminal Code.
5
(5) Subsections (1) and (2) do not apply in relation to a record if:
6
(a) the record was lost or destroyed; and
7
(b) the loss or destruction of the record was beyond the control
8
of:
9
(i) the present owner of the vessel; and
10
(ii) if the present owner was not the owner when the record
11
was lost or destroyed--the person who was the owner
12
of the vessel at that time.
13
Note:
A defendant bears an evidential burden in relation to the matter in this
14
subsection (see subsection 13.3(3) of the Criminal Code).
15
295 Appropriate ballast water records for Australian vessel
16
(1) An Australian vessel has appropriate ballast water records if:
17
(a) the vessel has on board records, made in accordance with
18
section 293, that are sufficient to allow any biosecurity risk
19
associated with the vessel's ballast water or sediment to be
20
identified and assessed; and
21
(b) the vessel does not have on board any records, made using
22
the vessel's ballast water record system, that are false or
23
misleading in a material particular.
24
Note:
A vessel that has appropriate ballast water records may use certain
25
methods of ballast water management to deal with ballast water
26
discharged in Australian seas (see Division 3 of Part 2 of this
27
Chapter).
28
(2) For the purposes of subsection (1), if an Australian vessel is being
29
towed by another vessel and has no crew on board, a record that is
30
on board the other vessel is taken to be on board the Australian
31
vessel.
32
33
Ballast water and sediment Chapter 5
Ballast water records Part 4
Foreign vessels Division 3
Section 296
Biosecurity Bill 2012 No. , 2012 267
Division 3--Foreign vessels
1
296 Appropriate ballast water records for foreign vessel
2
(1) A foreign vessel has appropriate ballast water records if:
3
(a) the vessel has on board records that are sufficient to allow
4
any biosecurity risk associated with the vessel's ballast water
5
and sediment to be identified and assessed; and
6
(b) the records referred to in paragraph (a) meet the requirements
7
(if any) prescribed by the regulations; and
8
(c) the vessel does not have on board any records, made using
9
the vessel's ballast water record system, that are false or
10
misleading in a material particular.
11
Note:
A vessel that has appropriate ballast water records may use certain
12
methods of ballast water management to deal with ballast water
13
discharged in Australian seas (see Division 3 of Part 2 of this
14
Chapter).
15
(2) For the purposes of subsection (1), if a foreign vessel has no crew
16
on board and is being towed by another vessel, a record that is on
17
board the other vessel is taken to be on board the foreign vessel.
18
19
Chapter 5 Ballast water and sediment
Part 5 Offence of disposing of sediment
Division 1 Introduction
Section 297
268 Biosecurity Bill 2012 No. , 2012
Part 5--Offence of disposing of sediment
1
Division 1--Introduction
2
297 Guide to this Part
3
This Part provides an offence of disposing of sediment in
4
Australian seas, and sets out exceptions in relation to safety,
5
accidents, and avoiding or minimising pollution.
6
7
Ballast water and sediment Chapter 5
Offence of disposing of sediment Part 5
Offence of disposing of sediment Division 2
Section 298
Biosecurity Bill 2012 No. , 2012 269
Division 2--Offence of disposing of sediment
1
298 Offence--disposing of sediment in Australian seas
2
(1) A person contravenes this subsection if:
3
(a) the person is the person in charge or the operator of a vessel;
4
and
5
(b) the vessel is in Australian seas; and
6
(c) the vessel disposes of sediment; and
7
(d) the sediment is not disposed of to a sediment reception
8
facility.
9
Note:
For exceptions relating to safety, accidents and pollution, see
10
section 299.
11
Fault-based offence
12
(2) A person commits an offence if the person contravenes
13
subsection (1).
14
Penalty: 2,000 penalty units.
15
Note:
See section 575 in relation to the physical elements of an offence.
16
Strict liability offence
17
(3) A person commits an offence of strict liability if the person
18
contravenes subsection (1).
19
Penalty for contravention of this subsection: 500 penalty units.
20
Note:
For offences of strict liability, see section 6.1 of the Criminal Code.
21
299 Exceptions--safety, accidents and pollution
22
Safety
23
(1) Section 298 does not apply to the disposal of sediment from a
24
vessel if the disposal is necessary for the purpose of:
25
(a) ensuring the safety of the vessel in an emergency; or
26
(b) saving life at sea.
27
Chapter 5 Ballast water and sediment
Part 5 Offence of disposing of sediment
Division 2 Offence of disposing of sediment
Section 299
270 Biosecurity Bill 2012 No. , 2012
Note:
A defendant bears an evidential burden in relation to the matters in
1
this subsection (see subsection 13.3(3) of the Criminal Code).
2
Accidents
3
(2) Section 298 does not apply to the disposal of sediment from a
4
vessel if:
5
(a) the disposal is accidental and results from damage to the
6
vessel or its equipment; and
7
(b) all reasonable precautions to prevent or minimise the disposal
8
are taken at the following times:
9
(i) before and after the occurrence of the damage;
10
(ii) before and after the discovery of the damage;
11
(iii) before and after the discovery of the disposal; and
12
(c) none of the following intentionally caused the damage, or
13
was reckless as to the occurrence of the damage:
14
(i) the person in charge of the vessel;
15
(ii) the owner of the vessel;
16
(iii) the operator of the vessel.
17
Note:
A defendant bears an evidential burden in relation to the matters in
18
this subsection (see subsection 13.3(3) of the Criminal Code).
19
Avoiding or minimising pollution
20
(3) Section 298 does not apply to the disposal of sediment from a
21
vessel if the disposal is for the purpose of avoiding or minimising
22
pollution from the vessel.
23
Note:
A defendant bears an evidential burden in relation to the matter in this
24
subsection (see subsection 13.3(3) of the Criminal Code).
25
26
Ballast water and sediment Chapter 5
Compliance and enforcement Part 6
Introduction Division 1
Section 300
Biosecurity Bill 2012 No. , 2012 271
Part 6--Compliance and enforcement
1
Division 1--Introduction
2
300 Guide to this Part
3
This Part gives the Director of Biosecurity and biosecurity officers
4
powers to enforce the provisions of this Chapter.
5
Under Division 2, a biosecurity officer may require the owner of an
6
Australian vessel to produce records from the vessel's ballast water
7
record system.
8
Under Division 3, the person in charge of a vessel may be given a
9
direction not to discharge ballast water, or a direction in relation to
10
the movement of the vessel.
11
12
Chapter 5 Ballast water and sediment
Part 6 Compliance and enforcement
Division 2 Power to require owner of Australian vessel to provide ballast water records
Section 301
272 Biosecurity Bill 2012 No. , 2012
Division 2--Power to require owner of Australian vessel to
1
provide ballast water records
2
301 Power to require owner of Australian vessel to provide ballast
3
water records
4
(1) A biosecurity officer may require the owner of an Australian vessel
5
to produce to the officer any record required to be retained under
6
section 294, or a copy of such a record certified by or on behalf of
7
the owner.
8
Note 1:
This power may be exercised whether or not the Australian vessel is in
9
Australian seas.
10
Note 2:
A person may commit an offence or contravene a civil penalty
11
provision if the person provides false or misleading documents (see
12
section 137.2 of the Criminal Code and section 508 of this Act).
13
(2) A biosecurity officer:
14
(a) may make copies of, or take extracts from, a record produced
15
under subsection (1); and
16
(b) for that purpose, may remove the record from the place at
17
which it was produced.
18
(3) A person who is required to produce a record, or a copy of a
19
record, under subsection (1) must comply with the requirement as
20
soon as reasonably practicable.
21
Strict liability offence
22
(4) A person commits an offence of strict liability if:
23
(a) the person is required to produce a record, or a copy of a
24
record, under subsection (1); and
25
(b) the person fails to comply with the requirement as soon as
26
reasonably practicable.
27
Penalty for contravention of this subsection: 80 penalty units.
28
Note:
For offences of strict liability, see section 6.1 of the Criminal Code.
29
30
Ballast water and sediment Chapter 5
Compliance and enforcement Part 6
Directions powers Division 3
Section 302
Biosecurity Bill 2012 No. , 2012 273
Division 3--Directions powers
1
302 Directions not to discharge ballast water
2
(1) The Director of Biosecurity or a biosecurity officer may give a
3
direction under this section to the person in charge of a vessel in
4
Australian seas if the Director or the biosecurity officer is satisfied
5
that:
6
(a) a sample of the vessel's ballast water indicates that the vessel
7
poses an unacceptable level of biosecurity risk; or
8
(b) the person in charge or crew of the vessel are not familiar
9
with, or have not implemented, essential shipboard
10
procedures relating to ballast water management that are set
11
out in the ballast water management plan for the vessel.
12
(2) The Director of Biosecurity or a biosecurity officer may direct the
13
person in charge not to discharge ballast water from the vessel until
14
the conditions specified in the direction are met.
15
Note:
A person who fails to comply with a direction given under this section
16
may commit an offence (see section 305).
17
(3) A condition specified in the direction must be for the purposes of
18
reducing the biosecurity risk associated with the vessel to an
19
acceptable level.
20
(4) The person in charge of the vessel must comply with the direction.
21
(5) A biosecurity officer may vary or revoke the direction.
22
Note:
See section 306 for the manner in which a direction may be varied or
23
revoked.
24
303 Directions about movement of vessel
25
(1) This section applies if the Director of Biosecurity has clear grounds
26
for believing that an offence against this Chapter has been
27
committed involving:
28
(a) an Australian vessel; or
29
(b) a foreign vessel in, or proceeding to, a port in Australian
30
territory or an installation in Australian seas.
31
Chapter 5 Ballast water and sediment
Part 6 Compliance and enforcement
Division 3 Directions powers
Section 304
274 Biosecurity Bill 2012 No. , 2012
(2) The Director of Biosecurity may direct the person in charge of the
1
vessel to do one or more of the following:
2
(a) remove the vessel from a port in Australian territory as soon
3
as practicable;
4
(b) keep the vessel out of a port in Australian territory;
5
(c) take the vessel to the nearest suitable repair yard or sediment
6
reception facility as soon as practicable;
7
(d) keep the vessel in a specified location.
8
Note 1:
Before giving a direction under this subsection, a biosecurity official
9
must be satisfied of the matters referred to in section 31 (the
10
principles).
11
Note 2:
A person who fails to comply with a direction given under this
12
subsection may commit an offence (see section 305).
13
Note 3:
A decision to give a direction under this subsection is a reviewable
14
decision (see Part 1 of Chapter 13).
15
(3) The person in charge of the vessel must comply with the direction.
16
304 Directions about movement of vessel--variation or revocation
17
(1) The Director of Biosecurity may vary or revoke a direction given
18
under subsection 303(2).
19
Note 1:
See section 306 for the manner in which a direction may be varied or
20
revoked.
21
Note 2:
A decision to refuse to vary or revoke a direction under this subsection
22
is a reviewable decision (see Part 1 of Chapter 13).
23
(2) The Director of Biosecurity may make it a prerequisite for the
24
variation or revocation of a direction given to the person in charge
25
of a vessel under paragraph 303(2)(b) or (d) that the owner of the
26
vessel provide a security that:
27
(a) is in a form acceptable to the Director; and
28
(b) is an amount that, in the Director's opinion, is equivalent to
29
the maximum amount of all penalties, other amounts of
30
money, costs and expenses that could be payable by the
31
person in charge and the owner of the vessel in respect of
32
each offence that was a basis for giving the direction.
33
Ballast water and sediment Chapter 5
Compliance and enforcement Part 6
Directions powers Division 3
Section 305
Biosecurity Bill 2012 No. , 2012 275
305 Offence--contravening a direction
1
Strict liability offence
2
(1) A person commits an offence of strict liability if:
3
(a) the person is the person in charge of a vessel; and
4
(b) the person is given a direction under this Division; and
5
(c) the person fails to comply with the direction.
6
Penalty: 2,000 penalty units.
7
Note:
For offences of strict liability, see section 6.1 of the Criminal Code.
8
Exceptions
9
(2) Subsection (1) does not apply if the failure to comply with the
10
direction is necessary for the purpose of:
11
(a) ensuring the safety of the vessel in an emergency; or
12
(b) saving life at sea.
13
Note:
A defendant bears an evidential burden in relation to the matters in
14
this subsection (see subsection 13.3(3) of the Criminal Code).
15
(3) Subsection (1) does not apply if:
16
(a) the failure to comply with the direction is accidental and
17
results from damage to the vessel or its equipment; and
18
(b) all reasonable efforts are made to comply with the direction;
19
and
20
(c) none of the following intentionally caused the damage, or
21
was reckless as to the occurrence of the damage:
22
(i) the person in charge of the vessel;
23
(ii) the owner of the vessel;
24
(iii) the operator of the vessel.
25
Note:
A defendant bears an evidential burden in relation to the matters in
26
this subsection (see subsection 13.3(3) of the Criminal Code).
27
(4) Subsection (1) does not apply if the failure to comply with the
28
direction is for the purpose of avoiding or minimising pollution
29
from the vessel.
30
Note:
A defendant bears an evidential burden in relation to the matter in this
31
subsection (see subsection 13.3(3) of the Criminal Code).
32
Chapter 5 Ballast water and sediment
Part 6 Compliance and enforcement
Division 3 Directions powers
Section 306
276 Biosecurity Bill 2012 No. , 2012
306 Manner of giving directions etc.
1
(1) A direction may be given or varied under this Division by any
2
means of communication (including by electronic means).
3
(2) Notice of revocation of a direction under this Division may be
4
given by any means of communication (including by electronic
5
means).
6
(3)
If:
7
(a) a direction is given, or is varied or revoked, under this
8
Division; and
9
(b) the direction is given, varied or revoked otherwise than in
10
writing;
11
the person who gave, varied or revoked the direction must give the
12
recipient of the direction a written notice setting out the effect of
13
the direction, variation or revocation.
14
(4) If a direction under this Division is given in writing, the direction
15
is not a legislative instrument.
16
(5) A notice under subsection (3) is not a legislative instrument.
17
18
Ballast water and sediment Chapter 5
Miscellaneous Part 7
Section 307
Biosecurity Bill 2012 No. , 2012 277
Part 7--Miscellaneous
1
2
307 Compensation for undue detention or delay of vessel
3
(1) If a vessel is unduly detained or delayed under this Chapter, the
4
Commonwealth is liable to pay the owner of the vessel a
5
reasonable amount of compensation for any loss or damage
6
suffered by the owner as a result of the undue detention or delay.
7
Note: For
unduly detained or delayed, see section 9.
8
(2) If the owner and the Commonwealth do not agree on the amount of
9
compensation, the owner may institute proceedings in a relevant
10
court for the recovery from the Commonwealth of such reasonable
11
amount of compensation as the court determines.
12
13
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 1 Introduction
Section 308
278 Biosecurity Bill 2012 No. , 2012
Chapter 6--Managing biosecurity risks:
1
monitoring, control and response
2
Part 1--Introduction
3
4
308 Guide to this Part
5
This Part deals with some matters that apply to the whole of this
6
Chapter.
7
This Part includes a modified definition of biosecurity risk for this
8
Chapter, sets out the main objects of this Chapter and provides that
9
this Chapter does not apply in relation to certain goods and
10
conveyances.
11
During a biosecurity emergency period, this Chapter may apply in
12
a modified way (see Divisions 5 and 6 of Part 1 of Chapter 8).
13
309 Modified meaning of biosecurity risk
14
(1) For the purposes of this Chapter, and any other provision of this
15
Act to the extent that it relates to this Chapter, biosecurity risk
16
means (subject to subsection (2)):
17
(a) the likelihood of a disease or pest:
18
(i) entering Australian territory or a part of Australian
19
territory; or
20
(ii) emerging, establishing itself or spreading in Australian
21
territory or a part of Australian territory; and
22
(b) the potential for any of the following:
23
(i) the disease or pest to cause harm to human, animal or
24
plant health;
25
(ii) the disease or pest to cause harm to the environment;
26
(iii) economic consequences associated with the entry,
27
emergence, establishment or spread of the disease or
28
pest.
29
Managing biosecurity risks: monitoring, control and response Chapter 6
Introduction Part 1
Section 310
Biosecurity Bill 2012 No. , 2012 279
(2) However, if a pest is suspected of being, or is known to be, an
1
invasive pest, biosecurity risk means:
2
(a) the likelihood of the invasive pest:
3
(i) entering Australian territory or a part of Australian
4
territory; or
5
(ii) emerging, establishing itself or spreading in Australian
6
territory or a part of Australian territory; and
7
(b) the potential for the invasive pest to cause harm to
8
ecosystems, habitats or species.
9
Note:
See sections 24 and 25 in relation to the application of this Act in
10
relation to invasive pests.
11
310 Objects of this Chapter
12
The main objects of this Chapter are:
13
(a) to provide for the assessment of the level of biosecurity risk
14
posed by a disease or pest that may be present in or on goods
15
or premises in Australian territory; and
16
(b) to provide for biosecurity measures to be taken in relation to
17
goods or premises in Australian territory if the level of
18
biosecurity risk posed by a disease or pest that may be
19
present in or on the goods or premises is considered to be
20
unacceptable; and
21
(c) to provide for powers to be exercised in, or in relation to
22
goods or premises in, certain areas in Australian territory for
23
the purpose of managing biosecurity risks posed by diseases
24
or pests that may pose an unacceptable level of biosecurity
25
risk in, or in relation to, the area; and
26
(d) to provide for powers to be exercised in, or in relation to
27
goods or premises in, certain areas in Australian territory for
28
the purpose of monitoring whether a disease or pest that may
29
pose an unacceptable level of biosecurity risk:
30
(i) has entered, or has emerged, established itself or spread
31
in, the area; or
32
(ii) is likely to enter, or to emerge, establish itself or spread
33
in, the area.
34
Note 1:
This Chapter does not apply in relation to certain goods or
35
conveyances (see section 311).
36
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 1 Introduction
Section 311
280 Biosecurity Bill 2012 No. , 2012
Note 2:
Premises include a conveyance (see paragraph (a) of the definition of
1
premises in section 9).
2
Note 3:
See section 309 in relation to the meaning of biosecurity risk in this
3
Chapter.
4
Note 4:
Before exercising a power under this Chapter, a biosecurity official
5
must be satisfied of the matters referred to in section 31 (the
6
principles).
7
311 Application of this Chapter
8
This Chapter does not apply in relation to, and powers must not be
9
exercised under this Chapter in relation to, any of the following:
10
(a) goods that are subject to biosecurity control;
11
(b) goods in relation to which an exposed goods order is in force;
12
(c) a conveyance that is subject to biosecurity control.
13
Note:
Part 1 of Chapter 3 deals with goods that are subject to biosecurity
14
control. Division 9 of that Part deals with goods in relation to which
15
an exposed goods order is in force. Chapter 4 deals with conveyances
16
that are subject to biosecurity control.
17
18
Managing biosecurity risks: monitoring, control and response Chapter 6
Assessment of level of biosecurity risk Part 2
Introduction Division 1
Section 312
Biosecurity Bill 2012 No. , 2012 281
Part 2--Assessment of level of biosecurity risk
1
Division 1--Introduction
2
312 Guide to this Part
3
This Part deals with assessing the level of biosecurity risk posed by
4
a disease or pest that may be present in or on goods or premises in
5
Australian territory.
6
Division 2 provides for the circumstances in which powers may be
7
exercised under this Act (including in premises) to assess the level
8
of biosecurity risk posed by a disease or pest that may be present in
9
or on the goods or premises.
10
Division 3 sets out the powers (the biosecurity risk assessment
11
powers) that may be exercised in relation to the goods or premises
12
if a biosecurity officer suspects, on reasonable grounds, that a
13
disease or pest may be present in or on the goods or premises, and
14
the disease or pest may pose an unacceptable level of biosecurity
15
risk.
16
The biosecurity risk assessment powers may be exercised for any
17
of the following purposes:
18
(a)
to establish whether the disease or pest is present
19
in or on the goods or premises;
20
(b)
if possible, to identify the disease or pest;
21
(c)
to assess the level of biosecurity risk posed by the
22
disease or pest.
23
Before exercising a power set out in Division 3, a biosecurity
24
official must be satisfied of the matters referred to in section 31
25
(the principles).
26
Division 4 sets out offences that apply in relation to contraventions
27
relating to biosecurity risk assessment powers that are exercised in
28
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 2 Assessment of level of biosecurity risk
Division 1 Introduction
Section 312
282 Biosecurity Bill 2012 No. , 2012
accordance with a biosecurity control order (see Part 4) or a
1
biosecurity response zone determination (see Part 5).
2
3
Managing biosecurity risks: monitoring, control and response Chapter 6
Assessment of level of biosecurity risk Part 2
Circumstances in which biosecurity risk assessment powers may be exercised Division
2
Section 313
Biosecurity Bill 2012 No. , 2012 283
Division 2--Circumstances in which biosecurity risk
1
assessment powers may be exercised
2
313 Reasonable suspicion that disease or pest may pose
3
unacceptable level of biosecurity risk
4
If a biosecurity officer suspects, on reasonable grounds, that:
5
(a) a disease or pest may be present in or on goods or premises in
6
Australian territory; and
7
(b) the disease or pest may pose an unacceptable level of
8
biosecurity risk;
9
the powers set out in Division 3 may be exercised for any of the
10
following purposes:
11
(c) to establish whether the disease or pest is present in or on the
12
goods or premises;
13
(d) if possible, to identify the disease or pest;
14
(e) to assess the level of biosecurity risk posed by the disease or
15
pest.
16
Note 1:
This Chapter does not apply in relation to certain goods or
17
conveyances (see section 311).
18
Note 2:
Premises include a conveyance (see paragraph (a) of the definition of
19
premises in section 9).
20
Note 3:
See section 309 in relation to the meaning of biosecurity risk in this
21
Chapter.
22
Note 4:
A biosecurity officer or biosecurity enforcement officer may be
23
assisted by other persons in exercising powers in accordance with this
24
section (see section 531).
25
Note 5:
Before exercising a power under Division 3, a biosecurity official
26
must be satisfied of the matters referred to in section 31 (the
27
principles).
28
314 Exercise of biosecurity risk assessment powers in premises
29
(1) A biosecurity officer or a biosecurity enforcement officer may
30
enter any premises in Australian territory for the purpose of
31
exercising powers in accordance with section 313.
32
Note:
Premises include a conveyance (see paragraph (a) of the definition of
33
premises in section 9).
34
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 2 Assessment of level of biosecurity risk
Division 2 Circumstances in which biosecurity risk assessment powers may be
exercised
Section 314
284 Biosecurity Bill 2012 No. , 2012
(2) However, an officer is not authorised to enter premises under
1
subsection (1) unless:
2
(a) the occupier of the premises has consented to the entry and
3
the officer has shown his or her identity card if required by
4
the occupier; or
5
(b) the entry is made under a biosecurity risk assessment
6
warrant.
7
Note 1:
For the issue of warrants, and the obligations and powers of
8
biosecurity enforcement officers and biosecurity officers in entering
9
premises under a warrant or with consent, see Parts 2 and 3 of
10
Chapter 10.
11
Note 2:
If the premises can be accessed only by entering other premises, an
12
adjacent premises warrant may be needed (see Division 3 of Part 4 of
13
Chapter 9).
14
15
Managing biosecurity risks: monitoring, control and response Chapter 6
Assessment of level of biosecurity risk Part 2
Biosecurity risk assessment powers Division 3
Section 315
Biosecurity Bill 2012 No. , 2012 285
Division 3--Biosecurity risk assessment powers
1
315 Application of this Division
2
This Division sets out powers that may be exercised in relation to
3
goods or premises for any of the purposes referred to in
4
section 313.
5
Note:
Premises include a conveyance (see paragraph (a) of the definition of
6
premises in section 9).
7
316 Direction to secure goods or conveyance
8
(1) A biosecurity officer may direct a person in charge of goods or a
9
conveyance to secure the goods or conveyance in a manner
10
specified by the biosecurity officer.
11
Civil penalty provision
12
(2) A person who is given a direction under subsection (1) must
13
comply with the direction.
14
Civil penalty:
120 penalty units.
15
Note 1:
If a person is given a direction under subsection (1) in accordance
16
with a biosecurity control order or a biosecurity response zone
17
determination and the person fails to comply with the direction, the
18
person may also commit an offence (see section 325).
19
Note 2:
If judicial review is sought in relation to a direction given under
20
subsection (1), the direction remains in force unless a court finally
21
determines the validity of the decision to give the direction (see
22
section 573).
23
Note 3:
See also section 608 (general provisions relating to directions).
24
317 Inspections and taking samples of goods or premises
25
(1) A biosecurity officer may inspect goods or premises.
26
Note:
Premises include a conveyance (see paragraph (a) of the definition of
27
premises in section 9).
28
(2) A biosecurity officer may:
29
(a) take samples of the goods or premises; or
30
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 2 Assessment of level of biosecurity risk
Division 3 Biosecurity risk assessment powers
Section 318
286 Biosecurity Bill 2012 No. , 2012
(b) direct a person in charge of the goods or premises to deliver
1
to the biosecurity officer such samples of the goods or
2
premises as are specified in the direction; or
3
(c) arrange for another person, with appropriate qualifications or
4
expertise, to take samples of the goods or premises.
5
(3) A biosecurity officer may:
6
(a) carry out tests on any samples taken or delivered under
7
subsection (2); or
8
(b) arrange for another person, with appropriate qualifications or
9
expertise, to carry out tests on any of those samples.
10
Note:
See also section 592 (carrying out tests on samples).
11
Civil penalty provision
12
(4) A person who is given a direction under paragraph (2)(b) must
13
comply with the direction.
14
Civil penalty:
120 penalty units.
15
Note:
If a person is given a direction under paragraph (2)(b) in accordance
16
with a biosecurity control order or a biosecurity response zone
17
determination and the person fails to comply with the direction, the
18
person may also commit an offence (see section 325).
19
Meaning of person in charge of premises (other than a
20
conveyance)
21
(5) For the purposes of paragraph (2)(b), the person in charge of
22
premises (other than a conveyance) is the owner or the occupier of
23
the premises.
24
318 Asking questions about goods or premises
25
(1) A biosecurity officer may require a person who the biosecurity
26
officer suspects, on reasonable grounds, has information in relation
27
to goods or premises to answer questions, or provide information
28
in writing, in relation to the goods or premises.
29
Note 1:
Premises include a conveyance (see paragraph (a) of the definition of
30
premises in section 9).
31
Managing biosecurity risks: monitoring, control and response Chapter 6
Assessment of level of biosecurity risk Part 2
Biosecurity risk assessment powers Division 3
Section 319
Biosecurity Bill 2012 No. , 2012 287
Note 2:
A person may commit an offence or contravene a civil penalty
1
provision if the person provides false or misleading information (see
2
section 137.1 of the Criminal Code and section 507 of this Act).
3
Civil penalty provision
4
(2) A person who is required to answer questions, or provide
5
information in writing, under subsection (1) must comply with the
6
requirement.
7
Civil penalty:
120 penalty units.
8
Note 1:
This section is not subject to the privilege against self-incrimination
9
(see section 661).
10
Note 2:
If a person is required to answer questions, or provide information in
11
writing, under subsection (1) in accordance with a biosecurity control
12
order or a biosecurity response zone determination and the person fails
13
to comply with the requirement, the person may also commit an
14
offence (see section 326).
15
319 Requiring documents relating to goods or premises to be
16
produced
17
(1) A biosecurity officer may require a person who the biosecurity
18
officer suspects, on reasonable grounds, has the custody or control
19
of documents in relation to goods or premises to produce to the
20
biosecurity officer such of those documents as are specified by the
21
biosecurity officer.
22
Note 1:
Premises include a conveyance (see paragraph (a) of the definition of
23
premises in section 9).
24
Note 2:
A person may commit an offence or contravene a civil penalty
25
provision if the person provides false or misleading documents (see
26
section 137.2 of the Criminal Code and section 508 of this Act).
27
(2) A biosecurity officer:
28
(a) may make copies of, or take extracts from, a document
29
produced under subsection (1); and
30
(b) for that purpose, may remove the document from the place at
31
which it was produced.
32
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 2 Assessment of level of biosecurity risk
Division 3 Biosecurity risk assessment powers
Section 320
288 Biosecurity Bill 2012 No. , 2012
Civil penalty provision
1
(3) A person who is required to produce documents under
2
subsection (1) must comply with the requirement.
3
Civil penalty:
120 penalty units.
4
Note 1:
This section is not subject to the privilege against self-incrimination
5
(see section 661).
6
Note 2:
If a person is required to produce documents under subsection (1) in
7
accordance with a biosecurity control order or a biosecurity response
8
zone determination and the person fails to comply with the
9
requirement, the person may also commit an offence (see section 327).
10
320 Movement of goods or conveyance
11
(1) A biosecurity officer may:
12
(a) give any of the following directions to a person in charge of
13
goods or a conveyance:
14
(i) a direction not to move, deal with or interfere with the
15
goods or conveyance;
16
(ii) a direction to move the goods or conveyance, as soon as
17
practicable, to a place specified by the biosecurity
18
officer;
19
(iii) any other direction relating to the movement of the
20
goods or conveyance; or
21
(b) cause the goods or conveyance to be moved to another place.
22
Civil penalty provision
23
(2) A person who is given a direction under paragraph (1)(a) must
24
comply with the direction.
25
Civil penalty:
120 penalty units.
26
Note:
If a person is given a direction under paragraph (1)(a) in accordance
27
with a biosecurity control order or a biosecurity response zone
28
determination and the person fails to comply with the direction, the
29
person may also commit an offence (see section 325).
30
Managing biosecurity risks: monitoring, control and response Chapter 6
Assessment of level of biosecurity risk Part 2
Biosecurity risk assessment powers Division 3
Section 321
Biosecurity Bill 2012 No. , 2012 289
321 Biosecurity officer may affix notice to goods or conveyance
1
(1) A biosecurity officer may affix a notice to, or as near as reasonably
2
practicable to:
3
(a) goods or a conveyance that have been secured in accordance
4
with a direction given under subsection 316(1); or
5
(b) goods or a conveyance in relation to which a direction
6
relating to movement has been given under paragraph
7
320(1)(a); or
8
(c) goods or a conveyance that have been moved under
9
paragraph 320(1)(b).
10
(2) The notice must state:
11
(a) that a disease or pest may be present in or on the goods or
12
conveyance; and
13
(b) that the disease or pest may pose an unacceptable level of
14
biosecurity risk; and
15
(c) that the goods or conveyance have been secured or moved (as
16
the case may be), in accordance with this Chapter, to enable a
17
biosecurity officer to exercise powers under this Chapter; and
18
(d) the effect of subsections (3) and (4) and sections 322 and
19
328.
20
Civil penalty provision
21
(3) A person is liable to a civil penalty if:
22
(a) a notice is affixed to, or as near as reasonably practicable to,
23
goods or a conveyance under subsection (1); and
24
(b) the person interferes with, removes or defaces the notice; and
25
(c) none of the following applies:
26
(i) the person is authorised to engage in the conduct
27
referred to in paragraph (b) in accordance with an
28
approved arrangement;
29
(ii) the person needs to engage in that conduct to comply
30
with a direction given under another provision of this
31
Act by a biosecurity official;
32
(iii) the person has been given permission to engage in that
33
conduct under section 595.
34
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 2 Assessment of level of biosecurity risk
Division 3 Biosecurity risk assessment powers
Section 322
290 Biosecurity Bill 2012 No. , 2012
Civil penalty:
120 penalty units.
1
(4) Subsection (3) does not apply if the person is authorised to engage
2
in the conduct referred to in paragraph (3)(b) under this Act or
3
under another Australian law.
4
Note:
A defendant bears an evidential burden in relation to the matter in this
5
subsection (see section 552).
6
322 Unauthorised persons must not move etc. goods or conveyance
7
to which notice has been affixed
8
Civil penalty provision
9
(1) A person is liable to a civil penalty if:
10
(a) a notice has been affixed to, or as near as reasonably
11
practicable to, goods or a conveyance under subsection
12
321(1); and
13
(b) the person moves, deals with or interferes with the goods or
14
conveyance; and
15
(c) none of the following applies:
16
(i) the person is authorised to engage in the conduct
17
referred to in paragraph (b) in accordance with an
18
approved arrangement;
19
(ii) the person needs to engage in that conduct to comply
20
with a direction given under another provision of this
21
Act by a biosecurity official;
22
(iii) the person has been given permission to engage in that
23
conduct under section 595.
24
Civil penalty:
120 penalty units.
25
(2) Subsection (1) does not apply if the person is authorised to engage
26
in the conduct referred to in paragraph (1)(b) under this Act or
27
under another Australian law.
28
Note 1:
A defendant bears an evidential burden in relation to the matter in this
29
subsection (see section 552).
30
Note 2:
If a notice is affixed to, or as near as reasonably practicable to, goods
31
or a conveyance under subsection 321(1) in accordance with a
32
biosecurity control order or a biosecurity response zone determination
33
Managing biosecurity risks: monitoring, control and response Chapter 6
Assessment of level of biosecurity risk Part 2
Biosecurity risk assessment powers Division 3
Section 323
Biosecurity Bill 2012 No. , 2012 291
and the person contravenes subsection (1), the person may also
1
commit an offence (see section 328).
2
323 Operating electronic equipment on premises
3
(1) The powers in this section may be exercised in relation to
4
electronic equipment on premises.
5
(2) A biosecurity enforcement officer may:
6
(a) operate electronic equipment on the premises for a purpose
7
for which the premises were entered; and
8
(b) use a disk, tape or other storage device that:
9
(i) is on the premises; and
10
(ii) can be used with the equipment or is associated with it.
11
(3) A biosecurity enforcement officer may exercise the powers
12
referred to in subsection (4) if information (relevant data) is found
13
in the exercise of the power under subsection (2) that is relevant to
14
a purpose for which the premises were entered.
15
(4) The powers are as follows:
16
(a) the power to operate electronic equipment on the premises to
17
put the relevant data in documentary form and remove the
18
documents so produced from the premises;
19
(b) the power to operate electronic equipment on the premises to
20
transfer the relevant data to a disk, tape or other storage
21
device that:
22
(i) is brought to the premises for the exercise of the power;
23
or
24
(ii) is on the premises and the use of which for that purpose
25
has been agreed in writing by the occupier of the
26
premises;
27
and remove the disk, tape or other storage device from the
28
premises.
29
(5) A biosecurity enforcement officer may operate electronic
30
equipment as mentioned in subsection (2) or (4) only if the
31
biosecurity enforcement officer believes on reasonable grounds
32
that the operation of the equipment can be carried out without
33
causing damage to the equipment.
34
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 2 Assessment of level of biosecurity risk
Division 3 Biosecurity risk assessment powers
Section 324
292 Biosecurity Bill 2012 No. , 2012
Note:
For compensation for damage to electronic equipment, see
1
section 533.
2
324 Expert assistance to operate electronic equipment
3
(1) The powers in this section may be exercised in relation to
4
electronic equipment on premises if:
5
(a) a biosecurity enforcement officer enters the premises under a
6
biosecurity risk assessment warrant, a biosecurity control
7
order warrant or a biosecurity response zone warrant (the
8
relevant warrant); and
9
(b) the relevant warrant authorises the biosecurity enforcement
10
officer to exercise the powers in this section.
11
Securing equipment
12
(2) The biosecurity enforcement officer may secure any electronic
13
equipment that is on the premises if the biosecurity enforcement
14
officer suspects on reasonable grounds that:
15
(a) there is relevant data on the premises; and
16
(b) the relevant data may be accessible by operating the
17
equipment; and
18
(c) expert assistance is required to operate the equipment; and
19
(d) the relevant data may be destroyed, altered, or otherwise
20
interfered with, if the biosecurity enforcement officer does
21
not take action under this subsection.
22
The equipment may be secured by locking it up, placing a guard or
23
any other means.
24
(3)
Relevant data means information relevant to a purpose for which
25
the premises were entered.
26
(4) The biosecurity enforcement officer must give notice to the
27
occupier of the premises, or another person who apparently
28
represents the occupier, of:
29
(a) the biosecurity enforcement officer's intention to secure the
30
equipment; and
31
(b) the fact that the equipment may be secured for up to 24
32
hours.
33
Managing biosecurity risks: monitoring, control and response Chapter 6
Assessment of level of biosecurity risk Part 2
Biosecurity risk assessment powers Division 3
Section 324
Biosecurity Bill 2012 No. , 2012 293
Period equipment may be secured
1
(5) The equipment may be secured until the earlier of the following
2
happens:
3
(a) the 24-hour period ends;
4
(b) the equipment has been operated by an expert.
5
Note:
For compensation for damage to electronic equipment, see
6
section 533.
7
Extensions
8
(6) The biosecurity enforcement officer may apply to an issuing
9
officer for an extension of the 24-hour period if the biosecurity
10
enforcement officer believes on reasonable grounds that the
11
equipment needs to be secured for longer than that period.
12
(7) Before making the application, the biosecurity enforcement officer
13
must give notice to the occupier of the premises, or another person
14
who apparently represents the occupier, of his or her intention to
15
apply for an extension. The occupier or other person is entitled to
16
be heard in relation to that application.
17
(8) The provisions of Part 2 of Chapter 10 relating to the issue of the
18
relevant warrant apply, with such modifications as are necessary,
19
to the issue of an extension.
20
(9) The 24-hour period may be extended more than once.
21
22
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 2 Assessment of level of biosecurity risk
Division 4 Offences
Section 325
294 Biosecurity Bill 2012 No. , 2012
Division 4--Offences
1
Note:
The offences in this Division apply only in relation to contraventions relating to powers
2
that are exercised in accordance with a biosecurity control order or a biosecurity
3
response zone determination.
4
325 Contravention of direction
5
A person commits an offence if:
6
(a) the power to give a direction under any of the following
7
provisions is specified in a biosecurity control order or a
8
biosecurity response zone determination:
9
(i) subsection 316(1) (direction to secure goods or a
10
conveyance);
11
(ii) paragraph 317(2)(b) (direction to deliver samples of
12
goods or premises);
13
(iii) paragraph 320(1)(a) (direction relating to movement of
14
goods or conveyance); and
15
(b) the person is given a direction under any of those provisions;
16
and
17
(c) the direction is given in accordance with the biosecurity
18
control order or the biosecurity response zone determination
19
(as the case may be); and
20
(d) the person engages in conduct; and
21
(e) the conduct contravenes the direction.
22
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
23
Note:
The person may also contravene a civil penalty provision for
24
contravening the direction (see subsections 316(2), 317(4) and
25
320(2)).
26
326 Contravention of requirement to answer questions etc.
27
A person commits an offence if:
28
(a) the power given by subsection 318(1) to require a person to
29
answer questions, or provide information in writing, is
30
specified in a biosecurity control order or a biosecurity
31
response zone determination; and
32
(b) the person is required to answer questions, or provide
33
information in writing, under that subsection; and
34
Managing biosecurity risks: monitoring, control and response Chapter 6
Assessment of level of biosecurity risk Part 2
Offences Division 4
Section 327
Biosecurity Bill 2012 No. , 2012 295
(c) the requirement is made in accordance with the biosecurity
1
control order or the biosecurity response zone determination
2
(as the case may be); and
3
(d) the person fails to comply with the requirement.
4
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
5
Note:
The person may also contravene a civil penalty provision for
6
contravening the direction (see subsection 318(2)).
7
327 Contravention of requirement to produce documents
8
A person commits an offence if:
9
(a) the power given by subsection 319(1) to require a person to
10
produce documents is specified in a biosecurity control order
11
or a biosecurity response zone determination; and
12
(b) the person is required to produce documents under that
13
subsection; and
14
(c) the requirement is made in accordance with the biosecurity
15
control order or the biosecurity response zone determination
16
(as the case may be); and
17
(d) the person fails to comply with the requirement.
18
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
19
Note:
The person may also contravene a civil penalty provision for
20
contravening the direction (see subsection 319(3)).
21
328 Unauthorised persons must not move etc. goods or conveyance
22
to which notice has been affixed
23
(1) A person commits an offence if:
24
(a) the power to affix a notice to, or as near as reasonably
25
practicable to, goods or a conveyance under subsection
26
321(1) is specified in a biosecurity control order or a
27
biosecurity response zone determination; and
28
(b) a notice has been affixed to, or as near as reasonably
29
practicable to, goods or a conveyance under that subsection;
30
and
31
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 2 Assessment of level of biosecurity risk
Division 4 Offences
Section 328
296 Biosecurity Bill 2012 No. , 2012
(c) the notice was affixed in accordance with the biosecurity
1
control order or the biosecurity response zone determination
2
(as the case may be); and
3
(d) the person moves, deals with or interferes with the goods or
4
conveyance; and
5
(e) none of the following applies:
6
(i) the person is authorised to engage in the conduct
7
referred to in paragraph (d) in accordance with an
8
approved arrangement;
9
(ii) the person needs to engage in that conduct to comply
10
with a direction given under another provision of this
11
Act by a biosecurity official;
12
(iii) the person has been given permission to engage in that
13
conduct under section 595.
14
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
15
Note:
The person may also contravene a civil penalty provision for moving,
16
dealing with or interfering with the goods or conveyance (see
17
subsection 322(1)).
18
(2) Subsection (1) does not apply if the person is authorised to engage
19
in the conduct referred to in paragraph (1)(d) under this Act or
20
under another Australian law.
21
Note:
A defendant bears an evidential burden in relation to the matter in this
22
subsection (see subsection 13.3(3) of the Criminal Code).
23
24
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity measures to manage unacceptable level of biosecurity risk Part 3
Introduction Division 1
Section 329
Biosecurity Bill 2012 No. , 2012 297
Part 3--Biosecurity measures to manage
1
unacceptable level of biosecurity risk
2
Division 1--Introduction
3
329 Guide to this Part
4
This Part sets out the powers that may be exercised (including
5
biosecurity measures that may be required to be taken) in relation
6
to goods or premises in Australian territory for the purpose of
7
managing biosecurity risks posed by a disease or pest that may be
8
present in or on the goods or premises.
9
Divisions 2, 3 and 4 set out the powers that may be exercised. They
10
include:
11
(a)
powers relating to persons entering or leaving
12
premises; and
13
(b)
powers relating to treatment of goods or premises;
14
and
15
(c)
powers relating to destruction of goods or
16
premises; and
17
(d)
powers provided by regulations; and
18
(e)
other
powers.
19
A power set out in this Part must not be exercised in relation to
20
goods or premises unless:
21
(a)
the power is specified in a biosecurity control order
22
that relates to the goods or premises; or
23
(b)
the power is specified in a biosecurity response
24
zone determination that relates to the goods or
25
premises and the goods or premises are in the
26
biosecurity response zone.
27
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 3 Biosecurity measures to manage unacceptable level of biosecurity risk
Division 1 Introduction
Section 329
298 Biosecurity Bill 2012 No. , 2012
Before exercising a power set out in this Part, a biosecurity official
1
must be satisfied of the matters referred to in section 31 (the
2
principles).
3
Division 5 sets out offences and civil penalty provisions.
4
Division 2 of Part 5 of Chapter 13 provides that certain goods and
5
conveyances, in relation to which biosecurity measures have been
6
required under this Chapter, are considered to have been
7
abandoned or forfeited, and provides for how they may be dealt
8
with.
9
10
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity measures to manage unacceptable level of biosecurity risk Part 3
Powers that may be exercised: general Division 2
Section 330
Biosecurity Bill 2012 No. , 2012 299
Division 2--Powers that may be exercised: general
1
Subdivision A--Circumstances in which powers may be
2
exercised
3
330 Circumstances in which powers set out in this Division may be
4
exercised
5
(1) A power set out in a provision of this Division must not be
6
exercised in relation to goods or premises in Australian territory
7
unless:
8
(a) the power is specified in a biosecurity control order that
9
relates to the goods or premises; or
10
(b) the power is specified in a biosecurity response zone
11
determination that relates to the goods or premises and the
12
goods or premises are in the biosecurity response zone.
13
Note 1:
A power set out in a provision of this Division that is specified in a
14
biosecurity control order or a biosecurity response zone determination
15
may be exercised for the purpose of managing the biosecurity risk
16
posed by a disease or pest to which the order or determination relates
17
(see sections 358 and 368).
18
Note 2:
Before exercising a power specified in a biosecurity control order or a
19
biosecurity response zone determination, a biosecurity official must be
20
satisfied of the matters referred to in section 31 (the principles).
21
Note 3:
Part 5 deals with biosecurity response zones.
22
(2) This section has effect subject to subsection 397(2).
23
Note:
Subsection 397(2) provides that the powers set out in sections 331 and
24
332 (entry and exit requirements) may be exercised in relation to
25
premises in a biosecurity activity zone.
26
Subdivision B--Powers relating to entry to and exit from
27
premises
28
331 Entry and exit etc. requirements--persons
29
Requirements may be imposed by notice in writing
30
(1) A biosecurity officer may, by notice in writing, impose any of the
31
following requirements in relation to premises:
32
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 3 Biosecurity measures to manage unacceptable level of biosecurity risk
Division 2 Powers that may be exercised: general
Section 331
300 Biosecurity Bill 2012 No. , 2012
(a) a requirement that persons entering or leaving the premises
1
do so at specified places;
2
(b) a requirement that specified classes of persons not enter the
3
premises;
4
(c) a requirement that persons entering, or in, the premises wear
5
specified clothing or equipment (or both) that is designed to
6
prevent a disease or pest from emerging, establishing itself or
7
spreading in the premises;
8
(d) a requirement that persons not interfere with the premises.
9
Note 1:
Premises include a conveyance (see paragraph (a) of the definition of
10
premises in section 9).
11
Note 2:
The powers in this section may also be exercised in relation to
12
premises in a biosecurity activity zone (see subsection 397(2)).
13
Note 3:
A person may commit an offence or contravene a civil penalty
14
provision if the person fails to comply with a requirement imposed
15
under this subsection that applies to the person (see section 347).
16
(2) If a notice under subsection (1) imposes the requirement referred to
17
in paragraph (1)(c), the notice must also specify the following:
18
(a) the circumstances in which a person is required to wear the
19
clothing or equipment;
20
(b) the period during which, or the times at which, the person is
21
required to wear the clothing or equipment;
22
(c) instructions for wearing the clothing or equipment.
23
(3) Except as permitted by paragraph (1)(b) or (c), a notice under
24
subsection (1) must not require an individual to be subject to a
25
biosecurity measure of a kind set out in Subdivision B of
26
Division 3 of Part 3 of Chapter 2.
27
Note:
That Subdivision sets out the biosecurity measures that may be
28
included in a human biosecurity control order.
29
(4) However, subsection (3) does not prevent the Director of
30
Biosecurity or a biosecurity officer exercising a power under
31
Subdivision B of Division 2 of Part 4 of Chapter 12.
32
Note:
Under that Subdivision, a biosecurity officer may request an
33
individual to be decontaminated, and may require an individual's
34
clothing and any personal effects to be decontaminated.
35
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity measures to manage unacceptable level of biosecurity risk Part 3
Powers that may be exercised: general Division 2
Section 332
Biosecurity Bill 2012 No. , 2012 301
Notice must be affixed to premises
1
(5) A notice under subsection (1) in relation to premises must be
2
affixed at each entry and exit point of the premises.
3
Notice is not a legislative instrument
4
(6) A notice under subsection (1) is not a legislative instrument.
5
332 Entry and exit etc. requirements--goods and conveyances
6
Requirements may be imposed by notice in writing
7
(1) A biosecurity officer may, by notice in writing, impose any of the
8
following requirements in relation to premises:
9
(a) a requirement that persons bringing goods on to the premises
10
do so at specified places;
11
(b) a requirement that specified classes of goods not be brought
12
on to the premises;
13
(c) a requirement that conveyances entering or leaving the
14
premises do so at specified places;
15
(d) a requirement that specified classes of conveyances not enter
16
the premises.
17
Note 1:
Premises include a conveyance (see paragraph (a) of the definition of
18
premises in section 9).
19
Note 2:
The powers in this section may also be exercised in relation to
20
premises in a biosecurity activity zone (see subsection 397(2)).
21
Note 3:
A person may commit an offence or contravene a civil penalty
22
provision if the person fails to comply with a requirement imposed
23
under this subsection that applies to the person (see section 347).
24
Notice must be affixed to premises
25
(2) A notice under subsection (1) in relation to premises must be
26
affixed at each entry and exit point of the premises.
27
Notice is not a legislative instrument
28
(3) A notice under subsection (1) is not a legislative instrument.
29
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 3 Biosecurity measures to manage unacceptable level of biosecurity risk
Division 2 Powers that may be exercised: general
Section 333
302 Biosecurity Bill 2012 No. , 2012
Subdivision C--Powers relating to treatment of goods,
1
conveyances and other premises
2
333 Treatment of goods
3
(1) A biosecurity officer may, subject to subsection (2), require goods
4
to be treated in a specified manner.
5
Note:
If the treatment might damage the goods, a person in charge of the
6
goods must be asked to agree to the treatment (see section 334).
7
(2) A biosecurity officer must not require high-value goods to be
8
treated in a manner that the biosecurity officer suspects, on
9
reasonable grounds, is likely to damage the goods, without the
10
written approval of the Director of Biosecurity.
11
334 Treatment that may damage goods
12
(1) This section applies if:
13
(a) a biosecurity officer requires goods to be treated in a
14
specified manner under subsection 333(1); and
15
(b) a biosecurity officer suspects, on reasonable grounds, that
16
treatment of the goods in that manner is likely to damage the
17
goods.
18
Notice must be given that treatment is likely to damage goods
19
(2) Before any treatment is carried out on the goods, a biosecurity
20
officer must, by notice in writing:
21
(a) inform a person in charge of the goods that:
22
(i) the goods are required to be treated in a specified
23
manner; and
24
(ii) the treatment is likely to damage the goods; and
25
(b) request the person to agree to the treatment of the goods.
26
Note: The
meaning
of
person in charge of goods in this subsection is
27
affected by subsection (6).
28
(3) However, the goods may be treated in the specified manner
29
without notice having been given under subsection (2) if:
30
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity measures to manage unacceptable level of biosecurity risk Part 3
Powers that may be exercised: general Division 2
Section 334
Biosecurity Bill 2012 No. , 2012 303
(a) a biosecurity officer suspects, on reasonable grounds, that a
1
disease or pest that may be present in or on the goods poses a
2
high level of biosecurity risk; and
3
(b) a biosecurity officer is satisfied that the goods need to be
4
treated as soon as practicable to reduce that risk to an
5
acceptable level.
6
Dealing with goods if person in charge does not agree to treatment
7
(4)
If:
8
(a) a notice is given to a person in charge of the goods under
9
subsection (2); and
10
(b) a person in charge of the goods does not, within 30 days after
11
receiving the notice, notify a biosecurity officer in writing
12
that the person agrees to the treatment of the goods as
13
specified in the notice;
14
a biosecurity officer may, in writing, request a person in charge of
15
the goods to arrange for the goods to be dealt with, or destroyed, in
16
a manner and within the period specified in the request.
17
Note: The
meaning
of
person in charge of goods in paragraphs (4)(a) and
18
(b) is affected by subsection (6).
19
(5)
If:
20
(a) a request is made under subsection (4) in relation to the
21
goods; and
22
(b) the goods are not dealt with, or destroyed, in a manner and
23
within the period specified in the request;
24
a biosecurity officer may take possession of the goods and cause
25
them to be destroyed or otherwise disposed of.
26
Modified meaning of person in charge of goods
27
(6) In subsection (2) and paragraphs (4)(a) and (b), person in charge
28
of goods does not include a biosecurity industry participant who is
29
in possession or control of the goods only because of a direction
30
given to the biosecurity industry participant by a biosecurity
31
officer.
32
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 3 Biosecurity measures to manage unacceptable level of biosecurity risk
Division 2 Powers that may be exercised: general
Section 335
304 Biosecurity Bill 2012 No. , 2012
335 Treatment of conveyance
1
(1) A biosecurity officer may, subject to subsection (2), require a
2
conveyance to be treated in a specified manner.
3
Note:
If the treatment might damage the conveyance, the person in charge or
4
the operator of the conveyance must be asked to agree to the treatment
5
(see section 336).
6
(2) A biosecurity officer must not require a high-value conveyance to
7
be treated in a manner that the biosecurity officer suspects, on
8
reasonable grounds, is likely to damage the conveyance, without
9
the written approval of the Director of Biosecurity.
10
336 Treatment that may damage conveyance
11
(1) This section applies if:
12
(a) a biosecurity officer requires a conveyance to be treated in a
13
specified manner under subsection 335(1); and
14
(b) a biosecurity officer suspects, on reasonable grounds, that
15
treatment of the conveyance in that manner is likely to
16
damage the conveyance.
17
Notice must be given that treatment is likely to damage conveyance
18
(2) Before any treatment is carried out on the conveyance, a
19
biosecurity officer must, by notice in writing:
20
(a) inform the person in charge or the operator of the conveyance
21
that:
22
(i) the conveyance is required to be treated in a specified
23
manner; and
24
(ii) the treatment is likely to damage the conveyance; and
25
(b) request the person in charge or the operator to agree to the
26
treatment of the conveyance.
27
(3) However, the conveyance may be treated in the specified manner
28
without notice having been given under subsection (2) if:
29
(a) a biosecurity officer suspects, on reasonable grounds, that a
30
disease or pest that may be present in or on the conveyance
31
poses a high level of biosecurity risk; and
32
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity measures to manage unacceptable level of biosecurity risk Part 3
Powers that may be exercised: general Division 2
Section 336
Biosecurity Bill 2012 No. , 2012 305
(b) a biosecurity officer is satisfied that the conveyance needs to
1
be treated as soon as practicable to reduce that risk to an
2
acceptable level.
3
Dealing with conveyance if person in charge or operator does not
4
agree to treatment
5
(4)
If:
6
(a) a notice is given to the person in charge or the operator of the
7
conveyance under subsection (2); and
8
(b) the person in charge or the operator does not, within 30 days
9
after receiving the notice, notify a biosecurity officer in
10
writing that the person agrees to the treatment of the
11
conveyance as specified in the notice;
12
a biosecurity officer may, in writing, request the person in charge
13
or the operator to arrange for the conveyance to be dealt with, or
14
destroyed, in a manner and within the period specified in the
15
request.
16
(5)
If:
17
(a) a request is made under subsection (4) in relation to the
18
conveyance; and
19
(b) the conveyance is not dealt with, or destroyed, in a manner
20
and within the period specified in the request;
21
then:
22
(c) a biosecurity enforcement officer may, subject to
23
subsection (6), take possession of the conveyance; and
24
(d) a biosecurity officer may:
25
(i) with the written approval of the Director of Biosecurity,
26
cause the conveyance to be destroyed; or
27
(ii) cause the conveyance to be otherwise disposed of.
28
(6) A biosecurity enforcement officer must not take possession of a
29
conveyance under subsection (5) unless:
30
(a) the owner of the conveyance has consented in writing to the
31
taking of possession; or
32
(b) the taking of possession is authorised by a conveyance
33
possession warrant.
34
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 3 Biosecurity measures to manage unacceptable level of biosecurity risk
Division 2 Powers that may be exercised: general
Section 337
306 Biosecurity Bill 2012 No. , 2012
Note:
For the issue of warrants, and the obligations and powers of
1
biosecurity enforcement officers in taking possession of a conveyance
2
under a warrant, see Parts 2 and 3 of Chapter 10.
3
(7) If a conveyance is to be destroyed under this section, a biosecurity
4
officer may cause any goods on board the conveyance to be
5
removed from the conveyance before it is destroyed.
6
337 Treatment of premises (other than a conveyance)
7
(1) This section applies in relation to premises (other than a
8
conveyance).
9
(2) A biosecurity officer may, subject to subsection (3), require the
10
premises to be treated in a specified manner.
11
Note:
If the treatment might damage the premises, the owner of the premises
12
must be asked to agree to the treatment (see section 338).
13
(3) A biosecurity officer must not require the premises to be treated in
14
a manner that the biosecurity officer suspects, on reasonable
15
grounds, is likely to damage the premises, without the written
16
approval of the Director of Biosecurity.
17
338 Treatment that may damage premises (other than a conveyance)
18
(1) This section applies if:
19
(a) a biosecurity officer requires premises (other than a
20
conveyance) to be treated in a specified manner under
21
subsection 337(2); and
22
(b) a biosecurity officer suspects, on reasonable grounds, that the
23
treatment of the premises in that manner is likely to damage
24
the premises.
25
Note:
Section 337 applies in relation to premises that are a structure or
26
building or a part of a structure or building.
27
Notice must be given that treatment is likely to damage premises
28
(2) Before any treatment is carried out on the premises, a biosecurity
29
officer must, by notice in writing:
30
(a) inform the owner of the premises that:
31
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity measures to manage unacceptable level of biosecurity risk Part 3
Powers that may be exercised: general Division 2
Section 338
Biosecurity Bill 2012 No. , 2012 307
(i) the premises are required to be treated in a specified
1
manner; and
2
(ii) the treatment is likely to damage the premises; and
3
(b) request the owner to agree to the treatment of the premises.
4
(3)
If:
5
(a) despite making reasonable efforts, a biosecurity officer has
6
not been able to locate the owner of the premises; and
7
(b) the owner of the premises is not the occupier of the premises;
8
a biosecurity officer must, by notice in writing:
9
(c) inform the occupier of the premises that:
10
(i) the premises are required to be treated in a specified
11
manner; and
12
(ii) the treatment is likely to damage the premises; and
13
(d) request the occupier to agree to the treatment of the premises.
14
(4) However, subsections (2) and (3) do not apply in relation to the
15
premises if:
16
(a) a biosecurity officer suspects, on reasonable grounds, that a
17
disease or pest that may be present in or on the premises
18
poses a high level of biosecurity risk; and
19
(b) a biosecurity officer is satisfied that the premises need to be
20
treated as soon as practicable to reduce that risk to an
21
acceptable level.
22
Notice in relation to biosecurity risk may be affixed to or near
23
premises
24
(5)
If:
25
(a) despite making reasonable efforts, a biosecurity officer has
26
not been able to give a notice to the owner or the occupier of
27
the premises under subsection (2) or (3); or
28
(b) subsections (2) and (3) do not apply because of
29
subsection (4);
30
a biosecurity officer must affix a notice in accordance with
31
subsection (6) to, or as near as reasonably practicable to, the
32
premises.
33
(6) A notice under subsection (5) must state that:
34
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 3 Biosecurity measures to manage unacceptable level of biosecurity risk
Division 2 Powers that may be exercised: general
Section 339
308 Biosecurity Bill 2012 No. , 2012
(a) a disease or pest may be present in or on the premises; and
1
(b) the disease or pest may pose an unacceptable level of
2
biosecurity risk; and
3
(c) the premises are required, in accordance with this Chapter, to
4
be treated in a specified manner for the purpose of managing
5
the biosecurity risk; and
6
(d) the treatment is likely to damage the premises.
7
339 Dealing with premises (other than a conveyance) if owner does
8
not agree to treatment etc.
9
Owner does not agree to treatment
10
(1)
If:
11
(a) a notice is given to the owner of premises (other than a
12
conveyance) under subsection 338(2); and
13
(b) the owner does not, within 30 days after receiving the notice,
14
notify a biosecurity officer in writing that the owner agrees to
15
the treatment of the premises as specified in the notice;
16
a biosecurity officer may, in writing, request the owner to arrange
17
for the premises to be dealt with, or destroyed, in a manner and
18
within the period specified in the request.
19
(2) A request under subsection (1) to arrange for premises to be
20
destroyed may relate only to a structure or building or a part of a
21
structure or building.
22
(3)
If:
23
(a) a request is made under subsection (1) in relation to
24
premises; and
25
(b) the premises are not dealt with, or destroyed, in a manner and
26
within the period specified in the request;
27
then:
28
(c) a biosecurity enforcement officer may, subject to
29
subsection (5), take possession of the premises; and
30
(d) a biosecurity officer may cause the premises:
31
(i) to be treated in a manner specified in the request; and
32
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity measures to manage unacceptable level of biosecurity risk Part 3
Powers that may be exercised: general Division 2
Section 340
Biosecurity Bill 2012 No. , 2012 309
(ii) if necessary and with the written approval of the
1
Director of Biosecurity, to be destroyed.
2
Owner cannot be located or there is high level of biosecurity risk
3
(4) If a notice in accordance with subsection 338(6) has been affixed
4
to, or as near as reasonably practicable to, premises:
5
(a) a biosecurity enforcement officer may, at any time after the
6
end of 30 days after the notice was affixed and subject to
7
subsection (5), take possession of the premises; and
8
(b) a biosecurity officer may cause the premises:
9
(i) to be treated in a manner specified in the request; and
10
(ii) if necessary and with the written approval of the
11
Director of Biosecurity, to be destroyed.
12
Consent or warrant required to take possession of premises
13
(5) A biosecurity enforcement officer must not take possession of
14
premises under subsection (3) or (4) unless:
15
(a) the owner of the premises has consented in writing to the
16
taking of possession; or
17
(b) the taking of possession is authorised by a premises
18
possession warrant.
19
Note:
For the issue of warrants, and the obligations and powers of
20
biosecurity enforcement officers in taking possession of premises
21
under a warrant, see Parts 2 and 3 of Chapter 10.
22
(6) If premises are to be destroyed under this section, a biosecurity
23
officer may cause any goods in or on the premises to be removed
24
from the premises before they are destroyed.
25
Subdivision D--Powers relating to destruction of goods,
26
conveyances and other premises
27
340 Destruction of goods
28
(1) If a biosecurity officer considers, on reasonable grounds, that
29
goods cannot be effectively treated, a biosecurity officer may,
30
subject to subsections (2), (3) and (4) and section 343, require the
31
goods to be destroyed.
32
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 3 Biosecurity measures to manage unacceptable level of biosecurity risk
Division 2 Powers that may be exercised: general
Section 341
310 Biosecurity Bill 2012 No. , 2012
Note:
Compensation may be payable to the owner of the goods (see
1
sections 659 and 660).
2
High-value goods
3
(2) A biosecurity officer must not require high-value goods to be
4
destroyed without the written approval of the Director of
5
Biosecurity.
6
Note 1:
A decision to give approval for high-value goods to be destroyed is a
7
reviewable decision (see Part 1 of Chapter 13).
8
Note 2:
Unless subsection (4) applies, high-value goods must not be destroyed
9
until after any review or related proceeding (including any appeal) has
10
been finally determined (see section 343).
11
(3) Before causing high-value goods to be destroyed, a biosecurity
12
officer must give the owner of the goods a notice in writing stating:
13
(a) that the goods are to be destroyed; and
14
(b) the reasons why the goods are to be destroyed.
15
(4) However, high-value goods may be destroyed without notice
16
having been given to the owner of the goods under subsection (3) if
17
a biosecurity officer:
18
(a) has not been able, despite making reasonable efforts, to
19
locate the owner of the goods; and
20
(b) has certified in writing to that effect.
21
Note:
If a biosecurity officer cannot, despite making reasonable efforts,
22
locate the owner of high-value goods, the goods may be forfeited to
23
the Commonwealth (see section 654).
24
341 Destruction of conveyance
25
(1) If a biosecurity officer considers, on reasonable grounds, that a
26
conveyance cannot be effectively treated, a biosecurity officer
27
may, subject to subsections (2) to (7) and section 343, require the
28
conveyance to be destroyed.
29
Note:
Compensation may be payable to the owner of the conveyance (see
30
sections 659 and 660).
31
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity measures to manage unacceptable level of biosecurity risk Part 3
Powers that may be exercised: general Division 2
Section 341
Biosecurity Bill 2012 No. , 2012 311
Director of Biosecurity must approve destruction
1
(2) A biosecurity officer must not require a conveyance to be
2
destroyed without the written approval of the Director of
3
Biosecurity.
4
Note 1:
A decision to give approval for a conveyance to be destroyed is a
5
reviewable decision (see Part 1 of Chapter 13).
6
Note 2:
Unless subsection (4) applies, a conveyance must not be destroyed
7
until after any review or related proceeding (including any appeal) has
8
been finally determined (see section 343).
9
Notice must be given that conveyance is required to be destroyed
10
(3) Before causing a conveyance to be destroyed, a biosecurity officer
11
must, by notice in writing:
12
(a) inform the owner or the operator of the conveyance:
13
(i) that the conveyance is required to be destroyed; and
14
(ii) the reasons why the conveyance is required to be
15
destroyed; and
16
(b) request the owner or the operator of the conveyance to
17
arrange for the conveyance to be destroyed in a manner
18
specified in the notice within the period specified in the
19
notice.
20
(4) However, a notice is not required to be given under subsection (3)
21
if a biosecurity officer:
22
(a) has not been able, despite making reasonable efforts, to
23
locate the owner or the operator of the conveyance; and
24
(b) has certified in writing to that effect.
25
Note:
If a biosecurity officer cannot, despite making reasonable efforts,
26
locate the owner or the operator of a conveyance, the conveyance may
27
be forfeited to the Commonwealth (see section 656).
28
Dealing with conveyance if conveyance is not destroyed by owner
29
or operator
30
(5)
If:
31
(a) a notice is given to the owner or the operator of the
32
conveyance under subsection (3) and the conveyance is not
33
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 3 Biosecurity measures to manage unacceptable level of biosecurity risk
Division 2 Powers that may be exercised: general
Section 342
312 Biosecurity Bill 2012 No. , 2012
destroyed in a manner specified in the notice within the
1
period specified in the notice; or
2
(b) a certificate in relation to the conveyance has been issued
3
under paragraph (4)(b);
4
then:
5
(c) a biosecurity enforcement officer may, subject to
6
subsection (6), take possession of the conveyance; and
7
(d) a biosecurity officer may, with the written approval of the
8
Director of Biosecurity, cause the conveyance to be
9
destroyed.
10
(6) A biosecurity enforcement officer must not take possession of a
11
conveyance under subsection (5) unless:
12
(a) the owner or the operator of the conveyance has consented in
13
writing to the taking of possession; or
14
(b) the taking of possession is authorised by a conveyance
15
possession warrant.
16
Note 1:
This subsection does not apply in relation to a conveyance that has
17
been forfeited to the Commonwealth under section 656.
18
Note 2:
For the issue of warrants, and the obligations and powers of
19
biosecurity enforcement officers in taking possession of a conveyance
20
under a warrant, see Parts 2 and 3 of Chapter 10.
21
(7) If a conveyance is to be destroyed under this section, a biosecurity
22
officer may cause any goods on board the conveyance to be
23
removed from the conveyance before it is destroyed.
24
342 Destruction of premises
25
(1) This section applies in relation to premises that are a structure or
26
building or a part of a structure or building.
27
(2) If a biosecurity officer considers, on reasonable grounds, that
28
premises cannot be effectively treated, a biosecurity officer may,
29
subject to subsections (3) to (7) and section 343, require the
30
premises to be destroyed.
31
Note:
Unless subsection (5) applies, premises must not be destroyed until
32
after any review or related proceeding (including any appeal) has been
33
finally determined (see section 343).
34
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity measures to manage unacceptable level of biosecurity risk Part 3
Powers that may be exercised: general Division 2
Section 343
Biosecurity Bill 2012 No. , 2012 313
Note:
Compensation may be payable to the owner of the premises (see
1
sections 659 and 660).
2
(3) A biosecurity officer must not require premises to be destroyed
3
without the written approval of the Director of Biosecurity.
4
Note:
A decision to give approval for premises to be destroyed is a
5
reviewable decision (see Part 1 of Chapter 13).
6
(4) Before causing premises to be destroyed, a biosecurity officer must
7
give the owner of the premises a notice in writing stating:
8
(a) that the premises are to be destroyed; and
9
(b) the reasons why the premises are to be destroyed.
10
(5) However, a notice is not required to be given under subsection (4)
11
if a biosecurity officer:
12
(a) has not been able, despite making reasonable efforts, to
13
locate the owner of the premises; and
14
(b) has certified in writing to that effect.
15
(6) A biosecurity enforcement officer must not take possession of
16
premises that are required to be destroyed under this section unless:
17
(a) the owner of the premises has consented in writing to the
18
taking of possession; or
19
(b) the taking of possession is authorised by a premises
20
possession warrant.
21
Note:
For the issue of warrants, and the obligations and powers of
22
biosecurity enforcement officers in taking possession of premises
23
under a warrant, see Parts 2 and 3 of Chapter 10.
24
(7) If premises are to be destroyed under this section, a biosecurity
25
officer may cause any goods in or on the premises to be removed
26
from the premises before they are destroyed.
27
343 High-value goods, conveyances or premises must not be
28
destroyed during review period
29
(1) This section applies if a biosecurity officer has given a notice in
30
relation to high-value goods, a conveyance or other premises in
31
accordance with subsection 340(3), 341(3) or 342(4) (as the case
32
may be).
33
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 3 Biosecurity measures to manage unacceptable level of biosecurity risk
Division 2 Powers that may be exercised: general
Section 343
314 Biosecurity Bill 2012 No. , 2012
Note:
Section 342 applies in relation to premises that are a structure or
1
building or a part of a structure or building.
2
(2) A biosecurity officer must not cause the goods, conveyance or
3
premises to be destroyed until:
4
(a) after the period in which an application may be made for
5
review (including merits or judicial review) of the decision to
6
require the goods, conveyance or premises to be destroyed;
7
or
8
(b) if an application referred to in paragraph (a) is made--after
9
the review or any related proceeding (including any appeal)
10
has been finally determined.
11
(3) However, subsection (2) does not apply in relation to the goods,
12
conveyance or premises if a biosecurity officer is satisfied that:
13
(a) a disease or pest that may be present in or on the goods,
14
conveyance or premises poses a high level of biosecurity
15
risk; and
16
(b) the biosecurity risk cannot be managed for long enough to
17
allow a review of the decision to require the goods,
18
conveyance or premises to be destroyed, and any related
19
proceeding (including any appeal), to be finally determined.
20
(4)
If:
21
(a) in accordance with subsection (3), a biosecurity officer
22
causes the goods, conveyance or premises to be destroyed
23
before the end of the period referred to in paragraph (2)(a);
24
and
25
(b) no application for review of the decision to require the goods,
26
conveyance or premises to be destroyed had been made
27
before the goods, conveyance or premises were destroyed;
28
an application for review of the decision to require the goods,
29
conveyance or premises to be destroyed must not be made.
30
(5)
If:
31
(a) an application referred to in paragraph (2)(a) has been made
32
in relation to the decision to require the goods, conveyance or
33
premises to be destroyed; and
34
(b) in accordance with subsection (3), a biosecurity officer
35
causes the goods, conveyance or premises to be destroyed
36
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity measures to manage unacceptable level of biosecurity risk Part 3
Powers that may be exercised: general Division 2
Section 343
Biosecurity Bill 2012 No. , 2012 315
before the review or any related proceeding (including any
1
appeal) has been finally determined;
2
the review or related proceeding (including any appeal) is taken to
3
be discontinued when the goods, conveyance or premises are
4
destroyed.
5
6
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 3 Biosecurity measures to manage unacceptable level of biosecurity risk
Division 3 Powers provided by regulations
Section 344
316 Biosecurity Bill 2012 No. , 2012
Division 3--Powers provided by regulations
1
344 Regulations may provide for other biosecurity measures
2
(1) The regulations may provide that a biosecurity officer may require
3
a specified kind of biosecurity measure (a prescribed biosecurity
4
measure) to be taken in relation to goods or premises in Australian
5
territory.
6
Note 1:
This Chapter does not apply in relation to certain goods or
7
conveyances (see section 311).
8
Note 2:
Premises include a conveyance (see paragraph (a) of the definition of
9
premises in section 9).
10
Note 3:
See section 309 in relation to the meaning of biosecurity risk in this
11
Chapter.
12
Note 4:
Limitations apply to the exercise of a power provided by regulations
13
made for the purposes of this section (see subsection (5)).
14
(2) Regulations made for the purposes of this section must not provide
15
for a biosecurity officer to require any of the following kinds of
16
biosecurity measures to be taken:
17
(a) a biosecurity measure of a kind set out in Subdivision B of
18
Division 3 of Part 3 of Chapter 2 (biosecurity measures that
19
may be included in a human biosecurity control order);
20
(b) a biosecurity measure of a kind set out in Division 3 of Part 2
21
of this Chapter (biosecurity risk assessment powers);
22
(c) a biosecurity measure of a kind set out in Division 2 of this
23
Part (biosecurity measures to manage unacceptable level of
24
biosecurity risk);
25
(d) a biosecurity measure or a kind referred to in Subdivision B
26
of Division 2 of Part 4 of Chapter 12 (decontamination).
27
(3) Regulations made for the purposes of this section may also provide
28
for, or in relation to, other matters relating to a prescribed
29
biosecurity measure.
30
(4) Without limiting subsection (3), regulations made for the purposes
31
of this section may do any of the following:
32
(a) provide for persons to be notified, and the circumstances in
33
which the persons must be notified, that a prescribed
34
biosecurity measure is required to be taken;
35
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity measures to manage unacceptable level of biosecurity risk Part 3
Powers provided by regulations Division 3
Section 344
Biosecurity Bill 2012 No. , 2012 317
(b) if regulations made for the purposes of subsection 610(2)
1
provide that the decision to require a prescribed biosecurity
2
measure to be taken is a reviewable decision--provide that,
3
except in the circumstances (if any) prescribed, the
4
prescribed biosecurity measure must not be taken during the
5
period in which a review of that decision, or any related
6
proceeding (including any appeal), has been finally
7
determined.
8
Limitation on exercise of powers provided by regulations
9
(5) A power provided by regulations made for the purposes of this
10
section must not be exercised in relation to goods or premises in
11
Australian territory unless:
12
(a) the power is specified in a biosecurity control order that
13
relates to the goods or premises; or
14
(b) the power is specified in a biosecurity response zone
15
determination that relates to the goods or premises and the
16
goods or premises are in the biosecurity response zone.
17
Note 1:
A power that is provided by regulations made for the purposes of this
18
section and that is specified in a biosecurity control order or a
19
biosecurity response zone determination may be exercised for the
20
purpose of managing the biosecurity risk posed by a disease or pest to
21
which the order or determination relates (see sections 358 and 368).
22
Note 2:
Before exercising a power specified in a biosecurity control order or a
23
biosecurity response zone determination, a biosecurity official must be
24
satisfied of the matters referred to in section 31 (the principles).
25
26
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 3 Biosecurity measures to manage unacceptable level of biosecurity risk
Division 4 Other powers
Section 345
318 Biosecurity Bill 2012 No. , 2012
Division 4--Other powers
1
345 Powers of biosecurity officer if biosecurity measures are
2
required
3
(1) If a biosecurity officer requires a biosecurity measure to be taken
4
in relation to goods, a conveyance or premises under Subdivision C
5
(treatment powers) or Subdivision D (destruction powers) of
6
Division 2 of this Part, or under a regulation made for the purposes
7
of section 344, a biosecurity officer may:
8
(a) if the biosecurity measure is required in relation to goods--
9
direct a person in charge of the goods to carry out the
10
biosecurity measure; or
11
(b) if the biosecurity measure is required in relation to a
12
conveyance--direct the person in charge or the operator of
13
the conveyance to carry out the biosecurity measure; or
14
(c) if the biosecurity measure is required in relation to
15
premises--direct the owner of the premises to carry out the
16
biosecurity measure; or
17
(d) in any case:
18
(i) carry out the biosecurity measure; or
19
(ii) arrange for another person with appropriate
20
qualifications or expertise to carry out the biosecurity
21
measure.
22
Note:
A person who is given a direction under paragraph (1)(a), (b) or (c)
23
may commit an offence or contravene a civil penalty provision for
24
failing to comply with the direction (see section 348).
25
(2) If, under this section, a biosecurity officer:
26
(a) gives a direction to a person to carry out a biosecurity
27
measure; or
28
(b) arranges for another person with appropriate qualifications or
29
expertise to carry out a biosecurity measure;
30
a biosecurity officer may supervise the taking of the biosecurity
31
measure.
32
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity measures to manage unacceptable level of biosecurity risk Part 3
Other powers Division 4
Section 346
Biosecurity Bill 2012 No. , 2012 319
346 Biosecurity officer may affix notice to goods or premises
1
(1) A biosecurity officer may affix a notice to, or as near as reasonably
2
practicable to, goods or premises in relation to which biosecurity
3
measures have been required under:
4
(a) Division 2; or
5
(b) a regulation made for the purposes of section 344.
6
Note:
Premises include a conveyance (see paragraph (a) of the definition of
7
premises in section 9).
8
(2) The notice must state:
9
(a) that a disease or pest may be present in or on the goods or
10
premises; and
11
(b) that the disease or pest may pose an unacceptable level of
12
biosecurity risk; and
13
(c) that biosecurity measures have been required in relation to
14
the goods or premises, in accordance with this Chapter, for
15
the purpose of managing the biosecurity risk posed by the
16
disease or pest; and
17
(d) the effect of subsections (3) and (4) and section 349.
18
Civil penalty provision
19
(3) A person is liable to a civil penalty if:
20
(a) a notice is affixed to, or as near as reasonably practicable to,
21
goods or premises under subsection (1); and
22
(b) the person interferes with, removes or defaces the notice; and
23
(c) none of the following applies:
24
(i) the person is authorised to engage in the conduct
25
referred to in paragraph (b) in accordance with an
26
approved arrangement;
27
(ii) the person needs to engage in that conduct to comply
28
with a direction given under another provision of this
29
Act by a biosecurity official;
30
(iii) the person has been given permission to engage in that
31
conduct under section 595.
32
Civil penalty:
120 penalty units.
33
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 3 Biosecurity measures to manage unacceptable level of biosecurity risk
Division 4 Other powers
Section 346
320 Biosecurity Bill 2012 No. , 2012
(4) Subsection (3) does not apply if the person is authorised to engage
1
in the conduct referred to in paragraph (3)(b) under this Act or
2
under another Australian law.
3
Note:
A defendant bears an evidential burden in relation to the matter in this
4
subsection (see section 552).
5
6
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity measures to manage unacceptable level of biosecurity risk Part 3
Offences and civil penalty provisions Division 5
Section 347
Biosecurity Bill 2012 No. , 2012 321
Division 5--Offences and civil penalty provisions
1
347 Contravention of requirement relating to entering or leaving
2
etc. premises
3
(1) A person must comply with a requirement in a notice affixed at an
4
entry or exit point of premises in accordance with subsection
5
331(5) or 332(2) if the requirement applies to the person.
6
Fault-based offence
7
(2) A person commits an offence if:
8
(a) a notice imposing a requirement is affixed at an entry or exit
9
point of premises under subsection 331(5) or 332(2); and
10
(b) the requirement applies to the person; and
11
(c) the person engages in conduct; and
12
(d) the conduct contravenes the requirement.
13
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
14
Civil penalty provision
15
(3) A person is liable to a civil penalty if the person contravenes
16
subsection (1).
17
Civil penalty:
120 penalty units.
18
348 Person must comply with direction
19
(1) A person who is given a direction under paragraph 345(1)(a), (b) or
20
(c) must comply with the direction.
21
Fault-based offence
22
(2) A person commits an offence if:
23
(a) the person is given a direction under paragraph 345(1)(a), (b)
24
or (c); and
25
(b) the person engages in conduct; and
26
(c) the conduct contravenes the direction.
27
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 3 Biosecurity measures to manage unacceptable level of biosecurity risk
Division 5 Offences and civil penalty provisions
Section 349
322 Biosecurity Bill 2012 No. , 2012
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
1
Civil penalty provision
2
(3) A person is liable to a civil penalty if the person contravenes
3
subsection (1).
4
Civil penalty:
120 penalty units.
5
349 Unauthorised persons must not move etc. goods or conveyance
6
to which notice has been affixed
7
(1) A person contravenes this subsection if:
8
(a) a notice has been affixed to, or as near as reasonably
9
practicable to, goods or a conveyance under subsection
10
346(1); and
11
(b) the person moves, deals with or interferes with the goods or
12
conveyance; and
13
(c) none of the following applies:
14
(i) the person is authorised to engage in the conduct
15
referred to in paragraph (b) in accordance with an
16
approved arrangement;
17
(ii) the person needs to engage in that conduct to comply
18
with a direction given under another provision of this
19
Act by a biosecurity official;
20
(iii) the person has been given permission to engage in that
21
conduct under section 595.
22
(2) Subsection (1) does not apply if the person is authorised to engage
23
in the conduct referred to in paragraph (1)(b) under this Act or
24
under another Australian law.
25
Note:
A defendant bears an evidential burden in relation to the matter in this
26
subsection (see subsection 13.3(3) of the Criminal Code and
27
section 552 of this Act).
28
Fault-based offence
29
(3) A person commits an offence if the person contravenes
30
subsection (1).
31
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
32
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity measures to manage unacceptable level of biosecurity risk Part 3
Offences and civil penalty provisions Division 5
Section 349
Biosecurity Bill 2012 No. , 2012 323
Note:
See section 575 in relation to the physical elements of an offence.
1
Civil penalty provision
2
(4) A person is liable to a civil penalty if the person contravenes
3
subsection (1).
4
Civil penalty:
120 penalty units.
5
6
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 4 Biosecurity control orders
Division 1 Introduction
Section 350
324 Biosecurity Bill 2012 No. , 2012
Part 4--Biosecurity control orders
1
Division 1--Introduction
2
350 Guide to this Part
3
This Part provides for the Director of Biosecurity to make a
4
biosecurity control order in relation to goods or premises in
5
Australian territory and a disease or pest if:
6
(a)
a biosecurity officer suspects, on reasonable
7
grounds, that the disease or pest may be present in
8
or on the goods or premises and may pose an
9
unacceptable level of biosecurity risk; and
10
(b)
the Director of Biosecurity is satisfied that
11
biosecurity measures need to be taken in relation to
12
the goods or premises for the purpose of managing
13
the biosecurity risk posed by the disease or pest.
14
Division 2 sets out requirements relating to making a biosecurity
15
control order, including requirements relating to the content and
16
form of a biosecurity control order. Division 2 also deals with
17
varying and revoking a biosecurity control order.
18
Division 3 deals with the powers that may be exercised (including
19
in premises) in accordance with a biosecurity control order.
20
Before exercising a power in accordance with a biosecurity control
21
order, a biosecurity official must be satisfied of the matters referred
22
to in section 31 (the principles).
23
Division 4 sets out a civil penalty provision.
24
25
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity control orders Part 4
Making, varying and revoking biosecurity control orders Division 2
Section 351
Biosecurity Bill 2012 No. , 2012 325
Division 2--Making, varying and revoking biosecurity
1
control orders
2
351 Director of Biosecurity may make biosecurity control order to
3
manage unacceptable level of biosecurity risk
4
(1)
If:
5
(a) a biosecurity officer suspects, on reasonable grounds, that:
6
(i) a disease or pest may be present in or on goods or
7
premises in Australian territory; and
8
(ii) the disease or pest poses an unacceptable level of
9
biosecurity risk; and
10
(b) the Director of Biosecurity is satisfied that biosecurity
11
measures need to be taken in relation to the goods or
12
premises for the purpose of managing the biosecurity risk
13
posed by the disease or pest;
14
the Director of Biosecurity may make a biosecurity control order in
15
relation to the goods or premises and the disease or pest.
16
Note 1:
This Chapter does not apply in relation to certain goods or
17
conveyances (see section 311).
18
Note 2:
Premises include a conveyance (see paragraph (a) of the definition of
19
premises in section 9).
20
Note 3:
See section 309 in relation to the meaning of biosecurity risk in this
21
Chapter.
22
Note 4:
A biosecurity control order may be varied under section 356 or
23
revoked under section 357. Subsection 33(3) of the Acts Interpretation
24
Act 1901 does not apply in relation to this section.
25
(2) A biosecurity control order may relate to more than one disease or
26
pest.
27
352 Content of a biosecurity control order
28
(1) A biosecurity control order made under section 351 in relation to
29
goods or premises and a disease or pest must state that:
30
(a) a biosecurity officer suspects, on reasonable grounds, that:
31
(i) a disease or pest may be present in or on the goods or
32
premises; and
33
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 4 Biosecurity control orders
Division 2 Making, varying and revoking biosecurity control orders
Section 352
326 Biosecurity Bill 2012 No. , 2012
(ii) the disease or pest poses an unacceptable level of
1
biosecurity risk; and
2
(b) the Director of Biosecurity is satisfied that biosecurity
3
measures need to be taken in relation to the goods or
4
premises for the purpose of managing the biosecurity risk
5
posed by the disease or pest.
6
(2) The biosecurity control order must also specify the following:
7
(a) the goods or premises to which the order relates;
8
(b) each disease or pest that:
9
(i) poses an unacceptable level of biosecurity risk; and
10
(ii) has been identified;
11
(c) the nature of the biosecurity risk that needs to be managed;
12
(d) each power set out in Division 2 of Part 3 (powers to require
13
biosecurity measures to be taken) that may be exercised in
14
relation to the goods or premises in accordance with that
15
Division;
16
(e) each power provided by regulations made for the purposes of
17
section 344 (other biosecurity measures) that may be
18
exercised in relation to the goods or premises in accordance
19
with those regulations;
20
(f) each power set out in Division 3 of Part 2 (biosecurity risk
21
assessment powers) that may be exercised in relation to the
22
goods or premises in accordance with that Division;
23
(g) the period during which the order is to be in force.
24
(3) The period during which a biosecurity control order may be in
25
force:
26
(a) must not be longer than the Director of Biosecurity considers
27
necessary to manage the biosecurity risk posed by each
28
disease or pest to which the order relates; and
29
(b) in any case, must not be longer than 12 months.
30
The period cannot be extended.
31
(4) A power must not be specified in a biosecurity control order under
32
paragraph (2)(d), (e) or (f) unless the Director of Biosecurity is
33
satisfied that the exercise of the power in relation to the goods or
34
premises and a disease or pest to which the order relates is
35
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity control orders Part 4
Making, varying and revoking biosecurity control orders Division 2
Section 353
Biosecurity Bill 2012 No. , 2012 327
appropriate and adapted for the purpose of managing the
1
biosecurity risk posed by the disease or pest.
2
(5) If a conveyance is specified in a biosecurity control order under
3
paragraph (2)(a), the order is taken to also relate to any goods in or
4
on the conveyance.
5
(6) If premises (other than a conveyance) are specified in a biosecurity
6
control order under paragraph (2)(a), the order is taken to also
7
relate to any goods or conveyances on the premises.
8
353 Form of biosecurity control order
9
(1) A biosecurity control order made under section 351:
10
(a) must be in writing; and
11
(b) must be in the form approved, in writing, by the Director of
12
Biosecurity.
13
(2) A biosecurity control order made under section 351 is not a
14
legislative instrument.
15
354 Biosecurity control order to be given to person in charge etc. of
16
goods or premises or affixed to goods or premises
17
Biosecurity control order relating to goods or a conveyance
18
(1) If goods or a conveyance are specified in a biosecurity control
19
order under paragraph 352(2)(a), a biosecurity officer must:
20
(a) give a copy of the order to a person in charge of the goods or
21
conveyance, if it is practicable to do so; and
22
(b) if it is not practicable to comply with paragraph (a)--affix a
23
copy of the order to, or as near as reasonably practicable to,
24
the goods or conveyance.
25
Biosecurity control order applying to premises (other than a
26
conveyance)
27
(2) If premises (other than a conveyance) are specified in a biosecurity
28
control order under paragraph 352(2)(a), a biosecurity officer must:
29
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 4 Biosecurity control orders
Division 2 Making, varying and revoking biosecurity control orders
Section 355
328 Biosecurity Bill 2012 No. , 2012
(a) give a copy of the order to the occupier of the premises, or
1
another person who apparently represents the occupier, if it is
2
practicable to do so; and
3
(b) if it is not practicable to comply with paragraph (a)--affix a
4
copy of the order to, or as near as reasonably practicable to,
5
the premises.
6
Note:
A person may contravene a civil penalty provision for interfering with,
7
removing or defacing a copy of a biosecurity control order that is
8
affixed to, or as near as reasonably practicable to, goods or a
9
conveyance or other premises under this section (see section 361).
10
355 Circumstances in which biosecurity control order ceases to be in
11
force
12
(1) A biosecurity control order made under section 351 ceases to be in
13
force if any of the following occurs:
14
(a) the order expires;
15
(b) the order is revoked under section 357.
16
(2) A biosecurity control order made under section 351 ceases to be in
17
force in relation to particular goods or premises if the goods or
18
premises are destroyed.
19
356 Variation of biosecurity control order
20
Grounds for variation
21
(1) The Director of Biosecurity may vary a biosecurity control order
22
that is in force under section 351 in relation to goods or premises
23
and a disease or pest only if the Director is satisfied that:
24
(a) the level of biosecurity risk posed by the disease or pest is no
25
longer unacceptable; or
26
(b) the powers specified in the order under paragraph 352(2)(d),
27
(e) or (f) need to be varied (including by specifying
28
additional powers referred to in those paragraphs) to manage
29
the biosecurity risk posed by the disease or pest; or
30
(c) the following circumstances apply:
31
(i) another disease or pest (other than a disease or pest to
32
which the order relates) may be present in or on the
33
goods or premises;
34
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity control orders Part 4
Making, varying and revoking biosecurity control orders Division 2
Section 356
Biosecurity Bill 2012 No. , 2012 329
(ii) the other disease or pest is posing an unacceptable level
1
of biosecurity risk;
2
(iii) biosecurity measures need to be taken in relation to the
3
goods or premises to manage the biosecurity risk posed
4
by the other disease or pest; or
5
(d) the variation is of a minor technical nature.
6
Limitation on specifying additional powers
7
(2) A biosecurity control order must not be varied to specify an
8
additional power referred to in paragraph 352(2)(d), (e) or (f)
9
unless the Director of Biosecurity is satisfied that the exercise of
10
the power in relation to the goods or premises and a disease or pest
11
to which the variation relates is appropriate and adapted for the
12
purpose of managing the biosecurity risk posed by the disease or
13
pest.
14
Variation is not a legislative instrument
15
(3) A variation of a biosecurity control order must be in writing, but is
16
not a legislative instrument.
17
When variation takes effect
18
(4) A variation of a biosecurity control order takes effect immediately
19
after it is made.
20
Notice of varied order
21
(5) If a biosecurity control order (the original order) in relation to
22
goods or a conveyance is varied under this section, a biosecurity
23
officer must:
24
(a) give a copy of the varied order to a person in charge of the
25
goods or conveyance, if it is practicable to do so; and
26
(b) if it is not practicable to comply with paragraph (a)--affix a
27
copy of the varied order to, or as near as reasonably
28
practicable to, the goods or conveyance; and
29
(c) remove any copies of the original order that were affixed to,
30
or as near as reasonably practicable to, the goods or
31
conveyance.
32
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 4 Biosecurity control orders
Division 2 Making, varying and revoking biosecurity control orders
Section 357
330 Biosecurity Bill 2012 No. , 2012
(6) If a biosecurity control order (the original order) in relation to
1
premises (other than a conveyance) is varied under this section, a
2
biosecurity officer must:
3
(a) give a copy of the varied order to the occupier of the
4
premises, or another person who apparently represents the
5
occupier, if it is practicable to do so; and
6
(b) if it is not practicable to comply with paragraph (a)--affix a
7
copy of the varied order to, or as near as reasonably
8
practicable to, the premises; and
9
(c) remove any copies of the original order that were affixed to,
10
or as near as reasonably practicable to, the premises.
11
Note:
A person may contravene a civil penalty provision for interfering with,
12
removing or defacing a copy of a biosecurity control order that is
13
affixed to, or as near as reasonably practicable to, goods or a
14
conveyance or other premises under subsection (5) or (6) (see
15
section 361).
16
357 Revocation of biosecurity control order
17
Grounds for revocation
18
(1) The Director of Biosecurity must revoke a biosecurity control
19
order that is in force under section 351 if the Director is satisfied
20
that the level of biosecurity risk posed by each disease or pest to
21
which the order relates is no longer unacceptable.
22
Revocation is not a legislative instrument
23
(2) A revocation of a biosecurity control order must be in writing, but
24
is not a legislative instrument.
25
When revocation takes effect
26
(3) A revocation of a biosecurity control order takes effect
27
immediately after it is made.
28
Notice of revocation
29
(4) If a biosecurity control order (the original order) in relation to
30
goods or a conveyance is revoked under this section, a biosecurity
31
officer must:
32
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity control orders Part 4
Making, varying and revoking biosecurity control orders Division 2
Section 357
Biosecurity Bill 2012 No. , 2012 331
(a) give a copy of the revocation to a person in charge of the
1
goods or conveyance, if it is practicable to do so; and
2
(b) remove any copies of the original order that were affixed to,
3
or as near as reasonably practicable to, the goods or
4
conveyance.
5
(5) If a biosecurity control order (the original order) in relation to
6
premises (other than a conveyance) is revoked under this section, a
7
biosecurity officer must:
8
(a) give a copy of the revocation to the occupier of the premises,
9
or another person who apparently represents the occupier, if
10
it is practicable to do so; and
11
(b) remove any copies of the original order that were affixed to,
12
or as near as reasonably practicable to, the premises.
13
14
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 4 Biosecurity control orders
Division 3 Powers that may be exercised under biosecurity control order
Section 358
332 Biosecurity Bill 2012 No. , 2012
Division 3--Powers that may be exercised under
1
biosecurity control order
2
358 Powers that may be exercised--general
3
If a biosecurity control order is in force under section 351 in
4
relation to goods or premises and a disease or pest, any of the
5
following powers may be exercised in relation to the goods or
6
premises for the purpose of managing the biosecurity risk posed by
7
the disease or pest:
8
(a) a power specified in the order under paragraph 352(2)(d), (e)
9
or (f);
10
(b) a power set out in Division 4 of Part 3.
11
Note 1:
This Chapter does not apply in relation to certain goods or
12
conveyances (see section 311).
13
Note 2:
Premises include a conveyance (see paragraph (a) of the definition of
14
premises in section 9).
15
Note 3:
See section 309 in relation to the meaning of biosecurity risk in this
16
Chapter.
17
Note 4:
Before exercising a power specified in a biosecurity control order, a
18
biosecurity official must be satisfied of the matters referred to in
19
section 31 (the principles).
20
Note 5:
A biosecurity officer or biosecurity enforcement officer may be
21
assisted by other persons in exercising powers in accordance with this
22
section (see section 531).
23
359 Exercise of powers in premises
24
(1) A biosecurity officer or a biosecurity enforcement officer may
25
enter any premises in Australian territory for the purpose of
26
exercising powers in accordance with section 358.
27
Note:
Premises include a conveyance (see paragraph (a) of the definition of
28
premises in section 9).
29
(2) However, an officer is not authorised to enter premises under
30
subsection (1) unless:
31
(a) the occupier of the premises has consented to the entry and
32
the officer has shown his or her identity card if required by
33
the occupier; or
34
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity control orders Part 4
Powers that may be exercised under biosecurity control order Division 3
Section 360
Biosecurity Bill 2012 No. , 2012 333
(b) the entry is made under a biosecurity control order warrant.
1
Note 1:
For the issue of warrants, and the obligations and powers of
2
biosecurity enforcement officers and biosecurity officers in entering
3
premises under a warrant or with consent, see Parts 2 and 3 of
4
Chapter 10.
5
Note 2:
If the premises can be accessed only by entering other premises, an
6
adjacent premises warrant may be needed (see Division 3 of Part 4 of
7
Chapter 9).
8
360 Power to secure goods or premises to deal with another disease
9
or pest
10
(1) This section applies if:
11
(a) a biosecurity control order is in force under section 351 in
12
relation to goods or premises (the relevant goods or
13
premises) and a disease or pest; and
14
(b) a biosecurity officer enters premises, as authorised by
15
section 359, for the purpose of exercising powers in
16
accordance with section 358 in relation to the relevant goods
17
or premises.
18
(2) The biosecurity officer may secure the relevant goods or premises
19
for up to 24 hours if:
20
(a) in the course of exercising powers in accordance with
21
section 358, the biosecurity officer suspects, on reasonable
22
grounds, that:
23
(i) another disease or pest (other than a disease or pest to
24
which the biosecurity control order relates) may be
25
present in or on the relevant goods or premises; and
26
(ii) the other disease or pest may pose an unacceptable level
27
of biosecurity risk; and
28
(b) the biosecurity officer believes, on reasonable grounds, that it
29
is necessary to secure the relevant goods or premises, without
30
the authority of a biosecurity risk assessment warrant or a
31
biosecurity control order warrant, in order to manage the
32
biosecurity risk posed by the other disease or pest.
33
Note:
The Director of Biosecurity may vary the biosecurity control order
34
under section 356 for the purpose of allowing powers to be exercised
35
to manage any biosecurity risk posed by the other disease or pest. If
36
the order is varied, a new biosecurity control order warrant may be
37
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 4 Biosecurity control orders
Division 3 Powers that may be exercised under biosecurity control order
Section 360
334 Biosecurity Bill 2012 No. , 2012
needed to authorise a biosecurity officer to re-enter the premises to
1
exercise powers specified in the varied biosecurity control order to
2
manage the biosecurity risk posed by the other disease or pest.
3
4
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity control orders Part 4
Civil penalty provision Division 4
Section 361
Biosecurity Bill 2012 No. , 2012 335
Division 4--Civil penalty provision
1
361 Unauthorised persons must not interfere with etc. biosecurity
2
control order affixed to goods or premises
3
Civil penalty provision
4
(1) A person is liable to a civil penalty if:
5
(a) a biosecurity control order is affixed to, or as near as
6
reasonably practicable to, goods or a conveyance under
7
paragraph 354(1)(b) or 356(5)(b) or other premises under
8
paragraph 354(2)(b) or 356(6)(b); and
9
(b) the person interferes with, removes or defaces the biosecurity
10
control order; and
11
(c) none of the following applies:
12
(i) the person is authorised to engage in the conduct
13
referred to in paragraph (b) in accordance with an
14
approved arrangement;
15
(ii) the person needs to engage in that conduct to comply
16
with a direction given under another provision of this
17
Act by a biosecurity official;
18
(iii) the person has been given permission to engage in that
19
conduct under section 595.
20
Civil penalty:
120 penalty units.
21
(2) Subsection (1) does not apply if the person is authorised to engage
22
in the conduct referred to in paragraph (1)(b) under this Act or
23
under another Australian law.
24
Note:
A defendant bears an evidential burden in relation to the matter in this
25
subsection (see section 552).
26
27
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 5 Biosecurity response zones
Division 1 Introduction
Section 362
336 Biosecurity Bill 2012 No. , 2012
Part 5--Biosecurity response zones
1
Division 1--Introduction
2
362 Guide to this Part
3
This Part provides for the Director of Biosecurity to determine that
4
a specified area in Australian territory is a biosecurity response
5
zone if:
6
(a)
a biosecurity officer suspects, on reasonable
7
grounds, that a disease or pest may be present in or
8
on goods or premises in the area and may pose an
9
unacceptable level of biosecurity risk in, or in
10
relation to, the area; and
11
(b)
the Director of Biosecurity is satisfied it is
12
necessary to make the determination for the
13
purpose of managing the biosecurity risk posed by
14
the disease or pest.
15
Division 2 sets out requirements relating to making a biosecurity
16
response zone determination, including requirements relating to the
17
content of the determination and requirements relating to
18
consultation and notification.
19
Division 3 deals with the powers that may be exercised (including
20
in premises) in accordance with a biosecurity response zone
21
determination.
22
Before exercising a power in accordance with a biosecurity
23
response zone determination, a biosecurity official must be
24
satisfied of the matters referred to in section 31 (the principles).
25
Division 4 sets out offences and civil penalty provisions.
26
27
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity response zones Part 5
Biosecurity response zone determinations Division 2
Section 363
Biosecurity Bill 2012 No. , 2012 337
Division 2--Biosecurity response zone determinations
1
363 Director of Biosecurity may determine biosecurity response
2
zone
3
(1) The Director of Biosecurity may determine that a specified area in
4
Australian territory is a biosecurity response zone if:
5
(a) a biosecurity officer suspects, on reasonable grounds, that:
6
(i) a disease or pest may be present in or on goods or
7
premises in the area; and
8
(ii) the disease or pest poses an unacceptable level of
9
biosecurity risk; and
10
(b) the Director of Biosecurity is satisfied it is necessary to make
11
the determination for the purpose of managing the
12
biosecurity risk posed by the disease or pest.
13
Note 1:
This Chapter does not apply in relation to certain goods or
14
conveyances (see section 311).
15
Note 2:
Premises include a conveyance (see paragraph (a) of the definition of
16
premises in section 9).
17
Note 3:
See section 309 in relation to the meaning of biosecurity risk in this
18
Chapter.
19
Note 4:
For variation and revocation of the determination, see subsection
20
33(3) of the Acts Interpretation Act 1901.
21
(2) The Director of Biosecurity may determine that a specified area in
22
Australian territory is a biosecurity response zone even if the area,
23
or a part of the area, is part of:
24
(a) another biosecurity response zone; or
25
(b) a biosecurity monitoring zone; or
26
(c) a biosecurity activity zone.
27
(3) A biosecurity response zone determination may relate to more than
28
one disease or pest.
29
(4) A determination made under subsection (1) is a legislative
30
instrument, but section 42 (disallowance) of the Legislative
31
Instruments Act 2003 does not apply to the determination.
32
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 5 Biosecurity response zones
Division 2 Biosecurity response zone determinations
Section 364
338 Biosecurity Bill 2012 No. , 2012
364 Content of a biosecurity response zone determination
1
(1) A biosecurity response zone determination must state that:
2
(a) a biosecurity officer suspects, on reasonable grounds, that:
3
(i) a disease or pest may be present in or on goods or
4
premises in the zone; and
5
(ii) the disease or pest poses an unacceptable level of
6
biosecurity risk; and
7
(b) the Director of Biosecurity is satisfied it is necessary to make
8
the determination for the purpose of managing the
9
biosecurity risk posed by the disease or pest.
10
(2) A biosecurity response zone determination must also specify:
11
(a) each disease or pest that:
12
(i) poses an unacceptable level of biosecurity risk; and
13
(ii) has been identified; and
14
(b) the nature of the biosecurity risk that needs to be managed;
15
and
16
(c) each power set out in Division 2 of Part 3 (powers to require
17
biosecurity measures to be taken) that may be exercised in
18
relation to goods or premises in the biosecurity response zone
19
in accordance with that Division; and
20
(d) each power provided by regulations made for the purposes of
21
section 344 (other biosecurity measures) that may be
22
exercised in relation to goods or premises in the biosecurity
23
response zone in accordance with those regulations;
24
(e) each power set out in Division 3 of Part 2 (biosecurity risk
25
assessment powers) that may be exercised in relation to
26
goods or premises in the biosecurity response zone in
27
accordance with that Division; and
28
(f) each power set out in section 365 (additional biosecurity
29
response zone powers) that may be exercised in, or in relation
30
to goods or premises in, the biosecurity response zone in
31
accordance with that section; and
32
(g) the period during which the determination is to be in force.
33
(3) The period during which a biosecurity response zone determination
34
may be in force:
35
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity response zones Part 5
Biosecurity response zone determinations Division 2
Section 365
Biosecurity Bill 2012 No. , 2012 339
(a) must not be longer than the Director of Biosecurity considers
1
necessary to manage the biosecurity risk posed by each
2
disease or pest to which the determination relates; and
3
(b) in any case, must not be longer than 12 months.
4
(4) A power must not be specified in a biosecurity response zone
5
determination under paragraph (2)(c), (d), (e) or (f) unless the
6
Director of Biosecurity is satisfied that the exercise of the power is
7
appropriate and adapted for the purpose of managing the
8
biosecurity risk posed by a disease or pest to which the
9
determination relates.
10
(5) If a biosecurity response zone determination ceases to be in force,
11
the Director of Biosecurity may make another biosecurity response
12
zone determination specifying the same area covered by the
13
previous biosecurity response zone determination.
14
365 Additional powers that may be specified in a biosecurity
15
response zone determination
16
The following powers that a biosecurity officer may exercise may
17
be specified in a biosecurity response zone determination under
18
paragraph 364(2)(f):
19
(a) the power to cause the biosecurity response zone to be
20
identified (whether by affixing notices or by markings or
21
otherwise);
22
(b) the power to cause goods or premises in the biosecurity
23
response zone to be identified (whether by affixing notices or
24
by markings or otherwise);
25
(c) the power to direct a person in the biosecurity response zone
26
to leave the biosecurity response zone for a specified period
27
(which must not be longer than 24 hours);
28
(d) the power to set traps or set up equipment or other structures
29
in the biosecurity response zone.
30
Note 1:
Other powers may also be specified in a biosecurity response zone
31
determination (see paragraphs 364(2)(c), (d) and (e)).
32
Note 2:
Premises include a conveyance (see paragraph (a) of the definition of
33
premises in section 9).
34
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 5 Biosecurity response zones
Division 2 Biosecurity response zone determinations
Section 366
340 Biosecurity Bill 2012 No. , 2012
366 Consultation requirements
1
(1) Before making a biosecurity response zone determination, the
2
Director of Biosecurity must consult the head (however described)
3
of the State or Territory body that is responsible for the
4
administration of matters relating to biosecurity in each State or
5
Territory in which the biosecurity response zone will lie.
6
(2) A failure by the Director of Biosecurity to comply with
7
subsection (1) does not affect the validity of the determination.
8
367 Notification requirements
9
(1) In addition to the requirement under the Legislative Instruments
10
Act 2003 for a biosecurity response zone determination to be
11
registered, the Director of Biosecurity must ensure that the
12
determination is made public, in any other way he or she thinks fit.
13
(2) A failure by the Director of Biosecurity to comply with
14
subsection (1) does not affect the validity of the determination.
15
16
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity response zones Part 5
Powers that may be exercised in biosecurity response zones Division 3
Section 368
Biosecurity Bill 2012 No. , 2012 341
Division 3--Powers that may be exercised in biosecurity
1
response zones
2
368 Powers that may be exercised--general
3
If a biosecurity response zone determination is in force, any of the
4
following powers may be exercised in, or in relation to goods or
5
premises in, the biosecurity response zone for the purpose of
6
managing the biosecurity risk posed by a disease or pest to which
7
the determination relates:
8
(a) a power specified in the determination under paragraph
9
364(2)(c), (d), (e) or (f);
10
(b) a power set out in Division 4 of Part 3.
11
Note 1:
This Chapter does not apply in relation to certain goods or
12
conveyances (see section 311).
13
Note 2:
Premises include a conveyance (see paragraph (a) of the definition of
14
premises in section 9).
15
Note 3:
See section 309 in relation to the meaning of biosecurity risk in this
16
Chapter.
17
Note 4:
Before exercising a power specified in a biosecurity response zone
18
determination, a biosecurity official must be satisfied of the matters
19
referred to in section 31 (the principles).
20
Note 5:
A biosecurity officer or biosecurity enforcement officer may be
21
assisted by other persons in exercising powers in accordance with this
22
section (see section 531).
23
Note 6:
If an area (the overlapping area) of a biosecurity response zone is also
24
part of a biosecurity monitoring zone or a biosecurity activity zone
25
(the other zone), the powers that may be exercised in the other zone
26
may also be exercised in the overlapping area. See sections 377, 387
27
and 397 for the powers that may be exercised in a biosecurity
28
monitoring zone and a biosecurity activity zone.
29
Note 7:
See Division 4 for offences and civil penalty provisions.
30
369 Exercise of powers in premises
31
(1) A biosecurity officer or a biosecurity enforcement officer may
32
enter premises in a biosecurity response zone for the purpose of
33
exercising powers in accordance with section 368.
34
Note:
Premises include a conveyance (see paragraph (a) of the definition of
35
premises in section 9).
36
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 5 Biosecurity response zones
Division 3 Powers that may be exercised in biosecurity response zones
Section 370
342 Biosecurity Bill 2012 No. , 2012
(2) However, an officer is not authorised to enter premises under
1
subsection (1) unless:
2
(a) the occupier of the premises has consented to the entry and
3
the officer has shown his or her identity card if required by
4
the occupier; or
5
(b) the entry is made under a biosecurity response zone warrant.
6
Note:
For the issue of warrants, and the obligations and powers of
7
biosecurity enforcement officers and biosecurity officers in entering
8
premises under a warrant or with consent, see Parts 2 and 3 of
9
Chapter 10.
10
370 Power to secure goods or premises to deal with another disease
11
or pest
12
(1) This section applies if a biosecurity officer enters premises in a
13
biosecurity response zone, as authorised by section 369, for the
14
purpose of exercising powers in accordance with section 368 in
15
relation to goods or premises (the relevant goods or premises) in
16
the zone.
17
(2) The biosecurity officer may secure the relevant goods or premises
18
for up to 24 hours if:
19
(a) in the course of exercising powers in accordance with
20
section 368, the biosecurity officer suspects, on reasonable
21
grounds, that:
22
(i) another disease or pest (other than a disease or pest to
23
which the biosecurity response zone determination
24
relates) may be present in or on the relevant goods or
25
premises; and
26
(ii) the other disease or pest may pose an unacceptable level
27
of biosecurity risk; and
28
(b) the biosecurity officer believes, on reasonable grounds, that it
29
is necessary to secure the relevant goods or premises, without
30
the authority of a biosecurity risk assessment warrant or a
31
biosecurity response zone warrant, in order to manage the
32
biosecurity risk posed by the other disease or pest.
33
Note:
The Director of Biosecurity may vary the biosecurity response zone
34
determination for the purpose of allowing powers to be exercised to
35
manage any biosecurity risk posed by the other disease or pest. If the
36
determination is varied, a new biosecurity response zone warrant may
37
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity response zones Part 5
Powers that may be exercised in biosecurity response zones Division 3
Section 370
Biosecurity Bill 2012 No. , 2012 343
be needed to authorise a biosecurity officer to re-enter the premises to
1
exercise powers specified in the varied biosecurity response zone
2
determination to manage the biosecurity risk posed by the other
3
disease or pest.
4
5
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 5 Biosecurity response zones
Division 4 Offences and civil penalty provisions
Section 371
344 Biosecurity Bill 2012 No. , 2012
Division 4--Offences and civil penalty provisions
1
Note:
See also Division 4 of Part 2 and Division 5 of Part 3 for other offences and civil
2
penalty provisions.
3
371 Unauthorised persons must not interfere with etc. notices or
4
markings identifying biosecurity response zone
5
Civil penalty provision
6
(1) A person is liable to a civil penalty if:
7
(a) the power referred to in paragraph 365(a) (identification of a
8
biosecurity response zone) is specified in the biosecurity
9
response zone determination; and
10
(b) a biosecurity officer has, in accordance with the biosecurity
11
response zone determination, caused the zone to be identified
12
by:
13
(i) affixing a notice to an appropriate place in the zone; or
14
(ii) marking the zone; and
15
(c) the person interferes with, removes or defaces the notice or
16
marking; and
17
(d) none of the following applies:
18
(i) the person is authorised to engage in the conduct
19
referred to in paragraph (c) in accordance with an
20
approved arrangement;
21
(ii) the person needs to engage in that conduct to comply
22
with a direction given under another provision of this
23
Act by a biosecurity official;
24
(iii) the person has been given permission to engage in that
25
conduct under section 595.
26
Civil penalty:
120 penalty units.
27
(2) Subsection (1) does not apply if the person is authorised to engage
28
in the conduct referred to in paragraph (1)(c) under this Act or
29
under another Australian law.
30
Note:
A defendant bears an evidential burden in relation to the matter in this
31
subsection (see section 552).
32
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity response zones Part 5
Offences and civil penalty provisions Division 4
Section 372
Biosecurity Bill 2012 No. , 2012 345
372 Unauthorised persons must not interfere with etc. notices or
1
markings identifying goods or premises in a biosecurity
2
response zone
3
Civil penalty provision
4
(1) A person is liable to a civil penalty if:
5
(a) the power referred to in paragraph 365(b) (identification of
6
goods or premises in a biosecurity response zone) is specified
7
in the biosecurity response zone determination; and
8
(b) a biosecurity officer has, in accordance with the biosecurity
9
response zone determination, caused goods or premises in the
10
zone to be identified by:
11
(i) affixing a notice to, or as near as reasonably practicable
12
to, the goods or premises; or
13
(ii) marking the goods or premises; and
14
(c) the person interferes with, removes or defaces the notice or
15
marking; and
16
(d) none of the following applies:
17
(i) the person is authorised to engage in the conduct
18
referred to in paragraph (c) in accordance with an
19
approved arrangement;
20
(ii) the person needs to engage in that conduct to comply
21
with a direction given under another provision of this
22
Act by a biosecurity official;
23
(iii) the person has been given permission to engage in that
24
conduct under section 595.
25
Civil penalty:
120 penalty units.
26
(2) Subsection (1) does not apply if the person is authorised to engage
27
in the conduct referred to in paragraph (1)(c) under this Act or
28
under another Australian law.
29
Note:
A defendant bears an evidential burden in relation to the matter in this
30
subsection (see section 552).
31
373 Person must comply with direction
32
(1) A person contravenes this subsection if:
33
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 5 Biosecurity response zones
Division 4 Offences and civil penalty provisions
Section 374
346 Biosecurity Bill 2012 No. , 2012
(a) the power referred to in paragraph 365(c) (direction to person
1
to leave a biosecurity response zone) is specified in the
2
biosecurity response zone determination; and
3
(b) a person is given a direction under that paragraph; and
4
(c) the direction is given in accordance with the biosecurity
5
response zone determination; and
6
(d) the person engages in conduct; and
7
(e) the conduct contravenes the direction.
8
Fault-based offence
9
(2) A person commits an offence if the person contravenes
10
subsection (1).
11
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
12
Note:
See section 575 in relation to the physical elements of an offence.
13
Civil penalty provision
14
(3) A person is liable to a civil penalty if the person contravenes
15
subsection (1).
16
Civil penalty:
120 penalty units.
17
Note:
A person may commit an offence or contravene a civil penalty
18
provision for failing to comply with a direction given in relation to
19
another power specified in a biosecurity response zone determination
20
(see sections 316, 317, 320, 325 and 348).
21
374 Unauthorised persons must not interfere with etc. equipment
22
etc. set up in biosecurity response zone
23
(1) A person contravenes this subsection if:
24
(a) the power referred to in paragraph 365(d) (setting traps or
25
setting up equipment or other structures in a biosecurity
26
response zone) is specified in the biosecurity response zone
27
determination; and
28
(b) a biosecurity officer has, in accordance with the biosecurity
29
response zone determination, set a trap or set up equipment
30
or another structure in the zone; and
31
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity response zones Part 5
Offences and civil penalty provisions Division 4
Section 374
Biosecurity Bill 2012 No. , 2012 347
(c) the person interferes with, removes or defaces the trap,
1
equipment or other structure (as the case may be); and
2
(d) none of the following applies:
3
(i) the person is authorised to engage in the conduct
4
referred to in paragraph (c) in accordance with an
5
approved arrangement;
6
(ii) the person needs to engage in that conduct to comply
7
with a direction given under another provision of this
8
Act by a biosecurity official;
9
(iii) the person has been given permission to engage in that
10
conduct under section 595.
11
(2) Subsection (1) does not apply if the person is authorised to engage
12
in the conduct referred to in paragraph (1)(c) under this Act or
13
under another Australian law.
14
Note:
A defendant bears an evidential burden in relation to the matter in this
15
subsection (see subsection 13.3(3) of the Criminal Code and
16
section 552 of this Act).
17
Fault-based offence
18
(3) A person commits an offence if the person contravenes
19
subsection (1).
20
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
21
Note:
See section 575 in relation to the physical elements of an offence.
22
Civil penalty provision
23
(4) A person is liable to a civil penalty if the person contravenes
24
subsection (1).
25
Civil penalty:
120 penalty units.
26
27
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 6 Biosecurity monitoring zones
Division 1 Introduction
Section 375
348 Biosecurity Bill 2012 No. , 2012
Part 6--Biosecurity monitoring zones
1
Division 1--Introduction
2
375 Guide to this Part
3
This Part provides for certain areas in Australian territory to be
4
biosecurity monitoring zones. Powers may be exercised in these
5
zones for the purpose of monitoring whether a disease or pest that
6
may pose an unacceptable level of biosecurity risk:
7
(a)
has entered, or has emerged, established itself or
8
spread in, the zone; or
9
(b)
is likely to enter, or to emerge, establish itself or
10
spread in, the zone.
11
There are 2 kinds of biosecurity monitoring zones--permanent
12
biosecurity monitoring zones (see Division 2) and temporary
13
biosecurity monitoring zones (see Division 3).
14
Permanent biosecurity monitoring zones are areas in Australian
15
territory that are within the permissible distance of other areas that
16
are considered to have a high level of biosecurity risk associated
17
with them, for example first points of entry for goods being
18
brought into Australian territory or for aircraft or vessels entering
19
Australian territory.
20
Division 2 deals with the powers that may be exercised (including
21
in premises) in a permanent biosecurity monitoring zone, and sets
22
out the civil penalty provisions.
23
Under Division 3, the Director of Biosecurity may determine that a
24
specified area in Australian territory is a temporary biosecurity
25
monitoring zone if the Director is satisfied it is necessary to do so
26
for the purpose of monitoring whether a disease or pest that may
27
pose an unacceptable level of biosecurity risk:
28
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity monitoring zones Part 6
Introduction Division 1
Section 375
Biosecurity Bill 2012 No. , 2012 349
(a)
has entered, or has emerged, established itself or
1
spread in, the area; or
2
(b)
is likely to enter, or to emerge, establish itself or
3
spread in, the area.
4
Division 3 sets out requirements relating to making a temporary
5
biosecurity monitoring zone determination, including requirements
6
relating to the content of the determination and requirements
7
relating to consultation and notification.
8
Division 3 also deals with the powers that may be exercised
9
(including in premises) in accordance with a temporary biosecurity
10
monitoring zone determination and sets out civil penalty
11
provisions.
12
Before exercising a power in a permanent biosecurity monitoring
13
zone or in accordance with a temporary biosecurity monitoring
14
zone determination, a biosecurity official must be satisfied of the
15
matters referred to in section 31 (the principles).
16
17
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 6 Biosecurity monitoring zones
Division 2 Permanent biosecurity monitoring zones
Section 376
350 Biosecurity Bill 2012 No. , 2012
Division 2--Permanent biosecurity monitoring zones
1
Subdivision A--Areas that are permanent biosecurity
2
monitoring zones
3
376 Permanent biosecurity monitoring zones
4
(1) The area in Australian territory that is within the permissible
5
distance of the outer boundary of each of the following:
6
(a) a landing place that is a first point of entry for aircraft or
7
goods;
8
(b) a port that is a first point of entry for vessels or goods;
9
(c) an international mail centre;
10
(d) a biosecurity activity zone;
11
(e) any other place prescribed by the regulations;
12
is a permanent biosecurity monitoring zone.
13
Note:
Permissible distance means 400 metres or such greater distance as is
14
prescribed by the regulations (see the definition in section 9).
15
(2) The regulations must not prescribe a place for the purposes of
16
paragraph (1)(e) unless the Director of Biosecurity is satisfied that
17
there is a high level of biosecurity risk associated with the place.
18
Subdivision B--Powers that may be exercised in permanent
19
biosecurity monitoring zones
20
377 Powers that may be exercised--general
21
(1) The powers set out in Division 3 of Part 2 (biosecurity risk
22
assessment powers) (other than the powers set out in section 320
23
(movement of goods or conveyances) and sections 323 and 324
24
(operating electronic equipment)) may be exercised in relation to
25
goods or premises in a permanent biosecurity monitoring zone in
26
accordance with that Division.
27
(2) The following powers may also be exercised by a biosecurity
28
officer in, or in relation to goods or premises in, a permanent
29
biosecurity monitoring zone:
30
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity monitoring zones Part 6
Permanent biosecurity monitoring zones Division 2
Section 377
Biosecurity Bill 2012 No. , 2012 351
(a) the power to cause the biosecurity monitoring zone to be
1
identified (whether by affixing notices or by markings or
2
otherwise);
3
(b) the power to cause goods or premises in the biosecurity
4
monitoring zone to be identified (whether by affixing notices
5
or by markings or otherwise);
6
(c) the power to set traps or set up equipment or other structures
7
in the biosecurity monitoring zone;
8
(d) any other power prescribed by the regulations for the
9
purposes of this paragraph.
10
(3) Regulations made for the purposes of paragraph (2)(d) must not
11
provide for a biosecurity officer to require any of the following
12
kinds of biosecurity measures to be taken:
13
(a) a biosecurity measure of a kind set out in Subdivision B of
14
Division 3 of Part 3 of Chapter 2 (biosecurity measures that
15
may be included in a human biosecurity control order);
16
(b) a biosecurity measure of a kind set out in Division 3 of Part 2
17
of this Chapter (biosecurity risk assessment powers);
18
(c) a biosecurity measure of a kind set out in Division 2 of Part 3
19
of this Chapter (powers to require biosecurity measures to be
20
taken);
21
(d) a biosecurity measure of a kind provided by regulations made
22
for the purposes of section 344 (other biosecurity measures);
23
(e) a biosecurity measure of a kind referred to in Subdivision B
24
of Division 2 of Part 4 of Chapter 12 (decontamination).
25
(4) The powers referred to in subsections (1) and (2) may be exercised
26
in, or in relation to goods or premises in, a permanent biosecurity
27
monitoring zone for the purpose of monitoring whether a disease or
28
pest that a biosecurity officer suspects, on reasonable grounds, may
29
pose an unacceptable level of biosecurity risk:
30
(a) has entered, or has emerged, established itself or spread in,
31
the zone; or
32
(b) is likely to enter, or to emerge, establish itself or spread in,
33
the zone.
34
Note 1:
This Chapter does not apply in relation to certain goods or
35
conveyances (see section 311).
36
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 6 Biosecurity monitoring zones
Division 2 Permanent biosecurity monitoring zones
Section 378
352 Biosecurity Bill 2012 No. , 2012
Note 2:
Premises include a conveyance (see paragraph (a) of the definition of
1
premises in section 9).
2
Note 3:
See section 309 in relation to the meaning of biosecurity risk in this
3
Chapter.
4
Note 4:
Before exercising a power in a permanent biosecurity monitoring
5
zone, a biosecurity official must be satisfied of the matters referred to
6
in section 31 (the principles).
7
Note 5:
A biosecurity officer may be assisted by other persons in exercising
8
powers in a permanent biosecurity monitoring zone (see section 531).
9
Note 6:
See Subdivision C for civil penalty provisions.
10
378 Exercise of powers in premises
11
(1) A biosecurity officer or a biosecurity enforcement officer may
12
enter premises in a permanent biosecurity monitoring zone for the
13
purpose of exercising powers in accordance with section 377.
14
Note:
Premises include a conveyance (see paragraph (a) of the definition of
15
premises in section 9).
16
(2) However, an officer is not authorised to enter premises under
17
subsection (1) unless:
18
(a) the occupier of the premises has consented to the entry and
19
the officer has shown his or her identity card if required by
20
the occupier; or
21
(b) the entry is made under a biosecurity monitoring zone
22
warrant.
23
Note:
For the issue of warrants, and the obligations and powers of
24
biosecurity enforcement officers and biosecurity officers in entering
25
premises under a warrant or with consent, see Parts 2 and 3 of
26
Chapter 10.
27
Subdivision C--Civil penalty provisions
28
Note:
See also Division 3 of Part 2 for other civil penalty provisions.
29
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity monitoring zones Part 6
Permanent biosecurity monitoring zones Division 2
Section 379
Biosecurity Bill 2012 No. , 2012 353
379 Unauthorised persons must not interfere with etc. notices or
1
markings identifying permanent biosecurity monitoring
2
zone
3
Civil penalty provision
4
(1) A person is liable to a civil penalty if:
5
(a) a biosecurity officer has caused a permanent biosecurity
6
monitoring zone to be identified by:
7
(i) affixing a notice to an appropriate place in the zone; or
8
(ii) marking the zone; and
9
(b) the person interferes with, removes or defaces the notice or
10
marking; and
11
(c) none of the following applies:
12
(i) the person is authorised to engage in the conduct
13
referred to in paragraph (b) in accordance with an
14
approved arrangement;
15
(ii) the person needs to engage in that conduct to comply
16
with a direction given under another provision of this
17
Act by a biosecurity official;
18
(iii) the person has been given permission to engage in that
19
conduct under section 595.
20
Civil penalty:
120 penalty units.
21
(2) Subsection (1) does not apply if the person is authorised to engage
22
in the conduct referred to in paragraph (1)(b) under this Act or
23
under another Australian law.
24
Note:
A defendant bears an evidential burden in relation to the matter in this
25
subsection (see section 552).
26
380 Unauthorised persons must not interfere with etc. notices or
27
markings identifying goods or premises in a permanent
28
biosecurity monitoring zone
29
Civil penalty provision
30
(1) A person is liable to a civil penalty if:
31
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 6 Biosecurity monitoring zones
Division 2 Permanent biosecurity monitoring zones
Section 381
354 Biosecurity Bill 2012 No. , 2012
(a) a biosecurity officer has caused goods or premises in a
1
permanent biosecurity monitoring zone to be identified by:
2
(i) affixing a notice to, or as near as practicable to, the
3
goods or premises; or
4
(ii) marking the goods or premises; and
5
(b) the person interferes with, removes or defaces the notice or
6
marking; and
7
(c) none of the following applies:
8
(i) the person is authorised to engage in the conduct
9
referred to in paragraph (b) in accordance with an
10
approved arrangement;
11
(ii) the person needs to engage in that conduct to comply
12
with a direction given under another provision of this
13
Act by a biosecurity official;
14
(iii) the person has been given permission to engage in that
15
conduct under section 595.
16
Civil penalty:
120 penalty units.
17
(2) Subsection (1) does not apply if the person is authorised to engage
18
in the conduct referred to in paragraph (1)(b) under this Act or
19
under another Australian law.
20
Note:
A defendant bears an evidential burden in relation to the matter in this
21
subsection (see section 552).
22
381 Unauthorised persons must not interfere with etc. equipment
23
etc. set up in permanent biosecurity monitoring zone
24
Civil penalty provision
25
(1) A person is liable to a civil penalty if:
26
(a) a biosecurity officer has set a trap or has set up equipment or
27
another structure in a permanent biosecurity monitoring zone;
28
and
29
(b) the person interferes with, removes or defaces the trap,
30
equipment or other structure; and
31
(c) none of the following applies:
32
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity monitoring zones Part 6
Permanent biosecurity monitoring zones Division 2
Section 381
Biosecurity Bill 2012 No. , 2012 355
(i) the person is authorised to engage in the conduct
1
referred to in paragraph (b) in accordance with an
2
approved arrangement;
3
(ii) the person needs to engage in that conduct to comply
4
with a direction given under another provision of this
5
Act by a biosecurity official;
6
(iii) the person has been given permission to engage in that
7
conduct under section 595.
8
Civil penalty:
120 penalty units.
9
(2) Subsection (1) does not apply if the person is authorised to engage
10
in the conduct referred to in that subsection under this Act or under
11
another Australian law.
12
Note:
A defendant bears an evidential burden in relation to the matter in this
13
subsection (see section 552).
14
15
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 6 Biosecurity monitoring zones
Division 3 Temporary biosecurity monitoring zones
Section 382
356 Biosecurity Bill 2012 No. , 2012
Division 3--Temporary biosecurity monitoring zones
1
Subdivision A--Temporary biosecurity monitoring zone
2
determinations
3
382 Director of Biosecurity may determine temporary biosecurity
4
monitoring zone
5
(1) The Director of Biosecurity may determine that a specified area in
6
Australian territory is a temporary biosecurity monitoring zone if
7
the Director is satisfied it is necessary to do so for the purpose of
8
monitoring whether a disease or pest that may pose an
9
unacceptable level of biosecurity risk:
10
(a) has entered, or has emerged, established itself or spread in,
11
the area; or
12
(b) is likely to enter, or to emerge, establish itself or spread in,
13
the area.
14
Note 1:
See section 309 in relation to the meaning of biosecurity risk in this
15
Chapter.
16
Note 2:
For variation and revocation of the determination, see subsection
17
33(3) of the Acts Interpretation Act 1901.
18
(2) Without limiting subsection (1), a specified area may consist of the
19
whole or part of specified premises (other than a conveyance).
20
(3) The Director of Biosecurity may determine that a specified area in
21
Australian territory is a temporary biosecurity monitoring zone
22
even if the area, or a part of the area, is part of another temporary
23
biosecurity monitoring zone.
24
(4) A determination made under subsection (1) is a legislative
25
instrument, but section 42 (disallowance) of the Legislative
26
Instruments Act 2003 does not apply to the determination.
27
383 Content of a temporary biosecurity monitoring zone
28
determination
29
(1) A temporary biosecurity monitoring zone determination must
30
specify:
31
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity monitoring zones Part 6
Temporary biosecurity monitoring zones Division 3
Section 383
Biosecurity Bill 2012 No. , 2012 357
(a) each power set out in Division 3 of Part 2 (biosecurity risk
1
assessment powers) that may be exercised in relation to
2
goods or premises in the temporary biosecurity monitoring
3
zone in accordance with that Division; and
4
(b) each power set out in section 384 (additional temporary
5
biosecurity monitoring zone powers) that may be exercised
6
in, or in relation to goods or premises in, the temporary
7
biosecurity monitoring zone in accordance with that section;
8
and
9
(c) the period during which the determination is to be in force.
10
(2) The following powers must not be specified in a temporary
11
biosecurity monitoring zone determination under paragraph (1)(a):
12
(a) the power set out in section 320 (movement of goods or
13
conveyance);
14
(b) the powers set out in sections 323 and 324 (operation of
15
electronic equipment).
16
(3) The period during which a temporary biosecurity monitoring zone
17
determination may be in force:
18
(a) must not be longer than the Director of Biosecurity considers
19
necessary to monitor whether a disease or pest that may pose
20
an unacceptable level of biosecurity risk:
21
(i) has entered, or has emerged, established itself or spread
22
in, the zone; or
23
(ii) is likely to enter, or to emerge, establish itself or spread
24
in, the zone; and
25
(b) in any case, must not be longer than 12 months.
26
(4) A power must not be specified in a temporary biosecurity
27
monitoring zone determination under paragraph (1)(a) or (b) unless
28
the Director of Biosecurity is satisfied that the exercise of the
29
power is appropriate and adapted for the purpose of monitoring
30
whether a disease or pest that a biosecurity officer suspects, on
31
reasonable grounds, may pose an unacceptable level of biosecurity
32
risk:
33
(a) has entered, or has emerged, established itself or spread in,
34
the zone; or
35
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 6 Biosecurity monitoring zones
Division 3 Temporary biosecurity monitoring zones
Section 384
358 Biosecurity Bill 2012 No. , 2012
(b) is likely to enter, or to emerge, establish itself or spread in,
1
the zone.
2
(5) If a temporary biosecurity monitoring zone determination ceases to
3
be in force, the Director of Biosecurity may make another
4
temporary biosecurity monitoring zone determination specifying
5
the same area covered by the previous temporary biosecurity
6
monitoring zone determination.
7
384 Additional powers that may be specified in a temporary
8
biosecurity monitoring zone determination
9
(1) The following powers that a biosecurity officer may exercise may
10
be specified in a temporary biosecurity monitoring zone
11
determination under paragraph 383(1)(b):
12
(a) the power to cause the biosecurity monitoring zone to be
13
identified (whether by affixing notices or by markings or
14
otherwise);
15
(b) the power to cause goods or premises in the biosecurity
16
monitoring zone to be identified (whether by affixing notices
17
or by markings or otherwise);
18
(c) the power to set traps or set up equipment or other structures
19
in the biosecurity monitoring zone;
20
(d) any other power prescribed by the regulations for the
21
purposes of this paragraph.
22
Note:
Certain powers set out in Division 3 of Part 2 (biosecurity risk
23
assessment powers) may also be specified in a temporary biosecurity
24
monitoring zone determination (see paragraph 383(1)(a) and
25
subsection 383(2)).
26
(2) Regulations made for the purposes of paragraph (1)(d) must not
27
provide for a biosecurity officer to require any of the following
28
kinds of biosecurity measures to be taken:
29
(a) a biosecurity measure of a kind set out in Subdivision B of
30
Division 3 of Part 3 of Chapter 2 (biosecurity measures that
31
may be included in a human biosecurity control order);
32
(b) a biosecurity measure of a kind set out in Division 3 of Part 2
33
of this Chapter (biosecurity risk assessment powers);
34
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity monitoring zones Part 6
Temporary biosecurity monitoring zones Division 3
Section 385
Biosecurity Bill 2012 No. , 2012 359
(c) a biosecurity measure of a kind set out in Division 2 of Part 3
1
of this Chapter (powers to require biosecurity measures to be
2
taken);
3
(d) a biosecurity measure of a kind provided by regulations made
4
for the purposes of section 344 (other biosecurity measures);
5
(e) a biosecurity measure of a kind referred to in Subdivision B
6
of Division 2 of Part 4 of Chapter 12 (decontamination).
7
385 Consultation requirements
8
(1) Before making a temporary biosecurity monitoring zone
9
determination, the Director of Biosecurity must consult the head
10
(however described) of the State or Territory body that is
11
responsible for the administration of matters relating to biosecurity
12
in each State or Territory in which the temporary biosecurity
13
monitoring zone will lie.
14
(2) A failure by the Director of Biosecurity to comply with
15
subsection (1) does not affect the validity of the determination.
16
386 Notification requirements
17
(1) In addition to the requirement under the Legislative Instruments
18
Act 2003 for a temporary biosecurity monitoring zone
19
determination to be registered, the Director of Biosecurity must
20
ensure that the determination is made public, in any other way he
21
or she thinks fit.
22
(2) A failure by the Director of Biosecurity to comply with
23
subsection (1) does not affect the validity of the determination.
24
Subdivision B--Powers that may be exercised in temporary
25
biosecurity monitoring zones
26
387 Powers that may be exercised--general
27
If a temporary biosecurity monitoring zone determination is in
28
force, any power specified in the determination under paragraph
29
383(1)(a) or (b) may be exercised in, or in relation to goods or
30
premises in, the zone for the purpose of monitoring whether a
31
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 6 Biosecurity monitoring zones
Division 3 Temporary biosecurity monitoring zones
Section 388
360 Biosecurity Bill 2012 No. , 2012
disease or pest that a biosecurity officer suspects, on reasonable
1
grounds, may pose an unacceptable level of biosecurity risk:
2
(a) has entered, or has emerged, established itself or spread in,
3
the temporary biosecurity monitoring zone; or
4
(b) is likely to enter, or to emerge, establish itself or spread in,
5
the temporary biosecurity monitoring zone.
6
Note 1:
This Chapter does not apply in relation to certain goods or
7
conveyances (see section 311).
8
Note 2:
Premises include a conveyance (see paragraph (a) of the definition of
9
premises in section 9).
10
Note 3:
See section 309 in relation to the meaning of biosecurity risk in this
11
Chapter.
12
Note 4:
Before exercising a power in a temporary biosecurity monitoring
13
zone, a biosecurity official must be satisfied of the matters referred to
14
in section 31 (the principles).
15
Note 5:
A biosecurity officer may be assisted by other persons in exercising
16
powers in a temporary biosecurity monitoring zone (see section 531).
17
Note 6:
See Subdivision C for civil penalty provisions.
18
388 Exercise of powers in premises
19
(1) A biosecurity officer or a biosecurity enforcement officer may
20
enter premises in a temporary biosecurity monitoring zone for the
21
purpose of exercising powers in accordance with section 387.
22
Note:
Premises include a conveyance (see paragraph (a) of the definition of
23
premises in section 9).
24
(2) However, an officer is not authorised to enter premises under
25
subsection (1) unless:
26
(a) the occupier of the premises has consented to the entry and
27
the officer has shown his or her identity card if required by
28
the occupier; or
29
(b) the entry is made under a biosecurity monitoring zone
30
warrant.
31
Note:
For the issue of warrants, and the obligations and powers of
32
biosecurity enforcement officers and biosecurity officers in entering
33
premises under a warrant or with consent, see Parts 2 and 3 of
34
Chapter 10.
35
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity monitoring zones Part 6
Temporary biosecurity monitoring zones Division 3
Section 389
Biosecurity Bill 2012 No. , 2012 361
Subdivision C--Civil penalty provisions
1
Note:
See also Division 3 of Part 2 for other civil penalty provisions.
2
389 Unauthorised persons must not interfere with etc. notices or
3
markings identifying temporary biosecurity monitoring
4
zone
5
Civil penalty provision
6
(1) A person is liable to a civil penalty if:
7
(a) the power referred to in paragraph 384(1)(a) (identification of
8
a temporary biosecurity monitoring zone) is specified in the
9
temporary biosecurity monitoring zone determination; and
10
(b) a biosecurity officer has, in accordance with the temporary
11
biosecurity monitoring zone determination, caused the zone
12
to be identified by:
13
(i) affixing a notice to an appropriate place in the zone; or
14
(ii) marking the zone; and
15
(c) the person interferes with, removes or defaces the notice or
16
marking; and
17
(d) none of the following applies:
18
(i) the person is authorised to engage in the conduct
19
referred to in paragraph (c) in accordance with an
20
approved arrangement;
21
(ii) the person needs to engage in that conduct to comply
22
with a direction given under another provision of this
23
Act by a biosecurity official;
24
(iii) the person has been given permission to engage in that
25
conduct under section 595.
26
Civil penalty:
120 penalty units.
27
(2) Subsection (1) does not apply if the person is authorised to engage
28
in the conduct referred to in paragraph (1)(c) under this Act or
29
under another Australian law.
30
Note:
A defendant bears an evidential burden in relation to the matter in this
31
subsection (see section 552).
32
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 6 Biosecurity monitoring zones
Division 3 Temporary biosecurity monitoring zones
Section 390
362 Biosecurity Bill 2012 No. , 2012
390 Unauthorised persons must not interfere with etc. notices or
1
markings identifying goods or premises in temporary
2
biosecurity monitoring zone
3
Civil penalty provision
4
(1) A person is liable to a civil penalty if:
5
(a) the power referred to in paragraph 384(1)(b) (identification
6
of goods or premises in a temporary biosecurity monitoring
7
zone) is specified in the temporary biosecurity monitoring
8
zone determination; and
9
(b) a biosecurity officer has, in accordance with the temporary
10
biosecurity monitoring zone determination, caused goods or
11
premises in the zone to be identified by:
12
(i) affixing a notice to, or as near as reasonably practicable
13
to, the goods or premises; or
14
(ii) marking the goods or premises; and
15
(c) the person interferes with, removes or defaces the notice or
16
marking; and
17
(d) none of the following applies:
18
(i) the person is authorised to engage in the conduct
19
referred to in paragraph (c) in accordance with an
20
approved arrangement;
21
(ii) the person needs to engage in that conduct to comply
22
with a direction given under another provision of this
23
Act by a biosecurity official;
24
(iii) the person has been given permission to engage in that
25
conduct under section 595.
26
Civil penalty:
120 penalty units.
27
(2) Subsection (1) does not apply if the person is authorised to engage
28
in the conduct referred to in paragraph (1)(c) under this Act or
29
under another Australian law.
30
Note:
A defendant bears an evidential burden in relation to the matter in this
31
subsection (see section 552).
32
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity monitoring zones Part 6
Temporary biosecurity monitoring zones Division 3
Section 391
Biosecurity Bill 2012 No. , 2012 363
391 Unauthorised persons must not interfere with etc. equipment
1
etc. set up in temporary biosecurity monitoring zone
2
Civil penalty provision
3
(1) A person is liable to a civil penalty if:
4
(a) the power referred to in paragraph 384(1)(c) (setting traps or
5
setting up equipment or other structures in a temporary
6
biosecurity monitoring zone) is specified in the temporary
7
biosecurity monitoring zone determination; and
8
(b) a biosecurity officer has, in accordance with the temporary
9
biosecurity monitoring zone determination, set a trap or set
10
up equipment or another structure in the zone; and
11
(c) the person interferes with, removes or defaces the trap,
12
equipment or other structure (as the case may be); and
13
(d) none of the following applies:
14
(i) the person is authorised to engage in the conduct
15
referred to in paragraph (c) in accordance with an
16
approved arrangement;
17
(ii) the person needs to engage in that conduct to comply
18
with a direction given under another provision of this
19
Act by a biosecurity official;
20
(iii) the person has been given permission to engage in that
21
conduct under section 595.
22
Civil penalty:
120 penalty units.
23
(2) Subsection (1) does not apply if the person is authorised to engage
24
in the conduct referred to in paragraph (1)(c) under this Act or
25
under another Australian law.
26
Note:
A defendant bears an evidential burden in relation to the matter in this
27
subsection (see section 552).
28
29
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 7 Biosecurity activity zones
Division 1 Introduction
Section 392
364 Biosecurity Bill 2012 No. , 2012
Part 7--Biosecurity activity zones
1
Division 1--Introduction
2
392 Guide to this Part
3
This Part provides for the Director of Biosecurity to determine that
4
an area in Australian territory where powers are exercised or
5
functions or duties are performed by, or on behalf of, the
6
Commonwealth under this Act is a biosecurity activity zone.
7
The Director may make the determination if the Director is
8
satisfied it is necessary for the purpose of managing biosecurity
9
risks associated with the exercise of those powers or the
10
performance of those functions or duties.
11
Division 2 sets out requirements relating to making a biosecurity
12
activity zone determination, including requirements relating to the
13
content of the determination and requirements relating to
14
consultation and notification.
15
Division 3 deals with the powers that may be exercised (including
16
in premises) in a biosecurity activity zone.
17
Before exercising a power in a biosecurity activity zone, a
18
biosecurity official must be satisfied of the matters referred to in
19
section 31 (the principles).
20
Division 4 sets out offences and civil penalty provisions.
21
22
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity activity zones Part 7
Biosecurity activity zone determinations Division 2
Section 393
Biosecurity Bill 2012 No. , 2012 365
Division 2--Biosecurity activity zone determinations
1
393 Director of Biosecurity may determine biosecurity activity zone
2
(1) The Director of Biosecurity may determine that a specified area in
3
Australian territory is a biosecurity activity zone if:
4
(a) the area is a place where powers are exercised or functions or
5
duties are performed by, or on behalf of, the Commonwealth
6
under this Act; and
7
(b) the Director of Biosecurity is satisfied it is necessary to make
8
the determination for the purpose of managing biosecurity
9
risks associated with the exercise of those powers or the
10
performance of those functions or duties.
11
Note 1:
See section 309 in relation to the meaning of biosecurity risk in this
12
Chapter.
13
Note 2:
For variation of a biosecurity activity zone determination, see
14
subsection 33(3) of the Acts Interpretation Act 1901.
15
Note 3:
For revocation of a biosecurity activity zone determination, see
16
section 396.
17
(2) Without limiting subsection (1), a specified area may consist of the
18
whole or part of specified premises (other than a conveyance),
19
including premises on which a biosecurity industry participant
20
carries out biosecurity activities as authorised by an approved
21
arrangement covering the biosecurity industry participant.
22
(3) The Director of Biosecurity may determine that a specified area in
23
Australian territory is a biosecurity activity zone even if the area,
24
or a part of the area, is part of:
25
(a) a biosecurity response zone; or
26
(b) a biosecurity monitoring zone.
27
(4) A determination made under subsection (1) is a legislative
28
instrument, but neither section 42 (disallowance) nor Part 6
29
(sunsetting) of the Legislative Instruments Act 2003 applies to the
30
determination.
31
(5) A biosecurity activity zone determination remains in force until it
32
is revoked under section 396.
33
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 7 Biosecurity activity zones
Division 2 Biosecurity activity zone determinations
Section 394
366 Biosecurity Bill 2012 No. , 2012
394 Consultation requirements
1
(1) Before making a biosecurity activity zone determination, the
2
Director of Biosecurity must consult the head (however described)
3
of the State or Territory body that is responsible for the
4
administration of matters relating to biosecurity in each State or
5
Territory in which the biosecurity activity zone will lie.
6
(2) A failure by the Director of Biosecurity to comply with
7
subsection (1) does not affect the validity of the determination.
8
395 Notification requirements
9
(1) In addition to the requirement under the Legislative Instruments
10
Act 2003 for a biosecurity activity zone determination to be
11
registered, the Director of Biosecurity must ensure that the
12
determination is made public, in any other way he or she thinks fit.
13
(2) A failure by the Director of Biosecurity to comply with
14
subsection (1) does not affect the validity of the determination.
15
396 Revocation of biosecurity activity zone determination
16
(1) The Director of Biosecurity must revoke a biosecurity activity zone
17
determination if the Director is satisfied that it is no longer
18
necessary for powers to be exercised in, or in relation to, the zone
19
in accordance with section 397.
20
(2) A revocation of a biosecurity activity zone determination made
21
under subsection (1) is a legislative instrument, but neither
22
section 42 (disallowance) nor Part 6 (sunsetting) of the Legislative
23
Instruments Act 2003 applies to the revocation.
24
(3) A revocation of a biosecurity activity zone determination takes
25
effect immediately after it is made.
26
27
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity activity zones Part 7
Powers that may be exercised in biosecurity activity zones Division 3
Section 397
Biosecurity Bill 2012 No. , 2012 367
Division 3--Powers that may be exercised in biosecurity
1
activity zones
2
397 Powers that may be exercised
3
(1) The following powers may be exercised by a biosecurity officer in,
4
or in relation to goods or premises in, a biosecurity activity zone:
5
(a) the power to cause the biosecurity activity zone to be
6
identified (whether by affixing notices or by markings or
7
otherwise);
8
(b) the power to cause goods or premises in the biosecurity
9
activity zone to be identified (whether by affixing notices or
10
by markings or otherwise);
11
(c) the power to direct a person in the biosecurity activity zone to
12
leave the biosecurity activity zone for a specified period
13
(which must not be longer than 24 hours);
14
(d) any other power prescribed by the regulations for the
15
purposes of this paragraph.
16
(2) The powers set out in sections 331 and 332 (entry and exit
17
requirements) may also be exercised in relation to premises in a
18
biosecurity activity zone in accordance with that section.
19
Note:
A person may commit an offence or contravene a civil penalty
20
provision if the person fails to comply with a requirement imposed
21
under section 331 or 332 that applies to the person (see section 347).
22
(3) Regulations made for the purposes of paragraph (1)(d) must not
23
provide for a biosecurity officer to require any of the following
24
kinds of biosecurity measures to be taken:
25
(a) a biosecurity measure of a kind set out in Subdivision B of
26
Division 3 of Part 3 of Chapter 2 (biosecurity measures that
27
may be included in a human biosecurity control order);
28
(b) a biosecurity measure of a kind set out in Division 3 of Part 2
29
of this Chapter (biosecurity risk assessment powers);
30
(c) a biosecurity measure of a kind set out in Division 2 of Part 3
31
of this Chapter (powers to require biosecurity measures to be
32
taken);
33
(d) a biosecurity measure of a kind provided by regulations made
34
for the purposes of section 344 (other biosecurity measures);
35
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 7 Biosecurity activity zones
Division 3 Powers that may be exercised in biosecurity activity zones
Section 398
368 Biosecurity Bill 2012 No. , 2012
(e) a biosecurity measure of a kind referred to in Subdivision B
1
of Division 2 of Part 4 of Chapter 12 (decontamination).
2
(4) The powers referred to in subsections (1) and (2) may be exercised
3
in, or in relation to goods or premises in, a biosecurity activity zone
4
for the purpose of managing biosecurity risks associated with the
5
exercise of powers or the performance of functions or duties by, or
6
on behalf of, the Commonwealth under this Act in the zone.
7
Note 1:
This Chapter does not apply in relation to certain goods or
8
conveyances (see section 311).
9
Note 2:
Premises include a conveyance (see paragraph (a) of the definition of
10
premises in section 9).
11
Note 3:
See section 309 in relation to the meaning of biosecurity risk in this
12
Chapter.
13
Note 4:
Before exercising a power in a biosecurity activity zone, a biosecurity
14
official must be satisfied of the matters referred to in section 31 (the
15
principles).
16
Note 5:
A biosecurity officer may be assisted by other persons in exercising
17
powers in a biosecurity activity zone (see section 531).
18
Note 6:
See Division 4 for offences and civil penalty provisions.
19
398 Use of force
20
A biosecurity enforcement officer may use such force against
21
things in a biosecurity activity zone as is necessary and reasonable
22
in the circumstances.
23
24
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity activity zones Part 7
Offences and civil penalty provisions Division 4
Section 399
Biosecurity Bill 2012 No. , 2012 369
Division 4--Offences and civil penalty provisions
1
399 Unauthorised persons must not interfere with etc. notices or
2
markings identifying biosecurity activity zone
3
Civil penalty provision
4
(1) A person is liable to a civil penalty if:
5
(a) a biosecurity officer has caused a biosecurity activity zone to
6
be identified by:
7
(i) affixing a notice to an appropriate place in the zone; or
8
(ii) marking the zone; and
9
(b) the person interferes with, removes or defaces the notice or
10
marking; and
11
(c) none of the following applies:
12
(i) the person is authorised to engage in the conduct
13
referred to in paragraph (b) in accordance with an
14
approved arrangement;
15
(ii) the person needs to engage in that conduct to comply
16
with a direction given under another provision of this
17
Act by a biosecurity official;
18
(iii) the person has been given permission to engage in that
19
conduct under section 595.
20
Civil penalty:
120 penalty units.
21
(2) Subsection (1) does not apply if the person is authorised to engage
22
in the conduct referred to in paragraph (1)(b) under this Act or
23
under another Australian law.
24
Note:
A defendant bears an evidential burden in relation to the matter in this
25
subsection (see section 552).
26
400 Unauthorised persons must not interfere with etc. notices or
27
markings identifying goods or premises in a biosecurity
28
activity zone
29
Civil penalty provision
30
(1) A person is liable to a civil penalty if:
31
Chapter 6 Managing biosecurity risks: monitoring, control and response
Part 7 Biosecurity activity zones
Division 4 Offences and civil penalty provisions
Section 401
370 Biosecurity Bill 2012 No. , 2012
(a) a biosecurity officer has caused goods or premises in a
1
biosecurity activity zone to be identified by:
2
(i) affixing a notice to, or as near as practicable to, the
3
goods or premises; or
4
(ii) marking the goods or premises; and
5
(b) the person interferes with, removes or defaces the notice or
6
marking; and
7
(c) none of the following applies:
8
(i) the person is authorised to engage in the conduct
9
referred to in paragraph (b) in accordance with an
10
approved arrangement;
11
(ii) the person needs to engage in that conduct to comply
12
with a direction given under another provision of this
13
Act by a biosecurity official;
14
(iii) the person has been given permission to engage in that
15
conduct under section 595.
16
Civil penalty:
120 penalty units.
17
(2) Subsection (1) does not apply if the person is authorised to engage
18
in the conduct referred to in paragraph (1)(b) under this Act or
19
under another Australian law.
20
Note:
A defendant bears an evidential burden in relation to the matter in this
21
subsection (see section 552).
22
401 Person must comply with direction
23
(1) A person contravenes this subsection if:
24
(a) the person is given a direction under paragraph 397(1)(c);
25
and
26
(b) the person engages in conduct; and
27
(c) the conduct contravenes the direction.
28
Fault-based offence
29
(2) A person commits an offence if the person contravenes
30
subsection (1).
31
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
32
Managing biosecurity risks: monitoring, control and response Chapter 6
Biosecurity activity zones Part 7
Offences and civil penalty provisions Division 4
Section 401
Biosecurity Bill 2012 No. , 2012 371
Note:
See section 575 in relation to the physical elements of an offence.
1
Civil penalty provision
2
(3) A person is liable to a civil penalty if the person contravenes
3
subsection (1).
4
Civil penalty:
120 penalty units.
5
6
Chapter 7 Approved arrangements
Part 1 Introduction
Section 402
372 Biosecurity Bill 2012 No. , 2012
Chapter 7--Approved arrangements
1
Part 1--Introduction
2
3
402 Guide to this Chapter
4
This Chapter provides for the Director of Biosecurity or the
5
Director of Human Biosecurity to approve proposed arrangements
6
that provide for the person covered by the arrangement (the
7
biosecurity industry participant) to carry out activities (biosecurity
8
activities) to manage biosecurity risks associated with specified
9
goods, premises or other things.
10
A biosecurity industry participant covered by an approved
11
arrangement is authorised and required to carry out biosecurity
12
activities in accordance with the arrangement (except in certain
13
circumstances).
14
Part 2 deals with matters relating to obtaining approval of a
15
proposed arrangement.
16
Part 3 deals with varying an approved arrangement.
17
Part 4 deals with suspending an approved arrangement, or a part of
18
an approved arrangement, for a period.
19
Part 5 deals with revoking an approved arrangement.
20
Part 6 sets out the powers and obligations of biosecurity industry
21
participants in carrying out biosecurity activities in accordance
22
with an approved arrangement.
23
Part 7 includes other provisions relating to approved arrangements.
24
Division 1 deals with matters relating to applications for approval
25
of proposed arrangements; Division 2 provides for the Director of
26
Biosecurity or the Director of Human Biosecurity to require audits
27
to be carried out in relation to approved arrangements; and
28
Approved arrangements Chapter 7
Introduction Part 1
Section 402
Biosecurity Bill 2012 No. , 2012 373
Division 3 sets out offence and civil penalty provisions and
1
provides for protection from civil proceedings.
2
3
Chapter 7 Approved arrangements
Part 2 Approval of proposed arrangement
Section 403
374 Biosecurity Bill 2012 No. , 2012
Part 2--Approval of proposed arrangement
1
2
403 Person may apply to relevant Director for approval of proposed
3
arrangement to carry out biosecurity activities
4
A person may apply to the relevant Director for approval of a
5
proposed arrangement that provides for the person to carry out
6
specified activities (biosecurity activities) to manage biosecurity
7
risks associated with specified goods, premises or other things.
8
Note 1:
A proposed arrangement may provide for a person to carry out
9
biosecurity activities at a particular place.
10
Note 2:
Section 432 sets out requirements for applications.
11
404 Relevant Director must decide whether or not to approve
12
proposed arrangement
13
(1) On receiving an application for approval of a proposed
14
arrangement under section 403, the relevant Director must decide
15
either:
16
(a) to approve the arrangement; or
17
(b) to refuse to approve the arrangement.
18
Note 1:
See section 433 for matters relating to dealing with applications.
19
Note 2:
If the relevant Director does not make a decision in relation to the
20
application within the consideration period for the application, the
21
Director is taken to have refused to approve the proposed arrangement
22
at the end of that period (see subsection 433(2)).
23
Note 3:
A decision to refuse to approve a proposed arrangement is a
24
reviewable decision (see Part 1 of Chapter 13).
25
Note 4:
If a proposed arrangement is approved, the biosecurity industry
26
participant covered by the arrangement is authorised, for the purposes
27
of this Act, to carry out biosecurity activities in accordance with the
28
arrangement (see section 425).
29
(2) The relevant Director may approve the arrangement if the Director
30
is satisfied, having regard to any matter that the Director considers
31
relevant, that:
32
(a) the arrangement meets the requirements prescribed by the
33
regulations; and
34
Approved arrangements Chapter 7
Approval of proposed arrangement Part 2
Section 405
Biosecurity Bill 2012 No. , 2012 375
(b) the applicant for the approval is a fit and proper person
1
(having regard to the matters referred to in section 505); and
2
(c) the level of biosecurity risk associated with the operation of
3
the arrangement is acceptable.
4
(3) The relevant Director may approve the arrangement subject to any
5
conditions the Director considers appropriate.
6
Note 1:
A decision to approve a proposed arrangement subject to conditions is
7
a reviewable decision (see Part 1 of Chapter 13).
8
Note 2:
A condition may require a security to be given as referred to in
9
section 405.
10
405 Proposed arrangement may be approved subject to condition
11
requiring security to be given
12
(1) The relevant Director may, if he or she considers it appropriate
13
having regard to the criteria (if any) prescribed by the regulations,
14
require, as a condition of approving a proposed arrangement, a
15
security to be given in relation to the operation of the arrangement.
16
(2) The regulations may:
17
(a) prescribe criteria to which the relevant Director must have
18
regard in considering whether to require a security to be
19
given as mentioned in subsection (1); and
20
(b) make provision for or in relation to the security that may be
21
required.
22
(3) Without limiting paragraph (2)(b), regulations made for the
23
purposes of that paragraph may deal with any or all of the
24
following:
25
(a) the form of the security;
26
(b) the amount of the security;
27
(c) who must give the security;
28
(d) when the security must be given;
29
(e) the circumstances in which the security may be retained;
30
(f) the circumstances in which the security, or any part of the
31
security, must be repaid.
32
Chapter 7 Approved arrangements
Part 2 Approval of proposed arrangement
Section 406
376 Biosecurity Bill 2012 No. , 2012
406 Notice of decision
1
(1) The relevant Director must notify, in writing, the applicant for
2
approval of a proposed arrangement whether the arrangement is
3
approved or not.
4
(2) If the arrangement is approved, the notice must specify:
5
(a) any conditions to which the approved arrangement is subject;
6
and
7
(b) the period for which the approved arrangement is to be in
8
force.
9
(3) If the arrangement is not approved, the notice must include the
10
reasons for refusing to approve the arrangement.
11
407 Period of effect of approved arrangement
12
(1) An approved arrangement takes effect:
13
(a) on the day the notice is given under subsection 406(1); or
14
(b) if a later day is specified in that notice--on that later day.
15
(2) An approved arrangement remains in force for the period specified
16
in the notice given under subsection 406(1), unless it is revoked
17
earlier.
18
408 Restrictions on applications for approval of proposed
19
arrangements etc.
20
(1) This section applies if:
21
(a) an application by a person (the first person) for approval of a
22
proposed arrangement is refused under this Chapter; or
23
(b) an approved arrangement covering a biosecurity industry
24
participant (also the first person) is revoked under Part 5.
25
(2) The relevant Director may do either or both of the following, on
26
one or more occasions:
27
(a) refuse an application under section 403 by an associate of the
28
first person for approval of a proposed arrangement;
29
Approved arrangements Chapter 7
Approval of proposed arrangement Part 2
Section 408
Biosecurity Bill 2012 No. , 2012 377
(b) if an associate of the first person is or becomes a biosecurity
1
industry participant--give the associate a written notice in
2
accordance with subsection (3).
3
(3) A notice given under paragraph (2)(b) must:
4
(a) state the grounds on which the notice is given; and
5
(b) request the associate to give the relevant Director, within 14
6
days after the day the notice is given, a written statement
7
showing cause:
8
(i) why an approved arrangement, or a part of an approved
9
arrangement, covering the associate should not be
10
suspended, or further suspended, under Division 2 of
11
Part 4; or
12
(ii) why an approved arrangement covering the associate
13
should not be revoked under Division 2 of Part 5; and
14
(c) include a statement setting out the associate's right to seek
15
review of a decision:
16
(i) to suspend, or further suspend, an approved
17
arrangement, or a part of an approved arrangement,
18
covering the associate; or
19
(ii) to revoke an approved arrangement covering the
20
associate.
21
(4) For the purposes of this section, a reference to an associate of
22
another person (the first person) includes a reference to any of the
23
following:
24
(a) a person who is or was a consultant, adviser, partner,
25
representative on retainer, employer or employee of:
26
(i) the first person; or
27
(ii) any corporation of which the first person is an officer or
28
employee or in which the first person holds shares;
29
(b) a spouse, de facto partner, child, parent, grandparent,
30
grandchild, sibling, aunt, uncle, niece, nephew or cousin of
31
the first person;
32
(c) a child, parent, grandparent, grandchild, sibling, aunt, uncle,
33
niece, nephew or cousin of a spouse or de facto partner of the
34
first person;
35
Chapter 7 Approved arrangements
Part 2 Approval of proposed arrangement
Section 409
378 Biosecurity Bill 2012 No. , 2012
(d) any other person not mentioned in paragraph (a), (b) or (c)
1
who is or was:
2
(i) directly or indirectly concerned in; or
3
(ii) in a position to control or influence the conduct of;
4
a business or undertaking of:
5
(iii) the first person; or
6
(iv) a corporation of which the first person is an officer or
7
employee, or in which the first person holds shares;
8
(e)
a
corporation:
9
(i) of which the first person, or any of the other persons
10
mentioned in paragraphs (a), (b), (c) and (d), is an
11
officer or employee; or
12
(ii) in which the first person, or any of those other persons,
13
holds shares.
14
Note: The
expression
de facto partner is defined in section 2D of the Acts
15
Interpretation Act 1901.
16
409 Transfer of approved arrangement
17
An approved arrangement may be transferred to another person
18
only in the circumstances prescribed by the regulations.
19
20
Approved arrangements Chapter 7
Variation of approved arrangement Part 3
Application by biosecurity industry participant Division 1
Section 410
Biosecurity Bill 2012 No. , 2012 379
Part 3--Variation of approved arrangement
1
Division 1--Application by biosecurity industry
2
participant
3
410 Application for approval of varied arrangement
4
(1) If a biosecurity industry participant wishes to vary an approved
5
arrangement covering the biosecurity industry participant, the
6
biosecurity industry participant may apply to the relevant Director
7
for approval of the varied arrangement.
8
Note:
Section 432 sets out requirements for applications.
9
(2) The biosecurity industry participant must not implement the varied
10
arrangement unless:
11
(a) the relevant Director has approved it; and
12
(b) the relevant Director has given the biosecurity industry
13
participant written notice of the approval.
14
(3) Sections 404 to 407 apply in relation to an application under
15
subsection (1) as if the application were for approval of a new
16
proposed arrangement.
17
Note 1:
If the relevant Director does not make a decision in relation to the
18
application within the consideration period for the application, the
19
Director is taken to have refused to approve the varied arrangement at
20
the end of that period (see subsection 433(2)).
21
Note 2:
A decision to refuse to approve a varied arrangement is a reviewable
22
decision (see Part 1 of Chapter 13).
23
(4) If the relevant Director approves a varied arrangement, the notice
24
of approval in relation to the varied arrangement replaces any
25
previous notice given under subsection 406(1) in relation to the
26
arrangement.
27
28
Chapter 7 Approved arrangements
Part 3 Variation of approved arrangement
Division 2 Variation required by relevant Director
Section 411
380 Biosecurity Bill 2012 No. , 2012
Division 2--Variation required by relevant Director
1
411 Relevant Director may vary or require variation of approved
2
arrangement
3
(1) The relevant Director may, by written notice given to the
4
biosecurity industry participant covered by an approved
5
arrangement:
6
(a) vary the conditions of the arrangement (including by
7
imposing new conditions); or
8
(b) require the biosecurity industry participant to vary the
9
arrangement as specified in the notice.
10
Note:
A decision to vary the conditions of an approved arrangement, or to
11
require an approved arrangement to be varied, is a reviewable decision
12
(see Part 1 of Chapter 13).
13
(2) The relevant Director may give a notice to a biosecurity industry
14
participant under subsection (1) in relation to an approved
15
arrangement if the Director is satisfied that:
16
(a) the arrangement no longer meets the requirements on the
17
basis of which approval was given; or
18
(b) the biosecurity industry participant is no longer a fit and
19
proper person (having regard to the matters referred to in
20
section 505); or
21
(c) a condition of the arrangement has been contravened; or
22
(d) the level of biosecurity risk associated with the operation of
23
the arrangement has changed; or
24
(e) a change needs to be made to the arrangement to correct a
25
minor or technical error in the arrangement; or
26
(f) the arrangement needs to be varied for any other reason.
27
412 Notice varying conditions of approved arrangement
28
A notice under paragraph 411(1)(a) varying the conditions of an
29
approved arrangement must specify:
30
(a) the conditions that are to be varied and details of the
31
variations; and
32
(b) if new conditions are to be imposed on the approved
33
arrangement--the new conditions.
34
Approved arrangements Chapter 7
Variation of approved arrangement Part 3
Variation required by relevant Director Division 2
Section 413
Biosecurity Bill 2012 No. , 2012 381
413 Date of effect of variation of conditions of approved
1
arrangement
2
A variation of the conditions of an approved arrangement by notice
3
given under paragraph 411(1)(a) takes effect:
4
(a) on the day the notice is given; or
5
(b) if a later day is specified in that notice--on that later day.
6
414 Notice requiring approved arrangement to be varied
7
(1) A notice under paragraph 411(1)(b) requiring a biosecurity
8
industry participant to vary an approved arrangement covering the
9
biosecurity industry participant must:
10
(a) specify the variations required; and
11
(b) require the biosecurity industry participant to give the varied
12
arrangement to the relevant Director by the date specified in
13
the notice.
14
(2) If the biosecurity industry participant gives the varied arrangement
15
to the relevant Director as required by the notice, subsections
16
410(2) to (4) apply in relation to the varied arrangement as if the
17
biosecurity industry participant had applied to the relevant Director
18
for approval of the varied arrangement.
19
Note:
If the biosecurity industry participant does not give the varied
20
arrangement to the relevant Director as required by the notice, the
21
Director may suspend the arrangement under Division 2 of Part 4 or
22
revoke the arrangement under Division 2 of Part 5.
23
24
Chapter 7 Approved arrangements
Part 4 Suspension of approved arrangement
Division 1 Suspension requested by biosecurity industry participant
Section 415
382 Biosecurity Bill 2012 No. , 2012
Part 4--Suspension of approved arrangement
1
Division 1--Suspension requested by biosecurity industry
2
participant
3
415 Biosecurity industry participant may request relevant Director
4
to suspend all or part of approved arrangement
5
(1) A biosecurity industry participant may request the relevant
6
Director to suspend an approved arrangement, or a part of an
7
approved arrangement, covering the biosecurity industry
8
participant.
9
Note:
A request might be made under this subsection if, for example, a
10
biosecurity industry participant does not have personnel with
11
appropriate qualifications or expertise to carry out biosecurity
12
activities in accordance with an approved arrangement covering the
13
biosecurity industry participant.
14
Requirements for request
15
(2) A request under subsection (1):
16
(a) must be in writing; and
17
(b) must specify whether the whole or a specified part of the
18
approved arrangement is to be suspended; and
19
(c) must specify a proposed date for the suspension to take effect
20
(which must not be before the end of the notice period
21
prescribed by the regulations); and
22
(d) must specify the period of the suspension; and
23
(e) must include any other information prescribed by the
24
regulations.
25
Request to suspend whole of approved arrangement
26
(3) If the relevant Director receives a request from a biosecurity
27
industry participant under subsection (1) to suspend an approved
28
arrangement covering the biosecurity industry participant, the
29
Director must, by written notice to the biosecurity industry
30
participant, suspend the approved arrangement for the period
31
specified in the notice.
32
Approved arrangements Chapter 7
Suspension of approved arrangement Part 4
Suspension requested by biosecurity industry participant Division 1
Section 415
Biosecurity Bill 2012 No. , 2012 383
Request to suspend part of approved arrangement
1
(4) If the relevant Director receives a request from a biosecurity
2
industry participant under subsection (1) to suspend a part of an
3
approved arrangement covering the biosecurity industry
4
participant, the Director must, within the period prescribed by the
5
regulations:
6
(a) decide whether to suspend the part of the approved
7
arrangement as requested; and
8
(b) notify, in writing, the biosecurity industry participant of the
9
decision.
10
Note 1:
If the relevant Director is not satisfied that it is appropriate to suspend
11
a part of an approved arrangement as requested, the relevant Director
12
may decide to:
13
(a) vary the conditions of the arrangement or require the biosecurity
14
industry participant to vary the arrangement under section 411; or
15
(b) suspend the whole of the arrangement under Division 2 of this
16
Part; or
17
(c) revoke the arrangement under Division 2 of Part 5.
18
Note 2:
A decision to refuse to suspend a part of an approved arrangement is a
19
reviewable decision (see Part 1 of Chapter 13).
20
Note 3:
If an approved arrangement, or a part of an approved arrangement is
21
suspended under this section, the biosecurity industry participant
22
covered by the arrangement is not authorised, for the purposes of this
23
Act, to carry out biosecurity activities to the extent to which the
24
arrangement, or the part of the arrangement, is suspended (see
25
subsection 425(1)).
26
(5)
If:
27
(a) the relevant Director receives a request from a biosecurity
28
industry participant under subsection (1) to suspend a part of
29
an approved arrangement covering the biosecurity industry
30
participant; and
31
(b) the Director does not make a decision in relation to the
32
request within the period prescribed by the regulations for the
33
purposes of subsection (4);
34
the Director is taken to have refused the request at the end of that
35
period.
36
37
Chapter 7 Approved arrangements
Part 4 Suspension of approved arrangement
Division 2 Suspension by relevant Director
Section 416
384 Biosecurity Bill 2012 No. , 2012
Division 2--Suspension by relevant Director
1
416 Relevant Director may suspend approved arrangement
2
(1) The relevant Director may suspend an approved arrangement, or a
3
part of an approved arrangement, for a period if the Director is
4
satisfied that:
5
(a) the arrangement, or the part of the arrangement, no longer
6
meets the requirements on the basis of which approval was
7
given; or
8
(b) the biosecurity industry participant is no longer a fit and
9
proper person (having regard to the matters referred to in
10
section 505); or
11
(c) a condition of the arrangement has been contravened; or
12
(d) the level of biosecurity risk associated with the operation of
13
the arrangement has changed; or
14
(e) the biosecurity industry participant is liable to pay a fee
15
prescribed in the regulations (including a late payment fee)
16
that is due and payable; or
17
(f) the biosecurity industry participant is an associate (within the
18
meaning of subsection 408(4)) of:
19
(i) a person who has been refused approval of a proposed
20
arrangement under this Chapter; or
21
(ii) a person who was a biosecurity industry participant
22
covered by an approved arrangement that has been
23
revoked.
24
Note 1:
A decision to suspend an approved arrangement, or a part of an
25
approved arrangement, is a reviewable decision (see Part 1 of
26
Chapter 13).
27
Note 2:
If an approved arrangement, or a part of an approved arrangement is
28
suspended under this subsection, the biosecurity industry participant
29
covered by the arrangement is not authorised, for the purposes of this
30
Act, to carry out biosecurity activities to the extent to which the
31
arrangement, or the part of the arrangement, is suspended (see
32
subsection 425(1)).
33
Approved arrangements Chapter 7
Suspension of approved arrangement Part 4
Suspension by relevant Director Division 2
Section 417
Biosecurity Bill 2012 No. , 2012 385
Notice of proposed suspension on ground referred to in
1
paragraphs (1)(a) to (e)
2
(2) The relevant Director must not suspend an approved arrangement,
3
or a part of an approved arrangement, on a ground referred to in
4
paragraphs (1)(a) to (e) unless the Director has given a notice to the
5
biosecurity industry participant covered by the arrangement in
6
accordance with subsection (3).
7
(3) A notice under subsection (2) must:
8
(a) be in writing; and
9
(b) specify the grounds on which the arrangement, or the part of
10
the arrangement, is to be suspended; and
11
(c) subject to subsection (4), request the biosecurity industry
12
participant to give the relevant Director, within 14 days after
13
the day the notice is given to the biosecurity industry
14
participant, a written statement showing cause why the
15
arrangement, or the part of the arrangement, should not be
16
suspended; and
17
(d) include a statement setting out the biosecurity industry
18
participant's right to seek review of a decision to suspend the
19
arrangement or the part of the arrangement.
20
(4) A notice under subsection (2) is not required to include the request
21
referred to in paragraph (3)(c) if the relevant Director is satisfied
22
that the grounds for the suspension are serious and urgent.
23
Notice of proposed suspension on ground referred to in
24
paragraph (1)(f)
25
(5) The relevant Director must not suspend an approved arrangement,
26
or a part of an approved arrangement, on the ground referred to in
27
paragraph (1)(f) unless the Director has given a notice to the
28
biosecurity industry participant covered by the arrangement under
29
paragraph 408(2)(b).
30
417 Notice of suspension
31
If the relevant Director decides to suspend an approved
32
arrangement, or a part of an approved arrangement, under
33
subsection 416(1), the Director must give the biosecurity industry
34
Chapter 7 Approved arrangements
Part 4 Suspension of approved arrangement
Division 2 Suspension by relevant Director
Section 418
386 Biosecurity Bill 2012 No. , 2012
participant covered by the arrangement written notice stating that
1
the arrangement, or the part of the arrangement, is suspended for
2
the period specified in the notice.
3
418 Period of suspension
4
(1) Subject to subsection (2), a suspension of an approved
5
arrangement, or a part of an approved arrangement, under this
6
Division takes effect:
7
(a) on the day the notice under section 417 is given; or
8
(b) if a later day is specified in that notice--on that later day.
9
(2) If the biosecurity industry participant covered by the approved
10
arrangement was given:
11
(a) a notice under subsection 416(2) that included the request
12
referred to in paragraph 416(3)(c); or
13
(b) a notice under paragraph 408(2)(b);
14
the suspension must not take effect before the end of 14 days after
15
the notice is given.
16
(3) The relevant Director may vary the period during which an
17
approved arrangement, or a part of an approved arrangement, is
18
suspended by written notice to the biosecurity industry participant
19
covered by the arrangement.
20
Note:
A decision to extend the period during which an approved
21
arrangement, or a part of an approved arrangement, is suspended is a
22
reviewable decision (see Part 1 of Chapter 13).
23
(4) The relevant Director may revoke a suspension of an approved
24
arrangement, or a part of an approved arrangement, by written
25
notice to the biosecurity industry participant covered by the
26
arrangement.
27
419 Management of biosecurity risks during suspension period
28
(1) This section applies if an approved arrangement covering a
29
biosecurity industry participant, or a part of such an arrangement,
30
is suspended for a period under this Division.
31
(2) The relevant Director may, in writing, direct the biosecurity
32
industry participant to take specified action, within a specified
33
Approved arrangements Chapter 7
Suspension of approved arrangement Part 4
Suspension by relevant Director Division 2
Section 419
Biosecurity Bill 2012 No. , 2012 387
period, to manage any biosecurity risks associated with goods,
1
premises or other things that the biosecurity industry participant
2
would have been authorised to deal with if the approved
3
arrangement, or the part of the arrangement, had not been
4
suspended.
5
(3)
If:
6
(a) the biosecurity industry participant is given a direction to
7
take specified action to manage biosecurity risks associated
8
with goods, premises or other things as mentioned in
9
subsection (2); and
10
(b) the biosecurity industry participant does not take the action
11
within the period specified in the direction; and
12
(c) the biosecurity industry participant is not the owner of the
13
goods, premises or other things;
14
the relevant Director may, in writing, direct the owner of the
15
goods, premises or other things to take the specified action within a
16
specified period.
17
(4) A person who is given a direction under subsection (2) or (3) must
18
comply with the direction.
19
Fault-based offence
20
(5) A person commits an offence if:
21
(a) the person is given a direction under subsection (2) or (3);
22
and
23
(b) the person engages in conduct; and
24
(c) the conduct contravenes the direction.
25
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
26
Civil penalty provision
27
(6) A person is liable to a civil penalty if the person contravenes
28
subsection (4).
29
Civil penalty:
120 penalty units.
30
Chapter 7 Approved arrangements
Part 5 Revocation of approved arrangement
Division 1 Revocation requested by biosecurity industry participant
Section 420
388 Biosecurity Bill 2012 No. , 2012
Part 5--Revocation of approved arrangement
1
Division 1--Revocation requested by biosecurity industry
2
participant
3
420 Biosecurity industry participant may request relevant Director
4
to revoke approved arrangement
5
(1) A biosecurity industry participant may request the relevant
6
Director to revoke an approved arrangement covering the
7
biosecurity industry participant.
8
(2) A request under subsection (1):
9
(a) must be in writing; and
10
(b) must specify a proposed date for the revocation to take effect
11
(which must not be before the end of the notice period
12
prescribed by the regulations); and
13
(c) must include any other information prescribed by the
14
regulations.
15
(3) If the relevant Director receives a request from a biosecurity
16
industry participant under subsection (1), the Director must, by
17
written notice to the biosecurity industry participant, revoke the
18
approved arrangement with effect on the date specified in the
19
notice.
20
Note:
If an approved arrangement has been revoked under this section, the
21
person who was the biosecurity industry participant covered by the
22
arrangement is not authorised, for the purposes of this Act, to carry
23
out biosecurity activities in accordance with the arrangement at any
24
time after the revocation takes effect (see subsection 425(2)).
25
26
Approved arrangements Chapter 7
Revocation of approved arrangement Part 5
Revocation by relevant Director Division 2
Section 421
Biosecurity Bill 2012 No. , 2012 389
Division 2--Revocation by relevant Director
1
421 Relevant Director may revoke approved arrangement
2
(1) The relevant Director may revoke an approved arrangement if the
3
Director is satisfied that:
4
(a) the arrangement no longer meets the requirements on the
5
basis of which approval was given; or
6
(b) the biosecurity industry participant is no longer a fit and
7
proper person (having regard to the matters referred to in
8
section 505); or
9
(c) a condition of the arrangement has been contravened; or
10
(d) the level of biosecurity risk associated with the operation of
11
the arrangement has changed; or
12
(e) the biosecurity industry participant is liable to pay a fee
13
prescribed in the regulations (including a late payment fee)
14
that is due and payable; or
15
(f) the biosecurity industry participant is an associate (within the
16
meaning of subsection 408(4)) of:
17
(i) a person who has been refused approval of a proposed
18
arrangement under this Chapter; or
19
(ii) a person who was a biosecurity industry participant
20
covered by an approved arrangement that has been
21
revoked.
22
Note 1:
A decision to revoke an approved arrangement is a reviewable
23
decision (see Part 1 of Chapter 13).
24
Note 2:
If an approved arrangement has been revoked under this subsection,
25
the person who was the biosecurity industry participant covered by the
26
arrangement is not authorised, for the purposes of this Act, to carry
27
out biosecurity activities in accordance with the arrangement at any
28
time after the revocation takes effect (see subsection 425(2)).
29
Notice of proposed revocation on ground referred to in
30
paragraphs (1)(a) to (e)
31
(2) The relevant Director must not revoke an approved arrangement on
32
a ground referred to in paragraphs (1)(a) to (e) unless the Director
33
has given a notice to the biosecurity industry participant covered
34
by the arrangement in accordance with subsection (3).
35
Chapter 7 Approved arrangements
Part 5 Revocation of approved arrangement
Division 2 Revocation by relevant Director
Section 422
390 Biosecurity Bill 2012 No. , 2012
(3) A notice under subsection (2) must:
1
(a) be in writing; and
2
(b) specify the grounds on which the arrangement is to be
3
revoked; and
4
(c) subject to subsection (4), request the biosecurity industry
5
participant to give the relevant Director, within 14 days after
6
the day the notice is given to the biosecurity industry
7
participant, a written statement showing cause why the
8
arrangement should not be revoked; and
9
(d) include a statement setting out the biosecurity industry
10
participant's right to seek review of a decision to revoke the
11
arrangement.
12
(4) A notice under subsection (2) is not required to include the request
13
referred to in paragraph (3)(c) if the relevant Director is satisfied
14
that the grounds for the revocation are serious and urgent.
15
Notice of proposed revocation on ground referred to in
16
paragraph (1)(f)
17
(5) The relevant Director must not revoke an approved arrangement on
18
the ground referred to in paragraph (1)(f) unless the Director has
19
given a notice to the biosecurity industry participant covered by the
20
arrangement under paragraph 408(2)(b).
21
422 Notice of revocation
22
If the relevant Director decides to revoke an approved arrangement
23
under subsection 421(1), the Director must give the biosecurity
24
industry participant covered by the arrangement written notice
25
stating that the arrangement is revoked.
26
423 Date of effect of revocation
27
(1) Subject to subsection (2), the revocation of an approved
28
arrangement under this Division takes effect:
29
(a) on the day the notice under section 422 is given; or
30
(b) if a later day is specified in that notice--on that later day.
31
Approved arrangements Chapter 7
Revocation of approved arrangement Part 5
Revocation by relevant Director Division 2
Section 424
Biosecurity Bill 2012 No. , 2012 391
(2) If the biosecurity industry participant covered by the approved
1
arrangement was given:
2
(a) a notice under subsection 421(2) that included the request
3
referred to in paragraph 421(3)(c); or
4
(b) a notice under paragraph 408(2)(b);
5
the revocation must not take effect before the end of 14 days after
6
the notice is given.
7
424 Management of biosecurity risks after revocation
8
(1) This section applies if an approved arrangement covering a
9
biosecurity industry participant (the former biosecurity industry
10
participant) has been revoked under this Division.
11
(2) The relevant Director may, in writing, direct the former biosecurity
12
industry participant to take specified action, within a specified
13
period, to manage any biosecurity risks associated with goods,
14
premises or other things that the former biosecurity industry
15
participant would have been authorised to deal with if the approved
16
arrangement had not been revoked.
17
(3)
If:
18
(a) the former biosecurity industry participant is given a
19
direction to take specified action to manage biosecurity risks
20
associated with goods, premises or other things as mentioned
21
in subsection (2); and
22
(b) the former biosecurity industry participant does not take the
23
action within the period specified in the direction; and
24
(c) the former biosecurity industry participant is not the owner of
25
the goods, premises or other things;
26
the relevant Director may, in writing, direct the owner of the
27
goods, premises or other things to take the specified action within a
28
specified period.
29
(4) A person who is given a direction under subsection (2) or (3) must
30
comply with the direction.
31
Fault-based offence
32
(5) A person commits an offence if:
33
Chapter 7 Approved arrangements
Part 5 Revocation of approved arrangement
Division 2 Revocation by relevant Director
Section 424
392 Biosecurity Bill 2012 No. , 2012
(a) the person is given a direction under subsection (2) or (3);
1
and
2
(b) the person engages in conduct; and
3
(c) the conduct contravenes the direction.
4
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
5
Civil penalty provision
6
(6) A person is liable to a civil penalty if the person contravenes
7
subsection (4).
8
Civil penalty:
120 penalty units.
9
10
Approved arrangements Chapter 7
Powers and obligations of biosecurity industry participants Part 6
General Division 1
Section 425
Biosecurity Bill 2012 No. , 2012 393
Part 6--Powers and obligations of biosecurity
1
industry participants
2
Division 1--General
3
425 Authorisation to carry out biosecurity activities in accordance
4
with approved arrangement
5
(1) A biosecurity industry participant is authorised, for the purposes of
6
this Act, to carry out biosecurity activities in accordance with an
7
approved arrangement covering the biosecurity industry
8
participant, except to the extent:
9
(a) to which the arrangement, or a part of the arrangement, is
10
suspended under Part 4; or
11
(b) that carrying out the biosecurity activities would be
12
inconsistent with a direction given under subsection 427(1).
13
(2) If an approved arrangement has been revoked under Part 5, the
14
person who was the biosecurity industry participant covered by the
15
arrangement is not authorised, for the purposes of this Act, to carry
16
out biosecurity activities in accordance with the arrangement at any
17
time after the revocation takes effect.
18
(3) This section does not prevent a biosecurity industry participant, or
19
a former biosecurity industry participant, who is directed to take
20
action under subsection 419(2) or 424(2), from taking that action.
21
426 Biosecurity industry participant must carry out biosecurity
22
activities in accordance with approved arrangement etc.
23
(1) A biosecurity industry participant contravenes this subsection if:
24
(a) the biosecurity industry participant is authorised to carry out
25
biosecurity activities in accordance with an approved
26
arrangement covering the biosecurity industry participant;
27
and
28
(b) the biosecurity industry participant:
29
(i) fails to carry out the biosecurity activities in accordance
30
with the arrangement; or
31
Chapter 7 Approved arrangements
Part 6 Powers and obligations of biosecurity industry participants
Division 1 General
Section 427
394 Biosecurity Bill 2012 No. , 2012
(ii) fails to comply with any requirements specified in the
1
arrangement; or
2
(iii) fails to comply with any conditions to which the
3
arrangement is subject.
4
Note:
See section 425 in relation to when a biosecurity industry participant
5
is authorised to carry out biosecurity activities in accordance with an
6
approved arrangement covering the biosecurity industry participant.
7
Fault-based offence
8
(2) A person commits an offence if the person contravenes
9
subsection (1).
10
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
11
Note:
See section 575 in relation to the physical elements of an offence.
12
Civil penalty provision
13
(3) A person is liable to a civil penalty if the person contravenes
14
subsection (1).
15
Civil penalty:
120 penalty units.
16
427 Biosecurity officer may give direction to biosecurity industry
17
participant to manage biosecurity risks
18
(1) If a biosecurity officer is satisfied that it is necessary to do so to
19
manage biosecurity risks associated with the operation of an
20
approved arrangement, a biosecurity officer may give the
21
biosecurity industry participant covered by the arrangement a
22
direction in relation to the operation of the arrangement.
23
(2) A direction under subsection (1) may require the biosecurity
24
industry participant:
25
(a) to carry out an activity other than in accordance with an
26
approved arrangement covering the biosecurity industry
27
participant; or
28
(b) not to carry out an activity in accordance with an approved
29
arrangement covering the biosecurity industry participant.
30
Approved arrangements Chapter 7
Powers and obligations of biosecurity industry participants Part 6
General Division 1
Section 428
Biosecurity Bill 2012 No. , 2012 395
(3) However, a direction under subsection (1) must not require the
1
biosecurity industry participant to carry out an activity that the
2
biosecurity industry participant is not qualified, or does not have
3
the expertise or resources, to carry out.
4
Note:
See also section 608 (general provisions relating to directions).
5
(4) A person who is given a direction under subsection (1) must
6
comply with the direction.
7
Fault-based offence
8
(5) A person commits an offence if:
9
(a) the person is given a direction under subsection (1); and
10
(b) the person engages in conduct; and
11
(c) the conduct contravenes the direction.
12
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
13
Civil penalty provision
14
(6) A person is liable to a civil penalty if the person contravenes
15
subsection (4).
16
Civil penalty:
120 penalty units.
17
428 Biosecurity industry participant may charge fee in relation to
18
biosecurity activities carried out
19
(1) A biosecurity industry participant who is authorised to carry out
20
biosecurity activities in accordance with an approved arrangement
21
covering the biosecurity industry participant may charge a fee in
22
relation to biosecurity activities that are carried out in accordance
23
with the arrangement.
24
(2) A biosecurity industry participant may charge a fee in relation to
25
activities that are carried out in compliance with a direction given
26
to the biosecurity industry participant under subsection 427(1).
27
(3) A fee must not be such as to amount to taxation.
28
29
Chapter 7 Approved arrangements
Part 6 Powers and obligations of biosecurity industry participants
Division 2 Biosecurity incidents
Section 429
396 Biosecurity Bill 2012 No. , 2012
Division 2--Biosecurity incidents
1
429 Reporting biosecurity incidents
2
(1) This section applies if:
3
(a) an approved arrangement requires a report to be made to the
4
relevant Director if an act, omission or event (a reportable
5
biosecurity incident) specified in the arrangement occurs; or
6
(b) a condition of an approved arrangement requires a report to
7
be made to the relevant Director if an act, omission or event
8
(also a reportable biosecurity incident) specified in the
9
condition occurs.
10
(2) The report must include the information, and be made in the way,
11
determined under subsection (3).
12
(3) The relevant Director may, by legislative instrument, determine
13
either or both of the following:
14
(a) information that must be included in a report of a reportable
15
biosecurity incident required by an approved arrangement or
16
a condition of an approved arrangement;
17
(b) the way the report must be made.
18
(4)
If:
19
(a) a person reports a reportable biosecurity incident to the
20
relevant Director as required by an approved arrangement or
21
a condition of an approved arrangement; and
22
(b) the report does not comply with any requirements that are in
23
force under subsection (3) when the report is made;
24
the report is taken, for the purposes of the approved arrangement,
25
or the condition of the approved arrangement, not to have been
26
made.
27
Note:
A biosecurity industry participant may commit an offence or
28
contravene a civil penalty provision if the biosecurity industry
29
participant fails to comply with any requirements specified in an
30
approved arrangement covering the biosecurity industry participant or
31
a condition of such an arrangement (see section 426).
32
(5) This section does not limit the operation of Division 8 of Part 1 of
33
Chapter 3 in relation to a biosecurity industry participant.
34
Approved arrangements Chapter 7
Powers and obligations of biosecurity industry participants Part 6
Biosecurity incidents Division 2
Section 430
Biosecurity Bill 2012 No. , 2012 397
Note:
Division 8 of Part 1 of Chapter 3 deals with reporting biosecurity
1
incidents in relation to goods that are subject to biosecurity control.
2
430 Costs of dealing with biosecurity incidents
3
(1) If a relevant court is satisfied that:
4
(a) a person, who is or was a biosecurity industry participant
5
covered by an approved arrangement, failed to carry out
6
biosecurity activities in accordance with the arrangement or
7
failed to comply with a condition or other requirement of the
8
arrangement (other than to the extent necessary to comply
9
with a direction given under subsection 427(1)); and
10
(b) an incident (a biosecurity incident) occurred in relation to the
11
operation of the approved arrangement; and
12
(c) the biosecurity incident was caused by the failure referred to
13
in paragraph (a); and
14
(d) the Commonwealth incurred costs in dealing with the
15
biosecurity incident;
16
the court may, on application by the relevant Director, make an
17
order (a costs order) requiring the person to pay to the
18
Commonwealth the whole, or a part, of the costs incurred by the
19
Commonwealth.
20
(2) An application by the relevant Director for a costs order in relation
21
to a biosecurity incident must be made within 6 years after the
22
biosecurity incident occurred.
23
(3) In deciding whether to make a costs order in relation to a
24
biosecurity incident, the relevant court may have regard to the
25
following matters:
26
(a) the nature and extent of the failure referred to in
27
paragraph (1)(a);
28
(b) the circumstances in which the biosecurity incident occurred;
29
(c) the nature and extent of any damage caused by the failure
30
referred to in paragraph (1)(a);
31
(d) the level of biosecurity risk associated with the biosecurity
32
incident;
33
(e) the amount of the costs incurred by the Commonwealth in
34
dealing with the biosecurity incident;
35
Chapter 7 Approved arrangements
Part 6 Powers and obligations of biosecurity industry participants
Division 2 Biosecurity incidents
Section 430
398 Biosecurity Bill 2012 No. , 2012
(f) whether a costs order under this section has previously been
1
made against the person in relation to any other biosecurity
2
incident;
3
(g) any other matter the court considers relevant.
4
5
Approved arrangements Chapter 7
Other provisions Part 7
Applications for approval Division 1
Section 431
Biosecurity Bill 2012 No. , 2012 399
Part 7--Other provisions
1
Division 1--Applications for approval
2
431 Applications to which this Division applies
3
This Division applies in relation to:
4
(a) an application for approval of a proposed arrangement under
5
Part 2; and
6
(b) an application for approval of a varied arrangement under
7
Division 1 of Part 3.
8
432 Requirements for applications
9
(1) An application must:
10
(a) if a form of application has been approved by the relevant
11
Director--be in that form; and
12
(b) include the information prescribed by the regulations; and
13
(c) be accompanied by:
14
(i) the proposed arrangement or the varied arrangement that
15
is to be approved; and
16
(ii) any other documents prescribed by the regulations.
17
Note 1:
Personal information may also be required to be provided with the
18
application (see subsection 506(1)). If personal information is required
19
to be provided with the application and the information is not
20
provided, the application is taken not to have been made (see
21
subsection 506(2)).
22
Note 2:
An application fee may be required (see paragraph 628(4)(e)).
23
(2) To avoid doubt, the relevant Director may approve different forms
24
for different classes of application.
25
433 Dealing with applications
26
Time within which decision must be made
27
(1) The relevant Director must make a decision in relation to an
28
application within the consideration period for the application.
29
Chapter 7 Approved arrangements
Part 7 Other provisions
Division 1 Applications for approval
Section 433
400 Biosecurity Bill 2012 No. , 2012
(2) If the relevant Director does not make a decision in relation to an
1
application within the consideration period for the application, the
2
Director is taken to have refused to approve the arrangement to
3
which the application relates at the end of that period.
4
Consideration period
5
(3)
The
consideration period for an application is the period (the
6
initial consideration period) prescribed by the regulations for an
7
application of that kind, as extended under subsection (4). The
8
consideration period starts on the day the relevant Director receives
9
the application.
10
(4) The initial consideration period is extended, for each request made
11
under subsection (5), by the number of days falling within the
12
period:
13
(a) starting on the day the request was made; and
14
(b)
ending
on:
15
(i) the day the information or documents requested were
16
received by the relevant Director; or
17
(ii) if the information or documents were not given within
18
the period specified in the request--the last day of that
19
period.
20
Relevant Director may request further information etc.
21
(5) For the purpose of making a decision in relation to an application,
22
the relevant Director may, within the consideration period, request:
23
(a) the applicant; or
24
(b) any other person who the relevant Director considers may
25
have information relevant to the application;
26
to give the Director further specified information or documents
27
relevant to the application.
28
(6) A request under subsection (5):
29
(a) must be in writing; and
30
(b) must specify the period (which must not be longer than the
31
period prescribed by the regulations for the purposes of this
32
paragraph) within which the information or documents must
33
be given.
34
Approved arrangements Chapter 7
Other provisions Part 7
Audit powers Division 2
Section 434
Biosecurity Bill 2012 No. , 2012 401
Division 2--Audit powers
1
434 Relevant Director may require audit to be carried out
2
Carrying out audits
3
(1) The relevant Director may require an audit to be carried out:
4
(a) in relation to whether a biosecurity industry participant is
5
acting in accordance with, or complying with any
6
requirements or conditions in, an approved arrangement that
7
covers the biosecurity industry participant; or
8
(b) for the purpose of considering:
9
(i) an application under section 403 for approval of a
10
proposed arrangement to carry out biosecurity activities
11
to manage biosecurity risks associated with specified
12
goods, premises or other things; or
13
(ii) an application under subsection 410(1) for approval of a
14
varied arrangement.
15
Note:
For the powers of auditors, see section 435.
16
Who carries out an audit
17
(2) An audit must be carried out by:
18
(a) a biosecurity officer; or
19
(b)
an
auditor approved in writing by the relevant Director.
20
(3) The relevant Director must not approve a person for the purposes
21
of paragraph (2)(b) unless the person is appropriately qualified and
22
experienced.
23
Regulations may specify requirements
24
(4) The regulations may specify requirements in relation to carrying
25
out audits.
26
(5) Without limiting subsection (4), the regulations may specify
27
requirements relating to any report to be provided on an audit, to
28
the relevant Director, by the person who carries out the audit.
29
Chapter 7 Approved arrangements
Part 7 Other provisions
Division 2 Audit powers
Section 435
402 Biosecurity Bill 2012 No. , 2012
435 Powers of auditors
1
Requirement to produce documents, records or things
2
(1) A person (the auditor) who is carrying out an audit under
3
section 434 may require any person to produce any documents,
4
records or things that the auditor is satisfied are relevant to the
5
audit.
6
Note 1:
A person may commit an offence or contravene a civil penalty
7
provision if the person provides false or misleading documents (see
8
section 137.2 of the Criminal Code and section 508 of this Act).
9
Note 2:
This subsection is not subject to the privilege against
10
self-incrimination (see section 661).
11
(2) A person contravenes this subsection if:
12
(a) the person is required to produce a document, record or thing
13
under subsection (1); and
14
(b) the person fails to produce the document, record or thing as
15
required.
16
Fault-based offence
17
(3) A person commits an offence if the person contravenes
18
subsection (2).
19
Penalty: 6 months imprisonment or 30 penalty units, or both.
20
Note:
See section 575 in relation to the physical elements of an offence.
21
Civil penalty provision
22
(4) A person is liable to a civil penalty if the person contravenes
23
subsection (2).
24
Civil penalty:
30 penalty units.
25
Requirement to provide all reasonable facilities and assistance
26
(5) A person (the auditor) who is carrying out an audit may require
27
any person to provide the auditor with all reasonable facilities and
28
assistance for the effective exercise of powers under this Division.
29
(6) A person contravenes this subsection if:
30
Approved arrangements Chapter 7
Other provisions Part 7
Audit powers Division 2
Section 435
Biosecurity Bill 2012 No. , 2012 403
(a) the person is required to provide facilities and assistance
1
under subsection (5); and
2
(b) the person fails to provide the facilities or assistance as
3
required.
4
Fault-based offence
5
(7) A person commits an offence if the person contravenes
6
subsection (6).
7
Penalty: 6 months imprisonment or 30 penalty units, or both.
8
Note:
See section 575 in relation to the physical elements of an offence.
9
Civil penalty provision
10
(8) A person is liable to a civil penalty if the person contravenes
11
subsection (6).
12
Civil penalty:
30 penalty units.
13
14
Chapter 7 Approved arrangements
Part 7 Other provisions
Division 3 Miscellaneous
Section 436
404 Biosecurity Bill 2012 No. , 2012
Division 3--Miscellaneous
1
436 Giving false or misleading information to a biosecurity industry
2
participant
3
(1) A person is liable to a civil penalty if:
4
(a) the person gives information to a biosecurity industry
5
participant; and
6
(b) the person does so knowing that the information:
7
(i) is false or misleading; or
8
(ii) omits any matter or thing without which the information
9
is misleading; and
10
(c) the information is given in connection with biosecurity
11
activities that are being, or are to be, carried out by the
12
biosecurity industry participant in accordance with an
13
approved arrangement covering the biosecurity industry
14
participant.
15
Civil penalty:
120 penalty units.
16
(2) Subsection (1) does not apply as a result of subparagraph (1)(b)(i)
17
if the information is not false or misleading in a material particular.
18
Note:
A defendant bears an evidential burden in relation to the matter in this
19
subsection (see section 552).
20
(3) Subsection (1) does not apply as a result of subparagraph (1)(b)(ii)
21
if the information did not omit any matter or thing without which
22
the information is misleading in a material particular.
23
Note:
A defendant bears an evidential burden in relation to the matter in this
24
subsection (see section 552).
25
(4) Subsection (1) does not apply if, before the information was given
26
by a person to the biosecurity industry participant as described in
27
paragraph (1)(c), the biosecurity industry participant did not take
28
reasonable steps to inform the person that the person may be liable
29
to a civil penalty for contravening subsection (1).
30
Note:
A defendant bears an evidential burden in relation to the matter in this
31
subsection (see section 552).
32
Approved arrangements Chapter 7
Other provisions Part 7
Miscellaneous Division 3
Section 437
Biosecurity Bill 2012 No. , 2012 405
(5) For the purposes of subsection (4), it is sufficient if the following
1
form of words is used:
2
"You may be liable to a civil penalty for giving false or misleading
3
information".
4
437 Giving false or misleading documents to a biosecurity industry
5
participant
6
(1) A person is liable to a civil penalty if:
7
(a) the person produces a document to a biosecurity industry
8
participant; and
9
(b) the person does so knowing that the document is false or
10
misleading; and
11
(c) the information is given in connection with biosecurity
12
activities that are being, or are to be, carried out by the
13
biosecurity industry participant in accordance with an
14
approved arrangement covering the biosecurity industry
15
participant.
16
Civil penalty:
120 penalty units.
17
(2) Subsection (1) does not apply if the document is not false or
18
misleading in a material particular.
19
Note:
A defendant bears an evidential burden in relation to the matter in this
20
subsection (see section 552).
21
(3) Subsection (1) does not apply to a person who produces a
22
document if the document is accompanied by a written statement
23
signed by the person or, in the case of a body corporate, by a
24
competent officer of the body corporate:
25
(a) stating that the document is, to the knowledge of the
26
first-mentioned person, false or misleading in a material
27
particular; and
28
(b) setting out, or referring to, the material particular in which
29
the document is, to the knowledge of the first-mentioned
30
person, false or misleading.
31
Note:
A defendant bears an evidential burden in relation to the matter in this
32
subsection (see section 552).
33
Chapter 7 Approved arrangements
Part 7 Other provisions
Division 3 Miscellaneous
Section 438
406 Biosecurity Bill 2012 No. , 2012
438 Obstruction or hindrance of person acting in accordance with
1
approved arrangement
2
(1) A person must not obstruct or hinder another person who is:
3
(a) carrying out biosecurity activities in accordance with an
4
approved arrangement; or
5
(b) taking action in accordance with a direction given under
6
subsection 419(2) or (3), 424(2) or (3) or 427(1).
7
Fault-based offence
8
(2) A person commits an offence if the person contravenes
9
subsection (1).
10
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
11
Note:
See section 575 in relation to the physical elements of an offence.
12
Civil penalty provision
13
(3) A person is liable to a civil penalty if the person contravenes
14
subsection (1).
15
Civil penalty:
120 penalty units.
16
439 Protection from civil proceedings
17
Protection for Commonwealth and biosecurity industry
18
participants
19
(1) No civil proceeding lies against the Commonwealth, or a person
20
who is or was a biosecurity industry participant (the first person),
21
in relation to anything done, or omitted to be done, in good faith:
22
(a) by the first person:
23
(i) in carrying out biosecurity activities as a biosecurity
24
industry participant in accordance with an approved
25
arrangement covering the first person; or
26
(ii) in complying with a direction given by a biosecurity
27
officer under subsection 427(1); or
28
(b) by another person in providing, or purporting to provide,
29
assistance to the first person in carrying out biosecurity
30
Approved arrangements Chapter 7
Other provisions Part 7
Miscellaneous Division 3
Section 439
Biosecurity Bill 2012 No. , 2012 407
activities, or in complying with a direction, as referred to in
1
paragraph (a).
2
(2) No civil proceeding lies against the Commonwealth, or a person
3
who is or was a biosecurity industry participant, in relation to
4
anything done by an animal used by the person:
5
(a) in carrying out biosecurity activities as a biosecurity industry
6
participant in accordance with an approved arrangement
7
covering the person; or
8
(b) in complying with a direction given by a biosecurity officer
9
under subsection 427(1).
10
Protection for persons assisting biosecurity industry participants
11
(3) No civil proceeding lies against a person in relation to anything
12
done, or omitted to be done, in good faith by the person in
13
providing, or purporting to provide, assistance to a biosecurity
14
industry participant:
15
(a) in carrying out biosecurity activities in accordance with an
16
approved arrangement covering the biosecurity industry
17
participant; or
18
(b) in complying with a direction given by a biosecurity officer
19
under subsection 427(1).
20
(4) This section is subject to the following provisions:
21
(a) section 26 (acquisition of property);
22
(b) section 307 (undue detention or delay of vessel);
23
(c) section 533 (damage to electronic equipment).
24
25
Chapter 8 Biosecurity emergencies and human biosecurity emergencies
Part 1 Biosecurity emergencies
Division 1 Introduction
Section 440
408 Biosecurity Bill 2012 No. , 2012
Chapter 8--Biosecurity emergencies and
1
human biosecurity emergencies
2
Part 1--Biosecurity emergencies
3
Division 1--Introduction
4
440 Guide to this Part
5
This Part provides special powers for dealing with biosecurity
6
emergencies of national significance.
7
Division 2 provides for the Governor-General to make a
8
biosecurity emergency declaration if the Agriculture Minister is
9
satisfied that the special powers in this Part are needed to deal with
10
a biosecurity emergency.
11
Division 3 sets out powers that the Agriculture Minister may
12
exercise to deal with a biosecurity emergency, and limits and
13
protections that apply to the use of those powers. These powers
14
may be exercised anywhere in Australian territory.
15
Division 4 provides for the Agriculture Minister to declare
16
Commonwealth bodies, or parts of Commonwealth bodies, to be
17
national response agencies for the purposes of dealing with
18
biosecurity emergencies. Certain powers of the Agriculture
19
Minister under Division 3 may be delegated and subdelegated to
20
people performing duties in national response agencies.
21
Division 5 sets out modifications of other provisions of the Act
22
(particularly in Chapter 6 (managing biosecurity risks: monitoring,
23
control and response)) that apply during a biosecurity emergency
24
period.
25
Division 6 allows biosecurity enforcement officers and biosecurity
26
officers to enter premises without a warrant or consent during a
27
biosecurity emergency period.
28
Biosecurity emergencies and human biosecurity emergencies Chapter 8
Biosecurity emergencies Part 1
Declaration of biosecurity emergency Division 2
Section 441
Biosecurity Bill 2012 No. , 2012 409
Division 2--Declaration of biosecurity emergency
1
441 Governor-General may declare that a biosecurity emergency
2
exists
3
(1) The Governor-General may declare that a biosecurity emergency
4
exists if the Agriculture Minister is satisfied that:
5
(a) a disease or pest is posing a severe and immediate threat, or
6
is causing harm, to any of the following on a nationally
7
significant scale:
8
(i) animal or plant health;
9
(ii)
the
environment;
10
(iii) economic activities related to animals, plants or the
11
environment; and
12
(b) the declaration is necessary to prevent or control the
13
establishment or spread of the disease or pest in Australian
14
territory or a part of Australian territory.
15
Note 1:
The declaration is a biosecurity emergency declaration (see
16
section 9).
17
Note 2:
This Part does not apply in relation to invasive pests (see subsection
18
24(2)).
19
Note 3:
For revocation, see subsections 33(3) and (3AA) of the Acts
20
Interpretation Act 1901.
21
Note 4:
A biosecurity emergency declaration may be varied under section 442.
22
Subsection 33(3) of the Acts Interpretation Act 1901 does not apply in
23
relation to variation of a biosecurity emergency declaration.
24
(2) A biosecurity emergency declaration is a legislative instrument, but
25
section 42 (disallowance) of the Legislative Instruments Act 2003
26
does not apply to the declaration.
27
Requirements for biosecurity emergency declaration
28
(3) A biosecurity emergency declaration must specify:
29
(a) the disease or pest to which the declaration relates; and
30
(b) the nature of the biosecurity emergency and the conditions
31
that gave rise to it; and
32
(c) the period during which the declaration is in force.
33
Chapter 8 Biosecurity emergencies and human biosecurity emergencies
Part 1 Biosecurity emergencies
Division 2 Declaration of biosecurity emergency
Section 442
410 Biosecurity Bill 2012 No. , 2012
Note 1:
The disease or pest specified under paragraph (3)(a) is the declaration
1
disease or pest (see section 9).
2
Note 2:
The period specified under paragraph (3)(c) is the biosecurity
3
emergency period (see section 9).
4
(4) A biosecurity emergency period:
5
(a) must not be longer than the period that the Agriculture
6
Minister considers necessary to prevent or control the
7
establishment or spread of the declaration disease or pest in
8
Australian territory or a part of Australian territory; and
9
(b) in any case, must not be longer than 3 months.
10
Note:
A biosecurity emergency period may be extended under section 442.
11
Requirement to revoke biosecurity emergency declaration
12
(5) The Governor-General must revoke a biosecurity emergency
13
declaration if the Agriculture Minister is no longer satisfied of a
14
matter in paragraph (1)(a) or (b).
15
442 Governor-General may extend biosecurity emergency period
16
(1) The Governor-General may vary a biosecurity emergency
17
declaration to extend the biosecurity emergency period for up to 3
18
months if the Agriculture Minister is satisfied that:
19
(a) the declaration disease or pest is continuing to pose a severe
20
and immediate threat, or is continuing to cause harm, to any
21
of the following on a nationally significant scale:
22
(i) animal or plant health;
23
(ii)
the
environment;
24
(iii) economic activities related to animals, plants or the
25
environment; and
26
(b) the extension is necessary to prevent or control the
27
establishment or spread of the declaration disease or pest in
28
Australian territory or a part of Australian territory.
29
(2) A variation made under subsection (1) is a legislative instrument,
30
but section 42 (disallowance) of the Legislative Instruments Act
31
2003 does not apply to the variation.
32
Biosecurity emergencies and human biosecurity emergencies Chapter 8
Biosecurity emergencies Part 1
Declaration of biosecurity emergency Division 2
Section 442
Biosecurity Bill 2012 No. , 2012 411
(3) The Governor-General may extend a biosecurity emergency period
1
under subsection (1) more than once.
2
3
Chapter 8 Biosecurity emergencies and human biosecurity emergencies
Part 1 Biosecurity emergencies
Division 3 Emergency requirements, directions and actions
Section 443
412 Biosecurity Bill 2012 No. , 2012
Division 3--Emergency requirements, directions and
1
actions
2
443 Agriculture Minister may determine emergency requirements
3
during biosecurity emergencies
4
(1) During a biosecurity emergency period, the Agriculture Minister
5
may determine any requirement that he or she is satisfied is
6
appropriate and adapted to prevent or control the establishment or
7
spread of the declaration disease or pest in Australian territory or a
8
part of Australian territory.
9
Note 1:
For a limit on requiring individuals to be subject to certain biosecurity
10
measures, see section 446.
11
Note 2:
A person who fails to comply with a requirement determined under
12
this subsection may commit an offence or contravene a civil penalty
13
provision (see section 447).
14
Note 3:
This power may be delegated (see section 451).
15
(2) A determination made under subsection (1) is a legislative
16
instrument, but section 42 (disallowance) of the Legislative
17
Instruments Act 2003 does not apply to the determination.
18
(3) Without limiting subsection (1), the requirements that the
19
Agriculture Minister may determine include the following:
20
(a) requirements that apply to persons, goods or conveyances
21
when entering or leaving specified places;
22
(b) requirements that restrict or prevent the movement of
23
persons, goods or conveyances in or between specified
24
places;
25
(c) requirements for specified places to be evacuated;
26
(d) requirements for goods or conveyances to be removed from
27
specified places.
28
(4) A requirement determined under subsection (1) has effect despite
29
any provision of any other Australian law.
30
Biosecurity emergencies and human biosecurity emergencies Chapter 8
Biosecurity emergencies Part 1
Emergency requirements, directions and actions Division 3
Section 444
Biosecurity Bill 2012 No. , 2012 413
When determination ceases to have effect
1
(5) A determination made under subsection (1) ceases to have effect at
2
the end of the biosecurity emergency period, unless it is revoked
3
earlier.
4
444 Agriculture Minister may give directions and take actions
5
during biosecurity emergencies
6
(1) During a biosecurity emergency period, the Agriculture Minister
7
may:
8
(a) give any direction to any person; or
9
(b) take any action;
10
that the Agriculture Minister is satisfied is appropriate and adapted
11
to prevent or control the establishment or spread of the declaration
12
disease or pest in Australian territory or a part of Australian
13
territory.
14
Note 1:
For limits on this power, see sections 445 and 446.
15
Note 2:
A person who fails to comply with a direction given under this
16
subsection may commit an offence or be liable to a civil penalty (see
17
section 447).
18
Note 3:
This power may be delegated and subdelegated (see sections 451 and
19
452).
20
Note 4:
See also section 608 (general provisions relating to directions) and
21
subsection 670(4) (protection from civil proceedings).
22
(2) Without limiting subsection (1), the directions that the Agriculture
23
Minister may give under paragraph (1)(a) include the following:
24
(a) a direction requiring a person to secure goods or a
25
conveyance;
26
(b) a direction not to move, deal with or interfere with goods or a
27
conveyance;
28
(c) any direction relating to the movement of goods or a
29
conveyance (including a direction to move the goods or
30
conveyance, or not to do so);
31
(d) a direction requiring a person not to enter or interfere with
32
specified premises;
33
Chapter 8 Biosecurity emergencies and human biosecurity emergencies
Part 1 Biosecurity emergencies
Division 3 Emergency requirements, directions and actions
Section 444
414 Biosecurity Bill 2012 No. , 2012
(e) a direction requiring a person leaving specified premises to
1
leave the premises only at a specified place or specified
2
places;
3
(f) a direction to a person who is in a position to close specified
4
premises, or prevent access to specified premises, to do so;
5
(g) despite anything in section 581--a direction of a general or
6
specific nature to the Director of Biosecurity about the
7
performance of his or her functions or the exercise of his or
8
her powers;
9
(h) a direction of a general or specific nature to an officer or
10
employee of the Commonwealth (including a biosecurity
11
officer or a biosecurity enforcement officer) about the
12
performance of his or her functions or the exercise of his or
13
her powers;
14
(i) any other direction for the purposes of giving effect to or
15
enforcing a requirement determined under section 443.
16
(3) Without limiting subsection (1), the actions that the Agriculture
17
Minister may take under paragraph (1)(b) include the following:
18
(a) moving goods or a conveyance, or causing goods or a
19
conveyance to be moved;
20
(b) any other action for the purposes of giving effect to or
21
enforcing a requirement determined under section 443, or a
22
direction given under subsection (1) of this section.
23
(4) A direction may be given, or an action taken, under subsection (1)
24
despite any provision of any other Australian law.
25
(5) A direction of a kind referred to in paragraph (2)(h) may be given
26
to a biosecurity officer or a biosecurity enforcement officer despite
27
any restriction specified in the officer's instrument of authorisation
28
under subsection 588(2) or 589(2).
29
When direction ceases to have effect
30
(6) A direction given under subsection (1) ceases to have effect at the
31
end of the biosecurity emergency period, unless it is revoked
32
earlier.
33
Biosecurity emergencies and human biosecurity emergencies Chapter 8
Biosecurity emergencies Part 1
Emergency requirements, directions and actions Division 3
Section 445
Biosecurity Bill 2012 No. , 2012 415
445 Limits on power to give directions and take actions
1
(1) Before the Agriculture Minister makes a decision to exercise a
2
power under subsection 444(1), the Minister must be satisfied of
3
all of the following:
4
(a) that exercising the power is likely to be effective in, or to
5
contribute to, achieving the purpose for which the power is to
6
be exercised;
7
(b) that the manner in which the power is to be exercised is no
8
more restrictive or intrusive than is required in the
9
circumstances;
10
(c) if the power is to be exercised in relation to an individual--
11
that the power is no more restrictive or intrusive than is
12
required in the circumstances;
13
(d) if the power is to be exercised during a period--that the
14
period during which the power is to be exercised is only for
15
as long as is necessary.
16
Note:
This section also applies to a person who is exercising a power under
17
subsection 444(1) in accordance with a delegation or subdelegation
18
under section 451 or 452 (see section 34A of the Acts Interpretation
19
Act 1901).
20
(2) If the power is to be exercised in relation to a conveyance, the
21
Agriculture Minister must consider the impact of the exercise of
22
the power on the health and safety of any persons on board the
23
conveyance.
24
(3) Subsection (1) does not apply in relation to the giving of a
25
direction of a kind referred to in paragraph 444(2)(g) or (h)
26
(directions to Commonwealth officials).
27
446 Limit on requiring individuals to be subject to certain
28
biosecurity measures
29
(1) A determination made under subsection 443(1) or a direction given
30
under subsection 444(1) must not require an individual to be
31
subject to a biosecurity measure of a kind set out in Subdivision B
32
of Division 3 of Part 3 of Chapter 2 (biosecurity measures that may
33
be included in a human biosecurity control order).
34
Chapter 8 Biosecurity emergencies and human biosecurity emergencies
Part 1 Biosecurity emergencies
Division 3 Emergency requirements, directions and actions
Section 447
416 Biosecurity Bill 2012 No. , 2012
(2) However, subsection (1) does not prevent an individual being
1
required, during a biosecurity emergency period, to wear specified
2
clothing or equipment (or both) that is designed to prevent a
3
disease or pest from establishing itself or spreading.
4
Note:
For example, a requirement to wear such clothing or equipment when
5
entering or leaving specified places could be determined under
6
subsection 443(1), as referred to in paragraph 443(3)(a).
7
(3) To avoid doubt, subsection (1) does not affect the powers of the
8
Director of Biosecurity or a biosecurity officer under Subdivision
9
B of Division 2 of Part 4 of Chapter 12 (decontamination) during a
10
biosecurity emergency period.
11
447 Person must comply with emergency requirements and
12
directions
13
(1) A person must comply with a requirement determined under
14
section 443 that applies to the person.
15
(2) A person must comply with a direction given under section 444
16
that applies to the person.
17
Fault-based offences
18
(3) A person commits an offence if:
19
(a) a requirement determined under subsection 443(1) applies to
20
the person; and
21
(b) the person engages in conduct; and
22
(c) the conduct contravenes the requirement.
23
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
24
(4) A person commits an offence if:
25
(a) a direction given under subsection 444(1) applies to the
26
person; and
27
(b) the person engages in conduct; and
28
(c) the conduct contravenes the direction.
29
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
30
Biosecurity emergencies and human biosecurity emergencies Chapter 8
Biosecurity emergencies Part 1
Emergency requirements, directions and actions Division 3
Section 448
Biosecurity Bill 2012 No. , 2012 417
Civil penalty provision
1
(5) A person is liable to a civil penalty if the person contravenes
2
subsection (1) or (2).
3
Civil penalty:
120 penalty units.
4
448 Asking questions relating to biosecurity emergencies
5
(1) During a biosecurity emergency period, the Agriculture Minister
6
may require a person who the Minister suspects, on reasonable
7
grounds, has information relevant to the biosecurity emergency to
8
answer questions, or provide information in writing, in relation to
9
the biosecurity emergency.
10
Note 1:
This power may be delegated and subdelegated (see sections 451 and
11
452).
12
Note 2:
A person may commit an offence or contravene a civil penalty
13
provision if the person provides false or misleading information (see
14
section 137.1 of the Criminal Code and section 507 of this Act).
15
(2) A requirement imposed on a person under subsection (1) during a
16
biosecurity emergency period continues to have effect, whether or
17
not the period has ended, until:
18
(a) the person complies with the requirement; or
19
(b) the Agriculture Minister or a biosecurity officer informs the
20
person that the answer or information is no longer required.
21
Fault-based offence
22
(3) A person commits an offence if:
23
(a) the person is required to answer questions, or provide
24
information in writing, under subsection (1); and
25
(b) the person fails to comply with the requirement.
26
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
27
Civil penalty provision
28
(4) A person who is required to answer questions, or provide
29
information in writing, under subsection (1) must comply with the
30
requirement.
31
Chapter 8 Biosecurity emergencies and human biosecurity emergencies
Part 1 Biosecurity emergencies
Division 3 Emergency requirements, directions and actions
Section 449
418 Biosecurity Bill 2012 No. , 2012
Civil penalty:
120 penalty units.
1
Note:
This section is not subject to the privilege against self-incrimination
2
(see section 661).
3
449 Requiring documents relating to biosecurity emergencies
4
(1) During a biosecurity emergency, the Agriculture Minister may
5
require a person who the Minister suspects, on reasonable grounds,
6
has the custody or control of documents relating to the biosecurity
7
emergency to produce to the Minister such of those documents as
8
are specified by the Minister.
9
Note 1:
This power may be delegated and subdelegated (see sections 451 and
10
452).
11
Note 2:
A person may commit an offence or contravene a civil penalty
12
provision if the person provides false or misleading documents (see
13
section 137.2 of the Criminal Code and section 508 of this Act).
14
(2) The Agriculture Minister or a biosecurity officer:
15
(a) may make copies of, or take extracts from, a document
16
produced under subsection (1); and
17
(b) for that purpose, may remove the document from the place at
18
which it was produced.
19
(3) A requirement imposed on a person under subsection (1) during a
20
biosecurity emergency period continues to have effect, whether or
21
not the period has ended, until:
22
(a) the person complies with the requirement; or
23
(b) the Agriculture Minister or a biosecurity officer informs the
24
person that the specified documents are no longer required.
25
Fault-based offence
26
(4) A person commits an offence if:
27
(a) the person is required to produce documents under
28
subsection (1); and
29
(b) the person fails to comply with the requirement.
30
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
31
Biosecurity emergencies and human biosecurity emergencies Chapter 8
Biosecurity emergencies Part 1
Emergency requirements, directions and actions Division 3
Section 449
Biosecurity Bill 2012 No. , 2012 419
Civil penalty provision
1
(5) A person who is required to produce documents under
2
subsection (1) must comply with the requirement.
3
Civil penalty:
120 penalty units.
4
Note:
This section is not subject to the privilege against self-incrimination
5
(see section 661).
6
7
Chapter 8 Biosecurity emergencies and human biosecurity emergencies
Part 1 Biosecurity emergencies
Division 4 National response agencies
Section 450
420 Biosecurity Bill 2012 No. , 2012
Division 4--National response agencies
1
450 Agriculture Minister may declare national response agency
2
(1) The Agriculture Minister may, in writing, declare any of the
3
following to be a national response agency for the purposes of this
4
Act:
5
(a) the Australian Defence Force;
6
(b) a Commonwealth body;
7
(c) a part of a Commonwealth body.
8
Note 1:
The Agriculture Department, including all biosecurity officers and
9
biosecurity enforcement officers, is also a national response agency
10
(see the definition of national response agency in section 9).
11
Note 2:
For variation and revocation, see subsections 33(3) and (3AA) of the
12
Acts Interpretation Act 1901.
13
(2) A declaration made under subsection (1) is not a legislative
14
instrument.
15
451 Agriculture Minister may delegate certain emergency powers
16
(1) During a biosecurity emergency period, the Agriculture Minister
17
may, in writing, delegate to the executive head of a national
18
response agency any or all of the functions or powers of the
19
Minister under:
20
(a) section 443 (determining emergency requirements); or
21
(b) section 444 (emergency directions and actions), other than
22
the power to give a direction of a kind referred to in
23
paragraph 444(2)(g) or (h) (directions to Commonwealth
24
officials); or
25
(c) section 448 (asking questions); or
26
(d) section 449 (requiring documents).
27
Note 1:
The functions and powers referred to in paragraphs (1)(b) to (d) may
28
be subdelegated (see section 452).
29
Note 2:
See also sections 34AA and 34AB of the Acts Interpretation Act 1901.
30
(2) In performing functions or exercising powers under a delegation
31
made under subsection (1), the delegate must comply with any
32
directions of the Agriculture Minister.
33
Biosecurity emergencies and human biosecurity emergencies Chapter 8
Biosecurity emergencies Part 1
National response agencies Division 4
Section 452
Biosecurity Bill 2012 No. , 2012 421
452 Executive head of national response agency may subdelegate
1
certain emergency powers
2
(1) During a biosecurity emergency period, the executive head of a
3
national response agency may subdelegate, to a person performing
4
duties in the agency, a function or power under any of the
5
following provisions that has been delegated to the executive head
6
under section 451:
7
(a) section 444 (emergency directions and actions);
8
(b) section 448 (asking questions);
9
(c) section 449 (requiring documents).
10
(2) However, the executive head must not subdelegate a function or
11
power under subsection (1) if the instrument of delegation made
12
under section 451 states that the function or power is not to be
13
subdelegated.
14
(3) In performing functions or exercising powers under a
15
subdelegation under subsection (1), the subdelegate must comply
16
with any directions of:
17
(a) the Agriculture Minister; or
18
(b) the executive head.
19
(4) A subdelegation of a function or power to a biosecurity officer or a
20
biosecurity enforcement officer under subsection (1) may provide
21
that any restriction specified in the officer's instrument of
22
authorisation under subsection 588(2) or 589(2) does not apply for
23
the purposes of performing the function or exercising the power.
24
(5) Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901
25
apply in relation to a subdelegation under subsection (1) in a
26
corresponding way to the way in which they apply in relation to a
27
delegation.
28
Reference to person performing duties in an agency
29
(6) The reference in subsection (1) to a person performing duties in an
30
agency includes a reference to:
31
(a) a person performing duties in the agency under a contract;
32
and
33
Chapter 8 Biosecurity emergencies and human biosecurity emergencies
Part 1 Biosecurity emergencies
Division 4 National response agencies
Section 453
422 Biosecurity Bill 2012 No. , 2012
(b) a person performing duties in the agency under an
1
arrangement for the temporary provision to that agency of the
2
services of persons ordinarily performing other duties for the
3
Commonwealth; and
4
(c) a person performing duties in the agency on a voluntary
5
basis.
6
453 Delegation does not limit other powers
7
A
delegation or subdelegation of a function or power to a person
8
under section 451 or 452 does not affect any function or power that
9
the person is authorised to perform or exercise under this Act
10
otherwise than under the delegation or subdelegation.
11
Note:
For example, a biosecurity officer who is exercising a power in
12
accordance with a subdelegation under section 452 may also exercise
13
powers conferred on a biosecurity officer by this Act (including other
14
provisions of this Act as modified by Division 5).
15
454 Notice may be affixed to goods or a conveyance
16
(1) During a biosecurity emergency period, a person who is exercising
17
powers or performing functions under a delegation made under
18
section 451 or a subdelegation made under section 452 may affix a
19
notice to, or as near as reasonably practicable to, goods or a
20
conveyance:
21
(a) that is secured in accordance with a direction given under
22
section 444; or
23
(b) that a person has been directed under section 444 not to
24
move, deal with or interfere with; or
25
(c) in relation to which any other direction relating to movement
26
has been given under section 444; or
27
(d) that has been moved under section 444.
28
(2) The notice must state:
29
(a) that a biosecurity emergency has been declared; and
30
(b) the nature of the power under section 444 that has been
31
exercised in relation to the goods or conveyance; and
32
(c) the effect of subsections (3) to (5) of this section, and
33
section 455.
34
Biosecurity emergencies and human biosecurity emergencies Chapter 8
Biosecurity emergencies Part 1
National response agencies Division 4
Section 455
Biosecurity Bill 2012 No. , 2012 423
Civil penalty provision
1
(3) A person is liable to a civil penalty if:
2
(a) during a biosecurity emergency period, a notice is affixed to,
3
or as near as reasonably practicable to, goods or a
4
conveyance under subsection (1); and
5
(b) during the biosecurity emergency period, the person
6
interferes with, removes or defaces, the notice; and
7
(c) none of the following applies:
8
(i) the person is authorised to engage in the conduct
9
referred to in paragraph (b) of this subsection in
10
accordance with an approved arrangement;
11
(ii) the person needs to engage in that conduct to comply
12
with a direction given under another provision of this
13
Act by the Agriculture Minister or a biosecurity official;
14
(iii) the person has been given permission to engage in that
15
conduct under subsection (4), or by a biosecurity officer
16
under section 595.
17
Civil penalty:
120 penalty units.
18
(4) A person who is exercising powers or performing functions under a
19
delegation made under section 451 or a subdelegation made under
20
section 452 may, for the purposes of subparagraph (3)(c)(iii) of this
21
section, give a person permission to engage in the conduct referred
22
to in paragraph (3)(b).
23
(5) Subsection (3) does not apply if the person is authorised to engage
24
in the conduct referred to in paragraph (3)(b) under this Act or
25
under another Australian law.
26
Note:
A defendant bears an evidential burden in relation to the matter in this
27
subsection (see section 552).
28
455 Moving or interfering with goods or conveyance
29
(1) A person contravenes this subsection if:
30
(a) during a biosecurity emergency period, a notice has been
31
affixed to or near goods or a conveyance under subsection
32
454(1); and
33
Chapter 8 Biosecurity emergencies and human biosecurity emergencies
Part 1 Biosecurity emergencies
Division 4 National response agencies
Section 455
424 Biosecurity Bill 2012 No. , 2012
(b) during the biosecurity emergency period, the person moves,
1
deals with or interferes with the goods or conveyance; and
2
(c) none of the following applies:
3
(i) the person is authorised to engage in the conduct
4
referred to in paragraph (b) of this subsection in
5
accordance with an approved arrangement;
6
(ii) the person needs to engage in that conduct to comply
7
with a direction given under another provision of this
8
Act by the Agriculture Minister or a biosecurity official;
9
(iii) the person has been given permission to engage in that
10
conduct under subsection (2), or by a biosecurity officer
11
under section 595.
12
(2) A person who is exercising powers or performing functions under a
13
delegation made under section 451 or a subdelegation made under
14
section 452 may, for the purposes of subparagraph (1)(c)(iii) of this
15
section, give a person permission to engage in the conduct referred
16
to in paragraph (1)(b).
17
Fault-based offence
18
(3) A person commits an offence if the person contravenes
19
subsection (1).
20
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
21
Note:
See section 575 in relation to the physical elements of an offence.
22
Civil penalty provision
23
(4) A person is liable to a civil penalty if the person contravenes
24
subsection (1).
25
Civil penalty:
120 penalty units.
26
Exception
27
(5) Subsection (1) does not apply if the person is authorised to engage
28
in the conduct referred to in paragraph (1)(b) under this Act or
29
under another Australian law.
30
Biosecurity emergencies and human biosecurity emergencies Chapter 8
Biosecurity emergencies Part 1
National response agencies Division 4
Section 455
Biosecurity Bill 2012 No. , 2012 425
Note:
A defendant bears an evidential burden in relation to the matter in this
1
subsection (see subsection 13.3(3) of the Criminal Code and
2
section 552 of this Act).
3
4
Chapter 8 Biosecurity emergencies and human biosecurity emergencies
Part 1 Biosecurity emergencies
Division 5 Exercise of powers during biosecurity emergencies
Section 456
426 Biosecurity Bill 2012 No. , 2012
Division 5--Exercise of powers during biosecurity
1
emergencies
2
456 Modification of this Act during biosecurity emergencies
3
(1) This Division sets out the modifications of this Act that apply
4
during a biosecurity emergency period.
5
Effect of modifications on this Act
6
(2) A power, conferred by a provision of this Act, that is modified by
7
this Division may also be exercised during a biosecurity
8
emergency period without that modification (whether the power is
9
exercised in relation to the declaration disease or pest, or any other
10
disease or pest).
11
(3) This Division does not limit section 650 (exemptions from and
12
modifications of this Act).
13
Application of section 311
14
(4) Section 311 (application of Chapter 6) applies in relation to the
15
exercise of a power in accordance with this Division or Division 6
16
as if the power were being exercised under Chapter 6 (managing
17
biosecurity risks: monitoring, control and response).
18
Note 1:
Before exercising a power in accordance with this Division or
19
Division 6, a biosecurity official must be satisfied of the matters
20
referred to in section 31 (the principles).
21
Note 2:
A biosecurity officer may be assisted by other persons in exercising
22
powers under this Division (see section 531).
23
457 Biosecurity risk assessment powers
24
During a biosecurity emergency period, a biosecurity officer may
25
exercise powers set out in Division 3 of Part 2 of Chapter 6
26
(biosecurity risk assessment powers) in relation to the declaration
27
disease or pest without having the suspicion referred to in
28
paragraphs 313(a) and (b).
29
Biosecurity emergencies and human biosecurity emergencies Chapter 8
Biosecurity emergencies Part 1
Exercise of powers during biosecurity emergencies Division 5
Section 458
Biosecurity Bill 2012 No. , 2012 427
458 Application of offences during emergencies
1
(1) This section applies during a biosecurity emergency period if:
2
(a) a power is exercised under Division 3 of Part 2 of Chapter 6
3
(biosecurity risk assessment powers) in relation to the
4
declaration disease or pest; and
5
(b) the power is not exercised in accordance with a biosecurity
6
control order or a biosecurity response zone determination.
7
Note:
Normally, a person commits an offence for contravening a
8
requirement of Division 3 of Part 2 of Chapter 6 only if the
9
requirement is included in a biosecurity control order or a biosecurity
10
response zone determination. As a result of this section, a person
11
commits an offence for contravening such a requirement during a
12
biosecurity emergency period even if there is no order or
13
determination in force.
14
(2) Section 325 (contravention of direction) applies as if paragraphs
15
325(a), (b) and (c) were replaced with the following paragraph:
16
"(a) during a biosecurity emergency period, the person is given a
17
direction under any of the following provisions in relation to
18
the declaration disease or pest:
19
(i) subsection 316(1) (direction to secure goods or a
20
conveyance);
21
(ii) paragraph 317(2)(b) (direction to deliver samples of
22
goods or premises);
23
(iii) paragraph 320(1)(a) (direction relating to movement of
24
goods or conveyance); and".
25
(3) Section 326 (contravention of requirement to answer questions
26
etc.) applies as if paragraphs 326(a), (b) and (c) were replaced with
27
the following paragraph:
28
"(a) during a biosecurity emergency period, the person is required
29
under subsection 318(1) to answer a question, or provide
30
information in writing, in relation to the declaration disease
31
or pest; and".
32
(4) Section 327 (contravention of requirement to produce documents)
33
applies as if paragraphs 327(a), (b) and (c) were replaced with the
34
following paragraph:
35
Chapter 8 Biosecurity emergencies and human biosecurity emergencies
Part 1 Biosecurity emergencies
Division 5 Exercise of powers during biosecurity emergencies
Section 459
428 Biosecurity Bill 2012 No. , 2012
"(a) during a biosecurity emergency period, the person is required
1
under subsection 319(1) to produce documents in relation to
2
the declaration disease or pest; and".
3
(5) Section 328 (unauthorised persons must not move etc. goods or
4
conveyance to which notice has been affixed) applies as if
5
paragraphs 328(1)(a), (b) and (c) were replaced with the following
6
paragraph:
7
"(a) during a biosecurity emergency period, a notice has been
8
affixed to, or as near as reasonably practicable to, goods or a
9
conveyance under subsection 321(1) in relation to the
10
declaration disease or pest; and".
11
459 Biosecurity control orders--making orders
12
(1) During a biosecurity emergency period, the Director of Biosecurity
13
may make a biosecurity control order under section 351 in relation
14
to goods or premises if the Director is satisfied that biosecurity
15
measures need to be taken in relation to the goods or premises to
16
prevent or control the establishment or spread of the declaration
17
disease or pest in Australian territory or a part of Australian
18
territory.
19
Note 1:
During a biosecurity emergency period, the powers specified in a
20
biosecurity control order can be exercised on premises entered without
21
a warrant or consent (see Division 6).
22
Note 2:
For modifications of Part 4 of Chapter 6 (biosecurity control orders) in
23
relation to biosecurity control orders made in accordance with this
24
section, see section 462.
25
(2) To avoid doubt, a biosecurity control order may be made in
26
accordance with subsection (1) despite subsection 351(1).
27
Note:
Biosecurity control orders can also be made under subsection 351(1)
28
without the modifications provided by this section (see subsection
29
456(2)).
30
(3) For the purposes of this Act, a biosecurity control order that is
31
made in accordance with subsection (1) of this section is taken to
32
have been made under subsection 351(1).
33
Biosecurity emergencies and human biosecurity emergencies Chapter 8
Biosecurity emergencies Part 1
Exercise of powers during biosecurity emergencies Division 5
Section 460
Biosecurity Bill 2012 No. , 2012 429
(4) A biosecurity control order made in accordance with subsection (1)
1
must specify only the declaration disease or pest under paragraph
2
352(2)(b).
3
460 Biosecurity control orders--varying orders
4
(1) This section applies during a biosecurity emergency period in
5
relation to a biosecurity control order:
6
(a) that is made during that period under section 351 (whether or
7
not with the modifications provided by section 459); and
8
(b) that relates to the declaration disease or pest.
9
(2) The Director of Biosecurity may vary the biosecurity control order
10
if the Director is satisfied that:
11
(a) the powers specified in the order under paragraph 352(2)(d),
12
(e) or (f) need to be varied (including by specifying
13
additional powers referred to in those paragraphs) to prevent
14
or control the establishment or spread of the declaration
15
disease or pest in Australian territory or a part of Australian
16
territory; or
17
(b) a power specified in the order under paragraph 352(2)(d), (e)
18
or (f) no longer contributes to:
19
(i) preventing or controlling the establishment or spread of
20
the declaration disease or pest in Australian territory or
21
a part of Australian territory; or
22
(ii) managing the biosecurity risk posed by the declaration
23
disease or pest.
24
Note:
For modifications of Part 4 of Chapter 6 (biosecurity control orders) in
25
relation to biosecurity control orders varied in accordance with this
26
section, see section 462.
27
(3) To avoid doubt, a biosecurity control order may be varied in
28
accordance with subsection (2) despite subsection 356(1).
29
Note:
Biosecurity control orders can also be varied under subsection 356(1)
30
without the modifications provided by this section (see subsection
31
456(2)).
32
(4) For the purposes of this Act, a biosecurity control order that is
33
varied in accordance with subsection (2) is taken to have been
34
varied under subsection 356(1).
35
Chapter 8 Biosecurity emergencies and human biosecurity emergencies
Part 1 Biosecurity emergencies
Division 5 Exercise of powers during biosecurity emergencies
Section 461
430 Biosecurity Bill 2012 No. , 2012
461 Biosecurity control orders--revoking orders
1
(1) This section applies during a biosecurity emergency period in
2
relation to a biosecurity control order:
3
(a) that is made during that period under section 351 (whether or
4
not with the modifications provided by section 459); and
5
(b) that relates to the declaration disease or pest.
6
(2) The Director of Biosecurity:
7
(a) is not required to revoke the biosecurity control order under
8
section 357 (although the Director may do so); and
9
(b) may revoke the biosecurity control order if the Director is
10
satisfied that the order no longer contributes to:
11
(i) preventing or controlling the establishment or spread of
12
the declaration disease or pest in Australian territory or
13
a part of Australian territory; or
14
(ii) managing the biosecurity risk posed by the declaration
15
disease or pest.
16
Note:
For modifications of Part 4 of Chapter 6 (biosecurity control orders) in
17
relation to biosecurity control orders revoked in accordance with this
18
section, see section 462.
19
(3) If the biosecurity control order does not cease to be in force earlier,
20
the biosecurity control order ceases to be in force at the end of the
21
biosecurity emergency period (unless that period is extended under
22
section 442).
23
Note:
The biosecurity control order may also cease to be in force under
24
section 355.
25
(4) To avoid doubt, the biosecurity control order may be revoked in
26
accordance with subsection (2) despite subsection 357(1).
27
Note:
Biosecurity control orders can also be revoked under subsection
28
357(1) without the modifications provided by this section (see
29
subsection 456(2)).
30
(5) For the purposes of this Act, a biosecurity control order that is
31
revoked in accordance with subsection (2) of this section is taken
32
to have been revoked under subsection 357(1).
33
Biosecurity emergencies and human biosecurity emergencies Chapter 8
Biosecurity emergencies Part 1
Exercise of powers during biosecurity emergencies Division 5
Section 462
Biosecurity Bill 2012 No. , 2012 431
462 Modification of Part 4 of Chapter 6 in relation to biosecurity
1
control orders
2
Part 4 of Chapter 6 (biosecurity control orders) applies, in relation
3
to a biosecurity control order that is, or is to be, made, varied or
4
revoked in accordance with sections 459, 460 and 461, as if a
5
reference to managing the biosecurity risk posed by a disease or
6
pest to which the order (or a variation) relates included a reference
7
to preventing or controlling the establishment or spread of the
8
declaration disease or pest in Australian territory or a part of
9
Australian territory.
10
463 Biosecurity response zones
11
(1) During a biosecurity emergency period, the Director of Biosecurity
12
may determine that a specified area in Australian territory is a
13
biosecurity response zone if the Director of Biosecurity is satisfied
14
that it is necessary to make the determination to prevent or control
15
the establishment or spread of the declaration disease or pest in
16
Australian territory or a part of Australian territory.
17
Note:
During a biosecurity emergency period, premises in a biosecurity
18
response zone can be entered without a warrant or consent (see
19
Division 6).
20
(2) To avoid doubt, a biosecurity response zone may be determined in
21
accordance with subsection (1) despite subsection 363(1).
22
Note:
Biosecurity response zones can also be determined in accordance with
23
subsection 363(1) without the modifications provided by this section
24
(see subsection 456(2)).
25
(3) For the purposes of this Act, a determination made in accordance
26
with subsection (1) of this section is taken to have been determined
27
under subsection 363(1).
28
(4) A determination made in accordance with subsection (1) must
29
specify only the declaration disease or pest under paragraph
30
364(2)(a).
31
Modification of Part 5 of Chapter 6
32
(5) Part 5 of Chapter 6 (biosecurity response zones) applies, in relation
33
to a biosecurity response zone that is, or is to be, determined in
34
Chapter 8 Biosecurity emergencies and human biosecurity emergencies
Part 1 Biosecurity emergencies
Division 5 Exercise of powers during biosecurity emergencies
Section 464
432 Biosecurity Bill 2012 No. , 2012
accordance with this section, as if a reference to managing the
1
biosecurity risk to which the biosecurity response zone
2
determination relates included a reference to preventing or
3
controlling the establishment or spread of the declaration disease or
4
pest in Australian territory or a part of Australian territory.
5
Cessation of biosecurity response zones determined during
6
biosecurity emergencies
7
(6) A biosecurity response zone ceases to be in force at the end of a
8
biosecurity emergency period if:
9
(a) the determination is made during that period under
10
section 363 (whether or not with the modifications provided
11
by this section); and
12
(b) the zone relates to the declaration disease or pest; and
13
(c) the period is not extended under section 442.
14
(7) However, subsection (6) does not prevent a biosecurity response
15
zone determination being made in relation to the declaration
16
disease or pest after the biosecurity emergency period has ended.
17
464 Setting traps and setting up equipment and other structures
18
(1) During a biosecurity emergency period, a biosecurity officer may
19
set traps or set up equipment or other structures in relation to the
20
declaration disease or pest, without a biosecurity response zone
21
having been determined, for the purpose of preventing or
22
controlling the establishment or spread of the declaration disease or
23
pest in Australian territory or a part of Australian territory.
24
(2) Section 374 (unauthorised persons must not interfere with etc.
25
equipment etc.) applies, in relation to the exercise of a power under
26
subsection (1), as if the exercise of the power were in accordance
27
with a biosecurity response zone determination.
28
465 Notice requirements during biosecurity emergencies
29
Giving notice orally
30
(1) During a biosecurity emergency period, notice or an approval may
31
be given, or a request may be made, under any of the following
32
Biosecurity emergencies and human biosecurity emergencies Chapter 8
Biosecurity emergencies Part 1
Exercise of powers during biosecurity emergencies Division 5
Section 465
Biosecurity Bill 2012 No. , 2012 433
provisions orally (instead of in writing) to the extent that the
1
notice, approval or request relates to the declaration disease or
2
pest:
3
(a) subsection 133(2), 209(2), (3) or (5), 340(2) or (3), 341(2),
4
(3) or (5), or 342(3) or (4) (destruction of high-value goods,
5
conveyances or premises);
6
(b) subsection 130(2), 207(2), 208(2), (4) or (5), 333(2), 334(2)
7
or (4), 335(2), 336(2), (4) or (5), 337(3), 338(2) or (3), or
8
339(1), (3) or (4) (treatment that may damage goods,
9
conveyances or premises);
10
(c) subsection 205(3), 243(2), 251(2) (directions relating to
11
aircraft and vessels);
12
(d) subsection 596(2) or 597(4) (decontamination);
13
(e) subsection 653(2), subsection 655(1)(c) or 655(2) (dealing
14
with abandoned goods or conveyances).
15
(2) Subsection (3) of this section applies if:
16
(a) a matter is required to be specified in a notice or request; and
17
(b) notice is given to a person, or a request is made of a person,
18
orally in accordance with subsection (1).
19
(3) If this subsection applies, then:
20
(a) instead of the matter being specified in the notice or request,
21
the person must be informed of the matter orally; and
22
(b) a reference to a matter specified in a notice or request is
23
taken to be a reference to a matter of which the person has
24
been so informed.
25
(4) A written notice, request or approval must be given to a person
26
within 48 hours of an oral notice or approval being given to the
27
person, or an oral request being made of the person, in accordance
28
with subsection (1).
29
Period during which to agree to treatment
30
(5) A person who is given notice under subsection 131(2), 208(2),
31
334(2), 336(2) or 338(2) has (despite paragraph 131(4)(b),
32
208(4)(b), 334(4)(b), 336(4)(b) or 339(1)(b)) 7 days from the day
33
notice was first given (whether orally or in writing) in which to
34
Chapter 8 Biosecurity emergencies and human biosecurity emergencies
Part 1 Biosecurity emergencies
Division 5 Exercise of powers during biosecurity emergencies
Section 466
434 Biosecurity Bill 2012 No. , 2012
notify the Director of Biosecurity in writing that he or she agrees to
1
the treatment of the goods, conveyance or premises.
2
466 Other biosecurity measures during biosecurity emergencies
3
The regulations may provide for modifications, that apply during
4
biosecurity emergency periods, of regulations made for the
5
purposes of section 344 (other biosecurity measures).
6
467 Merits review during biosecurity emergencies
7
During a biosecurity emergency period, a person is not entitled to
8
seek review under Part 1 of Chapter 13 of this Act, or under the
9
Administrative Appeals Tribunal Act 1975, of any of the following
10
decisions made during the biosecurity emergency period in relation
11
to the declaration disease or pest:
12
(a) a decision under subsection 133(2) or subsection 340(2) to
13
give approval for high-value goods to be destroyed;
14
(b) a decision under section 209 to require a conveyance to be
15
destroyed or under subsection 341(2) to give approval for a
16
conveyance to be destroyed;
17
(c) a decision under subsection 342(3) to give approval for
18
premises to be destroyed;
19
(d) a decision referred to in column 1 of table items 23 to 31 of
20
the table in subsection 610(1) in relation to an industry
21
arrangement or an approved arrangement.
22
23
Biosecurity emergencies and human biosecurity emergencies Chapter 8
Biosecurity emergencies Part 1
Entry to premises without warrant or consent during biosecurity emergencies Division
6
Section 468
Biosecurity Bill 2012 No. , 2012 435
Division 6--Entry to premises without warrant or consent
1
during biosecurity emergencies
2
Note 1: Before exercising a power in accordance with this Division, a biosecurity official must
3
be satisfied of the matters referred to in section 31 (the principles).
4
Note 2: A biosecurity officer may be assisted by other persons in exercising powers under this
5
Division (see section 531).
6
468 Entry to premises without warrant or consent during
7
biosecurity emergencies
8
(1) During a biosecurity emergency period, a biosecurity officer or
9
biosecurity enforcement officer may (subject to subsection (2))
10
enter any premises for any or all of the following purposes:
11
(a) if no relevant biosecurity control order (see subsection (3)) is
12
in force in relation to the premises or goods on the
13
premises--to exercise powers in accordance with Division 3
14
of Part 2 of Chapter 6 (biosecurity risk assessment powers) in
15
relation to the declaration disease or pest;
16
(b) if a relevant biosecurity control order is in force in relation to
17
the premises or goods on the premises--to exercise powers in
18
accordance with section 358 in relation to the premises or
19
goods (as the case requires) for the following purpose:
20
(i) for orders made under section 351 without the
21
modifications provided by section 459--managing the
22
biosecurity risk posed by the declaration disease or pest;
23
(ii) for orders made under section 351 with the
24
modifications provided by section 459--preventing or
25
controlling the establishment or spread of the
26
declaration disease or pest in Australian territory or a
27
part of Australian territory;
28
(c) if the premises are in a relevant biosecurity response zone
29
(see subsection (4))--to exercise powers in accordance with
30
section 368 in relation to the premises or goods (as the case
31
requires) for the following purpose:
32
(i) for biosecurity response zone determinations made
33
under section 363 without the modifications provided
34
by section 463--managing the biosecurity risk posed by
35
the declaration disease or pest;
36
Chapter 8 Biosecurity emergencies and human biosecurity emergencies
Part 1 Biosecurity emergencies
Division 6 Entry to premises without warrant or consent during biosecurity
emergencies
Section 468
436 Biosecurity Bill 2012 No. , 2012
(ii) for biosecurity response zone determinations made
1
under section 363 with the modifications provided by
2
section 463--preventing or controlling the
3
establishment or spread of the declaration disease or
4
pest in Australian territory or a part of Australian
5
territory;
6
(d) in any case--to set traps or set up equipment or other
7
structures in relation to the declaration disease or pest in
8
accordance with section 464.
9
Note 1:
For the obligations and powers of biosecurity enforcement officers in
10
entering premises under this section, see Part 4 of Chapter 10.
11
Note 2:
For modifications of Chapter 6 (managing biosecurity risks:
12
monitoring, control and response) in relation to premises entered in
13
accordance with this section, see section 469.
14
Note 3:
Premises includes a conveyance (see paragraph (a) of the definition of
15
premises in section 9).
16
(2) A biosecurity officer or biosecurity enforcement officer is not
17
authorised to enter premises under subsection (1) unless:
18
(a) the biosecurity officer suspects, on reasonable grounds, that
19
the declaration disease or pest may be present in or on the
20
premises or goods on the premises; and
21
(b) a biosecurity enforcement officer accompanies the
22
biosecurity officer for the purposes of assisting in entering
23
the premises and exercising the powers in accordance with
24
subsection (1).
25
(3)
A
relevant biosecurity control order is a biosecurity control order:
26
(a) that is made under section 351 during a biosecurity
27
emergency period (whether or not with the modifications
28
provided by section 459); and
29
(b) that relates to the declaration disease or pest.
30
(4)
A
relevant biosecurity response zone is a biosecurity response
31
zone specified in a biosecurity response zone determination:
32
(a) that is determined under section 363 during a biosecurity
33
emergency period (whether or not with the modifications
34
provided by section 463); and
35
(b) that relates to the declaration disease or pest.
36
Biosecurity emergencies and human biosecurity emergencies Chapter 8
Biosecurity emergencies Part 1
Entry to premises without warrant or consent during biosecurity emergencies Division
6
Section 469
Biosecurity Bill 2012 No. , 2012 437
Entry without a warrant or consent
1
(5) To avoid doubt, a biosecurity officer or biosecurity enforcement
2
officer may enter premises in accordance with subsection (1)
3
despite subsections 314(2), 359(2), 369(2), 378(2) and 388(2).
4
Conveyances
5
(6) If the premises are a conveyance, a biosecurity enforcement officer
6
may stop and detain the conveyance for a purpose referred to in
7
subsection (1).
8
469 Modification of Chapter 6
9
(1) Section 324 (expert assistance to operate electronic equipment)
10
applies, in relation to a biosecurity enforcement officer who enters
11
premises under subsection 468(1), as if:
12
(a) the entry were under a relevant warrant referred to in
13
section 324; and
14
(b) the warrant authorised the biosecurity enforcement officer to
15
exercise the powers in section 324.
16
(2) Section 360 (power to secure goods or premises) applies, in
17
relation to a biosecurity officer who enters premises under
18
subsection 468(1), as if the entry were authorised by section 359.
19
470 Entry to adjacent premises without warrant or consent during
20
biosecurity emergencies
21
(1) During a biosecurity emergency period, a biosecurity officer or
22
biosecurity enforcement officer may enter premises (adjacent
23
premises) for the purpose of gaining access to other premises to
24
exercise powers in accordance with subsection 468(1).
25
Note:
For the obligations and powers of biosecurity enforcement officers in
26
entering premises under this section, see Part 4 of Chapter 10.
27
(2) A biosecurity officer is not authorised to enter adjacent premises
28
under subsection (1) unless a biosecurity enforcement officer
29
accompanies the biosecurity officer for the purposes of assisting in
30
entering those premises.
31
Chapter 8 Biosecurity emergencies and human biosecurity emergencies
Part 1 Biosecurity emergencies
Division 6 Entry to premises without warrant or consent during biosecurity
emergencies
Section 470
438 Biosecurity Bill 2012 No. , 2012
(3) In this section, premises does not include a conveyance.
1
2
Biosecurity emergencies and human biosecurity emergencies Chapter 8
Human biosecurity emergencies Part 2
Section 471
Biosecurity Bill 2012 No. , 2012 439
Part 2--Human biosecurity emergencies
1
2
471 Guide to this Part
3
This Part provides special powers for dealing with emergencies
4
involving threats or harm to human health on a nationally
5
significant scale (these are called human biosecurity emergencies).
6
The Governor-General may make a human biosecurity emergency
7
declaration if the Health Minister is satisfied that the special
8
powers in this Part are needed to deal with a human biosecurity
9
emergency.
10
The Health Minister may exercise special powers under this Part to
11
deal with a human biosecurity emergency, subject to limits and
12
protections. These powers may be exercised anywhere in
13
Australian territory.
14
The special emergency powers are in addition to the powers
15
generally available under Chapter 2 (managing biosecurity risks:
16
human health), which may also be used to deal with a human
17
biosecurity emergency.
18
472 Health Minister to exercise human biosecurity emergency
19
powers personally
20
A power of the Health Minister under this Part may only be
21
exercised by the Minister personally.
22
473 Governor-General may declare that a human biosecurity
23
emergency exists
24
(1) The Governor-General may declare that a human biosecurity
25
emergency exists if the Health Minister is satisfied that:
26
(a) a listed human disease is posing a severe and immediate
27
threat, or is causing harm, to human health on a nationally
28
significant scale; and
29
(b) the declaration is necessary to prevent or control:
30
Chapter 8 Biosecurity emergencies and human biosecurity emergencies
Part 2 Human biosecurity emergencies
Section 473
440 Biosecurity Bill 2012 No. , 2012
(i) the entry of the listed human disease into Australian
1
territory or a part of Australian territory; or
2
(ii) the emergence, establishment or spread of the listed
3
human disease in Australian territory or a part of
4
Australian territory.
5
Note 1:
The declaration is a human biosecurity emergency declaration (see
6
section 9).
7
Note 2:
For revocation, see subsections 33(3) and (3AA) of the Acts
8
Interpretation Act 1901.
9
Note 3:
A human biosecurity emergency declaration may be varied under
10
section 474. Subsection 33(3) of the Acts Interpretation Act 1901 does
11
not apply in relation to variation of a human biosecurity emergency
12
declaration.
13
(2) A human biosecurity emergency declaration is a legislative
14
instrument, but section 42 (disallowance) of the Legislative
15
Instruments Act 2003 does not apply to the declaration.
16
Requirements for human biosecurity emergency declaration
17
(3) A human biosecurity emergency declaration must specify:
18
(a) the listed human disease to which the declaration relates; and
19
(b) the nature of the human biosecurity emergency and the
20
conditions that gave rise to it; and
21
(c) the period during which the declaration is in force.
22
Note 1:
The listed human disease specified under paragraph (3)(a) is the
23
declaration listed human disease (see section 9).
24
Note 2:
The period specified under paragraph (3)(c) is the human biosecurity
25
emergency period (see section 9).
26
(4) A human biosecurity emergency period:
27
(a) must not be longer than the period that the Health Minister
28
considers necessary to prevent or control:
29
(i) the entry of the declaration listed human disease into
30
Australian territory or a part of Australian territory; or
31
(ii) the emergence, establishment or spread of the
32
declaration listed human disease in Australian territory
33
or a part of Australian territory; and
34
(b) in any case, must not be longer than 3 months.
35
Biosecurity emergencies and human biosecurity emergencies Chapter 8
Human biosecurity emergencies Part 2
Section 474
Biosecurity Bill 2012 No. , 2012 441
Note:
A human biosecurity emergency period may be extended under
1
section 474.
2
474 Governor-General may extend a human biosecurity emergency
3
period
4
(1) The Governor-General may vary a human biosecurity emergency
5
declaration to extend the human biosecurity emergency period for
6
a period of up to 3 months if the Health Minister is satisfied that:
7
(a) the declaration listed human disease is continuing to pose a
8
severe and immediate threat, or is continuing to cause harm,
9
to human health on a nationally significant scale; and
10
(b) the extension is necessary to prevent or control:
11
(i) the entry of the declaration listed human disease into
12
Australian territory or a part of Australian territory; or
13
(ii) the emergence, establishment or spread of the
14
declaration listed human disease in Australian territory
15
or a part of Australian territory.
16
(2) A variation made under subsection (1) is a legislative instrument,
17
but section 42 (disallowance) of the Legislative Instruments Act
18
2003 does not apply to the variation.
19
(3) The Governor-General may extend a human biosecurity emergency
20
period under subsection (1) more than once.
21
475 Health Minister may determine emergency requirements during
22
human biosecurity emergency period
23
(1) During a human biosecurity emergency period, the Health Minister
24
may determine any requirement that he or she is satisfied is
25
necessary:
26
(a) to prevent or control:
27
(i) the entry of the declaration listed human disease into
28
Australian territory or a part of Australian territory; or
29
(ii) the emergence, establishment or spread of the
30
declaration listed human disease in Australian territory
31
or a part of Australian territory; or
32
(b) to prevent or control the spread of the declaration listed
33
human disease to another country; or
34
Chapter 8 Biosecurity emergencies and human biosecurity emergencies
Part 2 Human biosecurity emergencies
Section 475
442 Biosecurity Bill 2012 No. , 2012
(c) if a recommendation has been made to the Health Minister by
1
the World Health Organization under Part III of the
2
International Health Regulations in relation to the declaration
3
listed human disease--to give effect to the recommendation.
4
Note 1:
A person who fails to comply with a requirement determined under
5
this subsection may commit an offence (see section 477).
6
Note 2:
For variation and revocation, see subsections 33(3) and (3AA) of the
7
Acts Interpretation Act 1901.
8
(2) A determination made under subsection (1) is a legislative
9
instrument, but section 42 (disallowance) of the Legislative
10
Instruments Act 2003 does not apply to the determination.
11
(3) Without limiting subsection (1), the requirements that the Health
12
Minister may determine include the following:
13
(a) requirements that apply to persons, goods or conveyances
14
when entering or leaving specified places;
15
(b) requirements that restrict or prevent the movement of
16
persons, goods or conveyances in or between specified
17
places;
18
(c) requirements for specified places to be evacuated;
19
(d) if a recommendation has been made as referred to in
20
paragraph (1)(c)--requirements for the purposes of giving
21
effect to the recommendation.
22
(4) Before determining a requirement under subsection (1), the Health
23
Minister must be satisfied of all of the following:
24
(a) that the requirement is likely to be effective in, or to
25
contribute to, achieving the purpose for which it is to be
26
determined;
27
(b) that the requirement is appropriate and adapted to achieve the
28
purpose for which it is to be determined;
29
(c) that the requirement is no more restrictive or intrusive than is
30
required in the circumstances;
31
(d) that the manner in which the requirement is to be applied is
32
no more restrictive or intrusive than is required in the
33
circumstances;
34
(e) that the period during which the requirement is to apply is
35
only as long as is necessary.
36
Biosecurity emergencies and human biosecurity emergencies Chapter 8
Human biosecurity emergencies Part 2
Section 476
Biosecurity Bill 2012 No. , 2012 443
(5) A requirement determined under subsection (1) applies despite any
1
provision of any other Australian law.
2
(6) A determination made under subsection (1) must not require an
3
individual to be subject to a biosecurity measure of a kind set out
4
in Subdivision B of Division 3 of Part 3 of Chapter 2.
5
Note:
Subdivision B of Division 3 of Part 3 of Chapter 2 sets out the
6
biosecurity measures that may be included in a human biosecurity
7
control order.
8
When determination ceases to have effect
9
(7) A determination made under subsection (1) ceases to have effect at
10
the end of the human biosecurity emergency period, unless it is
11
revoked earlier.
12
476 Health Minister may give directions during human biosecurity
13
emergency period
14
(1) During a human biosecurity emergency period, the Health Minister
15
may give any direction, to any person, that the Health Minister is
16
satisfied is necessary:
17
(a) to prevent or control:
18
(i) the entry of the declaration listed human disease into
19
Australian territory or a part of Australian territory; or
20
(ii) the emergence, establishment or spread of the
21
declaration listed human disease in Australian territory
22
or a part of Australian territory; or
23
(b) to prevent or control the spread of the declaration listed
24
human disease to another country; or
25
(c) if a recommendation has been made to the Health Minister by
26
the World Health Organization under Part III of the
27
International Health Regulations in relation to the declaration
28
listed human disease--to give effect to the recommendation.
29
Note 1:
A person who fails to comply with a direction given under this
30
subsection may commit an offence (see section 477).
31
Note 2:
See also section 608 (general provisions relating to directions).
32
(2) Without limiting subsection (1), the directions that the Health
33
Minister may give under that subsection include the following:
34
Chapter 8 Biosecurity emergencies and human biosecurity emergencies
Part 2 Human biosecurity emergencies
Section 476
444 Biosecurity Bill 2012 No. , 2012
(a) a direction to a person who is in a position to close premises,
1
or prevent access to premises, to do so;
2
(b) a direction for the purposes of giving effect to or enforcing a
3
requirement determined under section 475;
4
(c) if a recommendation has been made as referred to in
5
paragraph (1)(c)--a direction for the purposes of giving
6
effect to the recommendation.
7
(3) Before giving a direction under subsection (1), the Health Minister
8
must be satisfied of all of the following:
9
(a) that the direction is likely to be effective in, or to contribute
10
to, achieving the purpose for which it is to be given;
11
(b) that the direction is appropriate and adapted to achieve the
12
purpose for which it is to be given;
13
(c) that the direction is no more restrictive or intrusive than is
14
required in the circumstances;
15
(d) if the direction is to apply during a period--that the period is
16
only as long as is necessary.
17
(4) A direction may be given under subsection (1) despite any
18
provision of any other Australian law.
19
(5) A direction must not be given under subsection (1) to an officer or
20
employee of a State or Territory unless the direction is in
21
accordance with an agreement between the Commonwealth and the
22
State or Territory.
23
(6) A direction given under subsection (1) must not require an
24
individual to be subject to a biosecurity measure of a kind set out
25
in Subdivision B of Division 3 of Part 3 of Chapter 2.
26
Note:
Subdivision B of Division 3 of Part 3 of Chapter 2 sets out the
27
biosecurity measures that may be included in a human biosecurity
28
control order.
29
When direction ceases to have effect
30
(7) A direction given under subsection (1) ceases to have effect at the
31
end of the human biosecurity emergency period, unless it is
32
revoked earlier.
33
Biosecurity emergencies and human biosecurity emergencies Chapter 8
Human biosecurity emergencies Part 2
Section 477
Biosecurity Bill 2012 No. , 2012 445
477 Person must comply with emergency requirements and
1
directions
2
(1) A person must comply with a requirement determined under
3
subsection 475(1) that applies to the person.
4
(2) A person must comply with a direction given under subsection
5
476(1) that applies to the person.
6
Fault-based offences
7
(3) A person commits an offence if:
8
(a) a requirement determined under subsection 475(1) applies to
9
the person; and
10
(b) the person engages in conduct; and
11
(c) the conduct contravenes the requirement.
12
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
13
(4) A person commits an offence if:
14
(a) a direction given under subsection 476(1) applies to the
15
person; and
16
(b) the person engages in conduct; and
17
(c) the conduct contravenes the direction.
18
Penalty for contravention of this subsection: Imprisonment for 5
19
years or 300 penalty units, or both.
20
21
Chapter 9 Powers and other provisions related to ensuring compliance with this Act
Part 1 Monitoring
Division 1 Introduction
Section 478
446 Biosecurity Bill 2012 No. , 2012
Chapter 9--Powers and other provisions
1
related to ensuring compliance with
2
this Act
3
Part 1--Monitoring
4
Division 1--Introduction
5
478 Guide to this Part
6
This Part allows a biosecurity enforcement officer to monitor
7
whether this Act has been, or is being, complied with.
8
It also allows a biosecurity enforcement officer to monitor whether
9
information provided for the purposes of this Act is correct.
10
A biosecurity enforcement officer may enter premises for the
11
purpose of monitoring.
12
Entry must be with the consent of the occupier of the premises or
13
under a monitoring warrant.
14
A biosecurity enforcement officer who enters premises may
15
exercise monitoring powers.
16
A biosecurity enforcement officer may be assisted by other persons
17
in exercising powers under this Part.
18
Chapter 10 contains the rules for obtaining a monitoring warrant,
19
and the powers and obligations of biosecurity enforcement officers
20
in entering premises under a monitoring warrant or with consent.
21
22
Powers and other provisions related to ensuring compliance with this Act Chapter 9
Monitoring Part 1
Monitoring powers Division 2
Section 479
Biosecurity Bill 2012 No. , 2012 447
Division 2--Monitoring powers
1
479 Biosecurity enforcement officer may enter premises by consent
2
or under a warrant
3
(1) A biosecurity enforcement officer may enter any premises and
4
exercise the monitoring powers for either or both of the following
5
purposes:
6
(a) determining whether this Act has been, or is being, complied
7
with;
8
(b) determining whether information provided for the purposes
9
of this Act is correct.
10
Note 1:
The monitoring powers are set out in sections 480, 481 and 483.
11
Note 2:
While on the premises, a biosecurity enforcement officer may also ask
12
questions and seek production of documents under section 495.
13
Note 3:
For the execution of a monitoring warrant in relation to premises that
14
are an aircraft or vessel, see section 496.
15
(2) However, a biosecurity enforcement officer is not authorised to
16
enter the premises unless:
17
(a) the occupier of the premises has consented to the entry and
18
the biosecurity enforcement officer has shown his or her
19
identity card if required by the occupier; or
20
(b) the entry is made under a monitoring warrant.
21
Note 1:
For the issue of warrants, and the obligations and powers of
22
biosecurity enforcement officers in entering premises under a warrant
23
or with consent, see Parts 2 and 3 of Chapter 10.
24
Note 2:
A biosecurity enforcement officer may also enter certain premises and
25
exercise monitoring powers under section 499.
26
480 Monitoring powers of biosecurity enforcement officers
27
The following are the monitoring powers that a biosecurity
28
enforcement officer may exercise in relation to premises under
29
section 479:
30
(a) the power to search the premises and any thing on the
31
premises;
32
(b) the power to examine or observe any activity conducted on
33
the premises;
34
Chapter 9 Powers and other provisions related to ensuring compliance with this Act
Part 1 Monitoring
Division 2 Monitoring powers
Section 481
448 Biosecurity Bill 2012 No. , 2012
(c) the power to inspect, examine, take measurements of or
1
conduct tests on any thing on the premises;
2
(d) the power to make any still or moving image or any
3
recording of the premises or any thing on the premises;
4
(e) the power to inspect any document on the premises;
5
(f) the power to take extracts from, or make copies of, any such
6
document;
7
(g) the power to take onto the premises such equipment and
8
materials as the biosecurity enforcement officer requires for
9
the purpose of exercising powers in relation to the premises;
10
(h) the power to sample any thing on the premises;
11
(i) the powers set out in subsections 481(1) and (3) and 483(2).
12
481 Operating electronic equipment
13
(1)
The
monitoring powers include the power to:
14
(a) operate electronic equipment on premises under section 479;
15
and
16
(b) use a disk, tape or other storage device that:
17
(i) is on the premises; and
18
(ii) can be used with the equipment or is associated with it.
19
(2)
The
monitoring powers include the powers mentioned in
20
subsection (3) if information (relevant data) is found in the
21
exercise of the power under subsection (1) that is relevant to the
22
following purposes:
23
(a) determining whether this Act has been, or is being, complied
24
with;
25
(b) determining whether information provided for the purposes
26
of this Act is correct.
27
(3) The powers are as follows:
28
(a) the power to operate electronic equipment on the premises to
29
put the relevant data in documentary form and remove the
30
documents so produced from the premises;
31
(b) the power to operate electronic equipment on the premises to
32
transfer the relevant data to a disk, tape or other storage
33
device that:
34
Powers and other provisions related to ensuring compliance with this Act Chapter 9
Monitoring Part 1
Monitoring powers Division 2
Section 482
Biosecurity Bill 2012 No. , 2012 449
(i) is brought to the premises for the exercise of the power;
1
or
2
(ii) is on the premises and the use of which for that purpose
3
has been agreed in writing by the occupier of the
4
premises;
5
and remove the disk, tape or other storage device from the
6
premises.
7
(4) A biosecurity enforcement officer may operate electronic
8
equipment as mentioned in subsection (1) or (3) only if the
9
biosecurity enforcement officer believes on reasonable grounds
10
that the operation of the equipment can be carried out without
11
causing damage to the equipment.
12
Note:
For compensation for damage to electronic equipment, see
13
section 533.
14
482 Expert assistance to operate electronic equipment
15
(1) This section applies if a biosecurity enforcement officer enters
16
premises under a monitoring warrant.
17
Securing equipment
18
(2) The biosecurity enforcement officer may secure any electronic
19
equipment that is on the premises if the biosecurity enforcement
20
officer suspects on reasonable grounds that:
21
(a) there is relevant data on the premises; and
22
(b) the relevant data may be accessible by operating the
23
equipment; and
24
(c) expert assistance is required to operate the equipment; and
25
(d) the relevant data may be destroyed, altered, or otherwise
26
interfered with, if the biosecurity enforcement officer does
27
not take action under this subsection.
28
The equipment may be secured by locking it up, placing a guard or
29
any other means.
30
Note:
The expert is authorised to enter premises under section 531 (persons
31
assisting biosecurity officers or biosecurity enforcement officers).
32
(3)
Relevant data means information relevant to:
33
Chapter 9 Powers and other provisions related to ensuring compliance with this Act
Part 1 Monitoring
Division 2 Monitoring powers
Section 482
450 Biosecurity Bill 2012 No. , 2012
(a) determining whether this Act has been, or is being, complied
1
with; or
2
(b) determining whether information provided for the purposes
3
of this Act is correct.
4
(4) The biosecurity enforcement officer must give notice to the
5
occupier of the premises, or another person who apparently
6
represents the occupier, of:
7
(a) the biosecurity enforcement officer's intention to secure the
8
equipment; and
9
(b) the fact that the equipment may be secured for up to 24
10
hours.
11
Period equipment may be secured
12
(5) The equipment may be secured until the earlier of the following
13
happens:
14
(a) the 24-hour period ends;
15
(b) the equipment has been operated by an expert.
16
Note:
For compensation for damage to electronic equipment, see
17
section 533.
18
Extensions
19
(6) The biosecurity enforcement officer may apply to an issuing
20
officer for an extension of the 24-hour period if the biosecurity
21
enforcement officer believes on reasonable grounds that the
22
equipment needs to be secured for longer than that period.
23
(7) Before making the application, the biosecurity enforcement officer
24
must give notice to the occupier of the premises, or another person
25
who apparently represents the occupier, of his or her intention to
26
apply for an extension. The occupier or other person is entitled to
27
be heard in relation to that application.
28
(8) The provisions of this Part relating to the issue of monitoring
29
warrants apply, with such modifications as are necessary, to the
30
issue of an extension.
31
(9) The 24-hour period may be extended more than once.
32
Powers and other provisions related to ensuring compliance with this Act Chapter 9
Monitoring Part 1
Monitoring powers Division 2
Section 483
Biosecurity Bill 2012 No. , 2012 451
483 Securing evidence of the contravention of a related provision
1
(1) This section applies if a biosecurity enforcement officer enters
2
premises under a monitoring warrant for either or both of the
3
following purposes:
4
(a) determining whether this Act has been, or is being, complied
5
with;
6
(b) determining whether information provided for the purposes
7
of this Act is correct.
8
(2)
The
monitoring powers include the power to secure a thing for a
9
period not exceeding 24 hours if:
10
(a) the thing is found during the exercise of monitoring powers
11
on the premises; and
12
(b) a biosecurity enforcement officer believes on reasonable
13
grounds that:
14
(i) a related provision has been contravened with respect to
15
the thing; or
16
(ii) the thing affords evidence of the contravention of a
17
related provision; or
18
(iii) the thing is intended to be used for the purpose of
19
contravening a related provision; and
20
(c) the biosecurity enforcement officer believes on reasonable
21
grounds that:
22
(i) it is necessary to secure the thing in order to prevent it
23
from being concealed, lost or destroyed before a warrant
24
to seize the thing is obtained; and
25
(ii) it is necessary to secure the thing without a warrant
26
because the circumstances are serious and urgent.
27
(3) If a biosecurity enforcement officer believes on reasonable grounds
28
that the thing needs to be secured for more than 24 hours, the
29
biosecurity enforcement officer may apply to an issuing officer for
30
an extension of that period.
31
(4) The biosecurity enforcement officer must give notice to the
32
occupier of the premises, or another person who apparently
33
represents the occupier, of his or her intention to apply for an
34
Chapter 9 Powers and other provisions related to ensuring compliance with this Act
Part 1 Monitoring
Division 2 Monitoring powers
Section 483
452 Biosecurity Bill 2012 No. , 2012
extension. The occupier or other person is entitled to be heard in
1
relation to that application.
2
(5) The provisions of this Part relating to the issue of monitoring
3
warrants apply, with such modifications as are necessary, to the
4
issue of an extension.
5
(6) The 24-hour period may be extended more than once.
6
7
Powers and other provisions related to ensuring compliance with this Act Chapter 9
Investigation Part 2
Introduction Division 1
Section 484
Biosecurity Bill 2012 No. , 2012 453
Part 2--Investigation
1
Division 1--Introduction
2
484 Guide to this Part
3
This Part allows a biosecurity enforcement officer to gather
4
material that relates to the contravention of offences and civil
5
penalty provisions in this Act.
6
A biosecurity enforcement officer may enter premises if there are
7
reasonable grounds for suspecting that there may be such material
8
on the premises.
9
Entry must be with the consent of the occupier of the premises or
10
under an investigation warrant.
11
A biosecurity enforcement officer who enters premises may
12
exercise investigation powers.
13
A biosecurity enforcement officer may be assisted by other persons
14
in exercising powers under this Part.
15
Chapter 10 contains the rules for obtaining an investigation
16
warrant, and the obligations and powers of biosecurity enforcement
17
officers in entering premises under an investigation warrant or with
18
consent.
19
20
Chapter 9 Powers and other provisions related to ensuring compliance with this Act
Part 2 Investigation
Division 2 Investigation powers
Section 485
454 Biosecurity Bill 2012 No. , 2012
Division 2--Investigation powers
1
485 Biosecurity enforcement officer may enter premises by consent
2
or under a warrant
3
(1) If a biosecurity enforcement officer has reasonable grounds for
4
suspecting that there may be evidential material on any premises,
5
the biosecurity enforcement officer may:
6
(a) enter the premises; and
7
(b) exercise the investigation powers.
8
Note 1:
The investigation powers are set out in sections 486, 487 and 489.
9
Note 2:
While on the premises, a biosecurity enforcement officer may also ask
10
questions and seek production of documents under section 495.
11
Note 3:
For the execution of an investigation warrant in relation to premises
12
that are an aircraft or vessel, see section 496.
13
(2) However, a biosecurity enforcement officer is not authorised to
14
enter the premises unless:
15
(a) the occupier of the premises has consented to the entry and
16
the biosecurity enforcement officer has shown his or her
17
identity card if required by the occupier; or
18
(b) the entry is made under an investigation warrant.
19
Note 1:
For the issue of warrants, and the obligations and powers of
20
biosecurity enforcement officers in entering premises under a warrant
21
or with consent, see Parts 2 and 3 of Chapter 10.
22
Note 2:
A biosecurity enforcement officer may also enter certain premises and
23
exercise investigation powers under section 500.
24
486 Investigation powers of biosecurity enforcement officers
25
The following are the investigation powers that a biosecurity
26
enforcement officer may exercise in relation to premises under
27
section 485:
28
(a) if entry to the premises is with the occupier's consent--the
29
power to search the premises and any thing on the premises
30
for the evidential material the biosecurity enforcement officer
31
has reasonable grounds for suspecting may be on the
32
premises;
33
(b) if entry to the premises is under an investigation warrant:
34
Powers and other provisions related to ensuring compliance with this Act Chapter 9
Investigation Part 2
Investigation powers Division 2
Section 487
Biosecurity Bill 2012 No. , 2012 455
(i) the power to search the premises and any thing on the
1
premises for the kind of evidential material specified in
2
the warrant; and
3
(ii) the power to seize evidential material of that kind if the
4
biosecurity enforcement officer finds it on the premises;
5
(c) the power to inspect, examine, take measurements of or
6
conduct tests on evidential material referred to in
7
paragraph (a) or (b);
8
(d) the power to make any still or moving image or any
9
recording of the premises or evidential material referred to in
10
paragraph (a) or (b);
11
(e) the power to take onto the premises such equipment and
12
materials as the biosecurity enforcement officer requires for
13
the purpose of exercising powers in relation to the premises;
14
(f) the power to sample any thing on the premises;
15
(g) the powers set out in subsections 487(1) and (2) and
16
section 489.
17
Note:
For general provisions relating to seizure, see Division 3.
18
487 Operating electronic equipment
19
(1)
The
investigation powers include the power to:
20
(a) operate electronic equipment on premises under section 485;
21
and
22
(b) use a disk, tape or other storage device that:
23
(i) is on the premises; and
24
(ii) can be used with the equipment or is associated with it;
25
if a biosecurity enforcement officer has reasonable grounds for
26
suspecting that the electronic equipment, disk, tape or other storage
27
device is or contains evidential material.
28
(2)
The
investigation powers include the following powers in relation
29
to evidential material found in the exercise of the power under
30
subsection (1):
31
(a) if entry to the premises is under an investigation warrant--
32
the power to seize the equipment and the disk, tape or other
33
storage device referred to in that subsection;
34
Chapter 9 Powers and other provisions related to ensuring compliance with this Act
Part 2 Investigation
Division 2 Investigation powers
Section 487
456 Biosecurity Bill 2012 No. , 2012
(b) in any case--the power to operate electronic equipment on
1
the premises to put the evidential material in documentary
2
form and remove the documents so produced from the
3
premises;
4
(c) the power to operate electronic equipment on the premises to
5
transfer the evidential material to a disk, tape or other storage
6
device that:
7
(i) is brought to the premises for the exercise of the power;
8
or
9
(ii) is on the premises and the use of which for that purpose
10
has been agreed in writing by the occupier of the
11
premises;
12
and remove the disk, tape or other storage device from the
13
premises.
14
Note:
For general provisions relating to seizure, see Division 3.
15
(3) A biosecurity enforcement officer may operate electronic
16
equipment as mentioned in subsection (1) or (2) only if the
17
biosecurity enforcement officer believes on reasonable grounds
18
that the operation of the equipment can be carried out without
19
causing damage to the equipment.
20
Note:
For compensation for damage to electronic equipment, see
21
section 533.
22
(4) A biosecurity enforcement officer may seize equipment or a disk,
23
tape or other storage device as mentioned in paragraph (2)(a) only
24
if:
25
(a) it is not practicable to put the evidential material in
26
documentary form as mentioned in paragraph (2)(b) or to
27
transfer the evidential material as mentioned in
28
paragraph (2)(c); or
29
(b) possession of the equipment or the disk, tape or other storage
30
device by the occupier could constitute an offence against a
31
law of the Commonwealth.
32
Powers and other provisions related to ensuring compliance with this Act Chapter 9
Investigation Part 2
Investigation powers Division 2
Section 488
Biosecurity Bill 2012 No. , 2012 457
488 Expert assistance to operate electronic equipment
1
(1) This section applies if a biosecurity enforcement officer enters
2
premises under an investigation warrant to search for evidential
3
material.
4
Securing equipment
5
(2) The biosecurity enforcement officer may secure any electronic
6
equipment that is on the premises if the biosecurity enforcement
7
officer suspects on reasonable grounds that:
8
(a) there is evidential material of the kind specified in the
9
warrant on the premises; and
10
(b) the evidential material may be accessible by operating the
11
electronic equipment; and
12
(c) expert assistance is required to operate the equipment; and
13
(d) the evidential material may be destroyed, altered, or
14
otherwise interfered with, if the biosecurity enforcement
15
officer does not take action under this subsection.
16
The equipment may be secured by locking it up, placing a guard or
17
any other means.
18
Note:
The expert is authorised to enter premises under section 531 (persons
19
assisting biosecurity officers or biosecurity enforcement officers).
20
(3) The biosecurity enforcement officer must give notice to the
21
occupier of the premises, or another person who apparently
22
represents the occupier, of:
23
(a) the biosecurity enforcement officer's intention to secure the
24
equipment; and
25
(b) the fact that the equipment may be secured for up to 24
26
hours.
27
Period equipment may be secured
28
(4) The equipment may be secured until the earlier of the following
29
happens:
30
(a) the 24-hour period ends;
31
(b) the equipment has been operated by an expert.
32
Chapter 9 Powers and other provisions related to ensuring compliance with this Act
Part 2 Investigation
Division 2 Investigation powers
Section 489
458 Biosecurity Bill 2012 No. , 2012
Note:
For compensation for damage to electronic equipment, see
1
section 533.
2
Extensions
3
(5) The biosecurity enforcement officer may apply to an issuing
4
officer for an extension of the 24-hour period if the biosecurity
5
enforcement officer believes on reasonable grounds that the
6
equipment needs to be secured for longer than that period.
7
(6) Before making the application, the biosecurity enforcement officer
8
must give notice to the occupier of the premises, or another person
9
who apparently represents the occupier, of the biosecurity
10
enforcement officer's intention to apply for an extension. The
11
occupier or other person is entitled to be heard in relation to that
12
application.
13
(7) The provisions of this Part relating to the issue of investigation
14
warrants apply, with such modifications as are necessary, to the
15
issue of an extension.
16
(8) The 24-hour period may be extended more than once.
17
489 Seizing evidence of related provisions
18
(1) This section applies if a biosecurity enforcement officer enters
19
premises under an investigation warrant to search for evidential
20
material.
21
(2)
The
investigation powers include seizing a thing that is not
22
evidential material of the kind specified in the warrant if:
23
(a) in the course of searching for the kind of evidential material
24
specified in the warrant, the biosecurity enforcement officer
25
finds the thing; and
26
(b) the biosecurity enforcement officer believes on reasonable
27
grounds that:
28
(i) a related provision has been contravened with respect to
29
the thing; or
30
(ii) the thing is evidence of the contravention of a related
31
provision; or
32
Powers and other provisions related to ensuring compliance with this Act Chapter 9
Investigation Part 2
Investigation powers Division 2
Section 489
Biosecurity Bill 2012 No. , 2012 459
(iii) the thing is intended to be used for the purpose of
1
contravening a related provision; and
2
(c) the biosecurity enforcement officer believes on reasonable
3
grounds that it is necessary to seize the thing in order to
4
prevent its concealment, loss or destruction.
5
Note:
For general provisions relating to seizure, see Division 3.
6
7
Chapter 9 Powers and other provisions related to ensuring compliance with this Act
Part 2 Investigation
Division 3 General provisions relating to seizure
Section 490
460 Biosecurity Bill 2012 No. , 2012
Division 3--General provisions relating to seizure
1
490 Copies of seized things to be provided
2
(1) This section applies if:
3
(a) an investigation warrant is being executed in relation to
4
premises; and
5
(b) a biosecurity enforcement officer seizes one or more of the
6
following from the premises under this Part:
7
(i) a document, film, computer file or other thing that can
8
be readily copied;
9
(ii) a storage device, the information in which can be
10
readily copied.
11
(2) The occupier of the premises, or another person who apparently
12
represents the occupier and who is present when the warrant is
13
executed, may request the biosecurity enforcement officer to give a
14
copy of the thing or the information to the occupier or other
15
person.
16
(3) The biosecurity enforcement officer must comply with the request
17
as soon as practicable after the seizure.
18
(4) However, the biosecurity enforcement officer is not required to
19
comply with the request if possession of the document, film,
20
computer file, thing or information by the occupier or other person
21
could constitute an offence against a law of the Commonwealth.
22
491 Receipts for seized things
23
(1) The biosecurity enforcement officer must provide a receipt for a
24
thing that is seized under this Part.
25
(2) One receipt may cover 2 or more things seized.
26
492 Return of seized things
27
(1) The Director of Biosecurity must take reasonable steps to return a
28
thing seized under this Part when the earliest of the following
29
happens:
30
Powers and other provisions related to ensuring compliance with this Act Chapter 9
Investigation Part 2
General provisions relating to seizure Division 3
Section 493
Biosecurity Bill 2012 No. , 2012 461
(a) the reason for the thing's seizure no longer exists;
1
(b) it is decided that the thing is not to be used in evidence;
2
(c) the period of 60 days after the thing's seizure ends.
3
Note:
See subsections (2) and (3) for exceptions to this rule.
4
Exceptions
5
(2)
Subsection
(1):
6
(a) is subject to any contrary order of a court; and
7
(b) does not apply if the thing:
8
(i) is forfeited or forfeitable to the Commonwealth; or
9
(ii) is the subject of a dispute as to ownership.
10
(3) The Director of Biosecurity is not required to take reasonable steps
11
to return a thing because of paragraph (1)(c) if:
12
(a) proceedings in respect of which the thing may afford
13
evidence were instituted before the end of the 60 days and
14
have not been completed (including an appeal to a court in
15
relation to those proceedings); or
16
(b) the thing may continue to be retained because of an order
17
under section 493; or
18
(c) the Commonwealth or the Director of Biosecurity is
19
otherwise authorised (by a law, or an order of a court, of the
20
Commonwealth or of a State or Territory) to retain, destroy,
21
dispose of or otherwise deal with the thing.
22
Return of thing
23
(4) A thing that is required to be returned under this section must be
24
returned to the person from whom it was seized (or to the owner if
25
that person is not entitled to possess it).
26
493 Issuing officer may permit a thing to be retained
27
(1) The Director of Biosecurity may apply to an issuing officer for an
28
order permitting the retention of a thing seized under this Part for a
29
further period if proceedings in respect of which the thing may
30
afford evidence have not commenced before the end of:
31
(a) 60 days after the seizure; or
32
Chapter 9 Powers and other provisions related to ensuring compliance with this Act
Part 2 Investigation
Division 3 General provisions relating to seizure
Section 494
462 Biosecurity Bill 2012 No. , 2012
(b) a period previously specified in an order of an issuing officer
1
under this section.
2
(2) Before making the application, the Director of Biosecurity must:
3
(a) take reasonable steps to discover who has an interest in the
4
retention of the thing; and
5
(b) if it is practicable to do so, notify each person whom the
6
Director of Biosecurity believes to have such an interest of
7
the proposed application.
8
Order to retain thing
9
(3) The issuing officer may order that the thing may continue to be
10
retained for a period specified in the order if the issuing officer is
11
satisfied that it is necessary for the thing to continue to be retained:
12
(a) for the purposes of an investigation as to whether a provision
13
of this Act has been contravened; or
14
(b) for the purposes of an investigation as to whether a related
15
provision has been contravened; or
16
(c) to enable evidence of a contravention mentioned in
17
paragraph (a) or (b) to be secured for the purposes of a
18
prosecution or an action to obtain a civil penalty order.
19
(4) The period specified must not exceed 3 years.
20
494 Disposal of things
21
(1) The Director of Biosecurity may dispose of a thing seized under
22
this Part if:
23
(a) the Director of Biosecurity has taken reasonable steps to
24
return the thing to a person; and
25
(b)
either:
26
(i) the Director of Biosecurity has been unable to locate the
27
person; or
28
(ii) the person has refused to take possession of the thing.
29
Note:
If the operation of this section would result in an acquisition of
30
property, the Commonwealth may be liable to pay compensation
31
under section 26.
32
Powers and other provisions related to ensuring compliance with this Act Chapter 9
Investigation Part 2
General provisions relating to seizure Division 3
Section 494
Biosecurity Bill 2012 No. , 2012 463
(2) The Director of Biosecurity may dispose of the thing in such
1
manner as the Director of Biosecurity thinks appropriate.
2
3
Chapter 9 Powers and other provisions related to ensuring compliance with this Act
Part 3 General provisions relating to monitoring and investigation
Section 495
464 Biosecurity Bill 2012 No. , 2012
Part 3--General provisions relating to monitoring
1
and investigation
2
3
495 Biosecurity enforcement officer may ask questions and seek
4
production of documents
5
(1) This section applies if:
6
(a) a biosecurity enforcement officer enters premises under
7
section 479 (monitoring powers) for the purposes of:
8
(i) determining whether this Act has been, or is being,
9
complied with; or
10
(ii) determining whether information provided for the
11
purposes of this Act is correct; or
12
(b) a biosecurity enforcement officer enters premises under
13
section 485 (investigation powers) for the purposes of
14
searching for evidential material.
15
Entry with consent--officer may ask questions and request
16
production of documents
17
(2) If the entry is authorised because the occupier of the premises
18
consented to the entry, the biosecurity enforcement officer may ask
19
the occupier to answer any questions, and produce any document,
20
relating to any of the following (as the case requires):
21
(a) the operation of this Act;
22
(b) the information referred to in subparagraph (1)(a)(ii);
23
(c) the evidential material referred to in paragraph (1)(b).
24
Entry under a warrant--officer may require answers or production
25
of documents
26
(3) If the entry is authorised by a monitoring warrant or an
27
investigation warrant, the biosecurity enforcement officer may
28
require any person on the premises to answer any questions, and
29
produce any document, relating to any of the following (as the case
30
requires):
31
(a) the operation of this Act;
32
(b) the information referred to in subparagraph (1)(a)(ii);
33
Powers and other provisions related to ensuring compliance with this Act Chapter 9
General provisions relating to monitoring and investigation Part 3
Section 496
Biosecurity Bill 2012 No. , 2012 465
(c) the evidential material referred to in paragraph (1)(b).
1
Note:
This subsection is not subject to the privilege against
2
self-incrimination (see section 661).
3
Fault-based offence
4
(4) A person commits an offence if:
5
(a) the person is subject to a requirement under subsection (3);
6
and
7
(b) the person fails to comply with the requirement.
8
Penalty for contravention of this subsection: 30 penalty units.
9
496 When warrants can be executed on aircraft and vessels
10
(1) A monitoring warrant or an investigation warrant may be executed
11
in relation to premises that are an aircraft or vessel only if the
12
aircraft or vessel is at a port or landing place in Australian territory.
13
(2) For the purposes of subsection (1), a vessel that is waiting to arrive
14
at a port is taken to be at a port.
15
16
Chapter 9 Powers and other provisions related to ensuring compliance with this Act
Part 4 Monitoring, searching and accessing certain premises
Division 1 Introduction
Section 497
466 Biosecurity Bill 2012 No. , 2012
Part 4--Monitoring, searching and accessing
1
certain premises
2
Division 1--Introduction
3
497 Guide to this Part
4
A biosecurity enforcement officer may enter:
5
(a)
premises occupied by a biosecurity industry
6
participant covered by an approved arrangement;
7
and
8
(b)
first points of entry.
9
The officer may exercise monitoring and investigation powers
10
while at those places. The officer does not need a warrant or
11
consent to enter those premises.
12
A biosecurity enforcement officer can enter premises if it is
13
necessary to do so to gain access to other premises on which he or
14
she is to perform functions, or exercise powers. The officer can
15
enter those premises with an adjacent premises warrant or consent.
16
A biosecurity enforcement officer may be assisted by other persons
17
in exercising powers under this Part.
18
Chapter 10 contains the rules for entering premises without a
19
warrant or consent, obtaining an adjacent premises warrant, and the
20
obligations and powers of biosecurity enforcement officers in
21
entering premises with or without a warrant or consent.
22
23
Powers and other provisions related to ensuring compliance with this Act Chapter 9
Monitoring, searching and accessing certain premises Part 4
Monitoring and searching certain premises Division 2
Section 498
Biosecurity Bill 2012 No. , 2012 467
Division 2--Monitoring and searching certain premises
1
498 Meaning of relevant premises
2
The following premises are relevant premises:
3
(a) any premises at which biosecurity activities are carried out by
4
a biosecurity industry participant that is covered by an
5
approved arrangement;
6
(b) any landing place or port that is determined to be a first point
7
of entry.
8
499 Monitoring premises
9
(1) A biosecurity enforcement officer may enter relevant premises for
10
the following purposes:
11
(a) determining whether this Act has been, or is being, complied
12
with;
13
(b) determining whether information provided for the purposes
14
of this Act is correct;
15
(c) deciding whether to exercise a power under this Act.
16
(2) The biosecurity enforcement officer may enter the premises during
17
the business hours of the premises.
18
Note:
For the obligations and powers of biosecurity enforcement officers
19
entering premises under this section, see Part 4 of Chapter 10.
20
(3) Division 2 of Part 1 (monitoring powers) applies as if:
21
(a) entry to the premises was made under a monitoring warrant
22
under Part 1 of this Chapter; and
23
(b) subsections 481(2), 482(3) and 483(1) also included
24
paragraph (1)(c) of this section.
25
(4) If the relevant premises are a conveyance, a biosecurity
26
enforcement officer may stop and detain the conveyance for the
27
purpose of exercising a monitoring power.
28
Chapter 9 Powers and other provisions related to ensuring compliance with this Act
Part 4 Monitoring, searching and accessing certain premises
Division 2 Monitoring and searching certain premises
Section 500
468 Biosecurity Bill 2012 No. , 2012
500 Offence-related searches and seizures
1
(1) A biosecurity enforcement officer may enter relevant premises if
2
the officer has reasonable grounds for suspecting that there may be,
3
on the premises, particular evidential material.
4
(2) The biosecurity enforcement officer may enter the premises at any
5
time.
6
Note:
For the obligations and powers of biosecurity enforcement officers
7
entering premises under this section, see Part 4 of Chapter 10.
8
(3) The provisions referred to in subsection (4) apply as if:
9
(a) entry to the premises was made under an investigation
10
warrant under Part 2 of this Chapter; and
11
(b) the evidential material referred to in subsection (1) of this
12
section were specified in an investigation warrant.
13
(4) For the purposes of subsection (3), the provisions are the
14
following:
15
(a) Divisions 2 and 3 of Part 2 (investigation powers and general
16
provisions relating to seizure);
17
(b) subsections 495(2) and (3) (asking questions and seeking
18
production of documents).
19
(5) If the relevant premises are a conveyance, a biosecurity
20
enforcement officer may stop and detain the conveyance for the
21
purpose of exercising an investigation power.
22
23
Powers and other provisions related to ensuring compliance with this Act Chapter 9
Monitoring, searching and accessing certain premises Part 4
Entering adjacent premises to gain access to other premises Division 3
Section 501
Biosecurity Bill 2012 No. , 2012 469
Division 3--Entering adjacent premises to gain access to
1
other premises
2
501 Meaning of premises
3
In this Division, premises does not include a conveyance.
4
502 Entering adjacent premises to gain access to other premises
5
(1) A biosecurity enforcement officer may enter any premises
6
(adjacent premises) if it is necessary to do so for the purpose of:
7
(a) gaining access to other premises to perform functions, or
8
exercise powers, as a biosecurity enforcement officer; or
9
(b) accompanying a biosecurity officer who needs to gain access
10
to other premises to perform functions, or exercise powers,
11
under or for the purposes of this Act.
12
(2) However, a biosecurity enforcement officer is not authorised to
13
enter adjacent premises under subsection (1) unless:
14
(a) the occupier of the premises has consented to the entry and
15
the biosecurity enforcement officer has shown his or her
16
identity card if required by the occupier; or
17
(b) the entry is made under an adjacent premises warrant.
18
Note:
For the issue of warrants, and the obligations and powers of
19
biosecurity enforcement officers in entering premises under a warrant
20
or with consent, see Parts 2 and 3 of Chapter 10.
21
(3) A biosecurity officer who needs to enter adjacent premises to gain
22
access to other premises for the purpose of performing functions,
23
or exercising powers, under or for the purposes of this Act may
24
enter the adjacent premises only if the biosecurity officer is
25
accompanied by a biosecurity enforcement officer who is
26
authorised to enter the adjacent premises under subsection (1).
27
503 Entry under adjacent premises warrants
28
A biosecurity enforcement officer or biosecurity officer who enters
29
premises under an adjacent premises warrant, and any person
30
assisting, must take all reasonable steps to ensure that they cause as
31
Chapter 9 Powers and other provisions related to ensuring compliance with this Act
Part 4 Monitoring, searching and accessing certain premises
Division 3 Entering adjacent premises to gain access to other premises
Section 503
470 Biosecurity Bill 2012 No. , 2012
little inconvenience to the occupier of the premises as is
1
practicable.
2
3
Powers and other provisions related to ensuring compliance with this Act Chapter 9
Miscellaneous Part 5
Introduction Division 1
Section 504
Biosecurity Bill 2012 No. , 2012 471
Part 5--Miscellaneous
1
Division 1--Introduction
2
504 Guide to this Part
3
For the purposes of certain decisions under this Act, the Director of
4
Biosecurity or the Director of Human Biosecurity must take into
5
account whether a person is a fit and proper person. Division 2 sets
6
out how a Director decides this.
7
Division 3 allows the Director of Biosecurity to specify certain
8
personal information which must be provided with certain
9
applications made under this Act.
10
Division 4 provides civil penalty provisions for a person who
11
provides false or misleading information or documents.
12
13
Chapter 9 Powers and other provisions related to ensuring compliance with this Act
Part 5 Miscellaneous
Division 2 Fit and proper person test
Section 505
472 Biosecurity Bill 2012 No. , 2012
Division 2--Fit and proper person test
1
505 Fit and proper person test
2
(1) This section applies for the purposes of determining whether a
3
person is a fit and proper person for the purposes of the following
4
sections:
5
(a) section 175 (Director of Biosecurity may grant permit to
6
bring in or import goods);
7
(b) section 404 (deciding whether to approve industry
8
arrangement);
9
(c) section 411 (varying approved arrangement);
10
(d) section 416 (suspending approved arrangement);
11
(e) section 421 (revoking approved arrangement);
12
(f) any other provisions of this Act prescribed by the regulations.
13
Note:
If the Director of Biosecurity or the Director of Human Biosecurity
14
determines that a person is not a fit and proper person under this
15
section, the Director may:
16
(a) refuse to grant a permit or approve an industry arrangement (see
17
subsections 175(1) and 404(2)); or
18
(b) vary, suspend or revoke an industry arrangement (see subsections
19
411(1), 416(1) and 421(1)).
20
(2) In determining whether the person is a fit and proper person, the
21
Director of Biosecurity, or the Director of Human Biosecurity, (as
22
the case requires) must have regard to the following matters:
23
(a) whether the person has been convicted of an offence against,
24
or ordered to pay a pecuniary penalty under, any of the
25
following Acts:
26
(i)
this
Act;
27
(ii)
the
Quarantine Act 1908;
28
(iii)
the
Customs Act 1901;
29
(iv)
the
Criminal Code or the Crimes Act 1914, to the extent
30
that it relates to any Act referred to in this paragraph;
31
(b) whether a debt is due and payable by the person to the
32
Commonwealth under any Act referred to in paragraph (a);
33
(c) whether an application made by the person under either of
34
the following provisions has been refused:
35
Powers and other provisions related to ensuring compliance with this Act Chapter 9
Miscellaneous Part 5
Fit and proper person test Division 2
Section 505
Biosecurity Bill 2012 No. , 2012 473
(i) section 404 of this Act (approval of industry
1
arrangement);
2
(ii) section 46A of the Quarantine Act 1908 (approvals for
3
the purpose of goods subject to quarantine);
4
(d) whether an approval of the person for an approved
5
arrangement, or for part of an approved arrangement, has
6
been suspended or revoked under Part 4 or 5 of Chapter 7 of
7
this Act;
8
(e) whether an approval of the person has been suspended or
9
revoked under subsection 46A(9) of the Quarantine Act
10
1908;
11
(f) whether an agreement with the person has been cancelled
12
under subsection 66B(3) of the Quarantine Act 1908.
13
(3) In determining whether the person is a fit and proper person, the
14
Director of Biosecurity, or the Director of Human Biosecurity, (as
15
the case requires) may also have regard to:
16
(a) whether the person has been convicted of an offence against,
17
or ordered to pay a pecuniary penalty under, any Australian
18
law (other than an Act referred to in paragraph (2)(a)); and
19
(b) any other relevant matter.
20
(4) Paragraphs (2)(c), (d), (e) and (f) do not apply in relation to a
21
refusal, revocation, suspension or cancellation if the decision in
22
relation to the refusal, revocation, suspension or cancellation was
23
set aside on review.
24
(5) Nothing in this section affects the operation of Part VIIC of the
25
Crimes Act 1914 (which includes provisions that, in certain
26
circumstances, relieve persons from the requirement to disclose
27
spent convictions and require persons aware of such convictions to
28
disregard them).
29
30
Chapter 9 Powers and other provisions related to ensuring compliance with this Act
Part 5 Miscellaneous
Division 3 Personal information for applications
Section 506
474 Biosecurity Bill 2012 No. , 2012
Division 3--Personal information for applications
1
506 Personal information for applications
2
(1) The Director of Biosecurity may, by legislative instrument, specify
3
kinds of personal information that are required to be provided with
4
an application made under any the following provisions:
5
(a) section 174 (application for permit to bring in or import
6
goods);
7
(b) section 403 (approval of an industry arrangement);
8
(c) any other provision prescribed by the regulations.
9
(2) An application is taken not to have been made if the personal
10
information specified is not provided with the application.
11
12
Powers and other provisions related to ensuring compliance with this Act Chapter 9
Miscellaneous Part 5
Civil penalty provisions for false or misleading information or documents Division 4
Section 507
Biosecurity Bill 2012 No. , 2012 475
Division 4--Civil penalty provisions for false or misleading
1
information or documents
2
507 Civil penalty provision for false or misleading information
3
(1) A person is liable to a civil penalty if:
4
(a) the person gives information in compliance or purported
5
compliance with this Act; and
6
(b) the person does so knowing that the information:
7
(i) is false or misleading; or
8
(ii) omits any matter or thing without which the information
9
is misleading.
10
Civil penalty:
60 penalty units.
11
(2) Subsection (1) does not apply as a result of subparagraph (1)(b)(i)
12
if the information is not false or misleading in a material particular.
13
Note:
A defendant bears an evidential burden in relation to the matter in this
14
subsection (see section 552).
15
(3) Subsection (1) does not apply as a result of subparagraph (1)(b)(ii)
16
if the information did not omit any matter or thing without which
17
the information is misleading in a material particular.
18
Note:
A defendant bears an evidential burden in relation to the matter in this
19
subsection (see section 552).
20
(4) Subsection (1) does not apply if, before the information was given
21
by a person to another person (the official) in compliance or
22
purported compliance with this Act, the official did not take
23
reasonable steps to inform the person that the person may be liable
24
to a civil penalty for contravening subsection (1).
25
Note:
A defendant bears an evidential burden in relation to the matter in this
26
subsection (see section 552).
27
(5) For the purposes of subsection (4), it is sufficient if the following
28
form of words is used:
29
"You may be liable to a civil penalty for giving false or misleading
30
information".
31
Chapter 9 Powers and other provisions related to ensuring compliance with this Act
Part 5 Miscellaneous
Division 4 Civil penalty provisions for false or misleading information or documents
Section 508
476 Biosecurity Bill 2012 No. , 2012
508 Civil penalty provision for false or misleading documents
1
(1) A person is liable to a civil penalty if:
2
(a) the person produces a document to another person; and
3
(b) the person does so knowing that the document is false or
4
misleading; and
5
(c) the document is produced in compliance or purported
6
compliance with this Act.
7
Civil penalty:
60 penalty units.
8
(2) Subsection (1) does not apply if the document is not false or
9
misleading in a material particular.
10
Note:
A defendant bears an evidential burden in relation to the matter in this
11
subsection (see section 552).
12
(3) Subsection (1) does not apply to a person who produces a
13
document if the document is accompanied by a written statement
14
signed by the person or, in the case of a body corporate, by a
15
competent officer of the body corporate:
16
(a) stating that the document is, to the knowledge of the
17
first-mentioned person, false or misleading in a material
18
particular; and
19
(b) setting out, or referring to, the material particular in which
20
the document is, to the knowledge of the first-mentioned
21
person, false or misleading.
22
Note:
A defendant bears an evidential burden in relation to the matter in this
23
subsection (see section 552).
24
25
Entry to premises and warrants Chapter 10
Introduction Part 1
Section 509
Biosecurity Bill 2012 No. , 2012 477
Chapter 10--Entry to premises and warrants
1
Part 1--Introduction
2
3
509 Guide to this Chapter
4
This Chapter contains general provisions relating to warrants
5
issued under this Act (whether the warrant is an entry warrant
6
authorising entry to premises, or a possession warrant authorising
7
the taking of possession of premises or a conveyance).
8
This Chapter also contains general provisions relating to when
9
biosecurity enforcement officers or biosecurity officers enter
10
premises with or without a warrant or consent.
11
Part 2 sets out how warrants are issued. Some warrants can be
12
issued by telephone or fax etc. in urgent and other cases.
13
Part 3 sets out the obligations and powers of biosecurity
14
enforcements officers who are entering premises with a warrant or
15
consent, or taking possession of premises or a conveyance with a
16
warrant. Part 3 also sets out the rights and responsibilities of
17
certain people when a warrant is being executed.
18
Other parts of this Act allow biosecurity enforcement officers to
19
enter premises without a warrant or consent in certain
20
circumstances (for example, during a biosecurity emergency period
21
in Chapter 8). Part 4 of this Chapter sets out the obligations and
22
powers of biosecurity enforcement officers, and the rights and
23
responsibilities of certain persons, when biosecurity enforcement
24
officers enter premises without a warrant or consent.
25
Part 5 provides other relevant provisions, such as the power for
26
biosecurity officers and biosecurity enforcement officers to be
27
assisted in exercising certain powers.
28
29
Chapter 10 Entry to premises and warrants
Part 2 Issue of warrants
Division 1 Ordinary issue of warrants
Section 510
478 Biosecurity Bill 2012 No. , 2012
Part 2--Issue of warrants
1
Division 1--Ordinary issue of warrants
2
510 Application and issue of warrant
3
(1) A biosecurity enforcement officer may apply to an issuing officer
4
for any of the following warrants:
5
(a) a biosecurity risk assessment warrant authorising entry to
6
premises;
7
(b) a biosecurity control order warrant authorising entry to
8
premises;
9
(c) a biosecurity response zone warrant authorising entry to
10
premises;
11
(d) a biosecurity monitoring zone warrant authorising entry to
12
premises;
13
(e) a monitoring warrant authoring entry to premises;
14
(f) an investigation warrant authorising entry to premises;
15
(g) an adjacent premises warrant authorising entry to premises;
16
(h) a conveyance possession warrant authorising the taking of
17
possession of a conveyance;
18
(i) a premises possession warrant authorising the taking of
19
possession of premises (other than a conveyance).
20
Note 1:
Premises includes a conveyance (see paragraph (a) of the definition of
21
premises in section 9).
22
Note 2:
Certain warrants may be issued by telephone or fax in urgent cases
23
(see Division 2).
24
Note 3:
The warrant may also authorise other things (see section 512).
25
Issue of warrant
26
(2) The issuing officer may issue a warrant of a kind referred to in
27
subsection (1) if the issuing officer is satisfied, by information on
28
oath or affirmation, that the test in section 511 is met in relation to
29
that kind of warrant.
30
(3) The information must be sworn or affirmed by a biosecurity officer
31
for the following kinds of warrants:
32
Entry to premises and warrants Chapter 10
Issue of warrants Part 2
Ordinary issue of warrants Division 1
Section 511
Biosecurity Bill 2012 No. , 2012 479
(a) a biosecurity risk assessment warrant;
1
(b) a biosecurity control order warrant;
2
(c) a biosecurity response zone warrant;
3
(d) a biosecurity monitoring zone warrant.
4
(4) An issuing officer must not issue a warrant unless a biosecurity
5
enforcement officer, a biosecurity officer or some other person has
6
given to the issuing officer, either orally or by affidavit, such
7
further information (if any) as the issuing officer requires
8
concerning the grounds on which the issue of the warrant is being
9
sought.
10
511 Test to be satisfied for issue of warrant
11
The table in this section sets out in column 2 the test that must be
12
met in order for a warrant of the kind referred to in column 1 to be
13
issued.
14
15
Test to be satisfied for issue of warrant
Item
Column 1
This kind of
warrant ...
Column 2
This test ...
1
A biosecurity risk
assessment warrant
(a) there are reasonable grounds for suspecting that:
(i) a disease or pest may be present in or on
goods on the premises, or the premises
themselves; and
(ii) the disease or pest may pose an
unacceptable level of biosecurity risk; and
(b) it is reasonably necessary that one or more
biosecurity enforcement officers and one or more
biosecurity officers should have access to the
premises to exercise powers in accordance with
Division 3 of Part 2 of Chapter 6 for any of the
following purposes:
(i) to establish whether the disease or pest is
present in or on the goods or premises (as
the case may be);
(ii) if possible, to identify the disease or pest;
(iii) to assess the level of biosecurity risk
Chapter 10 Entry to premises and warrants
Part 2 Issue of warrants
Division 1 Ordinary issue of warrants
Section 511
480 Biosecurity Bill 2012 No. , 2012
Test to be satisfied for issue of warrant
Item
Column 1
This kind of
warrant ...
Column 2
This test ...
posed by the disease or pest.
2 A
biosecurity
control order
warrant
(a) there are reasonable grounds for suspecting that:
(i) a disease or pest may be present in or on
goods on the premises, or the premises
themselves; and
(ii) the disease or pest poses an unacceptable
level of biosecurity risk; and
(b) a biosecurity control order is in force under
section 351 in relation to the goods or premises
and the disease or pest; and
(c) it is reasonably necessary that one or more
biosecurity enforcement officers and one or more
biosecurity officers should have access to the
premises to exercise powers in accordance with
section 358 in relation to the goods or premises
(as the case may be) for the purpose of managing
the biosecurity risk posed by the disease or pest.
3 A
biosecurity
response zone
warrant
(a) there are reasonable grounds for suspecting that:
(i) a disease or pest may be present in or on
goods on the premises, or the premises
themselves; and
(ii) the disease or pest poses an unacceptable
level of biosecurity risk; and
(b) the premises are in a biosecurity response zone;
and
(c) the biosecurity response zone determination
relates to the disease or pest; and
(d) it is reasonably necessary that one or more
biosecurity enforcement officers and one or more
biosecurity officers should have access to the
premises to exercise powers in accordance with
section 368 in relation to the goods or premises
(as the case may be) for the purpose of managing
the biosecurity risk posed by the disease or pest.
4 A
biosecurity
monitoring zone
(a) the premises are in a permanent biosecurity
monitoring zone or a temporary biosecurity
Entry to premises and warrants Chapter 10
Issue of warrants Part 2
Ordinary issue of warrants Division 1
Section 511
Biosecurity Bill 2012 No. , 2012 481
Test to be satisfied for issue of warrant
Item
Column 1
This kind of
warrant ...
Column 2
This test ...
warrant
monitoring zone; and
(b) it is reasonably necessary that one or more
biosecurity enforcement officers and one or more
biosecurity officers should have access to the
premises to exercise powers for the purpose of
monitoring whether a disease or pest that a
biosecurity officer suspects, on reasonable
grounds, may pose an unacceptable level of
biosecurity risk:
(i) has entered, or has emerged, established
itself or spread in, the zone; or
(ii) is likely to enter, or to emerge, establish
itself or spread in, the zone.
5 A
monitoring
warrant
it is reasonably necessary that one or more
biosecurity enforcement officers should have access
to the premises for the purpose of determining
whether:
(a) this Act has been, or is being, complied with; or
(b) information provided for the purposes of this Act
is correct.
6 An
investigation
warrant
there are reasonable grounds for suspecting that there
is, or there may be within the next 72 hours,
evidential material on the premises.
7 An
adjacent
premises warrant
it is reasonably necessary that one or more
biosecurity enforcement officers should have access
to the premises for the purpose of:
(a) gaining access to other premises to perform
functions, or exercise powers, as a biosecurity
enforcement officer; or
(b) accompanying a biosecurity officer who needs to
gain access to other premises to perform
functions, or exercise powers, under or for the
purposes of this Act.
8 A
conveyance
possession warrant
(a) a biosecurity officer has, under subsection 208(4),
requested the person in charge or the operator of
Chapter 10 Entry to premises and warrants
Part 2 Issue of warrants
Division 1 Ordinary issue of warrants
Section 512
482 Biosecurity Bill 2012 No. , 2012
Test to be satisfied for issue of warrant
Item
Column 1
This kind of
warrant ...
Column 2
This test ...
the conveyance to arrange for the conveyance to
be dealt with or destroyed, or removed from
Australian territory, within the period specified in
the request, and the request has not been complied
with; or
(b) a biosecurity officer has, under subsection 336(4),
requested the person in charge or the operator of
the conveyance to arrange for the conveyance to
be dealt with or destroyed within the period
specified in the request, and the request has not
been complied with; or
(c) a notice has been given to the owner or the
operator of the conveyance in accordance with
subsection 209(3) or 341(3); or
(d) a certificate in relation to the conveyance has
been issued under paragraph 209(4)(b) or
341(4)(b).
9 A
premises
possession warrant
(a) a biosecurity officer has, under subsection 339(1),
requested the owner of the premises to arrange for
the premises to be dealt with or destroyed within
the period specified in the request, and the request
has not been complied with; or
(b) a notice has been given to the owner of the
premises in accordance with subsection 342(4); or
(c) a certificate in relation to the premises has been
issued under paragraph 342(5)(b).
Note:
For the definition of biosecurity risk in Chapter 6 (managing
1
biosecurity risks: monitoring, control and response), see section 309.
2
512 Content of warrant
3
(1) A warrant must do the following:
4
(a) describe the premises or conveyance to which the warrant
5
relates (as the case requires);
6
(b) state the kind of warrant that it is;
7
Entry to premises and warrants Chapter 10
Issue of warrants Part 2
Ordinary issue of warrants Division 1
Section 512
Biosecurity Bill 2012 No. , 2012 483
(c) state the purpose for which the warrant is issued (unless the
1
warrant is an investigation warrant);
2
(d)
either:
3
(i) if the warrant is an entry warrant--state whether entry is
4
authorised to be made; or
5
(ii) if the warrant is a possession warrant--state whether
6
possession is authorised to be taken;
7
at any time of the day or during specified hours of the day;
8
(e) specify the day on which the warrant ceases to be in force
9
(subject to subsections (2) to (4));
10
(f) comply with subsection (5) for that kind of warrant;
11
(g) if the warrant is an entry warrant (other than an adjacent
12
premises warrant), and biosecurity enforcement officers or
13
biosecurity officers may be assisted by an animal--authorise
14
the officers to use a specified kind of animal while exercising
15
powers under the warrant;
16
(h) if the warrant is an adjacent premises warrant, and a
17
biosecurity enforcement officer or a biosecurity officer is to
18
be assisted by an animal on the other premises to which
19
access is needed--authorise a specified kind of animal to
20
accompany the officer.
21
Maximum length of warrant
22
(2) An investigation warrant must cease to be in force no later than 1
23
week after the day the warrant is issued.
24
(3) An adjacent premises warrant or a possession warrant must cease
25
to be in force no later than 14 days after the day the warrant is
26
issued.
27
(4) A warrant other than a warrant mentioned in subsection (2) or (3)
28
must cease to be in force no later than 1 month after the day the
29
warrant is issued.
30
Specific information required for specific kinds of warrants
31
(5) A warrant of a kind specified in column 1 of the following table
32
must do the things specified in column 2 for a warrant of that kind.
33
34
Chapter 10 Entry to premises and warrants
Part 2 Issue of warrants
Division 1 Ordinary issue of warrants
Section 512
484 Biosecurity Bill 2012 No. , 2012
Content of warrant
Item Column
1
This kind of
warrant ...
Column 2
must do this ...
1
A biosecurity risk
assessment warrant
authorise, on any one or more occasions while the
warrant remains in force, one or more biosecurity
enforcement officers and one or more biosecurity
officers (whether or not named in the warrant):
(a) to enter the premises; and
(b) to exercise powers in accordance with Division 3
of Part 2 of Chapter 6.
2 A
biosecurity
control order
warrant
authorise, on any one or more occasions while the
warrant remains in force, one or more biosecurity
enforcement officers and one or more biosecurity
officers (whether or not named in the warrant):
(a) to enter the premises; and
(b) to exercise powers in accordance with
section 358.
3 A
biosecurity
response zone
warrant
authorise, on any one or more occasions while the
warrant remains in force, one or more biosecurity
enforcement officers and one or more biosecurity
officers (whether or not named in the warrant):
(a) to enter the premises; and
(b) to exercise powers in accordance with
section 368.
4 A
biosecurity
monitoring zone
warrant
authorise, on any one or more occasions while the
warrant remains in force, one or more biosecurity
enforcement officers and one or more biosecurity
officers (whether or not named in the warrant):
(a) to enter the premises; and
(b) if the premises are in a permanent biosecurity
monitoring zone--to exercise the powers referred
to in subsections 377(1) and (2); and
(c) if the premises are in a temporary biosecurity
monitoring zone--to exercise powers in
accordance with section 387.
5 A
monitoring
warrant
authorise, on any one or more occasions while the
warrant remains in force, one or more biosecurity
Entry to premises and warrants Chapter 10
Issue of warrants Part 2
Ordinary issue of warrants Division 1
Section 512
Biosecurity Bill 2012 No. , 2012 485
Content of warrant
Item Column
1
This kind of
warrant ...
Column 2
must do this ...
enforcement officers (whether or not named in the
warrant):
(a) to enter the premises; and
(b) to exercise the powers set out in Parts 1 and 3 of
Chapter 9 in relation to the premises.
6 An
investigation
warrant
(a) state the offence or offences, or civil penalty
provision or provisions, to which the warrant
relates; and
(b) specify the kinds of evidential material that are to
be searched for under the warrant; and
(c) authorise the seizure of evidential material
specified in the warrant; and
(d) authorise the seizure of any thing found in the
course of executing the warrant that the person
executing the warrant believes on reasonable
grounds to be evidence of the contravention of a
related provision; and
(e) name one or more biosecurity enforcement
officers; and
(f) authorise the biosecurity enforcement officers
named in the warrant:
(i) to enter the premises; and
(ii) to exercise the powers set out in Parts 2
and 3 of Chapter 9 in relation to the
premises.
7 An
adjacent
premises warrant
authorise, on any one or more occasions while the
warrant remains in force, one or more biosecurity
enforcement officers (whether or not named in the
warrant) to enter the premises, and to remain on the
premises for such period as is reasonably necessary,
for the purpose of:
(a) gaining access to other premises to perform
functions, or exercise powers, as a biosecurity
enforcement officer; or
(b) accompanying a biosecurity officer who needs to
Chapter 10 Entry to premises and warrants
Part 2 Issue of warrants
Division 1 Ordinary issue of warrants
Section 512
486 Biosecurity Bill 2012 No. , 2012
Content of warrant
Item Column
1
This kind of
warrant ...
Column 2
must do this ...
gain access to other premises to perform
functions, or exercise powers, under or for the
purposes of this Act.
8 A
conveyance
possession warrant
authorise, while the warrant remains in force, one or
more biosecurity enforcement officers (whether or
not named in the warrant) to take possession of the
conveyance for the purpose of allowing it to be dealt
with or destroyed under subsection 208(5) or 336(5)
or section 209 or 341 (as the case requires).
9 A
premises
possession warrant
authorise, while the warrant remains in force, one or
more biosecurity enforcement officers (whether or
not named in the warrant) to take possession of the
premises for the purpose of allowing the premises to
be dealt with or destroyed under subsection 339(3) or
section 342 (as the case requires).
1
Entry to premises and warrants Chapter 10
Issue of warrants Part 2
Issue of certain warrants by telephone, fax etc. Division 2
Section 513
Biosecurity Bill 2012 No. , 2012 487
Division 2--Issue of certain warrants by telephone, fax etc.
1
513 Application of this Division to certain warrants
2
This Division allows the following warrants to be issued by
3
telephone, fax or other electronic means in urgent and other
4
circumstances:
5
(a) a biosecurity risk assessment warrant;
6
(b) a biosecurity control order warrant;
7
(c) a biosecurity response zone warrant;
8
(d) an investigation warrant.
9
514 Issue of certain warrants by telephone, fax etc.
10
Application for warrant
11
(1) A biosecurity enforcement officer may apply to an issuing officer
12
by telephone, fax or other electronic means for a warrant of a kind
13
referred to in section 513 in relation to premises:
14
(a) for a warrant referred to in paragraphs 513(a) to (c)--if either
15
of the following applies:
16
(i) the circumstances are urgent;
17
(ii) the delay that would occur if an application were made
18
in person would frustrate the effective execution of the
19
warrant; and
20
(b) for an investigation warrant--if both of the following apply:
21
(i) the circumstances are urgent;
22
(ii) the delay that would occur if an application were made
23
in person would frustrate the effective execution of the
24
warrant.
25
(2) The issuing officer may require communication by voice to the
26
extent that it is practicable in the circumstances.
27
(3) Before applying for the warrant, the biosecurity enforcement
28
officer or a biosecurity officer must prepare an information of the
29
kind required by subsections 510(2) and (3) in relation to the
30
premises that sets out the grounds on which the warrant is sought.
31
Chapter 10 Entry to premises and warrants
Part 2 Issue of warrants
Division 2 Issue of certain warrants by telephone, fax etc.
Section 514
488 Biosecurity Bill 2012 No. , 2012
If it is necessary to do so, the biosecurity enforcement officer may
1
apply for the warrant before the information is sworn or affirmed.
2
Issuing officer may complete and sign warrant
3
(4) The issuing officer may complete and sign the same warrant that
4
would have been issued under section 510 if the issuing officer is
5
satisfied that there are reasonable grounds for doing so:
6
(a) after considering the terms of the information; and
7
(b) after receiving such further information (if any) as the issuing
8
officer requires concerning the grounds on which the issue of
9
the warrant is being sought.
10
(5) After completing and signing the warrant, the issuing officer must
11
inform the biosecurity enforcement officer, by telephone, fax or
12
other electronic means, of:
13
(a) the terms of the warrant; and
14
(b) the day, and the time, the warrant was signed.
15
Obligations on biosecurity enforcement officer
16
(6) The biosecurity enforcement officer must then do the following:
17
(a) complete a form of warrant in the same terms as the warrant
18
completed and signed by the issuing officer;
19
(b) state on the form the following:
20
(i) the name of the issuing officer;
21
(ii) the day, and the time, the warrant was signed;
22
(c) send the following to the issuing officer:
23
(i) the form of warrant completed by the biosecurity
24
enforcement officer;
25
(ii) the information referred to in subsection (3), which
26
must have been duly sworn or affirmed.
27
(7) The biosecurity enforcement officer must comply with
28
paragraph (6)(c) by the end of the day after the earlier of the
29
following:
30
(a) the day the warrant ceases to be in force;
31
(b) the day the warrant is executed (or first executed).
32
Entry to premises and warrants Chapter 10
Issue of warrants Part 2
Issue of certain warrants by telephone, fax etc. Division 2
Section 515
Biosecurity Bill 2012 No. , 2012 489
Issuing officer to attach documents together
1
(8) The issuing officer must attach the documents provided under
2
paragraph (6)(c) to the warrant signed by the issuing officer.
3
515 Authority of warrant
4
(1) A form of warrant duly completed under subsection 514(6) is
5
authority for the same powers as are authorised by the warrant
6
signed by the issuing officer under subsection 514(4).
7
(2) In any proceedings, a court is to assume (unless the contrary is
8
proved) that an exercise of power was not authorised by a warrant
9
under section 514 if:
10
(a) it is material, in those proceedings, for the court to be
11
satisfied that the exercise of power was authorised by that
12
section; and
13
(b) the warrant signed by the issuing officer authorising the
14
exercise of the power is not produced in evidence.
15
516 Fault-based offence relating to warrants by telephone, fax etc.
16
A biosecurity enforcement officer commits an offence if the
17
biosecurity enforcement officer:
18
(a) states in a document that purports to be a form of warrant
19
under section 514 the name of an issuing officer, unless that
20
issuing officer signed the warrant; or
21
(b) states on a form of warrant under that section a matter that, to
22
the biosecurity enforcement officer's knowledge, departs in a
23
material particular from the terms of the warrant signed by
24
the issuing officer under that section; or
25
(c) purports to execute, or present to another person, a document
26
that purports to be a form of warrant under that section that
27
the biosecurity enforcement officer knows departs in a
28
material particular from the terms of a warrant signed by an
29
issuing officer under that section; or
30
(d) purports to execute, or present to another person, a document
31
that purports to be a form of warrant under that section where
32
the biosecurity enforcement officer knows that no warrant in
33
Chapter 10 Entry to premises and warrants
Part 2 Issue of warrants
Division 2 Issue of certain warrants by telephone, fax etc.
Section 516
490 Biosecurity Bill 2012 No. , 2012
the terms of the form of warrant has been completed and
1
signed by an issuing officer; or
2
(e) gives to an issuing officer a form of warrant under that
3
section that is not the form of warrant that the biosecurity
4
enforcement officer purported to execute.
5
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
6
7
Entry to premises and warrants Chapter 10
Entering premises with a warrant or consent, and taking possession with a warrant Part
3
Obligations and powers of biosecurity enforcement officers Division 1
Section 517
Biosecurity Bill 2012 No. , 2012 491
Part 3--Entering premises with a warrant or
1
consent, and taking possession with a
2
warrant
3
Division 1--Obligations and powers of biosecurity
4
enforcement officers
5
Subdivision A--Obligations of biosecurity enforcement officers
6
517 Consent
7
(1) This section sets out the rules relating to consent for the purposes
8
of the following provisions:
9
(a) paragraph 314(2)(a) (biosecurity risk assessment);
10
(b) paragraph 359(2)(a) (biosecurity control orders);
11
(c) paragraph 369(2)(a) (biosecurity response zones);
12
(d) paragraph 378(2)(a) (permanent biosecurity monitoring
13
zones);
14
(e) paragraph 388(2)(a) (temporary biosecurity monitoring
15
zones);
16
(f) paragraph 479(2)(a) (monitoring);
17
(g) paragraph 485(2)(a) (investigation);
18
(h) paragraph 502(2)(a) (adjacent premises).
19
(2) Before obtaining the consent of an occupier to enter premises for
20
the purposes of the provision, a biosecurity enforcement officer or
21
a biosecurity officer must inform the occupier of the following:
22
(a) the reasons for entering the premises;
23
(b) that the occupier may refuse consent.
24
(3) A consent has no effect unless the consent is voluntary.
25
(4) A consent may be expressed to be limited to entry during a
26
particular period. If so, the consent has effect for that period unless
27
the consent is withdrawn before the end of that period.
28
(5) A consent that is not limited as mentioned in subsection (4) has
29
effect until the consent is withdrawn.
30
Chapter 10 Entry to premises and warrants
Part 3 Entering premises with a warrant or consent, and taking possession with a
warrant
Division 1 Obligations and powers of biosecurity enforcement officers
Section 518
492 Biosecurity Bill 2012 No. , 2012
(6) If a biosecurity enforcement officer or biosecurity officer entered
1
premises because of the consent of the occupier of the premises,
2
the following persons must leave the premises if the consent ceases
3
to have effect:
4
(a) each biosecurity enforcement officer and biosecurity officer
5
on the premises;
6
(b) any person assisting a biosecurity enforcement officer or
7
biosecurity officer.
8
518 Announcement before execution of warrant
9
Entry warrants
10
(1) Before a biosecurity enforcement officer or biosecurity officer
11
enters premises under an entry warrant, the biosecurity
12
enforcement officer must:
13
(a) announce that he or she is authorised to enter the premises;
14
and
15
(b) if an appropriate person for the premises is present at the
16
premises:
17
(i) ensure that the identity card of the biosecurity
18
enforcement officer is shown to the appropriate person;
19
and
20
(ii) give any person present at the premises an opportunity
21
to allow entry to the premises; and
22
(c) if the warrant is a biosecurity risk assessment warrant,
23
biosecurity control order warrant, biosecurity response zone
24
warrant or biosecurity monitoring zone warrant--ensure that
25
the identity card of the biosecurity officer is also shown to
26
the appropriate person.
27
Entry warrants--exception for Chapter 9 warrants
28
(2) However, a biosecurity enforcement officer is not required to
29
comply with subsection (1) if:
30
(a) entry is to be made under:
31
(i) an investigation warrant; or
32
(ii) a monitoring warrant; or
33
Entry to premises and warrants Chapter 10
Entering premises with a warrant or consent, and taking possession with a warrant Part
3
Obligations and powers of biosecurity enforcement officers Division 1
Section 519
Biosecurity Bill 2012 No. , 2012 493
(iii) an adjacent premises warrant, to the extent that the
1
warrant authorises entry to premises for the purposes of
2
executing an investigation warrant or monitoring
3
warrant on other premises; and
4
(b) the biosecurity enforcement officer believes on reasonable
5
grounds that immediate entry to the premises is required:
6
(i) to ensure the safety of a person; or
7
(ii) to ensure that the effective execution of the warrant is
8
not frustrated.
9
(3)
If:
10
(a) a biosecurity enforcement officer does not comply with
11
subsection (1) because of subsection (2); and
12
(b) an appropriate person for the premises is present at the
13
premises;
14
the biosecurity enforcement officer must, as soon as practicable
15
after entering the premises, show his or her identity card to the
16
appropriate person.
17
Possession warrants
18
(4) Before taking possession of premises or a conveyance under a
19
possession warrant, a biosecurity enforcement officer executing the
20
warrant must:
21
(a) announce that he or she is authorised to take possession of
22
the premises or conveyance (as the case requires); and
23
(b) if an appropriate person for the premises or conveyance is
24
present at the premises or on board the conveyance--show
25
his or her identity card to the appropriate person.
26
519 Biosecurity enforcement officer to be in possession of warrant
27
A biosecurity enforcement officer executing a warrant must be in
28
possession of:
29
(a) the warrant issued by the issuing officer under section 510, or
30
a copy of the warrant as so issued; or
31
(b) the form of warrant completed under subsection 514(6), or a
32
copy of the form as so completed.
33
Chapter 10 Entry to premises and warrants
Part 3 Entering premises with a warrant or consent, and taking possession with a
warrant
Division 1 Obligations and powers of biosecurity enforcement officers
Section 520
494 Biosecurity Bill 2012 No. , 2012
520 Details of warrant etc. to be provided
1
(1) A biosecurity enforcement officer must comply with subsection (2)
2
if:
3
(a) a warrant is being executed in relation to premises or a
4
conveyance; and
5
(b) an appropriate person for the premises or conveyance is
6
present at the premises or on board the conveyance while the
7
warrant is being executed.
8
(2) The biosecurity enforcement officer executing the warrant must, as
9
soon as practicable:
10
(a)
either:
11
(i) make a copy of the warrant available to the appropriate
12
person (which need not include the signature of the
13
issuing officer who issued it); or
14
(ii) make a copy of the form of warrant completed under
15
subsection 514(6) available to the appropriate person;
16
and
17
(b) inform the appropriate person of the rights and
18
responsibilities of the person under Division 2.
19
Subdivision B--Use of force
20
521 Use of force in executing a warrant
21
(1) In executing a warrant, a biosecurity enforcement officer, or a
22
person assisting a biosecurity enforcement officer, may use such
23
force against things as is necessary and reasonable in the
24
circumstances.
25
(2) However, only a biosecurity enforcement officer may use force in
26
executing an adjacent premises warrant.
27
Entry to premises and warrants Chapter 10
Entering premises with a warrant or consent, and taking possession with a warrant Part
3
Obligations and powers of biosecurity enforcement officers Division 1
Section 522
Biosecurity Bill 2012 No. , 2012 495
Subdivision C--Completing execution of investigation warrants
1
522 Completing execution of an investigation warrant after
2
temporary cessation
3
(1) This section applies if all biosecurity enforcement officers and
4
biosecurity officers, and all persons assisting, who are executing an
5
investigation warrant in relation to premises temporarily cease its
6
execution and leave the premises.
7
(2) The officers, and persons assisting, may complete the execution of
8
the warrant if:
9
(a) the warrant is still in force; and
10
(b) all officers and persons assisting are absent from the
11
premises:
12
(i) for not more than 1 hour; or
13
(ii) if there is a life-threatening situation, for not more than
14
12 hours or such longer period as allowed by an issuing
15
officer under subsection (5); or
16
(iii) for a longer period if the occupier of the premises
17
consents in writing.
18
Note:
For the definition of life-threatening situation, see section 9.
19
Application for extension in life-threatening situation
20
(3) A biosecurity enforcement officer, biosecurity officer, or person
21
assisting, (the applicant) may apply to an issuing officer for an
22
extension of the 12-hour period mentioned in
23
subparagraph (2)(b)(ii) if:
24
(a) there is a life-threatening situation; and
25
(b) the officers, and persons assisting, will not be able to return
26
to the premises within that period.
27
(4) If it is practicable to do so, before making the application, the
28
applicant must give notice to the occupier of the premises of his or
29
her intention to apply for an extension.
30
Chapter 10 Entry to premises and warrants
Part 3 Entering premises with a warrant or consent, and taking possession with a
warrant
Division 1 Obligations and powers of biosecurity enforcement officers
Section 523
496 Biosecurity Bill 2012 No. , 2012
Extension in life-threatening situation
1
(5) An issuing officer may extend the period during which the officers,
2
and persons assisting, may be away from the premises if:
3
(a) an application is made under subsection (3); and
4
(b) the issuing officer is satisfied, by information on oath or
5
affirmation, that there are exceptional circumstances that
6
justify the extension; and
7
(c) the extension would not result in the period ending after the
8
warrant ceases to be in force.
9
523 Completing execution of an investigation warrant stopped by
10
court order
11
A biosecurity enforcement officer, a biosecurity officer and any
12
persons assisting may complete the execution of an investigation
13
warrant that has been stopped by an order of a court if:
14
(a) the order is later revoked or reversed on appeal; and
15
(b) the warrant is still in force when the order is revoked or
16
reversed.
17
18
Entry to premises and warrants Chapter 10
Entering premises with a warrant or consent, and taking possession with a warrant Part
3
Appropriate person's rights and responsibilities in relation to warrants Division 2
Section 524
Biosecurity Bill 2012 No. , 2012 497
Division 2--Appropriate person's rights and
1
responsibilities in relation to warrants
2
524 Appropriate person's right to observe execution of warrant
3
(1) An appropriate person for premises is entitled to observe the
4
execution of an entry warrant or a premises possession warrant that
5
relates to the premises if the person is present at the premises while
6
the warrant is being executed.
7
(2) An appropriate person for a conveyance is entitled to observe the
8
execution of a conveyance possession warrant that relates to the
9
conveyance if the person is on board the conveyance while the
10
warrant is being executed.
11
(3) The right to observe the execution of a warrant ceases if the
12
appropriate person impedes that execution.
13
(4) This section does not prevent the execution of the warrant in 2 or
14
more areas of the premises at the same time.
15
525 Appropriate person to provide facilities and assistance
16
(1) An appropriate person for premises or a conveyance to which a
17
warrant relates must provide the following persons with all
18
reasonable facilities and assistance for the effective exercise of
19
their powers:
20
(a) any biosecurity enforcement officer or biosecurity officer
21
executing the warrant;
22
(b) any person assisting the biosecurity enforcement officer or
23
biosecurity officer.
24
Fault-based offence
25
(2) A person commits an offence if:
26
(a) the person is subject to subsection (1); and
27
(b) the person fails to comply with that subsection.
28
Penalty for contravention of this subsection: 30 penalty units.
29
Chapter 10 Entry to premises and warrants
Part 4 Entering premises without a warrant or consent
Division 1 Application of this Part
Section 526
498 Biosecurity Bill 2012 No. , 2012
Part 4--Entering premises without a warrant or
1
consent
2
Division 1--Application of this Part
3
526 Application of this Part
4
This Part (other than section 528) sets out the rules that apply if a
5
biosecurity enforcement officer or a biosecurity officer is to enter,
6
or enters, premises without a warrant or consent under any of the
7
following provisions:
8
(a) subsection 254(2) (entering landing places or ports);
9
(b) subsection 468(1) (biosecurity emergencies);
10
(c) subsection 470(1) (entering adjacent premises during
11
biosecurity emergencies);
12
(d) section 499 (monitoring relevant premises);
13
(e) section 500 (searching relevant premises).
14
Note:
Section 528 does not apply in relation to premises entered under
15
section 499.
16
17
Entry to premises and warrants Chapter 10
Entering premises without a warrant or consent Part 4
Obligations and powers of biosecurity enforcement officers in entering premises
Division 2
Section 527
Biosecurity Bill 2012 No. , 2012 499
Division 2--Obligations and powers of biosecurity
1
enforcement officers in entering premises
2
527 Announcement before entry
3
Before a biosecurity enforcement officer or biosecurity officer
4
enters premises under a provision referred to in section 526, the
5
biosecurity enforcement officer must:
6
(a) announce that he or she is authorised to enter the premises;
7
and
8
(b) if the appropriate person for the premises is present at the
9
premises:
10
(i) ensure that the identity card of the biosecurity
11
enforcement officer is shown to the appropriate person;
12
and
13
(ii) explain the reasons for entering the premises; and
14
(c) for entry under subsection 254(2), 468(1) or 470(1)
15
(biosecurity emergencies)--ensure that the identity card of
16
the biosecurity officer is also shown to the appropriate
17
person.
18
528 Use of force in entering premises
19
In entering premises under subsection 254(2), 468(1) or 470(1) or
20
section 500, and while on those premises, a biosecurity
21
enforcement officer, or a person assisting a biosecurity
22
enforcement officer, may use such force against things as is
23
necessary and reasonable in the circumstances.
24
25
Chapter 10 Entry to premises and warrants
Part 4 Entering premises without a warrant or consent
Division 3 Appropriate person's rights and responsibilities on entry
Section 529
500 Biosecurity Bill 2012 No. , 2012
Division 3--Appropriate person's rights and
1
responsibilities on entry
2
529 Appropriate person is entitled to observe exercise of powers
3
(1) An appropriate person for premises entered under a provision
4
referred to in section 526 is (subject to subsections (2) and (3) of
5
this section) entitled to observe the exercise of powers while on the
6
premises if the appropriate person is present at the premises while
7
those powers are being exercised.
8
(2) The right to observe the exercise of powers ceases if the
9
appropriate person impedes the exercise of those powers.
10
(3) This section does not prevent:
11
(a) powers being exercised in 2 or more areas of the premises at
12
the same time; or
13
(b) a direction requiring the appropriate person to leave the
14
premises being given under section 444 (directions during
15
biosecurity emergencies).
16
530 Appropriate person to provide officers etc. with facilities and
17
assistance
18
(1) An appropriate person for premises entered under a provision
19
referred to in section 526 must provide the following persons with
20
all reasonable facilities and assistance for the effective exercise of
21
their powers while on the premises:
22
(a) any biosecurity enforcement officer or biosecurity officer
23
who enters the premises;
24
(b) any person assisting the biosecurity enforcement officer or
25
biosecurity officer.
26
Fault-based offence
27
(2) A person commits an offence if:
28
(a) the person is subject to subsection (1); and
29
(b) the person fails to comply with that subsection.
30
Penalty for contravention of this subsection: 30 penalty units.
31
Entry to premises and warrants Chapter 10
General provisions Part 5
Section 531
Biosecurity Bill 2012 No. , 2012 501
Part 5--General provisions
1
2
531 Persons assisting biosecurity officers or biosecurity enforcement
3
officers
4
(1) This section applies if a biosecurity officer or biosecurity
5
enforcement officer is exercising powers or performing functions
6
under any of the following:
7
(a) Division 3 of Part 2 of Chapter 6 (biosecurity risk assessment
8
powers);
9
(b) section 358 (biosecurity control order powers);
10
(c) section 368 (biosecurity response zone powers);
11
(d) subsection 377(1) or (2) (permanent biosecurity monitoring
12
zone powers);
13
(e) section 387 (temporary biosecurity monitoring zone powers);
14
(f) subsection 397(1) or (2) (biosecurity activity zone powers);
15
(g) Division 5 or 6 of Chapter 8 (exercise of powers during
16
biosecurity emergencies);
17
(h) Parts 1 to 4 of Chapter 9 (enforcement) (including after
18
premises have been entered in accordance with section 499 or
19
500 (monitoring and searching certain premises));
20
(i)
this
Chapter.
21
Biosecurity officers may be assisted by other persons
22
(2) A biosecurity officer may be assisted by other persons in
23
exercising powers and performing functions referred to in
24
subsection (1) if that assistance is necessary and reasonable. A
25
person giving such assistance is a person assisting the biosecurity
26
officer.
27
Powers of a person assisting the biosecurity officer
28
(3) A person assisting the biosecurity officer:
29
(a) may enter premises, if it is necessary for the biosecurity
30
officer to enter those premises to exercise powers as referred
31
to in subsection (1); and
32
Chapter 10 Entry to premises and warrants
Part 5 General provisions
Section 531
502 Biosecurity Bill 2012 No. , 2012
(b) may exercise powers as referred to in that subsection for the
1
purposes of assisting the biosecurity officer; and
2
(c) must enter premises and exercise powers in accordance with
3
any direction given to the person assisting by the biosecurity
4
officer.
5
Note 1:
Premises includes a conveyance (see paragraph (a) of the definition of
6
premises in section 9).
7
Note 2:
If a direction is given under paragraph (3)(c) in writing, the direction
8
is not a legislative instrument (see subsection 608(2)).
9
Biosecurity enforcement officers may be assisted by other persons
10
(4) A biosecurity enforcement officer may be assisted by other persons
11
in entering premises, and exercising powers and performing
12
functions referred to in subsection (1), if that assistance is
13
necessary and reasonable. A person giving such assistance is a
14
person assisting the biosecurity enforcement officer.
15
Powers of a person assisting the biosecurity enforcement officer
16
(5) A person assisting the biosecurity enforcement officer:
17
(a) may enter the premises; and
18
(b) may exercise any powers that may be exercised by the
19
biosecurity enforcement officer on the premises, for the
20
purposes of assisting the biosecurity enforcement officer; and
21
(c) must enter premises and exercise powers in accordance with
22
any direction given to the person assisting by the biosecurity
23
enforcement officer.
24
Note 1:
A person assisting a biosecurity enforcement officer may use such
25
force against things as is necessary and reasonable in the
26
circumstances (see section 521).
27
Note 2:
If a direction is given under paragraph (5)(c) of this section in writing,
28
the direction is not a legislative instrument (see subsection 608(2)).
29
Powers exercised in assisting a biosecurity officer or biosecurity
30
enforcement officer
31
(6) Any power exercised by a person in assisting a biosecurity officer
32
or biosecurity enforcement officer as mentioned in this section is
33
Entry to premises and warrants Chapter 10
General provisions Part 5
Section 532
Biosecurity Bill 2012 No. , 2012 503
taken for all purposes to have been exercised by the biosecurity
1
officer or biosecurity enforcement officer (as the case requires).
2
532 Powers of issuing officers
3
(1) This section applies in relation to a power conferred on an issuing
4
officer by any of the following:
5
(a) Part 2 of Chapter 6 (biosecurity risk assessment powers);
6
(b) Part 1 or 2 of Chapter 9 (enforcement);
7
(c)
this
Chapter.
8
Powers conferred personally
9
(2) The power is conferred on the issuing officer:
10
(a) in a personal capacity; and
11
(b) not as a court or a member of a court.
12
Powers need not be accepted
13
(3) The issuing officer need not accept the power conferred.
14
Protection and immunity
15
(4) An issuing officer exercising the power has the same protection
16
and immunity as if the issuing officer were exercising the power:
17
(a) as the court of which the issuing officer is a member; or
18
(b) as a member of the court of which the issuing officer is a
19
member.
20
533 Compensation for damage to electronic equipment
21
(1) This section applies if:
22
(a) as a result of electronic equipment being operated as
23
mentioned in Part 2 of Chapter 6 (biosecurity risk assessment
24
powers) or Part 1 or 2 of Chapter 9 (enforcement):
25
(i) damage is caused to the equipment; or
26
(ii) the data recorded on the equipment is damaged; or
27
(iii) programs associated with the use of the equipment, or
28
with the use of the data, are damaged or corrupted; and
29
Chapter 10 Entry to premises and warrants
Part 5 General provisions
Section 533
504 Biosecurity Bill 2012 No. , 2012
(b) the damage or corruption occurs because:
1
(i) insufficient care was exercised in selecting the person
2
who was to operate the equipment; or
3
(ii) insufficient care was exercised by the person operating
4
the equipment.
5
(2) To avoid doubt, the reference to equipment being operated:
6
(a) as mentioned in Part 2 of Chapter 6 (biosecurity risk
7
assessment powers), includes such operation after premises
8
have been entered in accordance with subsection 468(1)
9
(biosecurity emergencies); and
10
(b) as mentioned in Part 1 or 2 of Chapter 9, includes such
11
operation after premises have been entered in accordance
12
with section 499 or 500 (monitoring and searching certain
13
premises).
14
(3) The Commonwealth is liable to pay the owner of the equipment, or
15
the user of the data or programs, a reasonable amount of
16
compensation.
17
(4) If the owner or user and the Commonwealth do not agree on the
18
amount of compensation, the owner or user may institute
19
proceedings in a relevant court for the recovery from the
20
Commonwealth of such reasonable amount of compensation as the
21
court determines.
22
(5) In determining the amount of compensation payable, regard is to
23
be had to whether the occupier of the premises, or the occupier's
24
employees or agents, if they were available at the time, provided
25
any appropriate warning or guidance on the operation of the
26
equipment.
27
28
Enforcement Chapter 11
Civil penalty provisions Part 1
Introduction Division 1
Section 534
Biosecurity Bill 2012 No. , 2012 505
Chapter 11--Enforcement
1
Part 1--Civil penalty provisions
2
Division 1--Introduction
3
534 Guide to this Part
4
This Part deals with the use of civil penalties to enforce civil
5
penalty provisions.
6
Civil penalty orders may be sought from a court in relation to
7
contraventions of civil penalty provisions.
8
9
Chapter 11 Enforcement
Part 1 Civil penalty provisions
Division 2 Obtaining a civil penalty order
Section 535
506 Biosecurity Bill 2012 No. , 2012
Division 2--Obtaining a civil penalty order
1
535 Civil penalty orders
2
Application for order
3
(1) The Director of Biosecurity or the Director of Human Biosecurity
4
may apply to a relevant court for an order that a person, who is
5
alleged to have contravened a civil penalty provision, pay the
6
Commonwealth a pecuniary penalty.
7
(2) The Director referred to in subsection (1) must make the
8
application within 6 years of the alleged contravention.
9
Court may order person to pay pecuniary penalty
10
(3) If the relevant court is satisfied that the person has contravened the
11
civil penalty provision, the court may order the person to pay to the
12
Commonwealth such pecuniary penalty for the contravention as the
13
court determines to be appropriate.
14
Note:
Subsection (5) sets out the maximum penalty that the court may order
15
the person to pay.
16
(4) An order under subsection (3) is a civil penalty order.
17
Determining pecuniary penalty
18
(5) The pecuniary penalty must not be more than:
19
(a) if the person is a body corporate--5 times the pecuniary
20
penalty specified for the civil penalty provision; and
21
(b) otherwise--the pecuniary penalty specified for the civil
22
penalty provision.
23
(6) In determining the pecuniary penalty, the court must take into
24
account all relevant matters, including:
25
(a) the nature and extent of the contravention; and
26
(b) the nature and extent of any loss or damage suffered because
27
of the contravention; and
28
(c) the circumstances in which the contravention took place; and
29
Enforcement Chapter 11
Civil penalty provisions Part 1
Obtaining a civil penalty order Division 2
Section 536
Biosecurity Bill 2012 No. , 2012 507
(d) whether the person has previously been found by a court to
1
have engaged in any similar conduct.
2
536 Civil enforcement of penalty
3
(1) A pecuniary penalty is a debt payable to the Commonwealth.
4
(2) The Commonwealth may enforce a civil penalty order as if it were
5
an order made in civil proceedings against the person to recover a
6
debt due by the person. The debt arising from the order is taken to
7
be a judgement debt.
8
537 Conduct contravening more than one civil penalty provision
9
(1) If conduct constitutes a contravention of 2 or more civil penalty
10
provisions, proceedings may be instituted under this Part against a
11
person in relation to the contravention of any one or more of those
12
provisions.
13
(2) However, the person is not liable to more than one pecuniary
14
penalty under this Part in relation to the same conduct.
15
538 Multiple contraventions
16
(1) A relevant court may make a single civil penalty order against a
17
person for multiple contraventions of a civil penalty provision if
18
proceedings for the contraventions are founded on the same facts,
19
or if the contraventions form, or are part of, a series of
20
contraventions of the same or a similar character.
21
Note:
For continuing contraventions of civil penalty provisions, see
22
section 547.
23
(2) However, the penalty must not exceed the sum of the maximum
24
penalties that could be ordered if a separate penalty were ordered
25
for each of the contraventions.
26
539 Proceedings may be heard together
27
A relevant court may direct that 2 or more proceedings for civil
28
penalty orders are to be heard together.
29
Chapter 11 Enforcement
Part 1 Civil penalty provisions
Division 2 Obtaining a civil penalty order
Section 540
508 Biosecurity Bill 2012 No. , 2012
540 Civil evidence and procedure rules for civil penalty orders
1
A relevant court must apply the rules of evidence and procedure
2
for civil matters when hearing proceedings for a civil penalty
3
order.
4
541 Contravening a civil penalty provision is not an offence
5
A contravention of a civil penalty provision is not an offence.
6
Note:
However, conduct that constitutes a contravention of a civil penalty
7
provision may also separately constitute an offence.
8
9
Enforcement Chapter 11
Civil penalty provisions Part 1
Civil proceedings and criminal proceedings Division 3
Section 542
Biosecurity Bill 2012 No. , 2012 509
Division 3--Civil proceedings and criminal proceedings
1
542 Other enforcement action after criminal proceedings
2
A relevant court may not make a civil penalty order against a
3
person for a contravention (the biosecurity contravention) of a
4
civil penalty provision if:
5
(a) the person has been convicted of an offence under an
6
Australian law; or
7
(b) the person has been found by a court to have contravened a
8
civil penalty provision under an Australian law;
9
that is constituted by conduct that is the same, or substantially the
10
same, as the conduct constituting the biosecurity contravention.
11
543 Other enforcement action during civil proceedings
12
(1)
Proceedings
(biosecurity proceedings) for a civil penalty order
13
against a person for a contravention (the biosecurity
14
contravention) of a civil penalty provision are stayed if:
15
(a)
either:
16
(i) criminal proceedings are commenced or have already
17
been commenced under an Australian law against the
18
person for an offence; or
19
(ii) civil proceedings are commenced or have already been
20
commenced against the person for a contravention of a
21
civil penalty provision under a law of a State or a
22
Territory; and
23
(b) the offence or contravention referred to in paragraph (a) is
24
constituted by conduct that is the same, or substantially the
25
same, as the conduct alleged to constitute the biosecurity
26
contravention.
27
(2) The biosecurity proceedings may be resumed if the person is not
28
convicted of the offence, or a court does not find that the person
29
has contravened the civil penalty provision, referred to in
30
paragraph (1)(a). Otherwise, the biosecurity proceedings are
31
dismissed.
32
Chapter 11 Enforcement
Part 1 Civil penalty provisions
Division 3 Civil proceedings and criminal proceedings
Section 544
510 Biosecurity Bill 2012 No. , 2012
544 Other enforcement action after civil proceedings
1
The following proceedings may be commenced against a person:
2
(a) criminal proceedings under an Australian law (subject to the
3
terms of that law);
4
(b) proceedings for a contravention of a civil penalty provision
5
under a law of a State or a Territory (subject to the terms of
6
that law);
7
for conduct that is the same, or substantially the same, as conduct
8
that would constitute a contravention of a civil penalty provision
9
under this Act regardless of whether a civil penalty order has been
10
made against the person in relation to the contravention.
11
545 Evidence given in civil proceedings not admissible in criminal
12
proceedings
13
(1) Evidence of information given, or evidence of production of
14
documents by an individual, is not admissible in criminal
15
proceedings under a law of the Commonwealth against the
16
individual if:
17
(a) the individual previously gave the evidence or produced the
18
documents in proceedings for a civil penalty order against the
19
individual for an alleged contravention of a civil penalty
20
provision (whether or not the order was made); and
21
(b) the conduct alleged to constitute the offence is the same, or
22
substantially the same, as the conduct alleged to constitute
23
the contravention.
24
(2) However, subsection (1) does not apply to criminal proceedings in
25
relation to the falsity of the evidence given by the individual in the
26
proceedings for the civil penalty order.
27
28
Enforcement Chapter 11
Civil penalty provisions Part 1
Miscellaneous Division 4
Section 546
Biosecurity Bill 2012 No. , 2012 511
Division 4--Miscellaneous
1
546 Ancillary contravention of civil penalty provisions
2
(1) A person must not:
3
(a) attempt to contravene a civil penalty provision; or
4
(b) aid, abet, counsel or procure a contravention of a civil
5
penalty provision; or
6
(c) induce (by threats, promises or otherwise) a contravention of
7
a civil penalty provision; or
8
(d) be in any way, directly or indirectly, knowingly concerned in,
9
or party to, a contravention of a civil penalty provision; or
10
(e) conspire with others to effect a contravention of a civil
11
penalty provision.
12
Note:
Section 550 (which provides that a person's state of mind does not
13
need to be proven in relation to a civil penalty provision) does not
14
apply to subsection (1) of this section.
15
Civil penalty provision
16
(2) A person who contravenes subsection (1) in relation to a civil
17
penalty provision is taken to have contravened the provision.
18
547 Continuing contraventions of civil penalty provisions
19
(1)
If:
20
(a) an act or thing is required to be done:
21
(i) within a particular period; or
22
(ii) before a particular time; and
23
(b) a person who fails to do the act or thing is liable to a civil
24
penalty;
25
then the obligation to do that act or thing continues until the act or
26
thing is done (even if the period has ended or the time has passed).
27
(2)
If:
28
(a) a person is required to do an act or thing:
29
(i) within a particular period; or
30
(ii) before a particular time; and
31
Chapter 11 Enforcement
Part 1 Civil penalty provisions
Division 4 Miscellaneous
Section 548
512 Biosecurity Bill 2012 No. , 2012
(b) failure to do the act or thing by the person constitutes a
1
contravention of a civil penalty provision;
2
then the person commits a separate contravention of that provision
3
in respect of each day during which the contravention occurs
4
(including the day the relevant civil penalty order is made or any
5
later day).
6
548 Mistake of fact
7
(1) A person is not liable to have a civil penalty order made against the
8
person for a contravention of a civil penalty provision if:
9
(a) at or before the time of the conduct constituting the
10
contravention, the person:
11
(i) considered whether or not facts existed; and
12
(ii) was under a mistaken but reasonable belief about those
13
facts; and
14
(b) had those facts existed, the conduct would not have
15
constituted a contravention of the civil penalty provision.
16
Note:
A defendant bears an evidential burden in relation to the matter in this
17
subsection (see section 552).
18
(2) For the purposes of subsection (1), a person may be regarded as
19
having considered whether or not facts existed if:
20
(a) the person had considered, on a previous occasion, whether
21
those facts existed in the circumstances surrounding that
22
occasion; and
23
(b) the person honestly and reasonably believed that the
24
circumstances surrounding the present occasion were the
25
same, or substantially the same, as those surrounding the
26
previous occasion.
27
Note:
A defendant bears an evidential burden in relation to the matter in this
28
subsection (see section 552).
29
549 Sudden or extraordinary emergency
30
(1) A person is not liable to have a civil penalty order made against the
31
person for a contravention of a civil penalty provision if he or she
32
carries out the conduct constituting the contravention in response
33
to circumstances of sudden or extraordinary emergency.
34
Enforcement Chapter 11
Civil penalty provisions Part 1
Miscellaneous Division 4
Section 550
Biosecurity Bill 2012 No. , 2012 513
Note:
A defendant bears an evidential burden in relation to the matter in this
1
subsection (see section 552).
2
(2) This section applies if and only if the person carrying out the
3
conduct reasonably believes that:
4
(a) circumstances of sudden or extraordinary emergency exist;
5
and
6
(b) contravening the provision is the only reasonable way to deal
7
with the emergency; and
8
(c) the conduct is a reasonable response to the emergency.
9
550 State of mind
10
(1) In proceedings for a civil penalty order against a person for a
11
contravention of a civil penalty provision, it is not necessary to
12
prove:
13
(a) the person's intention; or
14
(b) the person's knowledge; or
15
(c) the person's recklessness; or
16
(d) the person's negligence; or
17
(e) any other state of mind of the person.
18
(2) Subsection (1) does not apply to the extent that the proceedings
19
relate to a contravention of subsection 546(1) (ancillary
20
contravention of civil penalty provisions).
21
(3) Subsection (1) does not affect the operation of section 548 (mistake
22
of fact).
23
(4) Subsection (1) does not apply to the extent that the civil penalty
24
provision, or a provision that relates to the civil penalty provision,
25
expressly provides otherwise.
26
551 Omissions
27
An omission to perform an act can only be an element of a civil
28
penalty provision if:
29
(a) this Act makes it so; or
30
Chapter 11 Enforcement
Part 1 Civil penalty provisions
Division 4 Miscellaneous
Section 552
514 Biosecurity Bill 2012 No. , 2012
(b) this Act impliedly provides that the provision is contravened
1
by an omission to perform an act that by law there is a duty
2
to perform.
3
552 Burden of proof for exceptions etc. to civil penalty provisions
4
(1) This section applies if:
5
(a) proceedings are brought for a civil penalty order against a
6
person for a contravention of a civil penalty provision; and
7
(b) the person wishes to rely on any exception, exemption,
8
excuse, qualification or justification provided by this Act.
9
(2) The person bears an evidential burden in relation to the matter
10
referred to in paragraph (1)(b).
11
553 Civil penalties for executive officers of bodies corporate
12
(1) An executive officer of a body corporate contravenes this
13
subsection if:
14
(a) the body corporate contravenes a civil penalty provision; and
15
(b) the executive officer knew that, or was reckless or negligent
16
as to whether, the contravention would occur; and
17
(c) the officer was in a position to influence the conduct of the
18
body corporate in relation to the contravention; and
19
(d) the officer failed to take all reasonable steps to prevent the
20
contravention.
21
(2) For the purposes of subsection (1), the officer is reckless as to
22
whether the contravention would occur if:
23
(a) the officer is aware of a substantial risk that the contravention
24
would occur; and
25
(b) having regard to the circumstances known to the officer, it is
26
unjustifiable to take the risk.
27
(3) For the purposes of subsection (1), the officer is negligent as to
28
whether the contravention would occur if the officer's conduct
29
involves:
30
(a) such a great falling short of the standard of care that a
31
reasonable person would exercise in the circumstances; and
32
Enforcement Chapter 11
Civil penalty provisions Part 1
Miscellaneous Division 4
Section 554
Biosecurity Bill 2012 No. , 2012 515
(b) such a high risk that the contravention would occur;
1
that the conduct merits the imposition of a pecuniary penalty.
2
Civil penalty provision
3
(4) A person is liable to a civil penalty if the person contravenes
4
subsection (1).
5
Civil penalty:
120 penalty units.
6
554 Reasonable steps to prevent contravention
7
(1) For the purposes of section 553, in determining whether an
8
executive officer of a body corporate failed to take all reasonable
9
steps to prevent a contravention, a court may have regard to all
10
relevant matters, including:
11
(a) what action (if any) the officer took directed towards
12
ensuring the following (to the extent that the action is
13
relevant to the contravention):
14
(i) that the body corporate arranges regular professional
15
assessments of the body corporate's compliance with
16
civil penalty provisions;
17
(ii) that the body corporate implements any appropriate
18
recommendations arising from such an assessment;
19
(iii) that the body corporate's employees, agents and
20
contractors have a reasonable knowledge and
21
understanding of the requirements to comply with civil
22
penalty provisions in so far as those requirements affect
23
the employees, agents or contractors concerned; and
24
(b) what action (if any) the officer took when he or she became
25
aware of the contravention.
26
(2) This section does not limit section 553.
27
28
Chapter 11 Enforcement
Part 2 Infringement notices
Division 1 Introduction
Section 555
516 Biosecurity Bill 2012 No. , 2012
Part 2--Infringement notices
1
Division 1--Introduction
2
555 Guide to this Part
3
This Part deals with the use of infringement notices to enforce
4
provisions.
5
A person can be given an infringement notice in relation to a
6
contravention of an infringement notice provision.
7
A person who is given an infringement notice can choose to pay an
8
amount as an alternative to having court proceedings brought
9
against the person for a contravention of an infringement notice
10
provision. If the person does not choose to pay the amount,
11
proceedings can be brought against the person in relation to the
12
contravention.
13
556 Infringement notice provisions
14
The regulations may specify that a provision of this Act is an
15
infringement notice provision.
16
17
Enforcement Chapter 11
Infringement notices Part 2
Infringement notices Division 2
Section 557
Biosecurity Bill 2012 No. , 2012 517
Division 2--Infringement notices
1
557 When an infringement notice may be given
2
(1) If the Director of Biosecurity has reasonable grounds to believe
3
that a person has contravened an infringement notice provision, the
4
Director of Biosecurity may give to the person an infringement
5
notice for the alleged contravention.
6
(2) The infringement notice must be given within 12 months after the
7
day the contravention is alleged to have taken place.
8
(3) A single infringement notice must relate only to a single
9
contravention of a single provision unless subsection (4) applies.
10
(4) The Director of Biosecurity may give a person a single
11
infringement notice relating to multiple contraventions of a single
12
provision if:
13
(a) the provision requires the person to do a thing within a
14
particular period or before a particular time; and
15
(b) the person fails or refuses to do that thing within that period
16
or before that time; and
17
(c) the failure or refusal occurs on more than one day; and
18
(d) each contravention is constituted by the failure or refusal on
19
one of those days.
20
Note:
For continuing offences, see subsection 4K(2) of the Crimes Act 1914.
21
For continuing contraventions of civil penalty provisions, see
22
section 547 of this Act.
23
(5)
If:
24
(a) a person contravenes a single provision; and
25
(b) the person could be liable to be prosecuted in a court for the
26
alleged contravention; and
27
(c) proceedings seeking a civil penalty order could be brought in
28
relation to the alleged contravention;
29
the infringement notice must specify that it relates to both the
30
relevant offence and civil penalty.
31
Chapter 11 Enforcement
Part 2 Infringement notices
Division 2 Infringement notices
Section 558
518 Biosecurity Bill 2012 No. , 2012
558 Matters to be included in an infringement notice
1
(1) An infringement notice must:
2
(a) be identified by a unique number; and
3
(b) state the day it is given; and
4
(c) state the name of the person to whom the notice is given; and
5
(d) state the name of the person who gave the notice; and
6
(e) give brief details of the alleged contravention, including:
7
(i) the provision that was allegedly contravened; and
8
(ii) the maximum penalty that a court could impose for the
9
contravention; and
10
(iii) the time (if known) and day of, and the place of, the
11
alleged contravention; and
12
(f) state the amount that is payable under the notice; and
13
(g) give an explanation of how payment of the amount is to be
14
made; and
15
(h) state that, if the person to whom the notice is given pays the
16
amount within the period of 28 days after the day the notice
17
is given, then (unless the notice is withdrawn):
18
(i) if the provision is an offence provision and does not also
19
constitute a civil penalty provision--the person will not
20
be liable to be prosecuted in a court for the alleged
21
contravention; or
22
(ii) if the provision is an offence provision that can also
23
constitute a civil penalty provision--the person is not
24
liable to be prosecuted in a court, and proceedings
25
seeking a civil penalty order will not be brought, in
26
relation to the alleged contravention; or
27
(iii) if the provision is a civil penalty provision--
28
proceedings seeking a civil penalty order will not be
29
brought in relation to the alleged contravention; and
30
(i) state that payment of the amount is not an admission of guilt
31
or liability; and
32
(j) state that the person may apply to the Director of Biosecurity
33
to have the period in which to pay the amount extended; and
34
(k) state that the person may choose not to pay the amount and, if
35
the person does so:
36
Enforcement Chapter 11
Infringement notices Part 2
Infringement notices Division 2
Section 558
Biosecurity Bill 2012 No. , 2012 519
(i) if the provision is an offence provision and does not also
1
constitute a civil penalty provision--the person may be
2
prosecuted in a court for the alleged contravention; or
3
(ii) if the provision is an offence provision and can also
4
constitute a civil penalty provision--the person may be
5
prosecuted in a court, or proceedings seeking a civil
6
penalty order may be brought, in relation to the alleged
7
contravention; or
8
(iii) if the provision is a civil penalty provision--
9
proceedings seeking a civil penalty order may be
10
brought in relation to the alleged contravention; and
11
(l) set out how the notice can be withdrawn; and
12
(m) state that if the notice is withdrawn:
13
(i) if the provision is an offence provision and does not also
14
constitute a civil penalty provision--the person may be
15
prosecuted in a court for the alleged contravention; or
16
(ii) if the provision is an offence provision and can also
17
constitute a civil penalty provision--the person may be
18
prosecuted in a court, or proceedings seeking a civil
19
penalty order may be brought, in relation to the alleged
20
contravention; or
21
(iii) if the provision is a civil penalty provision--
22
proceedings seeking a civil penalty order may be
23
brought in relation to the alleged contravention; and
24
(n) state that the person may make written representations to the
25
Director of Biosecurity seeking the withdrawal of the notice;
26
and
27
(o) if the provision is of a kind described in subsection 557(4)--
28
state that if the person contravenes the provision after the end
29
of the period referred to in paragraph (h), the person could be
30
given a new infringement notice, even if the person has paid
31
an amount in accordance with that paragraph.
32
(2) The amount to be stated in the notice for the purposes of
33
paragraph (1)(f) for the alleged contravention of the provision by
34
the person must be the lesser of:
35
(a) one-fifth of the maximum penalty that a court could impose
36
on the person for that contravention; and
37
Chapter 11 Enforcement
Part 2 Infringement notices
Division 2 Infringement notices
Section 559
520 Biosecurity Bill 2012 No. , 2012
(b) 12 penalty units where the person is an individual, or 60
1
penalty units where the person is a body corporate.
2
559 Extension of time to pay amount
3
(1) A person to whom an infringement notice has been given may
4
apply to the Director of Biosecurity for an extension of the period
5
referred to in paragraph 558(1)(h).
6
(2) If the application is made before the end of that period, the
7
Director of Biosecurity may, in writing, extend that period. The
8
Director of Biosecurity may do so before or after the end of that
9
period.
10
(3) If the Director of Biosecurity extends that period, a reference in
11
this Division, or in a notice or other instrument under this Division,
12
to the period referred to in paragraph 558(1)(h) is taken to be a
13
reference to that period so extended.
14
(4) If the Director of Biosecurity does not extend that period, a
15
reference in this Division (other than in this section), or in a notice
16
or other instrument under this Division, to the period referred to in
17
paragraph 558(1)(h) is taken to be a reference to the period that
18
ends on the later of the following days:
19
(a) the day that is the last day of the period referred to in
20
paragraph 558(1)(h);
21
(b) the day that is 7 days after the day the person was given
22
notice of the Director of Biosecurity's decision not to extend.
23
(5) The Director of Biosecurity may extend the period more than once
24
under subsection (2).
25
560 Withdrawal of an infringement notice
26
Representations seeking withdrawal of notice
27
(1) A person to whom an infringement notice has been given may
28
make written representations to the Director of Biosecurity seeking
29
the withdrawal of the notice.
30
Enforcement Chapter 11
Infringement notices Part 2
Infringement notices Division 2
Section 560
Biosecurity Bill 2012 No. , 2012 521
Withdrawal of notice
1
(2) The Director of Biosecurity may withdraw an infringement notice
2
given to a person (whether or not the person has made written
3
representations seeking the withdrawal).
4
(3) When deciding whether or not to withdraw an infringement notice
5
(the relevant infringement notice), the Director of Biosecurity:
6
(a) must take into account any written representations seeking
7
the withdrawal that were given by the person to the Director
8
of Biosecurity; and
9
(b) may take into account the following:
10
(i) whether a court has previously imposed a penalty on the
11
person for a contravention of an infringement notice
12
provision;
13
(ii) the circumstances of the alleged contravention;
14
(iii) whether the person has paid an amount, stated in an
15
earlier infringement notice, for a contravention of an
16
infringement notice provision if the contravention is
17
constituted by conduct that is the same, or substantially
18
the same, as the conduct alleged to constitute the
19
contravention in the relevant infringement notice;
20
(iv) any other matter the Director of Biosecurity considers
21
relevant.
22
Notice of withdrawal
23
(4) Notice of the withdrawal of the infringement notice must be given
24
to the person. The withdrawal notice must state:
25
(a) the person's name and address; and
26
(b) the day the infringement notice was given; and
27
(c) the identifying number of the infringement notice; and
28
(d) that the infringement notice is withdrawn; and
29
(e)
that:
30
(i) if the provision is an offence provision and does not also
31
constitute a civil penalty provision--the person may be
32
prosecuted in a court for the alleged contravention; or
33
(ii) if the provision is an offence provision and can also
34
constitute a civil penalty provision--the person may be
35
Chapter 11 Enforcement
Part 2 Infringement notices
Division 2 Infringement notices
Section 561
522 Biosecurity Bill 2012 No. , 2012
prosecuted in a court, or proceedings seeking a civil
1
penalty order may be brought, in relation to the alleged
2
contravention; or
3
(iii) if the provision is a civil penalty provision--
4
proceedings seeking a civil penalty order may be
5
brought in relation to the alleged contravention.
6
Refund of amount if infringement notice withdrawn
7
(5)
If:
8
(a) the Director of Biosecurity withdraws the infringement
9
notice; and
10
(b) the person has already paid the amount stated in the notice;
11
the Commonwealth must refund to the person an amount equal to
12
the amount paid.
13
561 Effect of payment of amount
14
(1) If the person to whom an infringement notice for an alleged
15
contravention of a provision is given pays the amount stated in the
16
notice before the end of the period referred to in paragraph
17
558(1)(h):
18
(a) any liability of the person for the alleged contravention is
19
discharged; and
20
(b) whichever of the following is appropriate applies:
21
(i) if the provision is an offence provision and does not also
22
constitute a civil penalty provision--the person is not
23
liable to be prosecuted in a court for the alleged
24
contravention;
25
(ii) if the provision is an offence provision that can also
26
constitute a civil penalty provision--the person is not
27
liable to be prosecuted in a court, and proceedings
28
seeking a civil penalty order will not be brought, in
29
relation to the alleged contravention;
30
(iii) if the provision is a civil penalty provision--
31
proceedings seeking a civil penalty order will not be
32
brought in relation to the alleged contravention; and
33
(c) the person is not regarded as having admitted guilt or liability
34
for the alleged contravention; and
35
Enforcement Chapter 11
Infringement notices Part 2
Infringement notices Division 2
Section 562
Biosecurity Bill 2012 No. , 2012 523
(d) if the provision is an offence provision--the person is not
1
regarded as having been convicted of the alleged offence.
2
(2) Subsection (1) of this section does not apply, and is taken never to
3
have applied, if the notice has been withdrawn.
4
562 Effect of this Part
5
This Part does not:
6
(a) require an infringement notice to be given to a person for an
7
alleged contravention of an infringement notice provision; or
8
(b) affect the liability of a person for an alleged contravention of
9
an infringement notice provision if:
10
(i) the person does not comply with an infringement notice
11
given to the person for the contravention; or
12
(ii) an infringement notice is not given to the person for the
13
contravention; or
14
(iii) an infringement notice is given to the person for the
15
contravention and is subsequently withdrawn; or
16
(c) prevent an infringement notice being given to a person for an
17
alleged contravention of an infringement notice provision if a
18
previous infringement notice given in relation to the
19
provision has been withdrawn; or
20
(d) limit a court's discretion to determine the amount of a
21
penalty to be imposed on a person who is found to have
22
contravened an infringement notice provision.
23
563 Further provision by regulation
24
The regulations may make further provision in relation to
25
infringement notices given in relation to contraventions of
26
infringement notice provisions.
27
28
Chapter 11 Enforcement
Part 3 Enforceable undertakings
Division 1 Introduction
Section 564
524 Biosecurity Bill 2012 No. , 2012
Part 3--Enforceable undertakings
1
Division 1--Introduction
2
564 Guide to this Part
3
This Part deals with the acceptance and enforcement of
4
undertakings to comply with provisions.
5
The Director of Biosecurity may accept an undertaking relating to
6
compliance with a provision of this Act.
7
The undertaking may be enforced in a relevant court.
8
The orders that may be made by a relevant court include an order
9
directing compliance, an order requiring any financial benefit from
10
the failure to comply to be surrendered and an order for damages.
11
12
Enforcement Chapter 11
Enforceable undertakings Part 3
Accepting and enforcing undertakings Division 2
Section 565
Biosecurity Bill 2012 No. , 2012 525
Division 2--Accepting and enforcing undertakings
1
565 Acceptance of undertakings
2
(1) The Director of Biosecurity may accept any of the following
3
undertakings:
4
(a) a written undertaking given by a person that the person will,
5
in order to comply with a provision of this Act, take specified
6
action;
7
(b) a written undertaking given by a person that the person will,
8
in order to comply with a provision of this Act, refrain from
9
taking specified action;
10
(c) a written undertaking given by a person that the person will
11
take specified action directed towards ensuring that the
12
person does not contravene a provision of this Act, or is
13
unlikely to contravene such a provision, in the future.
14
(2) The undertaking must be expressed to be an undertaking under this
15
section.
16
(3) The person may withdraw or vary the undertaking at any time, but
17
only with the written consent of the Director of Biosecurity.
18
(4) The consent of the Director of Biosecurity is not a legislative
19
instrument.
20
(5) The Director of Biosecurity may, by written notice given to the
21
person, cancel the undertaking.
22
(6) The Director of Biosecurity may publish an undertaking in any
23
manner the Director of Biosecurity considers appropriate.
24
566 Enforcement of undertakings
25
(1) The Director of Biosecurity may apply to a relevant court for an
26
order under subsection (2) if:
27
(a) a person has given an undertaking under section 565; and
28
(b) the undertaking has not been withdrawn or cancelled; and
29
(c) the Director of Biosecurity considers that the person has
30
breached the undertaking.
31
Chapter 11 Enforcement
Part 3 Enforceable undertakings
Division 2 Accepting and enforcing undertakings
Section 566
526 Biosecurity Bill 2012 No. , 2012
(2) If the relevant court is satisfied that the person has breached the
1
undertaking, the court may make any or all of the following orders:
2
(a) an order directing the person to comply with the undertaking;
3
(b) an order directing the person to pay to the Commonwealth an
4
amount up to the amount of any financial benefit that the
5
person has obtained directly or indirectly and that is
6
reasonably attributable to the breach;
7
(c) any order that the court considers appropriate directing the
8
person to compensate any other person who has suffered loss
9
or damage as a result of the breach;
10
(d) any other order that the court considers appropriate.
11
12
Enforcement Chapter 11
Injunctions Part 4
Introduction Division 1
Section 567
Biosecurity Bill 2012 No. , 2012 527
Part 4--Injunctions
1
Division 1--Introduction
2
567 Guide to this Part
3
This Part deals with the use of injunctions in enforcing provisions.
4
Injunctions may be used to restrain a person from contravening a
5
provision of this Act, or to compel compliance with a provision of
6
this Act.
7
An interim injunction is available.
8
9
Chapter 11 Enforcement
Part 4 Injunctions
Division 2 Injunctions
Section 568
528 Biosecurity Bill 2012 No. , 2012
Division 2--Injunctions
1
568 Grant of injunctions
2
(1) The Director of Biosecurity or the Director of Human Biosecurity
3
may apply to a relevant court for an injunction under this Division
4
if a person has engaged, is engaging or is proposing to engage, in
5
conduct in contravention of a provision of this Act.
6
Note: For
engage in conduct, see section 9.
7
Restraining injunctions
8
(2) If the court is satisfied, on reasonable grounds, that the individual
9
has not complied, is not complying, or is proposing not to comply,
10
with the provision, the court may grant an injunction:
11
(a) restraining the person from doing a thing that would
12
constitute a contravention of the provision; and
13
(b) if, in the court's opinion, it is desirable to do so--requiring
14
the person to do a thing.
15
Performance injunctions
16
(3) The court may grant an injunction requiring the person to do a
17
thing if the court is satisfied, on reasonable grounds, that:
18
(a) the person has refused or failed, or is refusing or failing, or is
19
proposing to refuse or fail, to do a thing; and
20
(b) the refusal or failure was, is or would be a contravention of
21
the provision.
22
Human biosecurity control orders--factors to be taken into
23
account
24
(4) The court may take the following factors into account in
25
considering an application under this section in relation to an
26
individual, in relation to whom a human biosecurity control order
27
is in force, who has not complied, is not complying, or is proposing
28
not to comply, with a biosecurity measure included in the order:
29
(a) any reason the individual gives for refusing to comply with
30
the measure;
31
Enforcement Chapter 11
Injunctions Part 4
Injunctions Division 2
Section 569
Biosecurity Bill 2012 No. , 2012 529
(b) any factors that may affect the health of the individual;
1
(c) any other matter that the court considers relevant.
2
Granting injunctions in relation to human biosecurity control
3
orders
4
(5) The court may not grant an injunction under this section in relation
5
to a biosecurity measure in a human biosecurity control order
6
unless the individual is required to comply with the measure under
7
subsection 72(2) or (4).
8
569 Interim injunctions
9
Grant of interim injunctions
10
(1) Before deciding an application for an injunction under section 568,
11
a relevant court may grant an interim injunction:
12
(a) restraining a person from doing a thing; or
13
(b) requiring a person to do a thing.
14
No undertakings as to damages
15
(2) The court must not require an applicant for an injunction under
16
section 568 to give an undertaking as to damages as a condition of
17
granting an interim injunction.
18
570 Discharging or varying injunctions
19
A relevant court may discharge or vary an injunction granted by
20
that court under this Division.
21
571 Certain limits on granting injunctions not to apply
22
Restraining injunctions
23
(1) The power of a relevant court under this Division to grant an
24
injunction restraining a person from doing a thing may be
25
exercised:
26
(a) whether or not it appears to the court that the person intends
27
to do the thing again, or to continue to do the thing; and
28
Chapter 11 Enforcement
Part 4 Injunctions
Division 2 Injunctions
Section 572
530 Biosecurity Bill 2012 No. , 2012
(b) whether or not the person has previously done the thing; and
1
(c) whether or not there is an imminent danger of substantial
2
damage to any other person if the person does the thing.
3
Performance injunctions
4
(2) The power of a relevant court under this Division to grant an
5
injunction requiring a person to do a thing may be exercised:
6
(a) whether or not it appears to the court that the person intends
7
to refuse or fail again, or to continue to refuse or fail, to do
8
that thing; and
9
(b) whether or not the person has previously refused or failed to
10
do that thing; and
11
(c) whether or not there is an imminent danger of substantial
12
damage to any other person if the person refuses or fails to do
13
that thing.
14
572 Other powers of a relevant court unaffected
15
The powers conferred on a relevant court under this Division are in
16
addition to, and not instead of, any other powers of the court,
17
whether conferred by this Act or otherwise.
18
573 Judicial review
19
(1) If judicial review is sought in relation to a direction to secure goods
20
under section 121 or 316, or a direction to secure a conveyance
21
under section 197 or 316, the direction remains in force unless a
22
court finally determines the validity of the decision to give the
23
direction.
24
(2) Subsection (1) does not prevent a biosecurity officer revoking such
25
a direction.
26
(3) This section has effect despite any other law.
27
28
Enforcement Chapter 11
Miscellaneous Part 5
Introduction Division 1
Section 574
Biosecurity Bill 2012 No. , 2012 531
Part 5--Miscellaneous
1
Division 1--Introduction
2
574 Guide to this Part
3
This Part deals with the following:
4
(a)
where the physical elements of offences are set out
5
for certain offences;
6
(b)
when a person is taken to contravene a civil
7
penalty provision or offence.
8
9
Chapter 11 Enforcement
Part 5 Miscellaneous
Division 2 Miscellaneous
Section 575
532 Biosecurity Bill 2012 No. , 2012
Division 2--Miscellaneous
1
575 Physical elements of offences
2
(1) This section applies if a provision of this Act provides that a person
3
contravening another provision of this Act (the conduct rule
4
provision) commits an offence.
5
(2) For the purposes of applying Chapter 2 of the Criminal Code to the
6
offence, the physical elements of the offence are set out in the
7
conduct rule provision.
8
Note:
Chapter 2 of the Criminal Code sets out general principles of criminal
9
responsibility.
10
576 Contravening offence and civil penalty provisions
11
(1) This section applies if a provision of this Act provides that a person
12
contravening another provision of this Act (the conduct rule
13
provision):
14
(a) commits an offence; or
15
(b) is liable to a civil penalty.
16
(2) For the purposes of this Act, the person is taken to contravene the
17
offence or the civil penalty provision (as the case requires) if the
18
person contravenes the conduct rule provision.
19
20
Governance and officials Chapter 12
Introduction Part 1
Section 577
Biosecurity Bill 2012 No. , 2012 533
Chapter 12--Governance and officials
1
Part 1--Introduction
2
3
577 Guide to this Chapter
4
This Chapter deals with matters relating to governance and
5
officials.
6
Part 2 deals with the Director of Biosecurity.
7
Part 3 deals with the Director of Human Biosecurity.
8
Part 4 deals with biosecurity officers and biosecurity enforcement
9
officers and sets out some general powers of these officers.
10
Part 5 deals with chief human biosecurity officers and human
11
biosecurity officers.
12
Part 6 deals with miscellaneous matters.
13
14
Chapter 12 Governance and officials
Part 2 Director of Biosecurity
Section 578
534 Biosecurity Bill 2012 No. , 2012
Part 2--Director of Biosecurity
1
2
578 Director of Biosecurity
3
The Director of Biosecurity is the person who is, or is acting as, the
4
Agriculture Secretary.
5
579 Functions and powers of Director of Biosecurity
6
(1) Subject to this Act, the Director of Biosecurity has the general
7
administration of this Act.
8
(2) The Director of Biosecurity also has the functions and powers
9
conferred on the Director of Biosecurity by this Act.
10
(3) The Director of Biosecurity may do anything incidental or
11
conducive to the performance of his or her functions or the
12
exercise of his or her powers.
13
(4) In performing functions or exercising powers under this Act, the
14
Director of Biosecurity:
15
(a) must have regard to the objects of this Act; and
16
(b) must comply with:
17
(i) any general directions given by the Agriculture Minister
18
under section 581; and
19
(ii) any direction given by the Agriculture Minister under
20
section 165 to commence a BIRA in relation to
21
particular goods.
22
Note:
The Director of Biosecurity must apply the ALOP for Australia in
23
conducting a BIRA in relation to particular goods (see subsection
24
164(2)) or a risk assessment for the purpose of deciding whether
25
particular goods, or a particular class of goods, can be brought or
26
imported into Australian territory and, if so, whether this should be
27
subject to conditions (see subsections 170(4), 171(3), 175(3) and
28
178(4)).
29
Governance and officials Chapter 12
Director of Biosecurity Part 2
Section 580
Biosecurity Bill 2012 No. , 2012 535
580 Delegation and subdelegation
1
Delegation by Director of Biosecurity
2
(1) The Director of Biosecurity may, in writing, delegate any or all of
3
his or her functions or powers under this Act (other than functions
4
and powers under subsection 579(1)) to an SES employee, or an
5
acting SES employee, in the Agriculture Department.
6
Note 1:
The expressions SES employee and acting SES employee are defined
7
in section 2B of the Acts Interpretation Act 1901.
8
Note 2:
See also sections 34AA and 34AB of the Acts Interpretation Act 1901.
9
Subdelegation
10
(2) If, under subsection (1), the Director of Biosecurity delegates a
11
function or power to an SES employee or an acting SES employee
12
in the Agriculture Department, the employee may, in writing,
13
subdelegate the function or power to a person who:
14
(a) is a biosecurity officer; or
15
(b) is a biosecurity enforcement officer; or
16
(c) holds, or is acting in, an Executive Level 1 or 2, or
17
equivalent, position in the Agriculture Department.
18
Powers that must not be subdelegated
19
(3) However, a power under a provision of this Act referred to in the
20
following table must not be subdelegated under subsection (2):
21
22
Powers that must not be subdelegated
Item Power
Provision
1
To determine that a person has
demonstrated that information is
commercial-in-confidence
Section 14
2
To give approval for high-value goods
to be treated in a manner that is likely
to damage the goods
Subsection 130(2)
3
To give approval for high-value goods
to be destroyed
Subsection 133(2)
4
To determine that specified goods or a
Subsection 170(1)
Chapter 12 Governance and officials
Part 2 Director of Biosecurity
Section 580
536 Biosecurity Bill 2012 No. , 2012
Powers that must not be subdelegated
Item Power
Provision
specified class of goods must not be
brought or imported into Australian
territory
5
To determine that specified classes of
goods must not be brought or imported
into Australian territory unless
specified conditions are complied with
Subsection 171(1)
6
To determine that specified goods or a
specified class of goods must not be
brought or imported into Australian
territory for a specified period
Subsection 178(1)
7
To vary a determination in force under
subsection 178(1)
Subsection 179(1)
8
To approve the manner in which
information must be provided under
subsection 195(2) by persons intending
to enter, or entering, Australian
territory
Subsection 195(3)
9
To approve the giving of a direction
requiring an aircraft or vessel to be
moved to a place outside Australian
territory
Paragraph 205(3)(a)
10
To approve a biosecurity officer
causing an aircraft or vessel to be
moved to a place outside Australian
territory
Paragraph 205(3)(b)
11
To give approval for a high-value
conveyance to be treated in a manner
that is likely to damage the conveyance
Subsection 207(2)
12
To give approval for a conveyance to
be removed from Australian territory,
destroyed or otherwise disposed of
Paragraph 208(5)(d)
13
To give approval for a conveyance to
be destroyed
Subsection 209(2) and paragraph
209(5)(d)
14
To give approval for a direction
requiring an aircraft not to land at any
Subsection 243(2)
Governance and officials Chapter 12
Director of Biosecurity Part 2
Section 580
Biosecurity Bill 2012 No. , 2012 537
Powers that must not be subdelegated
Item Power
Provision
landing place in Australian territory
15
To give approval for a direction
requiring a vessel not to be moored at
any port in Australian territory
Subsection 251(2)
16
To give approval for high-value goods
to be treated in a manner that is likely
to damage the goods
Subsection 333(2)
17
To give approval for a high-value
conveyance to be treated in a manner
that is likely to damage the conveyance
Subsection 335(2)
18
To give approval for a conveyance to
be destroyed
Subparagraph 336(5)(d)(i)
19
To give approval for premises to be
treated in a manner that is likely to
damage the premises
Subsection 337(3)
20
To give approval for premises to be
destroyed
Subparagraphs 339(3)(d)(ii) and
(4)(b)(ii)
21
To give approval for high-value goods
to be destroyed
Subsection 340(2)
22
To give approval for a conveyance to
be destroyed
Subsection 341(2) and paragraph
341(5)(d)
23
To give approval for premises to be
destroyed
Subsection 342(3)
24
To determine a biosecurity response
zone
Subsection 363(1)
25
To determine a temporary biosecurity
monitoring zone
Subsection 382(1)
26
To determine a biosecurity activity
zone
Subsection 393(1)
27
To cause an abandoned conveyance to
be destroyed
Subsection 655(3)
28
To cause a forfeited conveyance to be
destroyed
Subsection 656(3)
Chapter 12 Governance and officials
Part 2 Director of Biosecurity
Section 581
538 Biosecurity Bill 2012 No. , 2012
Delegate or subdelegate must comply with directions
1
(4) In performing any functions or exercising any powers under a
2
delegation or subdelegation, the delegate or subdelegate must
3
comply with any directions of the Director of Biosecurity or the
4
person who delegated the function or power.
5
Application of the Acts Interpretation Act 1901 to subdelegation
6
(5) Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901
7
apply in relation to a subdelegation in a corresponding way to the
8
way in which they apply in relation to a delegation.
9
581 Agriculture Minister may give general directions to Director of
10
Biosecurity
11
(1) The Agriculture Minister may, by legislative instrument, give
12
directions to the Director of Biosecurity about the performance of
13
his or her functions or the exercise of his or her powers.
14
Note:
Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative
15
Instruments Act 2003 do not apply to the direction (see sections 44
16
and 54 of that Act).
17
(2) A direction under subsection (1) must be of a general nature only.
18
(3) Subject to section 165, the Agriculture Minister must not give
19
directions to the Director of Biosecurity in relation to:
20
(a) the conduct of a BIRA in relation to particular goods; or
21
(b) a decision relating to a permit to bring or import goods, or a
22
class of goods, into Australian territory.
23
Note 1:
Section 165 provides for the Agriculture Minister to direct the
24
Director of Biosecurity to commence a BIRA in relation to particular
25
goods if the Agriculture Minister is satisfied that the BIRA should be
26
commenced.
27
Note 2:
Part 2 of Chapter 3 (managing biosecurity risks: goods) deals with
28
BIRAs in relation to particular goods and Division 3 of Part 3 of that
29
Chapter deals with permits to bring or import goods into Australian
30
territory.
31
32
Governance and officials Chapter 12
Director of Human Biosecurity Part 3
Section 582
Biosecurity Bill 2012 No. , 2012 539
Part 3--Director of Human Biosecurity
1
2
582 Director of Human Biosecurity
3
(1) The Director of Human Biosecurity is the person who occupies, or
4
is acting in, the position of Commonwealth Chief Medical Officer.
5
(2) The Director of Human Biosecurity has the functions and powers
6
conferred on the Director of Human Biosecurity by this Act.
7
8
Chapter 12 Governance and officials
Part 4 Biosecurity officers and biosecurity enforcement officers
Division 1 Authorisation
Section 583
540 Biosecurity Bill 2012 No. , 2012
Part 4--Biosecurity officers and biosecurity
1
enforcement officers
2
Division 1--Authorisation
3
Subdivision A--Authorisation by Director of Biosecurity
4
583 Authorisation by Director of Biosecurity of persons as
5
biosecurity officers
6
(1) The Director of Biosecurity may, in writing, authorise a person to
7
be a biosecurity officer under this Act if:
8
(a) the person is:
9
(i) an officer or employee of a Commonwealth body; or
10
(ii) an officer or employee of a State or Territory body; or
11
(iii) a member of the Australian Defence Force; or
12
(iv) another person who the Director of Biosecurity
13
considers it necessary to authorise to be a biosecurity
14
officer under this Act; and
15
(b) the person satisfies the training and qualification
16
requirements for biosecurity officers determined under
17
subsection (5).
18
(2) The Director of Biosecurity must not authorise an officer or
19
employee of a State or Territory body to be a biosecurity officer
20
unless an arrangement is in force under section 585 in relation to
21
the officer or employee.
22
(3) An authorisation may specify the period during which it has effect.
23
Note:
An authorisation may cease to have effect under subsection 584(7).
24
(4) The Director of Biosecurity may, in writing, vary or revoke an
25
authorisation at any time.
26
(5) The Director of Biosecurity must determine, in writing, training
27
and qualification requirements for biosecurity officers.
28
(6) A determination made under subsection (5) is not a legislative
29
instrument.
30
Governance and officials Chapter 12
Biosecurity officers and biosecurity enforcement officers Part 4
Authorisation Division 1
Section 584
Biosecurity Bill 2012 No. , 2012 541
584 Authorisation by Director of Biosecurity of persons as
1
biosecurity enforcement officers
2
(1) The Director of Biosecurity may, in writing, authorise a person to
3
be a biosecurity enforcement officer under this Act if:
4
(a)
the
person:
5
(i) is a biosecurity officer; or
6
(ii) is eligible to be authorised under section 583 to be a
7
biosecurity officer under this Act; and
8
(b) the person satisfies the training and qualification
9
requirements for biosecurity enforcement officers determined
10
under subsection (5).
11
(2) The Director of Biosecurity must not authorise an officer or
12
employee of a State or Territory body to be a biosecurity
13
enforcement officer unless an arrangement is in force under
14
section 585 in relation to the officer or employee.
15
(3) An authorisation may specify the period during which it has effect.
16
(4) The Director of Biosecurity may, in writing, vary or revoke an
17
authorisation at any time.
18
(5) The Director of Biosecurity must determine, in writing, training
19
and qualification requirements for biosecurity enforcement
20
officers.
21
(6) A determination made under subsection (5) is not a legislative
22
instrument.
23
(7) If a person who is a biosecurity officer is authorised under this
24
section to be a biosecurity enforcement officer, the person's
25
authorisation under section 583 ceases to have effect immediately
26
after the person's authorisation under this section takes effect.
27
585 Arrangements for State or Territory officers or employees to be
28
biosecurity officers or biosecurity enforcement officers
29
(1) The Director of Biosecurity may enter into an arrangement with a
30
State or Territory body for officers or employees of the body:
31
(a) to be authorised to be biosecurity officers; or
32
Chapter 12 Governance and officials
Part 4 Biosecurity officers and biosecurity enforcement officers
Division 1 Authorisation
Section 586
542 Biosecurity Bill 2012 No. , 2012
(b) to be authorised, in accordance with section 584, to be
1
biosecurity enforcement officers.
2
(2) An arrangement under subsection (1) is not a legislative
3
instrument.
4
Subdivision B--Authorisation by Director of Human
5
Biosecurity
6
586 Authorisation by Director of Human Biosecurity of persons as
7
biosecurity enforcement officers
8
(1) The Director of Human Biosecurity may, in writing, authorise a
9
person to be a biosecurity enforcement officer for the purposes set
10
out in subsection (2) if:
11
(a) the person is an officer or employee of a State or Territory
12
body; and
13
(b) the person is not a biosecurity officer; and
14
(c) the person satisfies the training and qualification
15
requirements for biosecurity enforcement officers determined
16
under subsection 584(5).
17
(2) A person is authorised to be a biosecurity enforcement officer
18
under subsection (1) of this section for the purposes of exercising
19
powers or performing functions under this Act to ensure that
20
biosecurity measures specified in a determination made under
21
section 50 (preventative measures determination) are complied
22
with.
23
(3) The Director of Human Biosecurity must not authorise an officer
24
or employee of a State or Territory body to be a biosecurity
25
enforcement officer unless an arrangement is in force under
26
section 587 in relation to the officer or employee.
27
(4) Subject to subsection (5), an authorisation has effect for the period
28
specified in the relevant determination made under section 50.
29
(5) The Director of Human Biosecurity may, in writing, vary or revoke
30
an authorisation at any time.
31
Governance and officials Chapter 12
Biosecurity officers and biosecurity enforcement officers Part 4
Authorisation Division 1
Section 587
Biosecurity Bill 2012 No. , 2012 543
587 Arrangements for State or Territory officers or employees to be
1
biosecurity enforcement officers
2
(1) The Director of Human Biosecurity may enter into an arrangement
3
with a State or Territory body for officers or employees of the body
4
to be authorised, in accordance with section 586, to be biosecurity
5
enforcement officers.
6
(2) An arrangement under subsection (1) is not a legislative
7
instrument.
8
9
Chapter 12 Governance and officials
Part 4 Biosecurity officers and biosecurity enforcement officers
Division 2 Functions and powers
Section 588
544 Biosecurity Bill 2012 No. , 2012
Division 2--Functions and powers
1
Subdivision A--General
2
588 Functions and powers of biosecurity officers
3
(1) A biosecurity officer has the functions and powers conferred on a
4
biosecurity officer by this Act.
5
(2) Subsection (1) has effect subject to any restrictions specified in the
6
biosecurity officer's instrument of authorisation.
7
(3) In performing functions or exercising powers under this Act, a
8
biosecurity officer must comply with any directions of the Director
9
of Biosecurity.
10
589 Functions and powers of biosecurity enforcement officers
11
(1) A biosecurity enforcement officer:
12
(a) has the functions and powers conferred on a biosecurity
13
enforcement officer by this Act; and
14
(b) may perform the functions and exercise the powers conferred
15
on a biosecurity officer by this Act.
16
(2) Subsection (1) has effect subject to any restrictions specified in the
17
biosecurity enforcement officer's instrument of authorisation.
18
(3) In performing functions or exercising powers under this Act, a
19
biosecurity enforcement officer must comply with any directions of
20
the Director of Biosecurity.
21
590 Directions to assist persons performing functions etc. under this
22
Act
23
Functions etc. relating to goods
24
(1)
If:
25
(a) a biosecurity official or a human biosecurity official is
26
performing functions or duties or exercising powers under
27
Governance and officials Chapter 12
Biosecurity officers and biosecurity enforcement officers Part 4
Functions and powers Division 2
Section 590
Biosecurity Bill 2012 No. , 2012 545
this Act in relation to goods that are subject to biosecurity
1
control; and
2
(b) the official is satisfied, on reasonable grounds, that a person
3
in charge of the goods (the responsible person), or an agent
4
of that person, is able to provide reasonable assistance to the
5
official, or to any other person who is performing functions
6
or duties or exercising powers under this Act, in relation to
7
the goods;
8
the official may direct the responsible person or the agent to
9
provide that assistance.
10
Note:
See also section 608 (general provisions relating to directions).
11
Functions etc. relating to conveyances
12
(2)
If:
13
(a) a biosecurity official or a human biosecurity official is
14
performing functions or duties or exercising powers under
15
this Act in relation to:
16
(i) a conveyance that is subject to biosecurity control; or
17
(ii) a person (the relevant person) who, or thing that, is on
18
such a conveyance; and
19
(b) the official is satisfied, on reasonable grounds, that the person
20
in charge of the conveyance is able to provide reasonable
21
assistance to the official, or to any other person who is
22
performing functions or duties or exercising powers under
23
this Act, in relation to the conveyance, the relevant person or
24
the thing;
25
the official may direct the person in charge of the conveyance to
26
provide that assistance.
27
(3) A person who is given a direction under subsection (1) or (2) must
28
comply with the direction.
29
Fault-based offence
30
(4) A person commits an offence if:
31
(a) the person is given a direction under subsection (1) or (2);
32
and
33
(b) the person engages in conduct; and
34
Chapter 12 Governance and officials
Part 4 Biosecurity officers and biosecurity enforcement officers
Division 2 Functions and powers
Section 591
546 Biosecurity Bill 2012 No. , 2012
(c) the conduct contravenes the direction.
1
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
2
Civil penalty provision
3
(5) A person is liable to a civil penalty if the person contravenes
4
subsection (3).
5
Civil penalty:
30 penalty units.
6
Meaning of human biosecurity official
7
(6) In this section:
8
human biosecurity official means any of the following:
9
(a) a human biosecurity officer;
10
(b) a chief human biosecurity officer;
11
(c) the Director of Human Biosecurity.
12
591 Biosecurity officers and biosecurity enforcement officers may be
13
assisted by animals
14
(1) A biosecurity officer or biosecurity enforcement officer may be
15
accompanied by, and make use of, an animal to assist the officer
16
in:
17
(a) entering and exercising powers:
18
(i) at a landing place in Australian territory where an
19
aircraft that is subject to biosecurity control has landed
20
or intends to land; or
21
(ii) at a port in Australian territory where a vessel that is
22
subject to biosecurity control has been moored or
23
intends to be moored; or
24
(iii) on premises that may be entered with the consent of the
25
occupier or under an entry warrant; or
26
(iv) on premises in a biosecurity response zone, biosecurity
27
monitoring zone or biosecurity activity zone; or
28
(v) on premises where biosecurity activities are carried out
29
by a biosecurity industry participant in accordance with
30
Governance and officials Chapter 12
Biosecurity officers and biosecurity enforcement officers Part 4
Functions and powers Division 2
Section 592
Biosecurity Bill 2012 No. , 2012 547
an approved arrangement covering the biosecurity
1
industry participant; or
2
(vi) on premises entered in accordance with Division 6 of
3
Part 1 of Chapter 8 during a biosecurity emergency
4
period; or
5
(vii) at any other place where goods may be held under this
6
Act; or
7
(b) inspecting any goods, conveyances or other premises for the
8
purposes of this Act.
9
(2) However, subsection (1) applies only if:
10
(a) the biosecurity officer or biosecurity enforcement officer is
11
authorised by the Director of Biosecurity to handle animals in
12
the performance of his or her functions or duties or the
13
exercise of his or her powers under this Act; and
14
(b) the animal is under the effective control of the biosecurity
15
officer or biosecurity enforcement officer.
16
(3) Subsection (1) does not apply to the exercise of a power by a
17
biosecurity officer or a biosecurity enforcement officer under an
18
entry warrant unless the use of the animal by the officer is
19
authorised by the warrant.
20
592 Carrying out tests on samples
21
(1) If a biosecurity officer has power under this Act to carry out tests
22
on any samples, the officer may:
23
(a) carry out tests that result in the destruction, or reduce the
24
value, of the samples or of a package or goods associated
25
with the samples; or
26
(b) arrange for another person with appropriate qualifications or
27
expertise to carry out such tests.
28
(2) The regulations may make provision in relation to the storage of
29
samples on which tests may be carried out under this Act.
30
593 Biosecurity officer may direct person in charge of conveyance to
31
permit biosecurity officer to board
32
(1) This section applies in relation to:
33
Chapter 12 Governance and officials
Part 4 Biosecurity officers and biosecurity enforcement officers
Division 2 Functions and powers
Section 593
548 Biosecurity Bill 2012 No. , 2012
(a) a conveyance that is subject to biosecurity control; or
1
(b) a conveyance that is carrying goods that are subject to
2
biosecurity control.
3
(2) A biosecurity officer may direct the person in charge or the
4
operator of the conveyance to:
5
(a) permit the biosecurity officer to board the conveyance; and
6
(b) by all reasonable means, facilitate the boarding of the
7
conveyance by the biosecurity officer.
8
Note 1:
For powers and obligations after a biosecurity officer has boarded a
9
conveyance, see section 594.
10
Note 2:
See also section 608 (general provisions relating to directions).
11
(3) A biosecurity officer may give a direction under subsection (2) for
12
the purpose of exercising powers:
13
(a) under Part 1 of Chapter 3 (managing biosecurity risks:
14
goods); or
15
(b) under Part 2 of Chapter 4 (managing biosecurity risks:
16
conveyances).
17
(4) A person who is given a direction under subsection (2) must
18
comply with the direction.
19
Fault-based offence
20
(5) A person commits an offence if:
21
(a) the person is given a direction under subsection (2); and
22
(b) the person engages in conduct; and
23
(c) the conduct contravenes the direction.
24
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
25
Civil penalty provision
26
(6) A person is liable to a civil penalty if the person contravenes
27
subsection (4).
28
Civil penalty:
120 penalty units.
29
Governance and officials Chapter 12
Biosecurity officers and biosecurity enforcement officers Part 4
Functions and powers Division 2
Section 594
Biosecurity Bill 2012 No. , 2012 549
594 Powers that may be exercised by biosecurity officer after
1
boarding a conveyance
2
(1) A biosecurity officer who boards a conveyance under section 593
3
may remain on board the conveyance for any period that he or she
4
thinks necessary for the purpose of performing functions or duties,
5
or exercising powers, under this Act.
6
(2) If a biosecurity officer boards a conveyance under section 593, the
7
biosecurity officer may direct the person in charge of the
8
conveyance to provide suitable and sufficient food and sleeping
9
accommodation for the biosecurity officer.
10
Note:
See also section 608 (general provisions relating to directions).
11
(3) A person who is given a direction under subsection (2) must
12
comply with the direction.
13
Strict liability offence
14
(4) A person commits an offence of strict liability if the person
15
contravenes subsection (3).
16
Penalty: 10 penalty units.
17
Note:
For strict liability, see section 6.1 of the Criminal Code.
18
595 Biosecurity officer may give permission to engage in certain
19
conduct
20
A biosecurity officer may give a person permission to engage in
21
the conduct referred to in an item of the following table for the
22
purposes of a provision of this Act referred to in that item.
23
24
Conduct for which biosecurity officer may give permission
Item Conduct
Provision
1
Interfere with, remove or
deface notices etc.
Paragraph 126(2)(b), 136(3)(b), 202(2)(b),
213(3)(b), 321(3)(b), 346(3)(b), 361(1)(b),
371(1)(c), 372(1)(c), 379(1)(b), 380(1)(b),
389(1)(c), 390(1)(c), 399(1)(b), 400(1)(b) or
454(3)(b)
2
Move, deal with or interfere
Paragraph 127(2)(a), 138(1)(b), 146(1)(c),
Chapter 12 Governance and officials
Part 4 Biosecurity officers and biosecurity enforcement officers
Division 2 Functions and powers
Section 596
550 Biosecurity Bill 2012 No. , 2012
Conduct for which biosecurity officer may give permission
Item Conduct
Provision
with goods or conveyances
203(2)(a), 215(1)(b), 322(1)(b), 328(1)(d),
349(1)(b), 455(1)(b), 636(1)(b) or 642(1)(b)
3
Unload goods that are
subject to biosecurity
control from an aircraft or
vessel
Paragraph 149(1)(a)
4
Receive or possess goods
that have been unloaded
from an aircraft or vessel
displaying the prescribed
quarantine signal
Paragraph 150(1)(a)
5 Board
a
conveyance
Paragraph 217(1)(a) or subparagraph
218(1)(b)(iv) or 219(1)(b)(iv)
6
Allow another person to
board a conveyance
Paragraph 218(1)(a) or 219(1)(a)
7
Interfere with, remove or
deface traps, equipment or
other structures
Paragraph 374(1)(c), 381(1)(b) or 391(1)(c)
1
Subdivision B--Decontamination
2
596 Decontaminating an individual
3
(1) A biosecurity officer may request an individual to be
4
decontaminated if:
5
(a) the officer suspects, on reasonable grounds, that the
6
individual may have been exposed to a disease or pest; and
7
(b) the officer is satisfied, on reasonable grounds, that
8
decontaminating the individual is likely to be effective in, or
9
to contribute to, managing the level of biosecurity risk of the
10
disease or pest.
11
Note 1:
Before making a request, a biosecurity officer must be satisfied of the
12
matters referred to in section 31 (the principles).
13
Note 2:
For other protections in relation to this section, see sections 597 and
14
599.
15
Governance and officials Chapter 12
Biosecurity officers and biosecurity enforcement officers Part 4
Functions and powers Division 2
Section 597
Biosecurity Bill 2012 No. , 2012 551
(2) The biosecurity officer must inform the individual of the
1
following:
2
(a) how the decontamination would be carried out;
3
(b) where and when the decontamination would take place;
4
(c) who would conduct the decontamination;
5
(d) the effect of subsection (4) and section 597.
6
The officer must give the individual a written notice of that
7
information as soon as reasonably practicable.
8
(3) A failure of a biosecurity officer to comply with subsection (2)
9
does not affect the validity of a request made under this section.
10
Consent
11
(4) The individual may consent to being decontaminated.
12
(5) If the individual refuses to consent (including by the individual
13
withdrawing his or her consent), the biosecurity officer may
14
request the Director of Biosecurity to give a direction in
15
accordance with paragraph 597(4)(a).
16
(6) Sections 35 to 39 (children and incapable persons) apply in relation
17
to this section as if this section were in Chapter 2 (managing
18
biosecurity risks: human health).
19
597 Direction to individual to be decontaminated
20
(1) This section applies if a biosecurity officer requests, under
21
subsection 596(5), the Director of Biosecurity to give a direction in
22
accordance with paragraph (4)(a) of this section for an individual
23
to be decontaminated.
24
Considering whether to give direction
25
(2) In considering whether to give a direction, the Director of
26
Biosecurity:
27
(a) must take into account:
28
(i) any reason the individual gives for refusing to consent;
29
and
30
Chapter 12 Governance and officials
Part 4 Biosecurity officers and biosecurity enforcement officers
Division 2 Functions and powers
Section 597
552 Biosecurity Bill 2012 No. , 2012
(ii) any factors that may affect the health of the individual;
1
and
2
(b) may take into account any other matter that the Director of
3
Biosecurity considers relevant.
4
Test for giving direction
5
(3) The Director of Biosecurity may give a direction in relation to an
6
individual only if:
7
(a) the Director suspects, on reasonable grounds, that the
8
individual may have been exposed to a disease or pest; and
9
(b) the Director is satisfied, on reasonable grounds, that
10
decontaminating the individual is likely to be effective in, or
11
to contribute to, managing the level of biosecurity risk of the
12
disease or pest.
13
Note 1:
Before giving a direction, the Director must be satisfied of the matters
14
referred to in section 31 (the principles).
15
Note 2:
An individual may be able to apply under the Administrative
16
Decisions (Judicial Review) Act 1977 for review of a decision to give
17
a direction.
18
Note 3:
If an individual refuses to comply with a direction given under this
19
section, the Director of Biosecurity may be able to apply for an
20
injunction under Part 4 of Chapter 11 (enforcement).
21
Giving notice of outcome of consideration
22
(4) Within 72 hours after receiving the request under subsection
23
596(5), the Director of Biosecurity must cause a notice to be given
24
to the individual that:
25
(a) directs the individual to be decontaminated; or
26
(b) informs the individual that he or she is not required to be
27
decontaminated.
28
(5) The notice must also include reasons for the decision.
29
Fault-based offence
30
(6) An individual commits an offence if:
31
(a) the individual is given a direction in accordance with
32
paragraph (4)(a); and
33
Governance and officials Chapter 12
Biosecurity officers and biosecurity enforcement officers Part 4
Functions and powers Division 2
Section 598
Biosecurity Bill 2012 No. , 2012 553
(b) the individual engages in conduct; and
1
(c) the conduct contravenes the direction.
2
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
3
598 Decontaminating clothing and personal effects
4
(1) A biosecurity officer may require an individual to allow the
5
individual's clothing, and any personal effects that the individual
6
has with him or her, to be decontaminated if:
7
(a) the officer suspects, on reasonable grounds, that the
8
individual's clothing or personal effects may have been
9
exposed to a disease or pest; and
10
(b) the officer is satisfied, on reasonable grounds, that
11
decontaminating the individual's clothing or personal effects
12
is likely to be effective in, or to contribute to, managing the
13
level of biosecurity risk of the disease or pest.
14
Note:
For other protections in relation to this subsection, see subsection (3)
15
of this section and section 599. See also section 31 (the principles).
16
(2) Without limiting subsection (1), an individual's personal effects
17
include any baggage that the individual has with him or her that
18
remained under the individual's immediate physical control while
19
the individual was on any aircraft or vessel or other conveyance.
20
Requirements if clothing is to be decontaminated
21
(3) A biosecurity officer who requires an individual to allow his or her
22
clothing to be decontaminated must:
23
(a) take the individual, as soon as possible, to a place that, in the
24
officer's opinion, affords adequate personal privacy to the
25
individual; and
26
(b) if the individual does not have suitable alternative clothing--
27
provide the individual with such clothing.
28
Fault-based offence
29
(4) An individual commits an offence if:
30
Chapter 12 Governance and officials
Part 4 Biosecurity officers and biosecurity enforcement officers
Division 2 Functions and powers
Section 599
554 Biosecurity Bill 2012 No. , 2012
(a) the individual is required to allow the individual's clothing,
1
or any personal effects, to be decontaminated under
2
subsection (1); and
3
(b) the individual refuses to allow his or her clothing, or personal
4
effects, to be decontaminated.
5
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
6
599 Other protections in relation to decontamination
7
Commonwealth liability for reasonable expenses
8
(1) The Commonwealth is liable to pay for reasonable expenses
9
incurred in relation to the decontamination of an individual or an
10
individual's clothing or personal effects in accordance with this
11
Subdivision.
12
Use of force
13
(2) Force must not be used against an individual to require the
14
individual to comply with:
15
(a) a direction given in accordance with paragraph 597(4)(a); or
16
(b)
section
598.
17
(3) However, in decontaminating an individual's clothing or personal
18
effects, a biosecurity officer may use such force against things as is
19
necessary and reasonable in the circumstances.
20
Decontamination and human health risks
21
(4) An individual, or an individual's clothing or personal effects, must
22
not be required to be decontaminated in accordance with this
23
Subdivision for the purpose of managing a human health risk.
24
Note:
If the human health risk relates to a listed human disease, the
25
individual, or the individual's clothing or effects, may be required by a
26
human biosecurity control order to be decontaminated under
27
section 87.
28
(5) A biosecurity officer must not request an individual to be
29
decontaminated in accordance with this Subdivision for the
30
purpose of managing a human health risk.
31
32
Governance and officials Chapter 12
Chief human biosecurity officers and human biosecurity officers Part 5
Authorisation Division 1
Section 600
Biosecurity Bill 2012 No. , 2012 555
Part 5--Chief human biosecurity officers and
1
human biosecurity officers
2
Division 1--Authorisation
3
600 Authorisation of chief human biosecurity officers
4
(1) The Director of Human Biosecurity may, in writing, authorise a
5
person to be a chief human biosecurity officer for a State or
6
Territory if the person is a medical practitioner employed by the
7
State or Territory body responsible for the administration of health
8
services in the State or Territory.
9
(2) The Director of Human Biosecurity must not authorise such a
10
medical practitioner unless an arrangement is in force under
11
section 602 in relation to the practitioner.
12
(3) An authorisation may specify the period during which it has effect.
13
(4) The Director of Human Biosecurity may, in writing, vary or revoke
14
an authorisation at any time.
15
(5) The Director of Human Biosecurity must determine, in writing,
16
training and qualification requirements for chief human biosecurity
17
officers.
18
(6) A determination made under subsection (5) is not a legislative
19
instrument.
20
601 Authorisation of human biosecurity officers
21
(1) The Director of Human Biosecurity may, in writing, authorise a
22
person to be a human biosecurity officer under this Act if:
23
(a) the person is:
24
(i) an officer or employee of the Health Department; or
25
(ii) an officer or employee of the State or Territory body
26
responsible for the administration of health services in a
27
State or Territory; or
28
(iii) a member of the Australian Defence Force; and
29
Chapter 12 Governance and officials
Part 5 Chief human biosecurity officers and human biosecurity officers
Division 1 Authorisation
Section 602
556 Biosecurity Bill 2012 No. , 2012
(b) the Director of Human Biosecurity is satisfied that the person
1
has appropriate clinical expertise.
2
(2) The Director of Human Biosecurity must not authorise an officer
3
or employee referred to in subparagraph (1)(a)(ii) unless an
4
arrangement is in force under section 602 in relation to the officer
5
or employee.
6
(3) An authorisation may specify the period during which it has effect.
7
(4) The Director of Human Biosecurity may, in writing, vary or revoke
8
an authorisation at any time.
9
(5) The Director of Human Biosecurity must determine, in writing,
10
training and qualification requirements for human biosecurity
11
officers.
12
(6) A determination made under subsection (5) is not a legislative
13
instrument.
14
602 Arrangements for State or Territory officers or employees to be
15
chief human biosecurity officers or human biosecurity
16
officers
17
(1) The Health Minister may enter into an arrangement with a State or
18
Territory body for officers or employees of the body to be
19
authorised as:
20
(a) chief human biosecurity officers for that State or Territory; or
21
(b) human biosecurity officers.
22
(2) An arrangement under subsection (1) is not a legislative
23
instrument.
24
25
Governance and officials Chapter 12
Chief human biosecurity officers and human biosecurity officers Part 5
Functions and powers Division 2
Section 603
Biosecurity Bill 2012 No. , 2012 557
Division 2--Functions and powers
1
603 Functions and powers of chief human biosecurity officers
2
(1) A chief human biosecurity officer has the functions and powers
3
conferred on a chief human biosecurity officer by this Act.
4
(2) In performing functions or exercising powers under this Act, a
5
chief human biosecurity officer must comply with any directions of
6
the Director of Human Biosecurity.
7
604 Functions and powers of human biosecurity officers
8
(1) A human biosecurity officer has the functions and powers
9
conferred on a human biosecurity officer by this Act.
10
(2) Subsection (1) has effect subject to any restrictions specified in the
11
human biosecurity officer's instrument of authorisation.
12
(3) In performing functions or exercising powers under this Act, a
13
human biosecurity officer must comply with any directions of the
14
Director of Human Biosecurity.
15
16
Chapter 12 Governance and officials
Part 6 Miscellaneous
Section 605
558 Biosecurity Bill 2012 No. , 2012
Part 6--Miscellaneous
1
2
605 Identity cards--biosecurity officers etc.
3
(1) The Director of Biosecurity must issue an identity card to the
4
following officers:
5
(a) each biosecurity officer;
6
(b) each biosecurity enforcement officer.
7
(2) An identity card issued to an officer under subsection (1) must:
8
(a) be in the form approved by the Director of Biosecurity for
9
that kind of officer; and
10
(b) contain a recent photograph of the officer.
11
(3) An officer referred to in subsection (1) must carry his or her
12
identity card at all times when performing functions or duties or
13
exercising powers as an officer.
14
606 Identity cards--human biosecurity officers etc.
15
(1) The Health Secretary must issue an identity card to the following
16
officers:
17
(a) the Director of Human Biosecurity;
18
(b) each chief human biosecurity officer;
19
(c) each human biosecurity officer.
20
(2) An identity card issued to an officer under subsection (1) must:
21
(a) be in the form approved by the Health Secretary for that kind
22
of officer; and
23
(b) contain a recent photograph of the officer.
24
(3) An officer referred to in subsection (1) must carry his or her
25
identity card at all times when performing functions or duties or
26
exercising powers as an officer.
27
607 Offence--failure to return identity card
28
(1) A person contravenes this subsection if:
29
Governance and officials Chapter 12
Miscellaneous Part 6
Section 608
Biosecurity Bill 2012 No. , 2012 559
(a) the person has been issued with an identity card under
1
subsection 605(1) or 606(1); and
2
(b) the person ceases to be an officer referred to in the relevant
3
subsection; and
4
(c) the person does not, within 14 days after so ceasing, return
5
the person's identity card to the person who issued it.
6
(2) Subsection (1) of this section does not apply if the identity card
7
was lost or destroyed.
8
Note:
A defendant bears an evidential burden in relation to the matter in this
9
subsection (see subsection 13.3(3) of the Criminal Code).
10
Strict liability offence
11
(3) A person commits an offence of strict liability if the person
12
contravenes subsection (1).
13
Penalty: 1 penalty unit.
14
Note:
For strict liability, see section 6.1 of the Criminal Code.
15
608 General provisions relating to directions
16
(1) Unless otherwise provided by this Act, a person who is permitted
17
to give a direction under this Act may give the direction orally or
18
in writing (including by electronic means).
19
(2) Unless otherwise provided by this Act, a direction that is given
20
under this Act in writing is not a legislative instrument.
21
(3) A later direction overrides an earlier direction to the extent of any
22
inconsistency.
23
24
Chapter 13 Miscellaneous
Part 1 Review of decisions
Division 1 Introduction
Section 609
560 Biosecurity Bill 2012 No. , 2012
Chapter 13--Miscellaneous
1
Part 1--Review of decisions
2
Division 1--Introduction
3
609 Guide to this Part
4
This Part allows certain decisions under this Act to be reviewed
5
internally and by the Administrative Appeals Tribunal.
6
7
Miscellaneous Chapter 13
Review of decisions Part 1
Review of decisions Division 2
Section 610
Biosecurity Bill 2012 No. , 2012 561
Division 2--Review of decisions
1
610 Reviewable decisions
2
(1) Each of the decisions referred to in column 1 of the following table
3
is a reviewable decision:
4
5
Reviewable decisions
Item Column
1
Reviewable decision
Column 2
Provision under which
the reviewable decision
is made
Column 3
Relevant person for
the reviewable
decision
1
To give approval for
high-value goods to
be destroyed
Subsection 133(2)
A person whose
interests are affected by
the decision
2
To refuse to grant a
permit authorising
goods to be brought
or imported into
Australian territory
Subsection 175(1)
The person who
applied for the permit
3 To
impose
a
condition on a permit
authorising goods to
be brought or
imported into
Australian territory
Subsections 176(1) and
(2)
The holder of the
permit
4
To vary a condition
imposed on a permit
authorising goods to
be brought or
imported into
Australian territory
Subsection 176(2)
The holder of the
permit
5
To vary, or refuse to
vary, a permit
authorising goods to
be brought or
imported into
Australian territory
Paragraph 177(1)(a)
The holder of the
permit
Chapter 13 Miscellaneous
Part 1 Review of decisions
Division 2 Review of decisions
Section 610
562 Biosecurity Bill 2012 No. , 2012
Reviewable decisions
Item Column
1
Reviewable decision
Column 2
Provision under which
the reviewable decision
is made
Column 3
Relevant person for
the reviewable
decision
6
To suspend a permit
authorising goods to
be brought or
imported into
Australian territory
Paragraph 177(1)(b)
The holder of the
permit
7
To revoke a permit
authorising goods to
be brought or
imported into
Australian territory
Paragraph 177(1)(c)
The holder of the
permit that was
revoked
8
To give approval for
a conveyance to be
destroyed
Subsection 209(2)
A person whose
interests are affected by
the decision
9
To refuse to approve
a method of ballast
water management
Subsection 272(2)
The person who
applied for the
approval
10
To refuse to approve
a discharge of ballast
water to a ballast
water reception
facility
Subsection 278(2)
The person who
applied for the
approval
11
To refuse to grant an
exemption for a
discharge of ballast
water
Subsection 280(2)
The person who
applied for the
exemption
12 To
grant
an
exemption for a
discharge of ballast
water subject to
conditions
Subsection 280(2)
The person who
applied for the
exemption
13
To vary or revoke an
exemption for a
discharge of ballast
water
Section 281
The owner, person in
charge or operator of
the vessel to which the
exemption relates
Miscellaneous Chapter 13
Review of decisions Part 1
Review of decisions Division 2
Section 610
Biosecurity Bill 2012 No. , 2012 563
Reviewable decisions
Item Column
1
Reviewable decision
Column 2
Provision under which
the reviewable decision
is made
Column 3
Relevant person for
the reviewable
decision
14
To refuse to approve
a ballast water
management plan or
an amendment of a
ballast water
management plan
The provision of the
scheme prescribed for
the purposes of
section 287 under which
the decision is made
A person whose
interests are affected by
the decision
15
To cancel the
approval of a ballast
water management
plan
The provision of the
scheme prescribed for
the purposes of
section 287 under which
the decision is made
A person whose
interests are affected by
the decision
16
To refuse to issue,
endorse or amend a
ballast water
management
certificate, or to
refuse to extend the
period during which
such a certificate is in
force
The provision of the
scheme prescribed for
the purposes of
section 290 under which
the decision is made
(whether the decision is
made by the Director of
Biosecurity or a survey
authority)
A person whose
interests are affected by
the decision
17
To withdraw a ballast
water management
certificate
The provision of the
scheme prescribed for
the purposes of
section 290 under which
the decision is made
(whether the decision is
made by the Director of
Biosecurity or a survey
authority)
A person whose
interests are affected by
the decision
18
To give a direction
relating to a vessel
Subsection 303(2)
The owner, person in
charge or operator of
the vessel
19
To refuse to vary or
revoke a direction
Subsection 304(1)
The owner, person in
charge or operator of
Chapter 13 Miscellaneous
Part 1 Review of decisions
Division 2 Review of decisions
Section 610
564 Biosecurity Bill 2012 No. , 2012
Reviewable decisions
Item Column
1
Reviewable decision
Column 2
Provision under which
the reviewable decision
is made
Column 3
Relevant person for
the reviewable
decision
relating to a vessel
the vessel
20
To give approval for
high-value goods to
be destroyed
Subsection 340(2)
A person whose
interests are affected by
the decision
21
To give approval for
a conveyance to be
destroyed
Subsection 341(2)
A person whose
interests are affected by
the decision
22
To give approval for
premises to be
destroyed
Subsection 342(3)
A person whose
interests are affected by
the decision
23
To refuse to approve
a proposed
arrangement
Subsection 404(1)
The person who
applied for the
approval
24
To refuse to approve
a varied arrangement
Subsection 404(1) (as it
applies because of
subsection 410(3))
The person who
applied for the
approval
25
To approve a
proposed
arrangement subject
to conditions
Subsection 404(3)
The person who
applied for the
approval
26 To
vary
the
conditions of an
approved
arrangement
Paragraph 411(1)(a)
The biosecurity
industry participant
that is covered by the
approved arrangement
27
To require a
biosecurity industry
participant to vary an
approved
arrangement
Paragraph 411(1)(b)
The biosecurity
industry participant
that is covered by the
approved arrangement
28
To refuse to suspend
a part of an approved
arrangement
Subsection 415(4)
The biosecurity
industry participant
that is covered by the
approved arrangement
Miscellaneous Chapter 13
Review of decisions Part 1
Review of decisions Division 2
Section 610
Biosecurity Bill 2012 No. , 2012 565
Reviewable decisions
Item Column
1
Reviewable decision
Column 2
Provision under which
the reviewable decision
is made
Column 3
Relevant person for
the reviewable
decision
29
To suspend an
approved
arrangement or a part
of an approved
arrangement
Subsection 416(1)
The biosecurity
industry participant
that is covered by the
approved arrangement
30
To extend the period
during which an
approved
arrangement or a part
of an approved
arrangement is
suspended
Subsection 418(3)
The biosecurity
industry participant
that is covered by the
approved arrangement
31
To revoke an
approved
arrangement
Subsection 421(1)
The biosecurity
industry participant
that is covered by the
approved arrangement
32
To suspend or revoke
a permit,
authorisation or
permission because
of an unpaid fee
Section 632
The holder of the
permit, authorisation or
permission
1
(2) The regulations may also:
2
(a) provide that a decision made under a specified provision of
3
this Act is a reviewable decision; and
4
(b) specify the relevant person for the reviewable decision.
5
Note:
The reference to this Act includes a reference to instruments made
6
under this Act (see the definition of this Act in section 9).
7
Chapter 13 Miscellaneous
Part 1 Review of decisions
Division 2 Review of decisions
Section 611
566 Biosecurity Bill 2012 No. , 2012
611 Notice of decision
1
(1) After a reviewable decision is made, the person who made the
2
decision must give a written notice to the relevant person for the
3
decision containing:
4
(a) the terms of the decision; and
5
(b) the reasons for the decision; and
6
(c) notice of the person's right to have the decision reviewed.
7
However, a failure to give the notice required by this section does
8
not affect the validity of the decision.
9
(2) This section does not affect any requirement to give notice of a
10
reviewable decision under another provision of this Act.
11
612 Internal review of reviewable decisions
12
Application for review
13
(1) A relevant person for a reviewable decision may apply to the
14
Director of Biosecurity for review of the decision, unless the
15
decision was made by the Director of Biosecurity or the Director of
16
Human Biosecurity personally.
17
Note:
For review of a decision made personally, see section 614.
18
(2) An application for review must:
19
(a) be in writing; and
20
(b) set out the reasons for the application; and
21
(c) be made within:
22
(i) 30 days after the day the reviewable decision first came
23
to the notice of the applicant; or
24
(ii) if the Director of Biosecurity allows a longer period
25
(whether before or after the end of the 30-day period
26
referred to in subparagraph (i))--that longer period.
27
Note:
Under section 613, the Director of Biosecurity may require further
28
information in relation to an application.
29
Miscellaneous Chapter 13
Review of decisions Part 1
Review of decisions Division 2
Section 612
Biosecurity Bill 2012 No. , 2012 567
Review of decision
1
(3) On receiving an application, the Director of Biosecurity must
2
either:
3
(a) review the reviewable decision personally; or
4
(b) cause the reviewable decision to be reviewed by a person (the
5
internal reviewer) who:
6
(i) is a person to whom the Director's power to make the
7
decision has been delegated; and
8
(ii) was not involved in making the decision; and
9
(iii) occupies a position senior to the person who actually
10
made the decision.
11
(4) The Director of Biosecurity or the internal reviewer may:
12
(a) affirm, vary or set aside the reviewable decision; and
13
(b) if he or she sets aside the reviewable decision--make such
14
other decision as he or she thinks appropriate.
15
(5) The decision (the decision on review) of the Director of
16
Biosecurity or the internal reviewer takes effect:
17
(a) on the day specified in the decision on review; or
18
(b) if a day is not specified--on the day the decision on review
19
was made.
20
Notice of decision
21
(6) After a decision is made under this section, the person who made
22
the decision must give the applicant a written notice containing:
23
(a) the terms of the decision; and
24
(b) the reasons for the decision; and
25
(c) notice of the person's right to have the decision reviewed by
26
the Administrative Appeals Tribunal.
27
However, a failure to comply with this subsection does not affect
28
the validity of the decision.
29
Failure to give notice
30
(7) For the purposes of section 614 (review by the AAT), the Director
31
of Biosecurity is taken to have affirmed a reviewable decision if
32
Chapter 13 Miscellaneous
Part 1 Review of decisions
Division 2 Review of decisions
Section 613
568 Biosecurity Bill 2012 No. , 2012
the applicant does not receive notice of the decision on review (if
1
any) within 90 days after the application for review was made.
2
613 Director of Biosecurity may require further information from
3
applicants
4
(1) The Director of Biosecurity may, by written notice, require a
5
person who has made an application under section 612 to give the
6
Director further information about the application.
7
(2) The Director of Biosecurity may refuse to consider the application
8
until the person gives the Director the information.
9
614 Review by the Administrative Appeals Tribunal
10
(1) An application may be made to the Administrative Appeals
11
Tribunal for review of:
12
(a) a reviewable decision made by the Director of Biosecurity or
13
the Director of Human Biosecurity personally; or
14
(b) a decision of the Director of Biosecurity, or internal reviewer,
15
under section 612 that relates to a reviewable decision.
16
Note:
For AAT review of a direction of the Director of Human Biosecurity
17
to comply with an isolation or traveller movement measure, see
18
section 74.
19
(2) An application under subsection (1) may be made only by, or on
20
behalf of, the relevant person for the reviewable decision referred
21
to in paragraph (1)(a) or (b).
22
(3) Subsection (2) has effect despite subsection 27(1) of the
23
Administrative Appeals Tribunal Act 1975.
24
25
Miscellaneous Chapter 13
Confidentiality of information Part 2
Introduction Division 1
Section 615
Biosecurity Bill 2012 No. , 2012 569
Part 2--Confidentiality of information
1
Division 1--Introduction
2
615 Guide to this Part
3
Personal and commercial-in-confidence information may be
4
collected under this Act. This Part sets out the circumstances in
5
which records may be made of that information, and in which that
6
information may be disclosed or used. It also provides an offence
7
for persons who disclose that information, other than in certain
8
circumstances.
9
10
Chapter 13 Miscellaneous
Part 2 Confidentiality of information
Division 2 Confidentiality of information
Section 616
570 Biosecurity Bill 2012 No. , 2012
Division 2--Confidentiality of information
1
616 Disclosure of protected information
2
Authorisation to use information for permissible purposes
3
(1)
A person may make a record of, disclose or otherwise use
4
protected information if:
5
(a)
the person makes the record, or discloses or uses the
6
information, for a permissible purpose, in performing the
7
person's functions or duties, or exercising the person's
8
powers, under this Act; and
9
(b)
in relation to a disclosure--the disclosure is to a person
10
referred to in paragraph (2)(a).
11
Note:
This subsection constitutes an authorisation for the purposes of the
12
Privacy Act 1988 and other laws.
13
(2)
A person may make a record of, or disclose or otherwise use,
14
protected information if:
15
(a)
the person is:
16
(i)
an officer or employee of the Commonwealth, a State,
17
the Australian Capital Territory or the Northern
18
Territory; or
19
(ii)
an officer or employee of a Commonwealth body, or a
20
State or Territory body; or
21
(iii)
a person engaged by the Commonwealth, a State, the
22
Australian Capital Territory, or the Northern Territory,
23
to perform public health work or to manage biosecurity
24
risks in relation to plant or animal health; or
25
(iv)
a person engaged by a Commonwealth body, or a State
26
or Territory body, to perform public health work or to
27
manage biosecurity risks in relation to plant or animal
28
health; or
29
(v) a biosecurity industry participant or a survey authority,
30
or an officer or employee of a biosecurity industry
31
participant or a survey authority; and
32
(b)
the person makes the record of, or discloses or otherwise
33
uses, the information:
34
Miscellaneous Chapter 13
Confidentiality of information Part 2
Confidentiality of information Division 2
Section 617
Biosecurity Bill 2012 No. , 2012 571
(i)
in performing the person's functions or duties, or
1
exercising the person's powers; and
2
(ii)
for a permissible purpose.
3
Note:
This subsection constitutes an authorisation for the purposes of the
4
Privacy Act 1988 and other laws.
5
Disclosure in other cases
6
(3)
The Director of Human Biosecurity, or the Director of Biosecurity,
7
may, in writing, authorise a person:
8
(a)
to make a record of or use protected information for a
9
permissible purpose that is specified in the authorisation; or
10
(b)
to disclose protected information to a specified person, or to a
11
specified class of persons, for a permissible purpose that is
12
specified in the authorisation.
13
(4)
A person who is authorised to make a record of, or disclose or
14
otherwise use, protected information under subsection (3) may
15
make a record of, or disclose or otherwise use, the information in
16
accordance with the authorisation.
17
Note:
This subsection constitutes an authorisation for the purposes of the
18
Privacy Act 1988 and other laws.
19
617 Use in accordance with section 616 does not contravene laws etc.
20
Authorised use not an offence under other laws
21
(1)
Subject to subsection (2), a person does not commit an offence,
22
and is not liable to any penalty, under any other enactment of the
23
Commonwealth, or any enactment of a State or Territory, as a
24
result of the person making a record of, or disclosing or using,
25
information in accordance with section 616.
26
(2) Subsection (1) does not apply in relation to provisions of the
27
Australian Security Intelligence Organisation Act 1979 and the
28
Intelligence Services Act 2001.
29
Authorised use does not result in liability for civil proceedings
30
(3)
A person is not liable to civil proceedings for loss, damage or
31
injury of any kind suffered by another person as a result of the
32
Chapter 13 Miscellaneous
Part 2 Confidentiality of information
Division 2 Confidentiality of information
Section 618
572 Biosecurity Bill 2012 No. , 2012
person making a record of, or disclosing or using, information in
1
accordance with section 616.
2
Authorised use does not contravene medical or other professional
3
standards
4
(4)
A person does not contravene medical standards, or any other
5
relevant professional standards, as a result of the person making a
6
record of, or disclosing or using, information in accordance with
7
section 616.
8
618 Authorisation to use information for purposes of proceedings
9
(1) A person who obtains protected information for a permissible
10
purpose may disclose the information:
11
(a) to a court or tribunal, or in accordance with an order of a
12
court or tribunal, for the purposes of proceedings; or
13
(b) to a coronial inquiry, or in accordance with an order of a
14
coroner, for the purposes of a coronial inquiry.
15
Note 1:
This subsection constitutes an authorisation for the purposes of the
16
Privacy Act 1988 and other laws.
17
Note 2:
The National Security Information (Criminal and Civil Proceedings)
18
Act 2004 may apply to proceedings under this Division.
19
(2) A person who obtains protected information under, or in
20
accordance with, subsection (1) may make a record of, or disclose
21
or otherwise use, the information for the purposes for which the
22
information was disclosed under that subsection.
23
Note:
This subsection constitutes an authorisation for the purposes of the
24
Privacy Act 1988 and other laws.
25
619 Authorisation to use information that is also received from
26
another source, and use of information by prescribed
27
agencies
28
Use if information is also received from another source
29
(1) A person (the first person) may make a record of, disclose or
30
otherwise use protected information if:
31
Miscellaneous Chapter 13
Confidentiality of information Part 2
Confidentiality of information Division 2
Section 619
Biosecurity Bill 2012 No. , 2012 573
(a) the first person obtains the information for a permissible
1
purpose; and
2
(b) the first person is:
3
(i) an officer or employee of the Commonwealth, a State,
4
the Australian Capital Territory or the Northern
5
Territory; or
6
(ii) an officer or employee of a Commonwealth body, or a
7
State or Territory body; or
8
(iii) a person engaged by the Commonwealth, a State, the
9
Australian Capital Territory, or the Northern Territory,
10
to perform public health work or to manage biosecurity
11
risks in relation to plant or animal health; or
12
(iv) a person engaged by a Commonwealth body, or a State
13
or Territory body, to perform public health work or to
14
manage biosecurity risks in relation to plant or animal
15
health; or
16
(v) a biosecurity industry participant or a survey authority,
17
or an officer or employee of a biosecurity industry
18
participant or a survey authority; and
19
(c) the first person also obtains the information, or substantially
20
similar information, from another person; and
21
(d) after obtaining the information as referred to in paragraph (c),
22
the first person makes a record of, or discloses or otherwise
23
uses, the information; and
24
(e) the record, disclosure or use is authorised under, or is not
25
prohibited by an enactment.
26
Note:
This subsection constitutes an authorisation for the purposes of the
27
Privacy Act 1988 and other laws.
28
Use by intelligence agencies
29
(2) A person may make a record of, disclose or otherwise use
30
protected information if the person discloses the information to an
31
officer or employee of an intelligence agency prescribed by the
32
regulations for the purposes of this section.
33
Note:
This subsection constitutes an authorisation for the purposes of the
34
Privacy Act 1988 and other laws.
35
Chapter 13 Miscellaneous
Part 2 Confidentiality of information
Division 2 Confidentiality of information
Section 620
574 Biosecurity Bill 2012 No. , 2012
(3) A person may make a record of, disclose or otherwise use
1
protected information if:
2
(a) the person obtains the information under a disclosure made in
3
accordance with subsection (2); and
4
(b) the person makes a record of, or discloses or otherwise uses,
5
the information in the performance of the person's functions
6
or duties, or the exercise of the person's powers, as an officer
7
or employee referred to in subsection (2).
8
Note:
This subsection constitutes an authorisation for the purposes of the
9
Privacy Act 1988 and other laws.
10
(4) A person may make a record of, disclose or otherwise use
11
protected information if:
12
(a) the person obtains the information under a disclosure made in
13
accordance with subsection (3); and
14
(b) the person makes a record of, or discloses or otherwise uses,
15
the information:
16
(i) for the purposes for which the information was
17
disclosed under that subsection; or
18
(ii) for a purpose prescribed by the regulations.
19
Note:
This subsection constitutes an authorisation for the purposes of the
20
Privacy Act 1988 and other laws.
21
620 Authorisation to use information required by another law
22
A person may make a record of, disclose or otherwise use
23
protected information if:
24
(a) the person obtains the information for a permissible purpose;
25
and
26
(b) the person makes a record of, or discloses or otherwise uses,
27
the information; and
28
(c) the record, disclosure or use is required under an enactment
29
of the Commonwealth, a State or a Territory.
30
Note 1:
This section constitutes an authorisation for the purposes of the
31
Privacy Act 1988 and other laws.
32
Note 2:
This section authorises the disclosure of protected information to the
33
Inspector-General of Biosecurity under the Inspector-General of
34
Biosecurity Act 2012.
35
Miscellaneous Chapter 13
Confidentiality of information Part 2
Confidentiality of information Division 2
Section 621
Biosecurity Bill 2012 No. , 2012 575
621 Offence relating to protected information
1
A person commits an offence if:
2
(a) the person obtains information; and
3
(b) the information is protected information; and
4
(c) the person makes a record of, or discloses or otherwise uses,
5
the information; and
6
(d) the record, disclosure or use is not authorised by section 616,
7
618, 619 or 620.
8
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
9
Note:
For exceptions to this offence, see sections 622 to 625.
10
622 Exception for use of information in good faith
11
Section 621 does not apply if:
12
(a) a person obtains protected information for a permissible
13
purpose; and
14
(b) the person makes a record of, or discloses or otherwise uses,
15
the information in good faith:
16
(i) in performing, or purportedly performing, his or her
17
functions or duties under this Act; or
18
(ii) in exercising, or purportedly exercising, his or her
19
powers under this Act.
20
Note:
A defendant bears an evidential burden in relation to the matters in
21
this section (see subsection 13.3(3) of the Criminal Code).
22
623 Exception for person who does not know that information is
23
commercial-in-confidence
24
Section 621 does not apply if:
25
(a) the person makes a record of, or discloses or otherwise uses,
26
protected information; and
27
(b) the information is commercial-in-confidence; and
28
(c) the person does not know that the information is
29
commercial-in-confidence.
30
Note:
A defendant bears an evidential burden in relation to the matters in
31
this section (see subsection 13.3(3) of the Criminal Code).
32
Chapter 13 Miscellaneous
Part 2 Confidentiality of information
Division 2 Confidentiality of information
Section 624
576 Biosecurity Bill 2012 No. , 2012
624 Exception for disclosing to the person to whom information
1
relates, or if the person to whom information relates
2
consents
3
Disclosure to person to whom information relates
4
(1) Section 621 does not apply if:
5
(a) a person (the first person) obtains protected information for a
6
permissible purpose; and
7
(b) the information relates to another person; and
8
(c) the first person discloses the information to the other person.
9
Note:
A defendant bears an evidential burden in relation to the matters in
10
this subsection (see subsection 13.3(3) of the Criminal Code).
11
(2) If subsection (1) applies in respect of information, then section 621
12
does not apply to any of the following:
13
(a) any record of that information that is made by the person to
14
whom the information relates;
15
(b) any disclosure or use of that information by the person to
16
whom the information relates;
17
(c) any record of that information that is made by any other
18
person, or any disclosure or use of that information by any
19
other person, which is derived from a record, disclosure or
20
use referred to in paragraph (a) or (b) of this subsection.
21
Note:
A defendant bears an evidential burden in relation to the matters in
22
this subsection (see subsection 13.3(3) of the Criminal Code).
23
Consent to disclosure etc. of information
24
(3) Section 621 does not apply if:
25
(a) a person (the first person) obtains protected information; and
26
(b) the person to whom the information relates has expressly
27
consented to the first person making a record of, or disclosing
28
or using, the information for a certain purpose; and
29
(c) the first person makes the record, or discloses or uses the
30
information, for that purpose.
31
Note:
A defendant bears an evidential burden in relation to the matters in
32
this subsection (see subsection 13.3(3) of the Criminal Code).
33
Miscellaneous Chapter 13
Confidentiality of information Part 2
Confidentiality of information Division 2
Section 625
Biosecurity Bill 2012 No. , 2012 577
625 Exception for disclosure to person who provided the
1
information
2
Section 621 does not apply if:
3
(a) a person obtains protected information from another person;
4
and
5
(b) the person discloses that information to the other person.
6
Note:
A defendant bears an evidential burden in relation to the matters in
7
this section (see subsection 13.3(3) of the Criminal Code).
8
626 Annual report
9
(1)
A
s soon as practicable after 30 June in each year, the Director of
10
Biosecurity and the Director of Human Biosecurity must each
11
prepare a report on the use, by the Commonwealth, of protected
12
information during the previous 12 months.
13
(2)
The report must be included in the annual report of:
14
(a) for a report prepared by the Director of Biosecurity--the
15
Agriculture Department; and
16
(b) for a report prepared by the Director of Human Biosecurity--
17
the Health Department.
18
19
Chapter 13 Miscellaneous
Part 3 Cost recovery
Division 1 Introduction
Section 627
578 Biosecurity Bill 2012 No. , 2012
Part 3--Cost recovery
1
Division 1--Introduction
2
627 Guide to this Part
3
This Part allows the Commonwealth to charge fees in relation to
4
activities carried out under this Act, and contains other provisions
5
relating to cost recovery.
6
Division 2 provides for the regulations to prescribe fees that may
7
be charged.
8
Division 3 sets out how unpaid fees may be dealt with.
9
Division 4 provides for the Director of Biosecurity to sell certain
10
goods and conveyances, including in order to recover unpaid fees.
11
Division 5 contains miscellaneous provisions, including the power
12
to remit or refund a fee.
13
14
Miscellaneous Chapter 13
Cost recovery Part 3
Fees Division 2
Section 628
Biosecurity Bill 2012 No. , 2012 579
Division 2--Fees
1
628 Fees
2
(1) The regulations may prescribe fees that may be charged in relation
3
to activities (chargeable activities) carried out by, or on behalf of,
4
the Commonwealth in performing functions and exercising powers
5
under this Act.
6
Note:
Survey authorities and biosecurity industry participants may also
7
charge fees (see subsection 289(3) and section 428).
8
(2) Without limiting subsection (1) of this section, the regulations may
9
specify that the amount of a fee is the cost incurred by the
10
Commonwealth in arranging and paying for another person to
11
carry out the relevant chargeable activity.
12
(3) A fee prescribed under subsection (1) must not be such as to
13
amount to taxation.
14
(4) The regulations may also do any one or more of the following:
15
(a) prescribe the time when a specified fee is due and payable;
16
(b) prescribe rules relating to deposits to be paid in relation to
17
chargeable activities;
18
(c) prescribe one or more persons who are liable to pay a
19
specified fee, and any late payment fee in relation to the fee;
20
(d) prescribe rules relating to:
21
(i) the liability of a person's agent to pay fees on behalf of
22
the person; and
23
(ii) the recovery of such fees from the person by the agent;
24
(e) prescribe rules relating to fees to be paid in relation to
25
specified applications.
26
629 Notional payments by the Commonwealth
27
(1) The Finance Minister may give written directions for the purpose
28
of ensuring that fees prescribed in the regulations (including late
29
payment fees) are notionally payable by the Commonwealth (or
30
parts of the Commonwealth).
31
Chapter 13 Miscellaneous
Part 3 Cost recovery
Division 2 Fees
Section 629
580 Biosecurity Bill 2012 No. , 2012
Note:
For notional payments and receipts, see section 6 of the Financial
1
Management and Accountability Act 1997.
2
(2) A direction given under subsection (1) is not a legislative
3
instrument.
4
5
Miscellaneous Chapter 13
Cost recovery Part 3
Unpaid fees Division 3
Section 630
Biosecurity Bill 2012 No. , 2012 581
Division 3--Unpaid fees
1
Subdivision A--General
2
630 Late payment fee
3
(1) If the regulations specify the time when a fee (the basic fee) is due
4
and payable, the regulations may also specify an additional fee (a
5
late payment fee) that is due and payable if the basic fee is not paid
6
at or before that time.
7
(2) Without limiting subsection (1), a late payment fee may relate to
8
each day or part of a day that the basic fee remains unpaid after
9
becoming due and payable.
10
631 Recovery of fees
11
A fee that is due and payable to the Commonwealth under this Act
12
may be recovered as a debt due to the Commonwealth by action in
13
a relevant court.
14
632 Suspending or revoking permits etc. because of unpaid fees
15
(1) This section applies in relation to a person who is liable to pay a
16
fee prescribed by the regulations (including a late payment fee) that
17
is due and payable.
18
Permit etc. may be suspended or revoked
19
(2) The Director of Biosecurity may, by written notice to the person,
20
suspend any of the following until the fee has been paid:
21
(a) a permit granted under section 175 (permit to bring in or
22
import goods) and held by the person;
23
(b) any other permit, authorisation or other permission, held by
24
the person under this Act, that is prescribed by the
25
regulations.
26
Note:
A decision under this subsection to suspend a permit, authorisation or
27
permission is a reviewable decision (see Part 1).
28
Chapter 13 Miscellaneous
Part 3 Cost recovery
Division 3 Unpaid fees
Section 633
582 Biosecurity Bill 2012 No. , 2012
(3) The Director of Biosecurity may, by written notice to the person,
1
revoke a permit, authorisation or permission referred to in
2
subsection (2) that is held by the person under this Act.
3
Note 1:
A decision under this subsection to revoke a permit, authorisation or
4
permission is a reviewable decision (see Part 1).
5
Note 2:
If the person is a biosecurity industry participant covered by an
6
approved arrangement, the relevant Director may suspend the
7
arrangement, or a part of the arrangement, under Division 2 of Part 4
8
of Chapter 7, or revoke the arrangement under Division 2 of Part 5 of
9
Chapter 7.
10
Director of Biosecurity may direct that activities not be carried out
11
(4) The Director of Biosecurity may direct biosecurity officers not to
12
carry out specified activities or kinds of activities in relation to the
13
person under this Act until the fee has been paid.
14
Subdivision B--Dealing with goods to recover unpaid fees
15
633 Fee is a charge on goods
16
(1) This section applies in relation to goods if:
17
(a) the owner of the goods is liable to pay a fee prescribed by the
18
regulations (including a late payment fee), whether or not the
19
fee relates to the goods; and
20
(b) the fee is due and payable; and
21
(c) any of the following applies in relation to the goods:
22
(i) the goods are subject to biosecurity control;
23
(ii) an exposed goods order or a biosecurity control order is
24
in force in relation to the goods;
25
(iii) the goods are in a biosecurity response zone and
26
biosecurity measures have been required in relation to
27
the goods under a power that is specified in the
28
biosecurity response zone determination under
29
paragraph 364(2)(c) (powers to require biosecurity
30
measures to be taken) or (d) (other biosecurity
31
measures).
32
(2) A charge is created on the goods by force of this section to secure
33
the payment of the fee.
34
Miscellaneous Chapter 13
Cost recovery Part 3
Unpaid fees Division 3
Section 634
Biosecurity Bill 2012 No. , 2012 583
634 Effect of charge on goods
1
(1) A charge created on goods under section 633 has priority over any
2
other interest in the goods (including a security interest within the
3
meaning of the Personal Property Securities Act 2009).
4
(2) Subsection 73(2) of the Personal Property Securities Act 2009
5
applies to the charge.
6
Note:
The effect of this subsection is that the priority between the
7
Commonwealth's charge and a security interest in the goods to which
8
the Personal Property Securities Act 2009 applies is to be determined
9
in accordance with this Act rather than the Personal Property
10
Securities Act 2009.
11
(3) The charge remains in force until:
12
(a) the fee referred to in subsection 633(2) is paid; or
13
(b) the goods are sold under section 645.
14
(4) To avoid doubt, the charge is not affected:
15
(a) by any change in ownership of the goods; or
16
(b) if the goods are released from biosecurity control; or
17
(c) if an exposed goods order or a biosecurity control order
18
ceases to be in force in relation to the goods; or
19
(d) if the goods cease to be in a biosecurity response zone; or
20
(e) if biosecurity measures that have been required in relation to
21
the goods are not taken.
22
635 Biosecurity officer may withhold goods that are subject to
23
charge
24
(1) A biosecurity officer may withhold goods that are subject to a
25
charge created under section 633 because a fee has not been paid.
26
(2) The biosecurity officer must give a written notice to the owner of
27
the goods stating that:
28
(a) the goods are withheld under this section; and
29
(b) the goods may be sold under section 645 if the fee has not
30
been paid by the end of the day specified in the notice, which
31
must be at least 30 days after the day the notice is given.
32
Chapter 13 Miscellaneous
Part 3 Cost recovery
Division 3 Unpaid fees
Section 636
584 Biosecurity Bill 2012 No. , 2012
(3) A failure to comply with subsection (2) does not affect the
1
withholding of the goods or the exercise of powers under
2
subsection (4) or (5).
3
Powers for the purpose of withholding goods
4
(4) For the purpose of withholding the goods, a biosecurity officer
5
may:
6
(a) refuse to release the goods from biosecurity control; or
7
(b) take possession of the goods.
8
(5) For the purpose of withholding the goods, a biosecurity officer
9
may give any of the following directions to a person in charge of
10
the goods:
11
(a) a direction to secure the goods in a manner specified by the
12
biosecurity officer;
13
(b) a direction not to move, deal with or interfere with the goods;
14
(c) a direction to move the goods to a place specified by the
15
biosecurity officer;
16
(d) any other direction relating to the movement of the goods.
17
Civil penalty provisions
18
(6) A person who is given a direction under subsection (5) must
19
comply with the direction.
20
Civil penalty:
120 penalty units.
21
636 Moving or interfering with withheld goods
22
(1) A person is liable to a civil penalty if:
23
(a) a direction has been given in relation to goods under
24
subsection 635(5); and
25
(b) the person moves, deals with or interferes with the goods;
26
and
27
(c) none of the following applies:
28
(i) the person is authorised to engage in the conduct
29
referred to in paragraph (b) of this subsection in
30
accordance with an approved arrangement;
31
Miscellaneous Chapter 13
Cost recovery Part 3
Unpaid fees Division 3
Section 637
Biosecurity Bill 2012 No. , 2012 585
(ii) the person needs to engage in that conduct to comply
1
with a direction given under another provision of this
2
Act by a biosecurity official;
3
(iii) the person has been given permission to engage in that
4
conduct under section 595.
5
Civil penalty:
120 penalty units.
6
(2) Subsection (1) does not apply if the person is authorised to engage
7
in the conduct referred to in paragraph (1)(b) under this Act or
8
under another Australian law.
9
Note:
A defendant bears an evidential burden in relation to the matter in this
10
subsection (see section 552).
11
637 When goods stop being withheld
12
(1) A biosecurity officer who is withholding goods under section 635
13
must stop withholding the goods if the goods cease to be subject to
14
any charge created under section 633.
15
Note:
For when goods cease to be subject to a charge created under
16
section 633, see subsection 634(3).
17
(2) A biosecurity officer who is withholding goods under section 635
18
may also stop withholding the goods if he or she thinks it is
19
appropriate to do so.
20
(3) If goods that have been withheld under section 635 stop being
21
withheld, any direction given under subsection 635(5) in relation to
22
the goods ceases to have effect.
23
(4)
This
section:
24
(a) does not affect any other power that has been or may be
25
exercised in relation to goods under a provision of this Act
26
other than this Subdivision; and
27
(b) does not require goods to be released from biosecurity
28
control; and
29
(c) does not require an exposed goods order or a biosecurity
30
control order in force in relation to goods to be revoked; and
31
(d) does not prevent goods being withheld again under
32
section 635.
33
Chapter 13 Miscellaneous
Part 3 Cost recovery
Division 3 Unpaid fees
Section 638
586 Biosecurity Bill 2012 No. , 2012
Note:
Goods that stop being withheld under section 635 may be dealt with
1
under other provisions of this Act, for example under Chapter 3
2
(managing biosecurity risks: goods).
3
638 Sale of withheld goods
4
(1) This section applies in relation to goods that:
5
(a) are subject to a charge created under section 633 because a
6
fee has not been paid; and
7
(b) are withheld under section 635.
8
Notice to owner
9
(2) The goods may be sold under section 645 if:
10
(a) a biosecurity officer has given a notice to the owner of the
11
goods under subsection 635(2); and
12
(b) at the end of the day specified in the notice under paragraph
13
635(2)(b), the fee has not been paid.
14
Notice cannot be given
15
(3) The goods may be sold under section 645 without giving a notice
16
to the owner of the goods under subsection 635(2) if:
17
(a) a biosecurity officer:
18
(i) has not been able to give the notice to the owner of the
19
goods, despite making reasonable efforts; and
20
(ii) has certified in writing to that effect; and
21
(b) at the end of 30 days after the biosecurity officer first
22
attempted to give the notice, the fee has not been paid.
23
Subdivision C--Dealing with a conveyance to recover unpaid
24
fees relating to the conveyance
25
639 Fee is a charge on conveyance
26
(1) This section applies in relation to a conveyance if:
27
(a) a chargeable activity has been carried out by, or on behalf of,
28
the Commonwealth in relation to the conveyance; and
29
(b) the regulations prescribe a fee for the chargeable activity; and
30
Miscellaneous Chapter 13
Cost recovery Part 3
Unpaid fees Division 3
Section 640
Biosecurity Bill 2012 No. , 2012 587
(c) the fee, or any late payment fee in relation to the fee, is due
1
and payable by the owner or operator of the conveyance.
2
Note:
If the owner or operator of a conveyance is liable to pay a fee or late
3
payment fee, an agent of the owner or operator may also be liable to
4
pay the fee or late payment fee on behalf of the owner or operator (see
5
paragraph 628(4)(d)).
6
(2) A charge is created on the conveyance by force of this section to
7
secure the payment of the fee or late payment fee (as the case may
8
be).
9
640 Effect of charge on conveyance
10
(1) A charge on a conveyance created by section 639 has priority over
11
any other interest in the conveyance (including a security interest
12
within the meaning of the Personal Property Securities Act 2009).
13
(2) Subsection 73(2) of the Personal Property Securities Act 2009
14
applies to the charge.
15
Note:
The effect of this subsection is that the priority between the
16
Commonwealth's charge and a security interest in the conveyance to
17
which the Personal Property Securities Act 2009 applies is to be
18
determined in accordance with this Act rather than the Personal
19
Property Securities Act 2009.
20
(3) The charge remains in force until:
21
(a) the fee or late payment fee referred to in subsection 639(2) is
22
paid; or
23
(b) the conveyance is sold under section 645.
24
(4) To avoid doubt, the charge is not affected by any change in
25
ownership of the conveyance.
26
641 Director of Biosecurity may detain conveyance that is subject to
27
charge
28
(1) The Director of Biosecurity may detain a conveyance in Australian
29
territory if the conveyance is subject to a charge created under
30
section 639 because a fee has not been paid by the owner or the
31
operator of the conveyance.
32
Chapter 13 Miscellaneous
Part 3 Cost recovery
Division 3 Unpaid fees
Section 641
588 Biosecurity Bill 2012 No. , 2012
(2) The Director of Biosecurity must give a written notice to the owner
1
and the operator of the conveyance stating:
2
(a) that the conveyance is detained under this section; and
3
(b) if the owner of the conveyance is liable to pay the fee--that
4
the conveyance may be sold under section 645 in accordance
5
with section 644 if the fee has not been paid by the end of the
6
day specified in the notice, which must be at least 30 days
7
after the day the notice is given.
8
(3) A failure to comply with subsection (2) does not affect the
9
detention of the conveyance or the power to give a direction under
10
subsection (4).
11
Director of Biosecurity may give directions
12
(4) For the purposes of detaining the conveyance, the Director of
13
Biosecurity may give the person in charge of the conveyance a
14
direction:
15
(a) relating to the movement of the conveyance (including a
16
direction to cause the conveyance to stop); or
17
(b) requiring the conveyance to be left at a specified place in a
18
specified manner; or
19
(c) requiring goods on board the conveyance to be unloaded at a
20
specified place in a specified manner.
21
Note:
See also section 608 (general provisions relating to directions).
22
(5) A person who is given a direction under subsection (4) must
23
comply with the direction.
24
Fault-based offence
25
(6) A person commits an offence if:
26
(a) the person is given a direction under subsection (4); and
27
(b) the person engages in conduct; and
28
(c) the conduct contravenes the direction.
29
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
30
Miscellaneous Chapter 13
Cost recovery Part 3
Unpaid fees Division 3
Section 642
Biosecurity Bill 2012 No. , 2012 589
Civil penalty provision
1
(7) A person is liable to a civil penalty if the person contravenes
2
subsection (5).
3
Civil penalty:
120 penalty units.
4
642 Moving or interfering with detained conveyance
5
(1) A person is liable to a civil penalty if:
6
(a) a direction has been given in relation to a conveyance under
7
subsection 641(4); and
8
(b) the person moves, deals with or interferes with the
9
conveyance; and
10
(c) none of the following applies:
11
(i) the person is authorised to engage in the conduct
12
referred to in paragraph (b) of this subsection in
13
accordance with an approved arrangement;
14
(ii) the person needs to engage in that conduct to comply
15
with a direction given under another provision of this
16
Act by a biosecurity official;
17
(iii) the person has been given permission to engage in that
18
conduct under section 595.
19
Civil penalty:
120 penalty units.
20
(2) Subsection (1) does not apply if the person is authorised to engage
21
in the conduct referred to in paragraph (1)(b) under this Act or
22
under another Australian law.
23
Note:
A defendant bears an evidential burden in relation to the matter in this
24
subsection (see section 552).
25
643 Release of detained conveyance
26
(1) The Director of Biosecurity must release a conveyance from
27
detention under section 641 if the conveyance ceases to be subject
28
to any charge created under section 639.
29
Note:
For when a conveyance ceases to be subject to a charge created under
30
section 639, see subsection 640(3).
31
Chapter 13 Miscellaneous
Part 3 Cost recovery
Division 3 Unpaid fees
Section 644
590 Biosecurity Bill 2012 No. , 2012
(2) The Director of Biosecurity may also release a conveyance that is
1
detained under section 641 if he or she thinks it appropriate to do
2
so.
3
(3) If a conveyance is released from detention, any direction given
4
under subsection 641(4) in relation to the conveyance ceases to
5
have effect.
6
(4)
This
section:
7
(a) does not affect any power that has been or may be exercised
8
in relation to a conveyance under a provision of this Act
9
other than this Subdivision; and
10
(b) does not require a conveyance that is subject to biosecurity
11
control to be released from biosecurity control; and
12
(c) does not prevent a conveyance being detained again under
13
section 641.
14
Note:
A conveyance that is released from detention may be dealt with under
15
other provisions of this Act, for example under Chapter 4 (managing
16
biosecurity risks: conveyances).
17
644 Sale of detained conveyance
18
(1) This section applies in relation to a conveyance that is detained
19
under section 641 because a fee that is due and payable by the
20
owner of the conveyance has not been paid.
21
Note:
For owner-operators, see subsection (5).
22
Notice to owner
23
(2) The conveyance may be sold under section 645 if:
24
(a) the Director of Biosecurity has given a notice to the owner of
25
the conveyance under subsection 641(2); and
26
(b) at the end of the day specified in the notice under paragraph
27
641(2)(b), the fee has not been paid.
28
Notice cannot be given
29
(3) The conveyance may be sold under section 645 without giving a
30
notice to the owner of the conveyance under subsection 641(2) if:
31
(a) the Director of Biosecurity:
32
Miscellaneous Chapter 13
Cost recovery Part 3
Unpaid fees Division 3
Section 644
Biosecurity Bill 2012 No. , 2012 591
(i) has not been able to give the notice to the owner of the
1
conveyance, despite making reasonable efforts; and
2
(ii) has certified in writing to that effect; and
3
(b) at the end of 30 days after the Director of Biosecurity first
4
attempted to give the notice, the fee has not been paid.
5
Goods on board conveyance
6
(4) The Director of Biosecurity may cause any goods on board the
7
conveyance to be unloaded from the conveyance before it is sold.
8
Owner-operators
9
(5) To avoid doubt, the reference in subsection (1) to a fee that is due
10
and payable by the owner of a conveyance includes a reference to a
11
fee that the owner of a conveyance is liable to pay because the
12
owner is also the operator of the conveyance.
13
14
Chapter 13 Miscellaneous
Part 3 Cost recovery
Division 4 Power to sell goods and conveyances
Section 645
592 Biosecurity Bill 2012 No. , 2012
Division 4--Power to sell goods and conveyances
1
645 Sale of goods and conveyances
2
(1) This section applies in relation to a thing that may be sold under
3
any of the following provisions:
4
(a) section 638 (sale of withheld goods);
5
(b) section 644 (sale of detained conveyance);
6
(c) subsection 653(3) (abandoned goods);
7
(d) subsection 655(3) (abandoned conveyances).
8
(2) The Director of Biosecurity may:
9
(a) sell the thing; and
10
(b) give full and effective title to the thing free of all other
11
interests, which are extinguished by force of this section at
12
the time title is given.
13
Note:
See section 646 (dealing with the proceeds of sale).
14
(3) The Director of Biosecurity may make and execute any
15
instruments or documents necessary for the purposes of selling the
16
thing.
17
646 Dealing with the proceeds of sale
18
(1) The Director of Biosecurity may apply the proceeds of the sale of a
19
thing under section 645 against:
20
(a) if the thing was subject to one or more charges under
21
section 633 or 639 because a fee or fees had not been paid--
22
the fee or fees; and
23
(b) any other fee that is due and payable to the Commonwealth
24
under this Act by the owner of the thing.
25
(2) The Director of Biosecurity must pay the remainder of the
26
proceeds, if any, to the owner of the thing.
27
(3) However, any remainder is forfeited to the Commonwealth at the
28
end of 30 days after the sale if the Director of Biosecurity:
29
(a) has not been able to locate the owner of the thing, despite
30
making reasonable efforts; and
31
Miscellaneous Chapter 13
Cost recovery Part 3
Power to sell goods and conveyances Division 4
Section 646
Biosecurity Bill 2012 No. , 2012 593
(b) has certified to that effect in writing.
1
(4) Nothing in this section affects the right of the Commonwealth to
2
recover fees or expenses by other means.
3
4
Chapter 13 Miscellaneous
Part 3 Cost recovery
Division 5 Miscellaneous
Section 647
594 Biosecurity Bill 2012 No. , 2012
Division 5--Miscellaneous
1
647 Providing sustenance for animals and plants
2
(1) This section provides for the Commonwealth to arrange for or
3
require sustenance to be provided for an animal or plant if:
4
(a) any of the following applies to the animal or plant:
5
(i) the animal or plant is subject to biosecurity control;
6
(ii) an exposed goods order or a biosecurity control order is
7
in force in relation to the animal or plant;
8
(iii) the animal or plant is in a biosecurity response zone,
9
and biosecurity measures have been required in relation
10
to the animal or plant under a power that is specified in
11
the biosecurity response zone determination under
12
paragraph 364(2)(c) (powers to require biosecurity
13
measures to be taken) or (d) (other biosecurity
14
measures); and
15
(b) the animal or plant is in the possession or control of the
16
Commonwealth or a biosecurity industry participant as
17
referred to in subsection (2) or (4) of this section.
18
Providing sustenance by agreement
19
(2) The Commonwealth may enter into an agreement with another
20
person for the person to provide sustenance, on the terms and
21
conditions set out in the agreement, for the animal or plant for all
22
or part of a period during which the animal or plant is in the
23
possession or control of the Commonwealth.
24
(3) An agreement may be entered into under subsection (2) in relation
25
to an animal or plant that is to be subject to biosecurity control
26
before subparagraph (1)(a)(i) or paragraph (1)(b) begins to apply to
27
the animal or plant.
28
Direction to provide sustenance
29
(4) The Director of Biosecurity may, by written notice, direct the
30
owner of the animal or plant to provide sustenance for the animal
31
or plant for all or a part of a period during which the animal or
32
plant is in the possession or control of:
33
Miscellaneous Chapter 13
Cost recovery Part 3
Miscellaneous Division 5
Section 648
Biosecurity Bill 2012 No. , 2012 595
(a) the Commonwealth; or
1
(b) a biosecurity industry participant as authorised by an
2
approved arrangement covering the biosecurity industry
3
participant.
4
(5) A person who is given a direction under subsection (4) must
5
comply with the direction.
6
Fault-based offence
7
(6) A person commits an offence if:
8
(a) the person is given a direction under subsection (4); and
9
(b) the person engages in conduct; and
10
(c) the conduct contravenes the direction.
11
Penalty: 50 penalty units.
12
Civil penalty provision
13
(7) A person is liable to a civil penalty if the person contravenes
14
subsection (5).
15
Civil penalty:
50 penalty units.
16
648 Agriculture Minister may remit or refund fees
17
(1) The Agriculture Minister may remit or refund the whole or part of
18
a fee prescribed by the regulations (including a late payment fee)
19
that is payable or paid to the Commonwealth if the Agriculture
20
Minister is satisfied that there are exceptional circumstances that
21
justify doing so.
22
(2) The Agriculture Minister may do so on his or her own initiative or
23
on written application by a person.
24
25
Chapter 13 Miscellaneous
Part 4 Exemptions from and modifications of this Act
Division 1 Introduction
Section 649
596 Biosecurity Bill 2012 No. , 2012
Part 4--Exemptions from and modifications of this
1
Act
2
Division 1--Introduction
3
649 Guide to this Part
4
This Part allows regulations to be made that modify the operation
5
of this Act in relation to specified conveyances, persons or goods.
6
Regulations may also be made in accordance with this Part to
7
modify the operation of this Act in order to implement the Torres
8
Strait Treaty.
9
10
Miscellaneous Chapter 13
Exemptions from and modifications of this Act Part 4
Exemptions from and modifications of this Act Division 2
Section 650
Biosecurity Bill 2012 No. , 2012 597
Division 2--Exemptions from and modifications of this Act
1
650 Exemptions from and modifications of this Act
2
(1) The regulations may exempt any one or more of the following
3
from the provisions of this Act, or modify any provision of this Act
4
in relation to any of the following:
5
(a) any particular conveyance or class of conveyance;
6
(b) any persons or goods or any classes of persons or goods.
7
Note:
For the definition of modification, see section 2B of the Acts
8
Interpretation Act 1901.
9
(2) An exemption or modification may apply only for a specified
10
period.
11
(3) An exemption or modification may apply only in relation to a
12
particular specified area.
13
(4) An exemption or modification may be expressed to apply to a
14
person only if the person complies with one or more specified
15
conditions.
16
(5) This section does not allow the regulations to modify a provision
17
that:
18
(a) creates an offence or civil penalty provision; or
19
(b) imposes an obligation which, if contravened, constitutes an
20
offence or civil penalty provision.
21
651 Exemptions for Torres Strait Treaty
22
(1) Without limiting section 650, the regulations may exempt any one
23
or more of the following from all or any provisions of this Act:
24
(a) any protected zone vessel;
25
(b) persons on board a protected zone vessel;
26
(c) goods on board a protected zone vessel if the goods:
27
(i) are owned by, or are under the control of, a traditional
28
inhabitant who is on board that vessel and have been
29
used, are being used or are intended to be used by him
30
or her in connection with the performance of traditional
31
activities in a protected zone area; or
32
Chapter 13 Miscellaneous
Part 4 Exemptions from and modifications of this Act
Division 2 Exemptions from and modifications of this Act
Section 651
598 Biosecurity Bill 2012 No. , 2012
(ii) are the personal belongings of a person referred to in
1
subparagraph (e)(i) or (ii) of the definition of protected
2
zone vessel in subsection (4) of this section.
3
(2) An exemption may be expressed to apply to a person only if the
4
person complies with one or more specified conditions.
5
(3) An exemption has effect only while the vessel, persons or goods in
6
respect of which the exemption applies remain in a protected zone
7
area.
8
Definitions
9
(4) In this Act:
10
protected zone means the zone established under Article 10 of the
11
Torres Strait Treaty, being the area bounded by the line described
12
in Annex 9 to that treaty.
13
protected zone area means:
14
(a) the protected zone; or
15
(b) an area in the vicinity of the protected zone that is prescribed
16
by regulations.
17
protected zone vessel means a vessel that meets all of the following
18
conditions:
19
(a) the vessel is of a kind used in navigation by sea;
20
(b) the vessel is owned or operated by a traditional inhabitant;
21
(c) the vessel enters a part of Australian territory that is in a
22
protected zone area;
23
(d) there is at least one traditional inhabitant on board the vessel
24
who is entering that part of Australian territory in connection
25
with the performance of traditional activities in the protected
26
zone area;
27
(e) the only persons on board the vessel are:
28
(i) one or more persons referred to in paragraph (d); or
29
(ii) one or more employees of the Commonwealth,
30
Queensland or Papua New Guinea, or of a body of the
31
Commonwealth, Queensland or Papua New Guinea,
32
who are entering that part of Australian territory in
33
Miscellaneous Chapter 13
Exemptions from and modifications of this Act Part 4
Exemptions from and modifications of this Act Division 2
Section 651
Biosecurity Bill 2012 No. , 2012 599
connection with the performance of their functions or
1
duties, or the exercise of their powers.
2
Torres Strait Treaty means the Treaty between Australia and the
3
Independent State of Papua New Guinea concerning Sovereignty
4
and Maritime Boundaries in the area between the two Countries,
5
including the area known as Torres Strait, and Related Matters,
6
done at Sydney on 18 December 1978, as in force for Australia
7
from time to time.
8
Note:
The text of the Treaty is set out in Australian Treaty Series 1985 No. 4
9
([1985] ATS 4). In 2012, the text of a Treaty in the Australian Treaty
10
Series was accessible through the Australian Treaties Library on the
11
AustLII website (www.austlii.edu.au).
12
traditional activities has the same meaning as in the Torres Strait
13
Treaty.
14
traditional inhabitant has the same meaning as traditional
15
inhabitants has in the Torres Strait Treaty.
16
17
Chapter 13 Miscellaneous
Part 5 Miscellaneous
Division 1 Introduction
Section 652
600 Biosecurity Bill 2012 No. , 2012
Part 5--Miscellaneous
1
Division 1--Introduction
2
652 Guide to this Part
3
This Part includes miscellaneous provisions, including the
4
following:
5
(a)
provisions dealing with abandoned or forfeited
6
goods and conveyances;
7
(b)
the power for compensation to be paid if certain
8
goods are damaged under this Act, or certain
9
goods, conveyances or other premises are
10
destroyed under this Act;
11
(c)
additional offences that apply in relation to the
12
Act;
13
(d)
the power for the Agriculture Minister or the
14
Health Minister to enter into arrangements with a
15
relevant Minister of a State or Territory for the
16
purposes of the Act;
17
(e)
the protection from civil proceedings of certain
18
persons who are performing functions or
19
exercising powers under this Act.
20
21
Miscellaneous Chapter 13
Miscellaneous Part 5
Abandoned or forfeited goods and conveyances Division 2
Section 653
Biosecurity Bill 2012 No. , 2012 601
Division 2--Abandoned or forfeited goods and
1
conveyances
2
653 Abandoned goods
3
(1) This section applies in relation to goods if:
4
(a) biosecurity measures in relation to the goods have been
5
required under:
6
(i) Part 1 of Chapter 3 (goods brought into Australian
7
territory); or
8
(ii) Chapter 6 (managing biosecurity risks: monitoring,
9
control and response); and
10
(b) the goods are in the possession or control of:
11
(i) the Commonwealth; or
12
(ii) a biosecurity industry participant as authorised by an
13
approved arrangement covering the biosecurity industry
14
participant; and
15
(c) a person in charge of the goods gives notice (either in writing
16
or orally) to the Director of Biosecurity stating that the
17
person does not wish to take possession of the goods.
18
Note:
For the purposes of this section, person in charge of goods has the
19
meaning given by subsection (5).
20
(2) A biosecurity officer may, in writing, request the owner of the
21
goods to arrange for the goods to be dealt with, or destroyed, in a
22
manner and within the period specified in the request.
23
(3)
If:
24
(a) a request is made under subsection (2) in relation to goods;
25
and
26
(b) the goods are not dealt with, or destroyed, in a manner and
27
within the period specified in the request;
28
the Director of Biosecurity may, if necessary, take possession of
29
the goods and cause them to be sold under section 645, destroyed
30
or otherwise disposed of.
31
(4) Before goods are sold, destroyed or otherwise disposed of under
32
this section, the Director of Biosecurity may cause the goods to be
33
Chapter 13 Miscellaneous
Part 5 Miscellaneous
Division 2 Abandoned or forfeited goods and conveyances
Section 654
602 Biosecurity Bill 2012 No. , 2012
treated in an appropriate manner to manage any biosecurity risk
1
associated with them.
2
Modified meaning of person in charge of goods
3
(5) In this section, person in charge of goods does not include a
4
biosecurity industry participant who is in possession or control of
5
the goods only because of a direction given to the biosecurity
6
industry participant by a biosecurity officer.
7
654 Forfeited goods
8
(1) This section applies in relation to goods if:
9
(a) biosecurity measures in relation to the goods have been
10
required under:
11
(i) Part 1 of Chapter 3 (goods brought into Australian
12
territory); or
13
(ii) Chapter 6 (managing biosecurity risks: monitoring,
14
control and response); and
15
(b) the goods are in the possession or control of:
16
(i) the Commonwealth; or
17
(ii) a biosecurity industry participant as authorised by an
18
approved arrangement covering the biosecurity industry
19
participant.
20
(2) The goods are forfeited to the Commonwealth:
21
(a)
if:
22
(i) the Director of Biosecurity notifies, in writing, the
23
owner of the goods that the goods may be collected; and
24
(ii) the goods are not collected within 90 days after the
25
notice is given; or
26
(b) if the Director of Biosecurity:
27
(i) has not been able, despite making reasonable efforts, to
28
locate the owner of the goods; and
29
(ii) has certified in writing to that effect.
30
(3) If goods are forfeited to the Commonwealth under subsection (2),
31
the Director of Biosecurity may cause the goods to be sold,
32
destroyed or otherwise disposed of.
33
Miscellaneous Chapter 13
Miscellaneous Part 5
Abandoned or forfeited goods and conveyances Division 2
Section 655
Biosecurity Bill 2012 No. , 2012 603
(4) Before goods are sold, destroyed or otherwise disposed of under
1
this section, the Director of Biosecurity may cause the goods to be
2
treated in an appropriate manner to manage any biosecurity risk
3
associated with them.
4
655 Abandoned conveyances
5
(1) This section applies in relation to a conveyance if:
6
(a) biosecurity measures in relation to the conveyance have been
7
required under:
8
(i) Part 2 of Chapter 4 (conveyances entering Australian
9
territory); or
10
(ii) Chapter 6 (managing biosecurity risks: monitoring,
11
control and response); and
12
(b) the conveyance is in the possession or control of:
13
(i) the Commonwealth; or
14
(ii) a biosecurity industry participant as authorised by an
15
approved arrangement covering the biosecurity industry
16
participant; and
17
(c)
either:
18
(i) the Director of Biosecurity receives a written notice
19
from the owner of the conveyance stating that the owner
20
does not wish to take possession of the conveyance; or
21
(ii) the Director of Biosecurity has, in writing, requested the
22
owner of the conveyance to take possession of the
23
conveyance within a specified period and the owner has
24
not taken possession of the conveyance within that
25
period.
26
(2) The Director of Biosecurity may, in writing, request the owner of
27
the conveyance to arrange for the conveyance to be dealt with, or
28
destroyed, in a manner and within the period specified in the
29
request.
30
Note:
If a charge has been created on the conveyance to secure the payment
31
of an unpaid fee that is due and payable in relation to a chargeable
32
activity carried out in relation to the conveyance, the conveyance may
33
be dealt with under Subdivision C of Division 3 of Part 3 (cost
34
recovery).
35
(3)
If:
36
Chapter 13 Miscellaneous
Part 5 Miscellaneous
Division 2 Abandoned or forfeited goods and conveyances
Section 656
604 Biosecurity Bill 2012 No. , 2012
(a) a request is made under subsection (2) in relation to a
1
conveyance; and
2
(b) the conveyance is not dealt with, or destroyed, in a manner
3
and within the period specified in the request;
4
the Director of Biosecurity may, if necessary, take possession of
5
the conveyance and cause it to be sold under section 645, destroyed
6
or otherwise disposed of.
7
Note:
Before exercising a power under this subsection, a biosecurity official
8
must be satisfied of the matters referred to in section 31 (the
9
principles).
10
(4) If a conveyance is to be destroyed under this section, the Director
11
of Biosecurity may cause any goods on board the conveyance to be
12
removed from the conveyance before it is destroyed.
13
(5) Before a conveyance is sold, destroyed or otherwise disposed of
14
under this section, the Director of Biosecurity may cause the
15
conveyance to be treated in an appropriate manner to manage any
16
biosecurity risk associated with it.
17
656 Forfeited conveyances
18
(1) This section applies in relation to a conveyance if:
19
(a) biosecurity measures in relation to the conveyance have been
20
required under:
21
(i) Part 2 of Chapter 4 (conveyances entering Australian
22
territory); or
23
(ii) Chapter 6 (managing biosecurity risks: monitoring,
24
control and response); and
25
(b) the conveyance is in the possession or control of:
26
(i) the Commonwealth; or
27
(ii) a biosecurity industry participant as authorised by an
28
approved arrangement covering the biosecurity industry
29
participant.
30
(2) The conveyance is forfeited to the Commonwealth if the Director
31
of Biosecurity:
32
(a) has not been able, despite making reasonable efforts, to
33
locate the owner of the conveyance; and
34
Miscellaneous Chapter 13
Miscellaneous Part 5
Abandoned or forfeited goods and conveyances Division 2
Section 656
Biosecurity Bill 2012 No. , 2012 605
(b) has certified in writing to that effect.
1
(3) If a conveyance is forfeited to the Commonwealth under
2
subsection (2), the Director of Biosecurity may cause the
3
conveyance to be sold, destroyed or otherwise disposed of.
4
Note:
Before exercising a power under this subsection, a biosecurity official
5
must be satisfied of the matters referred to in section 31 (the
6
principles).
7
(4) If a conveyance is to be destroyed under this section, the Director
8
of Biosecurity may cause any goods on board the conveyance to be
9
removed from the conveyance before it is destroyed.
10
(5) Before a conveyance is sold, destroyed or otherwise disposed of
11
under this section, the Director of Biosecurity may cause the
12
conveyance to be treated in an appropriate manner to manage any
13
biosecurity risk associated with it.
14
15
Chapter 13 Miscellaneous
Part 5 Miscellaneous
Division 3 Damaged and destroyed goods etc.
Section 657
606 Biosecurity Bill 2012 No. , 2012
Division 3--Damaged and destroyed goods etc.
1
657 Person complying with direction or request must not damage or
2
destroy goods
3
(1) This section applies in relation to a person if:
4
(a) the Agriculture Minister, the Director of Biosecurity, a
5
biosecurity officer or a biosecurity enforcement officer
6
directs or requests the person to do a thing (including taking a
7
biosecurity measure) in relation to goods for the purposes of
8
this Act; and
9
(b) the person is not:
10
(i) a biosecurity officer; or
11
(ii) a biosecurity enforcement officer; or
12
(iii) a chief human biosecurity officer; or
13
(iv) a human biosecurity officer; or
14
(v) a person in charge of the goods.
15
(2) The person contravenes this subsection if:
16
(a) the person, in complying with the direction or request, does a
17
thing, or omits to do a thing, that causes the destruction of or
18
damage to the goods; and
19
(b)
either:
20
(i) the person did not act in good faith in doing the thing, or
21
omitting to do the thing, that caused the destruction of
22
or damage to the goods; or
23
(ii) the destruction or damage was not a reasonable or
24
necessary result of complying with the direction or
25
request in relation to the goods.
26
Civil penalty provision
27
(3) A person is liable to a civil penalty if the person contravenes
28
subsection (2).
29
Civil penalty:
120 penalty units.
30
Miscellaneous Chapter 13
Miscellaneous Part 5
Damaged and destroyed goods etc. Division 3
Section 658
Biosecurity Bill 2012 No. , 2012 607
658 Compensation for damaged goods
1
Director of Biosecurity may approve compensation
2
(1) The Director of Biosecurity may, if the Director considers it
3
appropriate to do so, approve the payment of a reasonable amount
4
of compensation under this section in respect of goods that are
5
damaged by a person in the course of performing functions or
6
duties, or exercising powers, under this Act.
7
Note 1:
Compensation is not payable unless a claim is made by or on behalf of
8
the owner of the goods (see subsection 660(3)).
9
Note 2:
The amount of compensation is the amount prescribed by, or
10
determined in accordance with, the regulations (see subsection
11
660(5)).
12
Note 3:
Even if the Director of Biosecurity does not approve the payment of a
13
reasonable amount of compensation under this section, the owner of
14
the goods may be entitled to compensation under section 26
15
(compensation for acquisition of property).
16
Exceptions
17
(2) The Director of Biosecurity must not approve the payment of
18
compensation under this section in respect of goods that are
19
damaged as a result of treatment carried out on the goods under
20
section 130, 131, 333 or 334.
21
659 Compensation for destroyed goods, conveyances or other
22
premises
23
Director of Biosecurity may approve compensation
24
(1) The Director of Biosecurity may, if the Director considers it
25
appropriate to do so, approve the payment of a reasonable amount
26
of compensation under this section in respect of goods,
27
conveyances or premises comprising buildings or other structures
28
that are destroyed under this Act.
29
Note 1:
Compensation is not payable unless a claim is made by or on behalf of
30
the owner of the goods, conveyance or other premises (see subsection
31
660(3)).
32
Chapter 13 Miscellaneous
Part 5 Miscellaneous
Division 3 Damaged and destroyed goods etc.
Section 659
608 Biosecurity Bill 2012 No. , 2012
Note 2:
The amount of compensation is the amount prescribed by, or
1
determined in accordance with, the regulations (see subsection
2
660(5)).
3
Note 3:
Even if the Director of Biosecurity does not approve the payment of a
4
reasonable amount of compensation under this section, the owner of
5
the goods, conveyance or other premises may be entitled to
6
compensation under section 26 (compensation for acquisition of
7
property).
8
Exceptions
9
(2) The Director of Biosecurity must not approve the payment of
10
compensation under this section in respect of goods that were
11
brought or imported into Australian territory in contravention of
12
subsection 182(1) or 185(1).
13
Note 1:
Subsection 182(1) is contravened if a person brings or imports into
14
Australian territory prohibited goods or suspended goods.
15
Note 2:
Subsection 185(1) is contravened if a person brings or imports
16
conditionally non-prohibited goods into Australian territory and a
17
condition applying to the goods has not been complied with.
18
(3) The Director of Biosecurity must not approve the payment of
19
compensation under this section in respect of:
20
(a) goods that were brought or imported into Australian territory
21
if the goods were subject to biosecurity control at all times
22
between the time they were brought or imported into
23
Australian territory and the time they were destroyed; or
24
(b) an aircraft or vessel that entered Australian territory from
25
outside Australian territory if the aircraft or vessel was
26
subject to biosecurity control because of subsection 191(2) or
27
(4) at all times between the time it entered Australian
28
territory and the time it was destroyed.
29
(4) The regulations may provide either or both of the following:
30
(a) that paragraph (3)(a) of this section does not apply in relation
31
to:
32
(i) prescribed goods; or
33
(ii) prescribed goods in prescribed circumstances;
34
(b) that paragraph (3)(b) of this section does not apply in relation
35
to:
36
(i) prescribed aircraft or vessels; or
37
Miscellaneous Chapter 13
Miscellaneous Part 5
Damaged and destroyed goods etc. Division 3
Section 660
Biosecurity Bill 2012 No. , 2012 609
(ii) prescribed aircraft or vessels in prescribed
1
circumstances.
2
660 Claims for, and amount of, compensation
3
Application
4
(1) This section applies in relation to goods, conveyances or other
5
premises (compensable items) in respect of which the Director of
6
Biosecurity may approve a payment of compensation under
7
section 658 or 659.
8
Compensation must be paid to owner
9
(2) Compensation approved under section 658 or 659 in respect of a
10
compensable item must:
11
(a) if there is only one owner of the compensable item--be paid
12
to the owner; or
13
(b) if there are 2 or more owners of the compensable item--be
14
divided among those owners as prescribed by the regulations.
15
Note:
Owner is defined in subsection (6).
16
Requirements relating to claim for compensation
17
(3) An owner of a compensable item is not entitled to compensation
18
under section 658 or 659 in respect of the item unless a claim for
19
compensation is made by or on behalf of the owner within 12
20
months after the item was damaged or destroyed (as the case may
21
be).
22
(4) A claim for compensation under subsection (3) must:
23
(a) if a form is prescribed by the regulations--be in that form;
24
and
25
(b) be accompanied by the documents (if any) prescribed by the
26
regulations.
27
Chapter 13 Miscellaneous
Part 5 Miscellaneous
Division 3 Damaged and destroyed goods etc.
Section 660
610 Biosecurity Bill 2012 No. , 2012
Amount of compensation
1
(5) The amount of compensation payable under section 658 or 659 is a
2
reasonable amount prescribed by, or determined in accordance
3
with, the regulations.
4
Definition of owner
5
(6) In this section:
6
owner, in relation to a compensable item, means a person who had
7
an interest in the item at the time it was damaged or destroyed (as
8
the case may be), but does not include:
9
(a) a person who had such an interest by reason only that the
10
person was entitled to the benefit of a mortgage or other
11
charge, or a lien, in respect of the item (other than a PPSA
12
security interest); or
13
(b) a person who held a PPSA security interest in the item;
14
unless the person was in possession or control of the item at that
15
time.
16
17
Miscellaneous Chapter 13
Miscellaneous Part 5
Miscellaneous Division 4
Section 661
Biosecurity Bill 2012 No. , 2012 611
Division 4--Miscellaneous
1
661 Privilege against self-incrimination
2
Person not entitled to refuse to answer questions, provide
3
information or produce documents under certain provisions of this
4
Act
5
(1) A person is not excused from answering a question, providing
6
information or producing a document, under any of the following
7
provisions, on the ground that the answer, the information or the
8
production of the document might tend to incriminate the person or
9
make the person liable to a penalty:
10
(a) sections 43, 44, 67, 68 and 83 and Division 6 of Part 2 of
11
Chapter 2 (human biosecurity);
12
(b) sections 118, 119, 123 and 124 (managing biosecurity risks:
13
goods);
14
(c) sections 193, 194, 199 and 200 (managing biosecurity risks:
15
conveyances);
16
(d) sections 318 and 319 (managing biosecurity risks:
17
monitoring, control and response);
18
(e) subsection 435(1) (audit powers in relation to approved
19
arrangements);
20
(f) sections 448 and 449 (biosecurity emergencies);
21
(g) subsection 495(3) (monitoring and investigation).
22
Use/derivative use indemnity applies to answer, information or
23
document
24
(2) However, in the case of an individual:
25
(a) the answer given, the information provided or the document
26
produced; and
27
(b) answering the question, providing the information or
28
producing the document; and
29
(c) any information, document or thing obtained as a direct or
30
indirect consequence of the answering of the question, the
31
provision of the information or the production of the
32
document;
33
Chapter 13 Miscellaneous
Part 5 Miscellaneous
Division 4 Miscellaneous
Section 662
612 Biosecurity Bill 2012 No. , 2012
are not admissible in evidence against the individual in any
1
criminal or civil proceedings, except proceedings under, or arising
2
out of, section 137.1 or 137.2 of the Criminal Code or section 507
3
or 508 of this Act, (false or misleading information and
4
documents) in relation to answering the question, providing the
5
information or producing the document.
6
Privilege not otherwise affected
7
(3) Except as provided by subsection (1), nothing in this Act affects
8
the right of an individual to refuse to answer a question, provide
9
information or produce a document on the ground that the answer,
10
the information or the production of the document might tend to
11
incriminate the individual or make the individual liable to a
12
penalty.
13
662 Offence--hindering compliance with the Act etc.
14
(1) A person must not engage in conduct that hinders or prevents
15
another person from:
16
(a) performing functions or duties, or exercising powers, under
17
this Act; or
18
(b) complying with this Act or a direction given under this Act.
19
Fault-based offence
20
(2) A person commits an offence if the person contravenes
21
subsection (1).
22
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
23
Note:
See section 575 in relation to the physical elements of an offence.
24
Civil penalty provision
25
(3) A person is liable to a civil penalty if the person contravenes
26
subsection (1).
27
Civil penalty:
120 penalty units.
28
Miscellaneous Chapter 13
Miscellaneous Part 5
Miscellaneous Division 4
Section 663
Biosecurity Bill 2012 No. , 2012 613
663 Certificates given by analyst
1
Appointment of analyst
2
(1) The Director of Biosecurity may appoint a person to be an analyst
3
for the purposes of this Act.
4
Analyst may give certificate
5
(2) If a person is alleged to have contravened this Act in relation to
6
any substance or thing, an analyst appointed under subsection (1)
7
may give a written certificate stating any one or more of the
8
following matters:
9
(a) when and from whom the substance or thing was received;
10
(b) what (if any) labels or other means of identifying the
11
substance or thing accompanied it when it was received;
12
(c) what container or containers the substance or thing was
13
contained in when it was received;
14
(d) a description, and the weight, of the substance or thing
15
received;
16
(e) when the substance or thing, or a portion of it, was analysed;
17
(f) a description of the method of analysis;
18
(g) the results of the analysis;
19
(h) how the substance or thing was dealt with after handling by
20
the analyst, including details of:
21
(i) the quantity retained; and
22
(ii) the name of any person to whom any retained quantity
23
was given; and
24
(iii) measures taken to secure any retained quantity.
25
Note:
In certain circumstances, the certificate may be admitted as evidence
26
in proceedings in relation to the contravention (see section 664).
27
(3) A certificate must be given in a form approved by the Director of
28
Biosecurity.
29
664 Admission of analyst's certificate in proceedings
30
(1) A certificate given under section 663 is (if the procedure in
31
subsection (2) of this section is complied with) admissible, in any
32
Chapter 13 Miscellaneous
Part 5 Miscellaneous
Division 4 Miscellaneous
Section 664
614 Biosecurity Bill 2012 No. , 2012
proceedings in relation to a contravention of this Act, as prima
1
facie evidence of:
2
(a) the matters in the certificate; and
3
(b) the correctness of the result of the analysis.
4
Procedure to be followed before admitting certificate
5
(2) At least 14 days before the certificate is admitted as evidence in the
6
proceedings, the following must be given to the person (the
7
defendant) who is alleged to have contravened this Act, or a legal
8
practitioner who is appearing for the defendant in those
9
proceedings:
10
(a) a copy of the certificate;
11
(b) notice of the intention to produce the certificate as evidence
12
in the proceedings.
13
Analyst may be required to attend for cross-examination
14
(3) The defendant may (subject to subsection (4)) require the analyst
15
who gave the certificate to be:
16
(a) called as a witness for the prosecution; and
17
(b) cross-examined (as if the analyst had given evidence of the
18
matters stated in the certificate).
19
Requirements for cross-examining analyst
20
(4) The analyst may be required to be called as a witness for the
21
prosecution only if:
22
(a) the prosecutor has been given at least 4 days' notice of the
23
defendant's intention to require the analyst to be called; or
24
(b) the court, by order, allows the defendant to require the
25
analyst to be called.
26
Proof of certificate
27
(5) For the purposes of this Act, a document purporting to be a
28
certificate given under section 663 is taken to be a certificate that
29
has been given in accordance with that section, unless the contrary
30
is established.
31
Miscellaneous Chapter 13
Miscellaneous Part 5
Miscellaneous Division 4
Section 665
Biosecurity Bill 2012 No. , 2012 615
665 Power or requirement to do or cause a thing to be done
1
(1) For the purposes of this Act, if a person (the first person) has the
2
power, or is required, under this Act to do a thing, the first person
3
is taken to have done the thing if the first person causes another
4
person to do the thing on behalf of the first person.
5
(2) For the purposes of this Act, if a person has the power, or is
6
required, under this Act to cause or direct a thing to be done, the
7
person is taken to have caused or directed the thing to be done if
8
the person does the thing himself or herself.
9
666 Treatment of partnerships
10
(1) This Act applies to a partnership as if it were a person, but with the
11
changes set out in this section.
12
(2) An obligation that would otherwise be imposed on the partnership
13
by this Act is imposed on each partner instead, but may be
14
discharged by any of the partners.
15
(3) An offence against this Act that would otherwise have been
16
committed by the partnership is taken to have been committed by
17
each partner in the partnership, at the time the offence was
18
committed, who:
19
(a) did the relevant act or made the relevant omission; or
20
(b) aided, abetted, counselled or procured the relevant act or
21
omission; or
22
(c) was in any way knowingly concerned in, or party to, the
23
relevant act or omission (whether directly or indirectly and
24
whether by any act or omission of the partner).
25
(4) This section applies to a contravention of a civil penalty provision
26
in a corresponding way to the way in which it applies to an
27
offence.
28
(5) For the purposes of this Act, a change in the composition of a
29
partnership does not affect the continuity of the partnership.
30
Chapter 13 Miscellaneous
Part 5 Miscellaneous
Division 4 Miscellaneous
Section 667
616 Biosecurity Bill 2012 No. , 2012
667 Treatment of unincorporated associations
1
(1) This Act applies to an unincorporated association as if it were a
2
person, but with the changes set out in this section.
3
(2) An obligation that would otherwise be imposed on the association
4
by this Act is imposed on each member of the association's
5
committee of management instead, but may be discharged by any
6
of the members.
7
(3) An offence against this Act that would otherwise have been
8
committed by the unincorporated association is taken to have been
9
committed by each member of the association's committee of
10
management, at the time the offence was committed, who:
11
(a) did the relevant act or made the relevant omission; or
12
(b) aided, abetted, counselled or procured the relevant act or
13
omission; or
14
(c) was in any way knowingly concerned in, or party to, the
15
relevant act or omission (whether directly or indirectly and
16
whether by any act or omission of the partner).
17
(4) This section applies to a contravention of a civil penalty provision
18
in a corresponding way to the way in which it applies to an
19
offence.
20
668 Arrangements with States and Territories to assist in carrying
21
out this Act
22
The Agriculture Minister or the Health Minister may enter into an
23
arrangement with a relevant Minister of a State or Territory in
24
relation to all or any of the following:
25
(a) the use of any place in the State or Territory for the purposes
26
of this Act, and the control and management of the place;
27
(b) any matters necessary or convenient to be arranged in order
28
to enable the Commonwealth, the State or the Territory to
29
assist each other for the purposes of the objects of this Act;
30
(c) if the Commonwealth is a party to any international
31
agreement requiring products for export to be certified--any
32
matters necessary or convenient to be arranged to assist
33
authorities of that State or Territory:
34
Miscellaneous Chapter 13
Miscellaneous Part 5
Miscellaneous Division 4
Section 669
Biosecurity Bill 2012 No. , 2012 617
(i) to implement and monitor, in that State or Territory,
1
arrangements to enable that certification; and
2
(ii) to provide reports to the Commonwealth concerning
3
those arrangements.
4
Note:
The Director of Biosecurity and the Director of Human Biosecurity
5
can also enter arrangements with State or Territory bodies for officers
6
or employees of those bodies to be officers under this Act (see
7
sections 585, 587 and 602).
8
669 Delegation of powers by Agriculture Minister
9
(1) The Agriculture Minister may, by writing, delegate any or all of his
10
or her functions or powers under this Act (other than those
11
mentioned in subsection (2) or (3)) to:
12
(a) the Director of Biosecurity; or
13
(b) an SES employee, or acting SES employee, in the
14
Agriculture Department.
15
Note 1:
The reference to this Act includes a reference to regulations made
16
under this Act (see the definition of this Act in section 9).
17
Note 2:
The expressions SES employee and acting SES employee are defined
18
in section 2B of the Acts Interpretation Act 1901.
19
Note 3:
For delegation of powers by the Director of Biosecurity, see
20
section 580.
21
(2) The Agriculture Minister must not delegate any of his or her
22
functions or powers under any of the following provisions:
23
(a) section 581 (giving directions to Director of Biosecurity);
24
(b) section 648 (remitting or refunding fees);
25
(c) section 668 (arrangements with States and Territories).
26
(3) This section does not apply in relation to a function or power of the
27
Agriculture Minister under Part 1 of Chapter 8 (biosecurity
28
emergencies).
29
Note:
For delegation and subdelegation of certain powers of the Agriculture
30
Minister under Part 1 of Chapter 8, see sections 451 and 452.
31
Chapter 13 Miscellaneous
Part 5 Miscellaneous
Division 4 Miscellaneous
Section 670
618 Biosecurity Bill 2012 No. , 2012
Directions of person making delegation
1
(4) In exercising powers under a delegation under this section, the
2
delegate must comply with any directions of the person who made
3
the delegation.
4
670 Protection from civil proceedings
5
Protection for the Commonwealth and protected persons
6
(1) No civil proceeding lies against the Commonwealth or a protected
7
person in relation to anything done, or omitted to be done, in good
8
faith:
9
(a) by a protected person in the performance or purported
10
performance of a function, or the exercise or purported
11
exercise of a power, conferred by this Act; or
12
(b) by a person in providing, or purporting to provide, assistance
13
to a protected person (as a result of a request or direction
14
made by the protected person) in the performance or
15
purported performance of a function, or the exercise or
16
purported exercise of a power, conferred by this Act.
17
(2) No civil proceeding lies against the Commonwealth or a protected
18
person in relation to anything done by an animal used by a
19
protected person in the performance or purported performance of a
20
function, or the exercise or purported exercise of a power,
21
conferred by this Act.
22
Protection for persons assisting protected persons
23
(3) No civil proceeding lies against a person in relation to anything
24
done, or omitted to be done, in good faith by the person in
25
providing, or purporting to provide, assistance to a protected
26
person (as a result of a request or direction made by the protected
27
person) in the performance or purported performance of a function,
28
or the exercise or purported exercise of a power, conferred by this
29
Act.
30
Miscellaneous Chapter 13
Miscellaneous Part 5
Miscellaneous Division 4
Section 671
Biosecurity Bill 2012 No. , 2012 619
Protection for persons complying with emergency directions
1
(4) No civil proceeding lies against a person in relation to anything
2
done, or omitted to be done, in good faith by the person in
3
complying with a direction given under section 444 that applies to
4
the person.
5
Relationship to certain other provisions
6
(5) This section is subject to the following provisions:
7
(a) section 26 (acquisition of property);
8
(b) section 307 (undue detention or delay of vessel);
9
(c) section 533 (damage to electronic equipment).
10
Meaning of protected person
11
(6)
Protected person means a person who is, or was, any of the
12
following:
13
(a) the Agriculture Minister;
14
(b) the Health Minister;
15
(c) the Director of Biosecurity;
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(d) the Director of Human Biosecurity;
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(e) a biosecurity officer;
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(f) a biosecurity enforcement officer;
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(g) a chief human biosecurity officer;
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(h) a human biosecurity officer;
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(i) an officer or employee of the Agriculture Department or the
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Health Department;
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(j) a person who is performing functions or exercising powers
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under Chapter 8 (biosecurity emergencies);
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(k) a person who is appointed as an analyst under section 663.
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671 Regulations
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(1) The Governor-General may make regulations prescribing matters:
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(a) required or permitted by this Act to be prescribed; or
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(b) necessary or convenient to be prescribed for carrying out or
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giving effect to this Act.
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Chapter 13 Miscellaneous
Part 5 Miscellaneous
Division 4 Miscellaneous
Section 671
620 Biosecurity Bill 2012 No. , 2012
Offences and civil penalties
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(2) Without limiting subsection (1), the regulations may:
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(a) prescribe penalties for offences against the regulations that
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do not exceed 50 penalty units; and
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(b) declare that specified provisions of the regulations are civil
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penalty provisions for the purposes of this Act, and prescribe
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penalties for contraventions of such provisions that do not
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exceed:
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(i) for a body corporate--250 penalty units; or
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(ii) in any other case--50 penalty units.
10