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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017-2018
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Export Legislation Amendment
(Live-stock) Bill 2018
No. , 2018
(Agriculture and Water Resources)
A Bill for an Act to amend legislation relating to the
export of live-stock, and for related purposes
No. , 2018
Export Legislation Amendment (Live-stock) Bill 2018
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Part 1--Amendment of the Australian Meat and Live-stock
Industry Act 1997
3
Australian Meat and Live-stock Industry Act 1997
3
Part 2--Amendment of the Export Control Act 1982
20
Export Control Act 1982
20
Part 3--Application provisions
29
No. , 2018
Export Legislation Amendment (Live-stock) Bill 2018
1
A Bill for an Act to amend legislation relating to the
1
export of live-stock, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Export Legislation Amendment (Live-stock) Act
5
2018.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Export Legislation Amendment (Live-stock) Bill 2018
No. , 2018
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments Schedule 1
Amendment of the Australian Meat and Live-stock Industry Act 1997 Part 1
No. , 2018
Export Legislation Amendment (Live-stock) Bill 2018
3
Schedule 1--Amendments
1
Part 1--Amendment of the Australian Meat and
2
Live-stock Industry Act 1997
3
Australian Meat and Live-stock Industry Act 1997
4
1 Subsection 4(2)
5
Repeal the subsection, substitute:
6
(2) This Act does not make the Crown liable to be:
7
(a) prosecuted for an offence; or
8
(b) subject to civil proceedings for a contravention of a civil
9
penalty provision under Part 4 of the Regulatory Powers Act;
10
or
11
(c) given an infringement notice under Part 5 of the Regulatory
12
Powers Act.
13
2 Section 7
14
Insert:
15
civil penalty provision has the same meaning as in the Regulatory
16
Powers Act.
17
economic consequences for Australia includes the following:
18
(a) substantial damage to Australia's trading reputation;
19
(b) a restriction on, or the closure of, access to one or more
20
overseas markets for all goods or a kind of goods from
21
Australia.
22
3 Section 7 (definition of evidential material)
23
After "offence", insert "or a contravention of a civil penalty provision".
24
4 Section 7
25
Insert:
26
executive officer of a body corporate means a person, by whatever
27
name called and whether or not a director of the body, who is
28
concerned in, or takes part in, the management of the body.
29
Schedule 1 Amendments
Part 1 Amendment of the Australian Meat and Live-stock Industry Act 1997
4
Export Legislation Amendment (Live-stock) Bill 2018
No. , 2018
Regulatory Powers Act means the Regulatory Powers (Standard
1
Provisions) Act 2014.
2
relevant court means:
3
(a) the Federal Court of Australia; or
4
(b) the Federal Circuit Court of Australia; or
5
(c) a court of a State or Territory that has jurisdiction in relation
6
to matters arising under this Act.
7
5 Paragraph 34(2)(b)
8
After "this Part", insert ", or a contravention of a civil penalty provision
9
of this Part,".
10
6 Section 35 (heading)
11
Repeal the heading, substitute:
12
35 Entering and searching premises and seizing things
13
7 Subsection 35(1)
14
After "this Part", insert "or a contravention of a civil penalty provision
15
of this Part".
16
8 Subsection 35(2)
17
Repeal the subsection, substitute:
18
(2) If, in the course of searching, under a warrant issued under
19
section 37, for a particular thing in relation to a particular offence
20
or contravention of a civil penalty provision, an authorised officer
21
finds a thing that the officer believes, on reasonable grounds, to be:
22
(a) a thing that may be evidence of the commission of the
23
offence or contravention, although not the thing stated in the
24
warrant; or
25
(b) a thing that may be evidence of the commission of another
26
offence against this Part or a contravention of another civil
27
penalty provision of this Part;
28
and the officer believes, on reasonable grounds, that it is necessary
29
to seize the thing in order to prevent its concealment, loss or
30
destruction, or its use in committing, continuing or repeating the
31
offence or contravention, or the other offence or other
32
Amendments Schedule 1
Amendment of the Australian Meat and Live-stock Industry Act 1997 Part 1
No. , 2018
Export Legislation Amendment (Live-stock) Bill 2018
5
contravention, the warrant is taken to authorise the officer to seize
1
the thing.
2
9 Section 37 (heading)
3
Omit "Offence-related", substitute "Investigation".
4
10 At the end of subsection 37(2)
5
Add "or a contravention of a civil penalty provision of this Part".
6
11 Paragraph 37(4)(a)
7
After "offence", insert "or contravention".
8
12 Section 45 (heading)
9
Omit "Court of summary jurisdiction", substitute "Relevant court".
10
13 Subsection 45(1)
11
Omit "court of summary jurisdiction", substitute "relevant court".
12
14 Paragraph 45(2)(a)
13
After "committed", insert "or a civil penalty provision of this Part has
14
been contravened".
15
15 Paragraph 45(2)(b)
16
Repeal the paragraph, substitute:
17
(b) to enable evidence of an offence, or a contravention of a civil
18
penalty provision of this Part, to be secured for the purposes
19
of a proceeding;
20
16 Subsection 52(4)
21
After "against this Part", insert "or a contravention of a civil penalty
22
provision of this Part".
23
17 Subsection 53(4)
24
Repeal the subsection, substitute:
25
(4) A certificate referred to in subsection (2) must not be received in
26
evidence under that subsection in any proceedings for an offence
27
against this Part, or a contravention of a civil penalty provision of
28
Schedule 1 Amendments
Part 1 Amendment of the Australian Meat and Live-stock Industry Act 1997
6
Export Legislation Amendment (Live-stock) Bill 2018
No. , 2018
this Part, unless the person charged with the offence, or alleged to
1
have contravened the civil penalty provision, has been given:
2
(a) a copy of the certificate; and
3
(b) reasonable notice of the intention of the person who instituted
4
the proceedings to produce the certificate as evidence in the
5
proceedings.
6
18 Subsection 53(5)
7
Omit "the person charged", substitute "the person charged with the
8
relevant offence, or alleged to have contravened the relevant civil
9
penalty provision,".
10
19 Subsection 53(5)
11
Omit "for the prosecution", substitute "for the person who instituted the
12
proceedings".
13
20 Section 54 (heading)
14
Repeal the heading, substitute:
15
54 Meat must not be exported without meat export licence etc.
16
21 Subsection 54(2)
17
Repeal the subsection.
18
22 Subsection 54(3)
19
Omit "an export licence", substitute "a meat export licence".
20
23 After section 54
21
Insert:
22
54A Live-stock must not be exported without live-stock export
23
licence--basic contravention
24
Fault-based offence
25
(1) A person commits an offence if:
26
(a) the person exports live-stock from Australia; and
27
(b) the person is not the holder of a live-stock export licence.
28
Amendments Schedule 1
Amendment of the Australian Meat and Live-stock Industry Act 1997 Part 1
No. , 2018
Export Legislation Amendment (Live-stock) Bill 2018
7
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
1
Civil penalty provision
2
(2) A person is liable to a civil penalty if:
3
(a) the person exports live-stock from Australia; and
4
(b) the person is not the holder of a live-stock export licence.
5
Civil penalty:
960 penalty units.
6
54B Exporting live-stock without live-stock export licence--
7
intention to obtain commercial advantage
8
Fault-based offence
9
(1) A person commits an offence if:
10
(a) the person exports live-stock from Australia; and
11
(b) the person is not the holder of a live-stock export licence; and
12
(c) the person intends to obtain a commercial advantage over the
13
person's competitors, or potential competitors, as a result of
14
exporting the live-stock.
15
Penalty:
16
(a) if the person is an individual--imprisonment for 10 years or
17
2,000 penalty units, or both; or
18
(b) if the person is a body corporate--the amount under
19
section 54G.
20
Alternative verdict
21
(2) In a trial for an offence against subsection (1), the trier of fact may
22
find the defendant not guilty of that offence, but guilty of an
23
offence against subsection 54A(1), if:
24
(a) the trier of fact is not satisfied that the defendant is guilty of
25
the offence against subsection (1) of this section; and
26
(b) the trier of fact is satisfied that the defendant is guilty of the
27
offence against subsection 54A(1); and
28
(c) the defendant has been accorded procedural fairness in
29
relation to that finding of guilt.
30
Schedule 1 Amendments
Part 1 Amendment of the Australian Meat and Live-stock Industry Act 1997
8
Export Legislation Amendment (Live-stock) Bill 2018
No. , 2018
Civil penalty provision
1
(3) A person is liable to a civil penalty if:
2
(a) the person exports live-stock from Australia; and
3
(b) the person is not the holder of a live-stock export licence; and
4
(c) the person intends to obtain a commercial advantage over the
5
person's competitors, or potential competitors, as a result of
6
exporting the live-stock.
7
Civil penalty:
8
(a) if the person is an individual--4,000 penalty units; or
9
(b) if the person is a body corporate--the amount under
10
section 54G.
11
54C Exporting live-stock without live-stock export licence--
12
economic consequences for Australia
13
Fault-based offence
14
(1) A person commits an offence if:
15
(a) the person exports live-stock from Australia; and
16
(b) the person is not the holder of a live-stock export licence; and
17
(c) the export of the live-stock causes, or has the potential to
18
cause, economic consequences for Australia.
19
Penalty:
20
(a) if the person is an individual--imprisonment for 10 years or
21
2,000 penalty units, or both; or
22
(b) if the person is a body corporate--the amount under
23
section 54G.
24
Alternative verdict
25
(2) In a trial for an offence against subsection (1), the trier of fact may
26
find the defendant not guilty of that offence, but guilty of an
27
offence against subsection 54A(1), if:
28
(a) the trier of fact is not satisfied that the defendant is guilty of
29
the offence against subsection (1) of this section; and
30
(b) the trier of fact is satisfied that the defendant is guilty of the
31
offence against subsection 54A(1); and
32
Amendments Schedule 1
Amendment of the Australian Meat and Live-stock Industry Act 1997 Part 1
No. , 2018
Export Legislation Amendment (Live-stock) Bill 2018
9
(c) the defendant has been accorded procedural fairness in
1
relation to that finding of guilt.
2
Civil penalty provision
3
(3) A person is liable to a civil penalty if:
4
(a) the person exports live-stock from Australia; and
5
(b) the person is not the holder of a live-stock export licence; and
6
(c) the export of the live-stock causes, or has the potential to
7
cause, economic consequences for Australia.
8
Civil penalty:
9
(a) if the person is an individual--4,000 penalty units; or
10
(b) if the person is a body corporate--the amount under
11
section 54G.
12
54D Conditions of live-stock export licence must not be
13
contravened--basic contravention
14
Fault-based offence
15
(1) The holder of a live-stock export licence commits an offence if the
16
holder contravenes a condition of the licence either intentionally or
17
being reckless as to the condition.
18
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
19
Strict liability offence
20
(2) The holder of a live-stock export licence commits an offence of
21
strict liability if the holder contravenes a condition of the licence.
22
Penalty: 60 penalty units.
23
Civil penalty provision
24
(3) The holder of a live-stock export licence is liable to a civil penalty
25
if the holder contravenes a condition of the licence.
26
Civil penalty:
960 penalty units.
27
Schedule 1 Amendments
Part 1 Amendment of the Australian Meat and Live-stock Industry Act 1997
10
Export Legislation Amendment (Live-stock) Bill 2018
No. , 2018
54E Contravening conditions of live-stock licence--intention to
1
obtain commercial advantage
2
Fault-based offence
3
(1) The holder of a live-stock export licence commits an offence if:
4
(a) the holder contravenes a condition of the licence either
5
intentionally or being reckless as to the condition; and
6
(b) the holder intends to obtain a commercial advantage over the
7
person's competitors, or potential competitors, as a result of
8
contravening the condition.
9
Penalty:
10
(a) if the person is an individual--imprisonment for 10 years or
11
2,000 penalty units, or both; or
12
(b) if the person is a body corporate--the amount under
13
section 54G.
14
Alternative verdict
15
(2) In a trial for an offence against subsection (1), the trier of fact may
16
find the defendant not guilty of that offence, but guilty of an
17
offence against subsection 54D(1), if:
18
(a) the trier of fact is not satisfied that the defendant is guilty of
19
the offence against subsection (1) of this section; and
20
(b) the trier of fact is satisfied that the defendant is guilty of the
21
offence against subsection 54D(1); and
22
(c) the defendant has been accorded procedural fairness in
23
relation to that finding of guilt.
24
Civil penalty provision
25
(3) The holder of a live-stock export licence is liable to a civil penalty
26
if:
27
(a) the holder contravenes a condition of the licence; and
28
(b) the holder intends to obtain a commercial advantage over the
29
person's competitors, or potential competitors, as a result of
30
contravening the condition.
31
Civil penalty:
32
(a) if the person is an individual--4,000 penalty units; or
33
Amendments Schedule 1
Amendment of the Australian Meat and Live-stock Industry Act 1997 Part 1
No. , 2018
Export Legislation Amendment (Live-stock) Bill 2018
11
(b) if the person is a body corporate--the amount under
1
section 54G.
2
54F Contravening conditions of live-stock licence--economic
3
consequences for Australia
4
Fault-based offence
5
(1) The holder of a live-stock export licence commits an offence if:
6
(a) the holder contravenes a condition of the licence either
7
intentionally or being reckless as to the condition; and
8
(b) the contravention of the condition causes, or has the potential
9
to cause, economic consequences for Australia.
10
Penalty:
11
(a) if the person is an individual--imprisonment for 10 years or
12
2,000 penalty units, or both; or
13
(b) if the person is a body corporate--the amount under
14
section 54G.
15
Alternative verdict
16
(2) In a trial for an offence against subsection (1), the trier of fact may
17
find the defendant not guilty of that offence, but guilty of an
18
offence against subsection 54D(1), if:
19
(a) the trier of fact is not satisfied that the defendant is guilty of
20
the offence against subsection (1) of this section; and
21
(b) the trier of fact is satisfied that the defendant is guilty of the
22
offence against subsection 54D(1); and
23
(c) the defendant has been accorded procedural fairness in
24
relation to that finding of guilt.
25
Civil penalty provision
26
(3) The holder of a live-stock export licence is liable to a civil penalty
27
if:
28
(a) the holder contravenes a condition of the licence; and
29
(b) the contravention of the condition causes, or has the potential
30
to cause, economic consequences for Australia.
31
Civil penalty:
32
Schedule 1 Amendments
Part 1 Amendment of the Australian Meat and Live-stock Industry Act 1997
12
Export Legislation Amendment (Live-stock) Bill 2018
No. , 2018
(a) if the person is an individual--4,000 penalty units; or
1
(b) if the person is a body corporate--the amount under
2
section 54G.
3
54G Penalties for certain contraventions by bodies corporate
4
relating to exports of live-stock
5
(1) This section has effect for the purposes of the following provisions:
6
(a) subsections 54B(1) and (3);
7
(b) subsections 54C(1) and (3);
8
(c) subsections 54E(1) and (3);
9
(d) subsections 54F(1) and (3).
10
(2) The amount of the penalty for a contravention by a body corporate
11
(the first body) of a provision referred to in subsection (1) is an
12
amount not more than the greatest of the following:
13
(a) 20,000 penalty units;
14
(b) if the first body, and any related body corporate of the first
15
body, has obtained, directly or indirectly, a benefit that is
16
reasonably attributable to the conduct constituting the
17
contravention, and the relevant court can determine the value
18
of that benefit--3 times the value of that benefit;
19
(c) if the relevant court cannot determine the value of a benefit
20
referred to in paragraph (b) or no such benefit has been
21
obtained--10% of the annual turnover of the first body
22
during the period (the turnover period) of 12 months ending
23
at the end of the month in which the first body committed, or
24
began committing, the contravention.
25
(3) For the purposes of this section, the annual turnover of the first
26
body, during the turnover period, is the sum of the values of all the
27
supplies that the first body, and any related body corporate of the
28
first body, have made, or are likely to make, during that period,
29
other than the following supplies:
30
(a) supplies made from the first body to any related body
31
corporate of the first body;
32
(b) supplies made from any related body corporate of the first
33
body to the first body;
34
(c) supplies that are input taxed;
35
Amendments Schedule 1
Amendment of the Australian Meat and Live-stock Industry Act 1997 Part 1
No. , 2018
Export Legislation Amendment (Live-stock) Bill 2018
13
(d) supplies that are not for consideration (and are not taxable
1
supplies under section 72-5 of the A New Tax System (Goods
2
and Services Tax) Act 1999);
3
(e) supplies that are not made in connection with an enterprise
4
that the first body carries on.
5
(4) Expressions used in subsection (3) that are also used in the A New
6
Tax System (Goods and Services Tax) Act 1999 have the same
7
meaning in that subsection as they have in that Act.
8
(5) The question whether 2 bodies corporate are related to each other
9
is to be determined for the purposes of this section in the same way
10
as for the purposes of the Corporations Act 2001.
11
24 After section 56
12
Insert:
13
56A Civil penalties under Part 4 of the Regulatory Powers Act
14
Enforceable civil penalty provisions
15
(1) Each civil penalty provision of this Part is enforceable under Part 4
16
of the Regulatory Powers Act.
17
Note:
Part 4 of the Regulatory Powers Act allows a civil penalty provision to
18
be enforced by obtaining an order for a person to pay a pecuniary
19
penalty for the contravention of the provision.
20
Authorised applicant
21
(2) For the purposes of Part 4 of the Regulatory Powers Act, the
22
Secretary is an authorised applicant in relation to the civil penalty
23
provisions referred to in subsection (1).
24
Relevant court
25
(3) For the purposes of Part 4 of the Regulatory Powers Act, each
26
relevant court (as defined in section 7 of this Act) is a relevant
27
court in relation to the civil penalty provisions referred to in
28
subsection (1).
29
Schedule 1 Amendments
Part 1 Amendment of the Australian Meat and Live-stock Industry Act 1997
14
Export Legislation Amendment (Live-stock) Bill 2018
No. , 2018
56B Infringement notices under Part 5 of the Regulatory Powers
1
Act--basic provisions
2
Provisions subject to an infringement notice
3
(1) An offence against subsection 54D(2) (contravening conditions of
4
live-stock export licence) is subject to an infringement notice under
5
Part 5 of the Regulatory Powers Act.
6
Note:
Part 5 of the Regulatory Powers Act creates a framework for using
7
infringement notices in relation to provisions.
8
(2) For the purposes of Part 5 of the Regulatory Powers Act:
9
(a) the Secretary is an infringement officer in relation to the
10
provision of this Act referred to in subsection (1); and
11
(b) the Secretary is the relevant chief executive in relation to the
12
provision of this Act referred to in subsection (1).
13
56C Infringement notices under Part 5 of the Regulatory Powers
14
Act--modifications
15
(1) Instead of stating the matters referred to in paragraph 104(1)(d) of
16
the Regulatory Powers Act, an infringement notice must state the
17
name and contact details of the person who gave the notice, and
18
how the person has power to issue the infringement notice.
19
Amount payable under the infringement notice
20
(2) The amount to be stated in an infringement notice for the purposes
21
of paragraph 104(1)(f) of the Regulatory Powers Act for the
22
alleged contravention of the provision by the person must be the
23
lesser of:
24
(a) one-fifth of the maximum penalty that a court could impose
25
on the person for that contravention; and
26
(b) 12 penalty units where the person is an individual, or 60
27
penalty units where the person is a body corporate.
28
56D Criminal liability for executive officers of bodies corporate
29
relating to exports of live-stock
30
Basic contravention
31
(1) An executive officer of a body corporate commits an offence if:
32
Amendments Schedule 1
Amendment of the Australian Meat and Live-stock Industry Act 1997 Part 1
No. , 2018
Export Legislation Amendment (Live-stock) Bill 2018
15
(a) the body corporate commits an offence by contravening
1
subsection 54A(1) or 54D(1); and
2
(b) the officer knew that, or was reckless or negligent as to
3
whether, the contravention would occur; and
4
(c) the officer was in a position to influence the conduct of the
5
body corporate in relation to the contravention; and
6
(d) the officer failed to take all reasonable steps to prevent the
7
contravention.
8
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
9
Contravention involving intention to obtain commercial advantage
10
or economic consequences for Australia
11
(2) An executive officer of a body corporate commits an offence if:
12
(a) the body corporate commits an offence by contravening
13
subsection 54B(1), 54C(1), 54E(1) or 54F(1); and
14
(b) the officer knew that, or was reckless or negligent as to
15
whether, the contravention would occur; and
16
(c) the officer was in a position to influence the conduct of the
17
body corporate in relation to the contravention; and
18
(d) the officer failed to take all reasonable steps to prevent the
19
contravention.
20
Penalty: Imprisonment for 10 years or 5,000 penalty units, or
21
both.
22
Reasonable steps to prevent contravention
23
(3) For the purposes of paragraph (1)(d) or (2)(d), in determining
24
whether an executive officer of a body corporate failed to take all
25
reasonable steps to prevent a contravention, a court may have
26
regard to all relevant matters, including:
27
(a) what action (if any) the officer took directed towards
28
ensuring the following (to the extent that the action is
29
relevant to the contravention):
30
(i) that the body corporate arranges regular professional
31
assessments of the body corporate's compliance with
32
subsections 54A(1), 54B(1), 54C(1), 54D(1), 54E(1)
33
and 54F(1);
34
Schedule 1 Amendments
Part 1 Amendment of the Australian Meat and Live-stock Industry Act 1997
16
Export Legislation Amendment (Live-stock) Bill 2018
No. , 2018
(ii) that the body corporate implements any appropriate
1
recommendations arising from such an assessment;
2
(iii) that the body corporate's employees, agents and
3
contractors have a reasonable knowledge and
4
understanding of the requirements to comply with
5
subsections 54A(1), 54B(1), 54C(1), 54D(1), 54E(1)
6
and 54F(1) in so far as those requirements affect the
7
employees, agents or contractors concerned;
8
(iv) that the body corporate had in place adequate
9
procedures to prevent the contravention; and
10
(b) what action (if any) the officer took when the officer became
11
aware of the contravention.
12
(4) Subsection (3) does not limit subsection (1) or (2).
13
56E Civil liability for executive officers of bodies corporate relating
14
to exports of live-stock
15
Basic contravention
16
(1) An executive officer of a body corporate is liable to a civil penalty
17
if:
18
(a) the body corporate contravenes subsection 54A(2) or 54D(3);
19
and
20
(b) the officer knew that, or was reckless or negligent as to
21
whether, the contravention would occur; and
22
(c) the officer was in a position to influence the conduct of the
23
body corporate in relation to the contravention; and
24
(d) the officer failed to take all reasonable steps to prevent the
25
contravention.
26
Civil penalty:
960 penalty units.
27
Contravention involving intention to obtain commercial advantage
28
or economic consequences for Australia
29
(2) An executive officer of a body corporate is liable to a civil penalty
30
if:
31
(a) the body corporate contravenes subsection 54B(3), 54C(3),
32
54E(3) or 54F(3); and
33
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17
(b) the officer knew that, or was reckless or negligent as to
1
whether, the contravention would occur; and
2
(c) the officer was in a position to influence the conduct of the
3
body corporate in relation to the contravention; and
4
(d) the officer failed to take all reasonable steps to prevent the
5
contravention.
6
Civil penalty:
10,000 penalty units.
7
Recklessness
8
(3) For the purposes of subsection (1) or (2), the executive officer is
9
reckless as to whether the contravention would occur if:
10
(a) the officer is aware of a substantial risk that the contravention
11
would occur; and
12
(b) having regard to the circumstances known to the officer, it is
13
unjustifiable to take the risk.
14
Negligence
15
(4) For the purposes of subsection (1) or (2), the executive officer is
16
negligent as to whether the contravention would occur if the
17
officer's conduct involves:
18
(a) such a great falling short of the standard of care that a
19
reasonable person would exercise in the circumstances; and
20
(b) such a high risk that the contravention would occur;
21
that the conduct merits the imposition of a pecuniary penalty.
22
Reasonable steps to prevent contravention
23
(5) For the purposes of paragraph (1)(d) or (2)(d), in determining
24
whether an executive officer of a body corporate failed to take all
25
reasonable steps to prevent a contravention, a court may have
26
regard to all relevant matters, including:
27
(a) what action (if any) the officer took directed towards
28
ensuring the following (to the extent that the action is
29
relevant to the contravention):
30
(i) that the body corporate arranges regular professional
31
assessments of the body corporate's compliance with
32
subsections 54A(2), 54B(3), 54C(3), 54D(3), 54E(3)
33
and 54F(3);
34
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18
Export Legislation Amendment (Live-stock) Bill 2018
No. , 2018
(ii) that the body corporate implements any appropriate
1
recommendations arising from such an assessment;
2
(iii) that the body corporate's employees, agents and
3
contractors have a reasonable knowledge and
4
understanding of the requirements to comply with
5
subsections 54A(2), 54B(3), 54C(3), 54D(3), 54E(3)
6
and 54F(3) in so far as those requirements affect the
7
employees, agents or contractors concerned;
8
(iv) that the body corporate had in place adequate
9
procedures to prevent the contravention; and
10
(b) what action (if any) the officer took when the officer became
11
aware of the contravention.
12
(6) Subsection (5) does not limit subsection (1) or (2).
13
56F Adverse publicity orders in relation to exports of live-stock
14
(1) A relevant court may, on application by the Secretary, or on its
15
own initiative, make an adverse publicity order in relation to a
16
person who:
17
(a) has been ordered to pay a penalty for a contravention of
18
subsection 54A(2), 54B(3), 54C(3), 54D(3), 54E(3) or
19
54F(3); or
20
(b) has been found guilty of an offence against
21
subsection 54A(1), 54B(1), 54C(1), 54D(1), 54E(1) or
22
54F(1), whether or not the court convicts the person of the
23
offence.
24
(2) A relevant court may, on application by the Director of Public
25
Prosecutions, make an adverse publicity order in relation to a
26
person who has been found guilty of an offence against
27
subsection 54A(1), 54B(1), 54C(1), 54D(1), 54E(1) or 54F(1),
28
whether or not the court convicts the person of the offence.
29
(3) For the purposes of this section, an adverse publicity order in
30
relation to a person is an order that requires the person:
31
(a) to take either or both of the following actions within the
32
period specified in the order:
33
(i) to disclose, in the way and to the persons specified in
34
the order, details of the contravention or offence, its
35
Amendments Schedule 1
Amendment of the Australian Meat and Live-stock Industry Act 1997 Part 1
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Export Legislation Amendment (Live-stock) Bill 2018
19
consequences, the penalty imposed and any other
1
related matter;
2
(ii) to publish, at the person's expense and in the way
3
specified in the order, details of the contravention or
4
offence, its consequences, the penalty imposed and any
5
other related matter; and
6
(b) to give the Secretary, within 14 days after the end of the
7
period specified in the order, evidence that the action or
8
actions were taken by the person in accordance with the
9
order.
10
(4) This section does not limit a court's powers under any other
11
provision of this Part.
12
25 Subsection 70(2)
13
After "powers", insert "or functions".
14
26 At the end of section 70
15
Add:
16
(3) The powers or functions that may be delegated by the Secretary
17
under subsection (2) include powers or functions the Secretary has
18
as an authorised applicant or infringement officer or a relevant
19
chief executive for the purposes of a provision of the Regulatory
20
Powers Act because of this Act.
21
Schedule 1 Amendments
Part 2 Amendment of the Export Control Act 1982
20
Export Legislation Amendment (Live-stock) Bill 2018
No. , 2018
Part 2--Amendment of the Export Control Act 1982
1
Export Control Act 1982
2
27 Section 3
3
Insert:
4
civil penalty provision has the same meaning as in the Regulatory
5
Powers Act.
6
engage in conduct means:
7
(a) do an act; or
8
(b) omit to perform an act.
9
28 Section 3 (definition of evidential material)
10
Repeal the definition, substitute:
11
evidential material means any of the following things, including
12
such a thing in electronic form:
13
(a) a thing with respect to which:
14
(i) an offence against this Act has been committed or is
15
suspected, on reasonable grounds, to have been
16
committed; or
17
(ii) a civil penalty provision of this Act has been
18
contravened or is suspected, on reasonable grounds, to
19
have been contravened;
20
(b) a thing as to which there are reasonable grounds for
21
suspecting that it will afford evidence as to:
22
(i) the commission of an offence against this Act; or
23
(ii) the contravention of a civil penalty provision of this
24
Act;
25
(c) a thing as to which there are reasonable grounds for
26
suspecting that it is intended to be used for the purpose of:
27
(i) committing an offence against this Act; or
28
(ii) contravening a civil penalty provision of this Act.
29
29 Section 3
30
Insert:
31
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Amendment of the Export Control Act 1982 Part 2
No. , 2018
Export Legislation Amendment (Live-stock) Bill 2018
21
executive officer of a body corporate means a person, by whatever
1
name called and whether or not a director of the body, who is
2
concerned in, or takes part in, the management of the body.
3
Regulatory Powers Act means the Regulatory Powers (Standard
4
Provisions) Act 2014.
5
relevant court means:
6
(a) the Federal Court of Australia; or
7
(b) the Federal Circuit Court of Australia; or
8
(c) a court of a State or Territory that has jurisdiction in relation
9
to matters arising under this Act.
10
30 Division 2 of Part IIA (at the end of the heading)
11
Add "and civil penalty provisions".
12
31 Section 9K
13
Repeal the section, substitute:
14
9K Person must not obstruct or hinder accredited veterinarians etc.
15
undertaking activities in approved export program
16
Fault-based offence
17
(1) A person commits an offence if the person obstructs or hinders an
18
accredited veterinarian, or an authorised officer, in the undertaking
19
of any of the activities in an approved export program.
20
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
21
Strict liability offence
22
(2) A person commits an offence of strict liability if the person
23
obstructs or hinders an accredited veterinarian, or an authorised
24
officer, in the undertaking of any of the activities in an approved
25
export program.
26
Penalty: 50 penalty units.
27
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Part 2 Amendment of the Export Control Act 1982
22
Export Legislation Amendment (Live-stock) Bill 2018
No. , 2018
Civil penalty provision
1
(3) A person is liable to a civil penalty if the person obstructs or
2
hinders an accredited veterinarian, or an authorised officer, in the
3
undertaking of any of the activities in an approved export program.
4
Civil penalty:
960 penalty units.
5
9KA Influencing a person undertaking activities in approved export
6
program
7
Fault-based offence
8
(1) A person commits an offence if:
9
(a) the person engages in conduct; and
10
(b) the person does so with the intention of dishonestly
11
influencing another person in the undertaking of any of the
12
activities in an approved export program.
13
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
14
Civil penalty provision
15
(2) A person is liable to a civil penalty if:
16
(a) the person engages in conduct; and
17
(b) the person does so with the intention of dishonestly
18
influencing another person in the undertaking of any of the
19
activities in an approved export program.
20
Civil penalty:
960 penalty units.
21
32 Section 10C (heading)
22
Omit "offence-related".
23
33 Division 3 of Part III (heading)
24
Repeal the heading, substitute:
25
Division 3--Searches and seizures
26
34 Section 10D (heading)
27
Omit "offence-related".
28
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Amendment of the Export Control Act 1982 Part 2
No. , 2018
Export Legislation Amendment (Live-stock) Bill 2018
23
35 Section 10E (heading)
1
Repeal the heading, substitute:
2
10E Application for and issue of search warrant
3
36 Paragraph 10E(4)(a)
4
After "offence", insert "or contravention".
5
37 Paragraph 10E(5)(a)
6
After "offence", insert "or contravention".
7
38 At the end of paragraph 10E(5)(b)
8
Add "or another contravention of a civil penalty provision of this Act".
9
39 At the end of subsection 10E(5)
10
Add "or contravening a civil penalty provision of this Act".
11
40 Subparagraph 10F(1)(d)(i)
12
After "offence", insert "or contravention".
13
41 At the end of subparagraph 10F(1)(d)(ii)
14
Add "or another contravention of a civil penalty provision of this Act".
15
42 At the end of subsection 10F(1)
16
Add "or contravening a civil penalty provision of this Act".
17
43 Subsection 10F(3)
18
After "offence", insert ", or investigating or commencing proceedings
19
for a contravention of a civil penalty provision,".
20
44 Paragraph 11J(2)(a)
21
After "committed", insert "or a civil penalty provision of this Act has
22
been contravened".
23
45 Paragraph 11J(2)(b)
24
Repeal the paragraph, substitute:
25
Schedule 1 Amendments
Part 2 Amendment of the Export Control Act 1982
24
Export Legislation Amendment (Live-stock) Bill 2018
No. , 2018
(b) to enable evidence of an offence, or a contravention of a civil
1
penalty provision of this Act, to be secured for the purposes
2
of a proceeding;
3
46 At the end of Part III
4
Add:
5
Division 8--Civil penalties under Part 4 of the Regulatory
6
Powers Act
7
13A Civil penalties under Part 4 of the Regulatory Powers Act
8
Enforceable civil penalty provisions
9
(1) Each civil penalty provision of this Act is enforceable under Part 4
10
of the Regulatory Powers Act.
11
Note:
Part 4 of the Regulatory Powers Act allows a civil penalty provision to
12
be enforced by obtaining an order for a person to pay a pecuniary
13
penalty for the contravention of the provision.
14
Authorised applicant
15
(2) For the purposes of Part 4 of the Regulatory Powers Act, the
16
Secretary is an authorised applicant in relation to the civil penalty
17
provisions referred to in subsection (1).
18
Relevant court
19
(3) For the purposes of Part 4 of the Regulatory Powers Act, each
20
relevant court (as defined in section 3 of this Act) is a relevant
21
court in relation to the civil penalty provisions referred to in
22
subsection (1).
23
Division 9--Liability of executive officers of bodies
24
corporate
25
13B Criminal liability for executive officers of bodies corporate
26
relating to approved export programs
27
(1) An executive officer of a body corporate commits an offence if:
28
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Amendment of the Export Control Act 1982 Part 2
No. , 2018
Export Legislation Amendment (Live-stock) Bill 2018
25
(a) the body corporate commits an offence by contravening
1
subsection 9K(1) or 9KA(1); and
2
(b) the officer knew that, or was reckless or negligent as to
3
whether, the contravention would occur; and
4
(c) the officer was in a position to influence the conduct of the
5
body corporate in relation to the contravention; and
6
(d) the officer failed to take all reasonable steps to prevent the
7
contravention.
8
Penalty: Imprisonment for 8 years or 480 penalty units, or both.
9
Reasonable steps to prevent contravention
10
(2) For the purposes of subsection (1), in determining whether an
11
executive officer of a body corporate failed to take all reasonable
12
steps to prevent a contravention, a court may have regard to all
13
relevant matters, including:
14
(a) what action (if any) the officer took directed towards
15
ensuring the following (to the extent that the action is
16
relevant to the contravention):
17
(i) that the body corporate arranges regular professional
18
assessments of the body corporate's compliance with
19
subsections 9K(1) and 9KA(1);
20
(ii) that the body corporate implements any appropriate
21
recommendations arising from such an assessment;
22
(iii) that the body corporate's employees, agents and
23
contractors have a reasonable knowledge and
24
understanding of the requirements to comply with
25
subsections 9K(1) and 9KA(1) in so far as those
26
requirements affect the employees, agents or contractors
27
concerned;
28
(iv) that the body corporate had in place adequate
29
procedures to prevent the contravention; and
30
(b) what action (if any) the officer took when the officer became
31
aware of the contravention.
32
(3) Subsection (2) does not limit subsection (1).
33
Schedule 1 Amendments
Part 2 Amendment of the Export Control Act 1982
26
Export Legislation Amendment (Live-stock) Bill 2018
No. , 2018
13C Civil liability for executive officers of bodies corporate relating
1
to approved export programs
2
(1) An executive officer of a body corporate is liable to a civil penalty
3
if:
4
(a) the body corporate contravenes subsection 9K(3) or 9KA(2);
5
and
6
(b) the officer knew that, or was reckless or negligent as to
7
whether, the contravention would occur; and
8
(c) the officer was in a position to influence the conduct of the
9
body corporate in relation to the contravention; and
10
(d) the officer failed to take all reasonable steps to prevent the
11
contravention.
12
Civil penalty:
960 penalty units.
13
Recklessness
14
(2) For the purposes of subsection (1), the executive officer is reckless
15
as to whether the contravention would occur if:
16
(a) the officer is aware of a substantial risk that the contravention
17
would occur; and
18
(b) having regard to the circumstances known to the officer, it is
19
unjustifiable to take the risk.
20
Negligence
21
(3) For the purposes of subsection (1), the executive officer is
22
negligent as to whether the contravention would occur if the
23
officer's conduct involves:
24
(a) such a great falling short of the standard of care that a
25
reasonable person would exercise in the circumstances; and
26
(b) such a high risk that the contravention would occur;
27
that the conduct merits the imposition of a pecuniary penalty.
28
Reasonable steps to prevent contravention
29
(4) For the purposes of subsection (1), in determining whether an
30
executive officer of a body corporate failed to take all reasonable
31
steps to prevent a contravention, a court may have regard to all
32
relevant matters, including:
33
Amendments Schedule 1
Amendment of the Export Control Act 1982 Part 2
No. , 2018
Export Legislation Amendment (Live-stock) Bill 2018
27
(a) what action (if any) the officer took directed towards
1
ensuring the following (to the extent that the action is
2
relevant to the contravention):
3
(i) that the body corporate arranges regular professional
4
assessments of the body corporate's compliance with
5
subsections 9K(3) and 9KA(2);
6
(ii) that the body corporate implements any appropriate
7
recommendations arising from such an assessment;
8
(iii) that the body corporate's employees, agents and
9
contractors have a reasonable knowledge and
10
understanding of the requirements to comply with
11
subsections 9K(3) and 9KA(2) in so far as those
12
requirements affect the employees, agents or contractors
13
concerned;
14
(iv) that the body corporate had in place adequate
15
procedures to prevent the contravention; and
16
(b) what action (if any) the officer took when the officer became
17
aware of the contravention.
18
(5) Subsection (4) does not limit subsection (1).
19
Division 10--Adverse publicity orders
20
13D Adverse publicity orders relating to approved export programs
21
(1) A relevant court may, on application by the Secretary, or on its
22
own initiative, make an adverse publicity order in relation to a
23
person who:
24
(a) has been ordered to pay a penalty for a contravention of a
25
provision of Division 2 of Part IIA (which deals with
26
approved export programs); or
27
(b) has been found guilty of an offence against a provision of
28
that Division, whether or not the court convicts the person of
29
the offence.
30
(2) A relevant court may, on application by the Director of Public
31
Prosecutions, make an adverse publicity order in relation to a
32
person who has been found guilty of an offence against a provision
33
of Division 2 of Part IIA, whether or not the court convicts the
34
person of the offence.
35
Schedule 1 Amendments
Part 2 Amendment of the Export Control Act 1982
28
Export Legislation Amendment (Live-stock) Bill 2018
No. , 2018
(3) For the purposes of this section, an adverse publicity order in
1
relation to a person is an order that requires the person:
2
(a) to take either or both of the following actions within the
3
period specified in the order:
4
(i) to disclose, in the way and to the persons specified in
5
the order, details of the contravention or offence, its
6
consequences, the penalty imposed and any other
7
related matter;
8
(ii) to publish, at the person's expense and in the way
9
specified in the order, details of the contravention or
10
offence, its consequences, the penalty imposed and any
11
other related matter; and
12
(b) to give the Secretary, within 14 days after the end of the
13
period specified in the order, evidence that the action or
14
actions were taken by the person in accordance with the
15
order.
16
(4) This section does not limit a court's powers under any other
17
provision of this Act.
18
47 After subsection 19(1)
19
Insert:
20
(1A) The powers or functions that may be delegated by the Secretary
21
under subsection (1) include powers or functions the Secretary has
22
as an authorised applicant for the purposes of a provision of the
23
Regulatory Powers Act because of this Act.
24
48 Subsection 24B(2)
25
After "this Act", insert "or a contravention of a civil penalty provision
26
of this Act".
27
49 At the end of paragraph 25(2)(c)
28
Add "or a contravention of a civil penalty provision of this Act".
29
Amendments Schedule 1
Application provisions Part 3
No. , 2018
Export Legislation Amendment (Live-stock) Bill 2018
29
Part 3--Application provisions
1
50 Application of amendments
2
(1)
The amendments of the Australian Meat and Live-stock Industry Act
3
1997 made by Part 1 of this Schedule apply in relation to acts or
4
omissions occurring after the commencement of this item.
5
(2)
The amendments of the Export Control Act 1982 made by Part 2 of this
6
Schedule apply in relation to acts or omissions occurring after the
7
commencement of this item.
8