INSPECTOR-GENERAL OF BIOSECURITY BILL 2012 [2013]

i Inspector-General of Biosecurity Bill 2012 No. , 2012

Contents

Part 1--Preliminary

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Definitions

.........................................................................................

Extension of Act to Christmas Island, Cocos (Keeling)

Islands and other prescribed external Territories ............................... 5

Part 2--Inspector-General of Biosecurity

Division 1--Establishment of the Inspector-General of

Biosecurity

5 Inspector-General

..............................................................................

6 Functions

...........................................................................................

Division 2--Review program

Setting a review program ................................................................... 7

When reviews are to be conducted .................................................... 7

Part 3--Powers for conducting reviews: general

Division 1--Application of this Part

Application of this Part ...................................................................... 9

Division 2--Obtaining information and documents etc.

Inspector-General may require persons to provide

information etc. ................................................................................ 10

11 Inspector-General

may

invite submissions ...................................... 11

Submissions may be made publicly available .................................. 12

Assistance from the Director of Biosecurity .................................... 13

Inspector-General may retain and make copies of documents ......... 14

Inspector-General must consider all evidence provided .................. 14

Division 3--Civil penalty and related provisions

Civil penalties--failure to comply with notice etc. ......................... 16

17 Self-incrimination etc. ..................................................................... 16

Protection from liability for persons complying with a notice

or making a submission ................................................................... 17

No loss of legal professional privilege ............................................. 18

Division 4--Entering premises

Subdivision A--Entering premises to exercise review powers

Entering premises to exercise review powers .................................. 19

21 General

review

powers

....................................................................

Inspector-General of Biosecurity Bill 2012 No. , 2012 ii

22 Operating

electronic equipment ....................................................... 20

Expert assistance to operate electronic equipment ........................... 21

Subdivision B--Entering adjacent premises to gain access to other

premises

Entering adjacent premises to gain access to other premises ........... 23

Subdivision C--Persons assisting

Persons assisting Inspector-General ................................................ 23

Subdivision D--Obligations and incidental powers of

Inspector-General

26 Consent

............................................................................................

Notice of entry etc. .......................................................................... 25

28 Inspector-General

in possession of warrant ............................ 25

Details of warrant etc. to be given to occupier................................. 26

Use of force ...................................................................................... 26

Compensation for damage to electronic equipment ......................... 26

Subdivision E--Occupier's rights and responsibilities

Right to observe exercise of powers ................................................ 27

Responsibility to provide facilities and assistance ........................... 27

Subdivision F--Issue of warrants

34 Review

warrants

..............................................................................

35 Adjacent

premises

warrants

.............................................................

36 Powers

issuing officers ................................................................ 30

Part 4--Reports on reviews

37 Reporting

reviews

.......................................................................

Certain material to be excluded from reports ................................... 31

39 Including

criticism in reports ........................................................... 32

40 Legal

professional privilege ............................................................. 34

Tabling etc. of reports ...................................................................... 35

Part 5--Requests for review of BIRA process

Person may request Inspector-General to review BIRA

process ............................................................................................. 36

Inspector-General must consider request for review ....................... 36

Assistance from the Director of Biosecurity .................................... 37

Inspector-General may retain and make copies of documents ......... 37

Inspector-General must consider all evidence provided .................. 37

47 Inspector-General

must prepare report ............................................ 38

iii Inspector-General of Biosecurity Bill 2012 No. , 2012

Part 6--Administrative provisions

Division 1--Appointment etc. of Inspector-General of

Biosecurity

48 Appointment

....................................................................................

Term of appointment ....................................................................... 39

50 Remuneration

and

allowances ......................................................... 39

Leave of absence .............................................................................. 40

52 Outside

employment

........................................................................

53 Disclosure

interests ...................................................................... 40

54 Other

terms

and

conditions .............................................................. 40

55 Resignation

......................................................................................

56 Termination

appointment ............................................................ 41

Appointment of acting Inspector-General ........................................ 42

Division 2--Staff and consultants

58 Staff

.................................................................................................

59 Consultants

......................................................................................

Part 7--Miscellaneous

60 Inspector-General

have

regard to minimising disruption

during review ................................................................................... 44

Information that would be prejudicial to the public interest ............ 44

62 Annual

report

...................................................................................

63 Delegation

........................................................................................

64 Secrecy

.............................................................................................

Application of the Biosecurity Act 2012 .......................................... 48

Protection from civil proceedings .................................................... 49

67 Regulations

......................................................................................

Part 1 Preliminary

Section 2

2 Inspector-General of Biosecurity Bill 2012 No. , 2012

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

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

At the same time as section 3 of the

Biosecurity Act 2012 commences.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Definitions

In this Act:

adjacent premises warrant means a warrant issued under

section 35.

Agriculture Minister means the Minister administering the

Primary Industries Levies and Charges Collection Act 1991.

approved arrangement has the same meaning as in the Biosecurity

Act 2012.

Australian territory has the same meaning as in the Biosecurity Act

2012.

Preliminary Part 1

Section 3

Inspector-General of Biosecurity Bill 2012 No. , 2012 3

biosecurity enforcement officer has the same meaning as in the

Biosecurity Act 2012.

biosecurity industry participant has the same meaning as in the

Biosecurity Act 2012.

biosecurity officer has the same meaning as in the Biosecurity Act

2012.

biosecurity risk has the same meaning as in the Biosecurity Act

2012.

BIRA (short for Biosecurity Import Risk Analysis) has the same

meaning as in the Biosecurity Act 2012.

chief human biosecurity officer has the same meaning as in the

Biosecurity Act 2012.

civil penalty provision means a subsection, or a section that is not

divided into subsections, that has set out at its foot the words "civil

penalty" and one or more amounts in penalty units.

Commonwealth body has the same meaning as in the Biosecurity

Act 2012.

conveyance has the same meaning as in the Biosecurity Act 2012.

damage, in relation to data, includes damage by erasure of data or

addition of other data.

data includes:

(a) information in any form; and

(b) any program (or part of a program).

Director of Biosecurity has the same meaning as in the Biosecurity

Act 2012.

Director of Human Biosecurity has the same meaning as in the

Biosecurity Act 2012.

evidential burden, in relation to a matter, means the burden of

adducing or pointing to evidence that suggests a reasonable

possibility that the matter exists or does not exist.

Part 1 Preliminary

Section 3

4 Inspector-General of Biosecurity Bill 2012 No. , 2012

Federal Circuit Court means the Federal Circuit Court of

Australia.

Federal Court means the Federal Court of Australia.

Health Minister means the Minister administering the National

Health Act 1953.

human biosecurity officer has the same meaning as in the

Biosecurity Act 2012.

import has the same meaning as in the Biosecurity Act 2012.

Inspector-General means the Inspector-General of Biosecurity

referred to in section 5.

issuing officer means:

(a) a magistrate; or

(b) a Judge of the Federal Court or the Federal Circuit Court.

Note:

For conferral of powers on an issuing officer, see section 36.

member of staff means a person referred to in section 58.

Part 5 review means a review under Part 5.

person assisting the Inspector-General has the meaning given by

section 25.

premises includes the following:

(a) a structure, building or conveyance;

(b) a place (whether or not enclosed or built on), including a

place situated underground or under water;

relevant court has the same meaning as in the Biosecurity Act

2012.

review means a review under this Act.

Note: See

section

review powers has the meaning given by sections 21 and 22.

review warrant means a warrant issued under section 34.

Part 2 Inspector-General of Biosecurity

Division 1 Establishment of the Inspector-General of Biosecurity

Section 5

6 Inspector-General of Biosecurity Bill 2012 No. , 2012

Part 2--Inspector-General of Biosecurity

Division 1--Establishment of the Inspector-General of

Biosecurity

5 Inspector-General

There is to be an Inspector-General of Biosecurity.

6 Functions

(1) The Inspector-General has the following functions:

(a) to review the performance of functions and the exercise of

powers by the following:

(i) the Director of Biosecurity;

(ii)

biosecurity

officers;

(iii) biosecurity enforcement officers;

(b) to review the process of conducting BIRAs generally;

(d) to report on those reviews in accordance with this Act;

(e) any other functions conferred on the Inspector-General by

this Act, the regulations or any other law of the

Commonwealth;

(f) to do anything incidental to or conducive to the performance

of the above functions.

(2) The Inspector-General's review functions under paragraphs (1)(a)

and (b) include conducting audits, evaluations and assessments.

(3) The Inspector-General's review functions do not include reviewing

the operation of an approved arrangement covering a biosecurity

industry participant.

Inspector-General of Biosecurity Part 2

Review program Division 2

Section 7

Inspector-General of Biosecurity Bill 2012 No. , 2012 7

Division 2--Review program

7 Setting a review program

(1) Each year, the Inspector-General must set a review program.

(2) The review program must be in writing.

(3) In setting the review program, the Inspector-General may exercise

powers under Part 3 as if references in that Part to a review or

conducting a review were references to setting a review program.

(4) The Inspector-General must consult the Director of Biosecurity and

the Agriculture Minister, at least once a year, in setting the review

program. The Inspector-General may also consult any other person

the Inspector-General considers appropriate.

(5) The Inspector-General is not subject to direction by the Director of

Biosecurity in relation to any of the following:

(a) whether or not a particular subject or matter is to be

reviewed;

(b) the way in which a particular review is to be conducted;

Note:

The Agriculture Minister may direct the Inspector-General to conduct

a review (see subsection 8(2)).

(6) The review program is not a legislative instrument.

8 When reviews are to be conducted

(1) The Inspector-General must conduct reviews in accordance with

his or her review program.

(2) The Agriculture Minister may, in writing, direct the

Inspector-General to conduct a review referred to in paragraph

6(1)(a), (b) or (c) (other than a Part 5 review).

(3) However, the Inspector-General is not subject to direction by the

Agriculture Minister in relation to either of the following:

(a) the way in which a particular review is to be conducted;

(b) the priority to be given to any particular review.

Part 3 Powers for conducting reviews: general

Division 2 Obtaining information and documents etc.

Section 10

10 Inspector-General of Biosecurity Bill 2012 No. , 2012

Division 2--Obtaining information and documents etc.

10 Inspector-General may require persons to provide information

etc.

(1) This section applies if the Inspector-General has reason to believe

that a person:

(a) has information or documents relevant to a review; or

(b) is capable of giving evidence that is relevant to a review.

(2) Subject to subsection 61(3), the Inspector-General may, by written

notice given to the person, require the person:

(a) to give the information to the Inspector-General by the time,

and in the manner and form, specified in the notice; or

(b) to produce the documents, or certified copies of the

documents, to the Inspector-General by the time, and in the

manner, specified in the notice; or

specified in the notice, to answer questions relevant to the

review.

Note:

See Division 3 of this Part for the consequences of giving information,

producing documents or answering questions, or the failure to do so.

(3) The time specified in the notice must be at least 14 days after the

notice is given.

Information and answers may be given on oath or by affirmation

(4) The Inspector-General may require either or both of the following:

(a) that information given under paragraph (2)(a) is to be given

in writing, or verified on oath or by affirmation;

(b) that answers be given on oath or by affirmation.

For this purpose, the Inspector-General may administer the oath or

affirmation.

(5) The oath or affirmation is an oath or affirmation that the

information or answers are or will be true.

Powers for conducting reviews: general Part 3

Obtaining information and documents etc. Division 2

Section 11

Inspector-General of Biosecurity Bill 2012 No. , 2012 11

Confidential information or documents

(6) A person may, at the time of giving information under this section,

request the Inspector-General:

(a) not to make some or all of the information available under

section 12; and

(b) not to publish or make available some or all of the

information in a report under section 37 or 62;

because the information is confidential.

(7) A person may, at the time of producing a document under this

section, request the Inspector-General:

(a) not to make the whole or a part of the document available

under section 12; and

(b) not to publish or make available the whole or a part of the

document in a report under section 37 or 62;

because the information contained in the document, or the part of

the document, is confidential.

11 Inspector-General may invite submissions

Inviting submissions

(1) The Inspector-General may invite members of the public generally,

or particular persons or organisations, to make submissions

relevant to a review.

Note:

See Division 3 of this Part for the consequences of making a

submission.

Process for inviting or making submissions

(2) The Inspector-General has discretion in deciding matters connected

with the process for inviting or making submissions, including:

(a) how to communicate an invitation; and

(b) how submissions may be made.

Note:

For example, the Inspector-General may:

(a) advertise in the press or other media seeking written submissions

from the public; or

(b) contact particular persons or organisations inviting them to attend

a meeting at which they may make oral submissions.

Part 3 Powers for conducting reviews: general

Division 2 Obtaining information and documents etc.

Section 12

12 Inspector-General of Biosecurity Bill 2012 No. , 2012

Submissions containing confidential information

(3) A person may, at the time of making a submission in response to

an invitation under subsection (1), request the Inspector-General:

(a) not to make the whole or a part of the submission available

under section 12; and

(b) not to publish or make available the whole or a part of the

submission in a report under section 37 or 62;

because of the confidential information contained in the

submission.

(4) If the Inspector-General refuses a person's request in relation to a

submission:

(a) in the case of a written submission--the person may require

that all or part of the submission be returned to the person;

and

(b) in the case of an oral submission--the person may withdraw

all or part of the submission.

12 Submissions may be made publicly available

(1) Subject to subsections (2) and (3), the Inspector-General may, in

any way he or she thinks appropriate, make available:

(a) information or answers to questions given under section 10;

(b) a document produced under section 10; or

subsection 11(1); or

(d) a written record (which may be a summary) of an oral

submission made in response to an invitation under

subsection 11(1);

to the public generally or to particular persons or organisations.

(2) The Inspector-General must not make information, an answer to a

question, a document, a submission or a record of a submission

available under subsection (1) to the extent that:

(a) it names, or otherwise specifically identifies:

(i) an officer or employee of a Commonwealth body (other

than the Director of Biosecurity); or

Powers for conducting reviews: general Part 3

Obtaining information and documents etc. Division 2

Section 13

Inspector-General of Biosecurity Bill 2012 No. , 2012 13

(ii) an officer or employee of a State or Territory body; or

(iii) a consultant to the Department; or

(b) it contains information relating to a matter specified in a

certificate given by the Agriculture Minister under

section 61.

(3) The Inspector-General must not make any of the following

available under subsection (1):

(a) information given under section 10 if:

(i) the person who gave the information requested, under

subsection 10(6), that the information not be published

because the information is confidential; and

(ii) the Inspector-General agreed to the request;

(b) a document, or a part of a document, produced under

section 10 if:

(i) the person who produced the document requested, under

subsection 10(7), that the document, or the part of the

document, not be published because the information

contained in the document, or the part of the document,

is confidential; and

(ii) the Inspector-General agreed to the request;

invitation under subsection 11(1), unless the person who

made the submission has verified the content of the record;

(d) a submission made in response to an invitation under

subsection 11(1) if the person who made the submission has

required its return or has withdrawn it under subsection

11(4);

(e) a part of a submission made in response to an invitation

under subsection 11(1) if the person who made the

submission has required that part to be returned or has

withdrawn that part under subsection 11(4).

13 Assistance from the Director of Biosecurity

(1) The Director of Biosecurity must comply with any reasonable

request from the Inspector-General for assistance for the purposes

of conducting a review.

Part 3 Powers for conducting reviews: general

Division 2 Obtaining information and documents etc.

Section 14

14 Inspector-General of Biosecurity Bill 2012 No. , 2012

(2) Without limiting subsection (1), the Inspector-General may request

the Director of Biosecurity to give information, produce documents

or answer questions relevant to a review.

14 Inspector-General may retain and make copies of documents

(1) If a document is produced under section 10 or 13, the

Inspector-General:

(a) may take possession of, and make copies of, the document, or

take extracts from the document; and

(b) may retain possession of the document for such period as is

necessary for the purposes of the review to which the

document relates.

(2) If a document is produced under section 10 or 13 for the purpose of

setting a review program under section 7, and a review is to be

conducted, the document may continue to be kept for as long as is

necessary for the purposes of conducting the review.

(3) While the Inspector-General retains possession of a document, he

or she must allow a person otherwise entitled to possession of the

document (or another person authorised by the person) to do any of

the following:

(a) inspect the document;

(b) make copies of the document;

at the times that the person would ordinarily be able to do so.

15 Inspector-General must consider all evidence provided

(1) In conducting a review, the Inspector-General must have regard to:

(a) any information given, documents produced and answers to

questions given in relation to the review under section 10 or

13; and

(b) any submission made in response to an invitation under

subsection 11(1), unless the person who made the submission

has required its return or has withdrawn it under subsection

11(4); and

Part 3 Powers for conducting reviews: general

Division 3 Civil penalty and related provisions

Section 16

16 Inspector-General of Biosecurity Bill 2012 No. , 2012

Division 3--Civil penalty and related provisions

16 Civil penalties--failure to comply with notice etc.

(1) If a person has been given a notice under subsection 10(2)

requiring the person:

(a) to give information specified in the notice; or

(b) to produce documents or certified copies of documents

specified in the notice;

the person must comply with the notice within the period specified

in the notice.

(2) If a person has been given a notice under subsection 10(2)

requiring the person to attend to answer questions at the time and

place specified in the notice, the person must comply with the

notice.

(3) If a person is required to take an oath or make an affirmation under

subsection 10(4), the person must comply with the requirement.

(4) If a person has been given a notice under subsection 10(2)

requiring the person to attend before the Inspector-General to

answer questions relevant to the review, the person must answer a

question put to him or her by the Inspector-General.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes

subsection (1), (2), (3) or (4).

Civil penalty:

30 penalty units.

Note:

Civil penalty proceedings for a contravention of this civil penalty

provision may be brought under the Biosecurity Act 2012 (see

section 65 of this Act).

17 Self-incrimination etc.

(1) A person is not excused from giving information, producing a

document or answering a question relevant to a review, as required

by a notice given under section 10, on the ground that doing so

Powers for conducting reviews: general Part 3

Civil penalty and related provisions Division 3

Section 18

Inspector-General of Biosecurity Bill 2012 No. , 2012 17

might tend to incriminate the person or make the person liable to a

penalty.

Use/derivative use indemnity

(2) However, in the case of an individual:

(a) the information given, the document produced, or the answer

given; and

(b) giving the information, producing the document or answering

the question; and

indirect consequence of giving the information, producing

the document or answering the question;

are not admissible in evidence against the individual:

(d) in any civil proceedings, other than proceedings for a

contravention of subsection 16(1), (2) or (4); or

(e) in criminal proceedings, other than:

(i) proceedings for an offence against section 137.1 or

137.2 of the Criminal Code (which relate to false or

misleading information or documents) that relates to

this Act; or

(ii) proceedings for an offence against section 149.1 of the

Criminal Code (which relates to the obstruction of

Commonwealth public officials) that relates to this Act.

18 Protection from liability for persons complying with a notice or

making a submission

(1) A person who, in good faith, gives information, produces a

document or answers a question relevant to a review, as required

by a notice given under section 10, is not liable:

(a) to any proceedings for contravening a law of the

Commonwealth, or a State or Territory, because of that

conduct; or

(b) to civil proceedings for loss, damage or injury of any kind

suffered by another person because of that conduct.

(2) A person who, in good faith, makes a submission in response to an

invitation under section 11 is not liable to civil proceedings for

Part 3 Powers for conducting reviews: general

Division 3 Civil penalty and related provisions

Section 19

18 Inspector-General of Biosecurity Bill 2012 No. , 2012

loss, damage or injury of any kind suffered by another person

because of making the submission.

19 No loss of legal professional privilege

Information or a document does not cease to be the subject of legal

professional privilege merely because it is:

(a) given or produced in response, or included or referred to in a

response, to a notice given under section 10; or

(b) referred to in answering a question asked in relation to a

notice given under section 10; or

an invitation under section 11; or

(d) given or produced to the Inspector-General in response to a

request under section 13.

Powers for conducting reviews: general Part 3

Entering premises Division 4

Section 20

Inspector-General of Biosecurity Bill 2012 No. , 2012 19

Division 4--Entering premises

Subdivision A--Entering premises to exercise review powers

20 Entering premises to exercise review powers

(1) For the purpose of conducting a review and subject to

subsections (2) and (3), the Inspector-General may enter any of the

following premises:

(a) premises that are owned or controlled by the Commonwealth

where functions are or have been performed, or powers are or

have been exercised, under the Biosecurity Act 2012 by the

Director of Biosecurity or by biosecurity officers or

biosecurity enforcement officers;

(b) premises at which a biosecurity industry participant carries

out biosecurity activities as authorised by an approved

arrangement covering the biosecurity industry participant;

or powers are or have been exercised, under the Biosecurity

Act 2012 by the Director of Biosecurity or by biosecurity

officers or biosecurity enforcement officers.

(2) The Inspector-General may enter premises referred to in

paragraph (1)(a) or (b) at any reasonable time.

(3) The Inspector-General is not authorised to enter premises referred

to in paragraph (1)(c) unless:

(a) the occupier of the premises has consented to the entry and

the Inspector-General has identified himself or herself if

required by the occupier; or

(b) the entry is made under a review warrant.

Note 1:

See Subdivision F in relation to the issue of a review warrant.

Note 2:

If entry to the premises is with the occupier's consent, the

Inspector-General must leave the premises if the consent ceases to

have effect (see section 26).

Part 3 Powers for conducting reviews: general

Division 4 Entering premises

Section 21

20 Inspector-General of Biosecurity Bill 2012 No. , 2012

21 General review powers

The Inspector-General may exercise any of the following powers

(review powers) in relation to premises entered under section 20

(including under a review warrant):

(a) the power to search the premises and any thing on the

premises that the Inspector-General thinks may be relevant to

a review;

(b) the power to examine or observe any activity conducted on

the premises that the Inspector-General thinks may be

relevant to a review;

conduct tests on any thing on the premises that the

Inspector-General thinks may be relevant to a review;

(d) the power to take and keep samples of any thing on the

premises that the Inspector-General thinks may be relevant to

a review;

(e) the power to make any still or moving image or any

recording of the premises or any thing on the premises that

the Inspector-General thinks may be relevant to a review;

(f) the power to inspect any document on the premises that the

Inspector-General thinks may be relevant to a review;

(g) the power to take extracts from, or make copies of, any such

document;

(h) the power to take onto the premises such equipment and

materials as the Inspector-General requires for the purposes

of exercising powers in relation to the premises;

(i) the powers set out in subsections 22(1) and (3).

22 Operating electronic equipment

(1)

The

review powers include the power to:

(a) operate electronic equipment on the premises; and

(b) use a disk, tape or other storage device that:

(i) is on the premises; and

(ii) can be used with the equipment or is associated with it.

Powers for conducting reviews: general Part 3

Entering premises Division 4

Section 23

Inspector-General of Biosecurity Bill 2012 No. , 2012 21

(2)

The

review powers include the powers mentioned in subsection (3)

if information relevant to a review (relevant data) is found in the

exercise of the power under subsection (1).

(3) The powers are as follows:

(a) the power to operate electronic equipment on the premises to

put the relevant data in documentary form and remove the

documents so produced from the premises;

(b) the power to operate electronic equipment on the premises to

transfer the relevant data to a disk, tape or other storage

device that:

(i) is brought to the premises for the exercise of the power;

(ii) is on the premises and the use of which for that purpose

has been agreed in writing by the occupier of the

premises;

and remove the disk, tape or other storage device from the

premises.

(4) The Inspector-General may operate electronic equipment as

mentioned in subsection (1) or (3) only if the Inspector-General

believes on reasonable grounds that the operation of the equipment

can be carried out without damage to the equipment.

Note:

For compensation for damage to electronic equipment, see section 31.

23 Expert assistance to operate electronic equipment

(1) This section applies if the Inspector-General enters premises under

a review warrant.

Securing equipment

(2) The Inspector-General may secure any electronic equipment that is

on the premises if the Inspector-General suspects on reasonable

grounds that:

(a) there is information relevant to a review (relevant data) on

the premises; and

(b) the relevant data may be accessible by operating the

equipment; and

Part 3 Powers for conducting reviews: general

Division 4 Entering premises

Section 23

22 Inspector-General of Biosecurity Bill 2012 No. , 2012

(d) the relevant data may be destroyed, altered, or otherwise

interfered with, if the Inspector-General does not take action

under this subsection.

The equipment may be secured by locking it up, placing a guard or

any other means.

Note:

The expert is authorised to enter premises under section 25 (persons

assisting Inspector-General).

(3) The Inspector-General must give notice to the occupier of the

premises, or another person who apparently represents the

occupier, of:

(a) the Inspector-General's intention to secure the equipment;

and

(b) the fact that the equipment may be secured for up to 24

hours.

Period equipment may be secured

(4) The equipment may be secured until the earlier of the following

happens:

(a) the 24-hour period ends;

(b) the equipment has been operated by an expert.

Note:

For compensation for damage to electronic equipment, see section 31.

Extensions

(5) The Inspector-General may apply to an issuing officer for an

extension of the 24-hour period if the Inspector-General believes

on reasonable grounds that the equipment needs to be secured for

longer than that period.

(6) Before making the application, the Inspector-General must give

notice to the occupier of the premises, or another person who

apparently represents the occupier, of his or her intention to apply

for an extension. The occupier or other person is entitled to be

heard in relation to that application.

Powers for conducting reviews: general Part 3

Entering premises Division 4

Section 24

Inspector-General of Biosecurity Bill 2012 No. , 2012 23

(7) The provisions of this Division relating to the issue of review

warrants apply, with such modifications as are necessary, to the

issue of an extension.

(8) The 24-hour period may be extended more than once.

Subdivision B--Entering adjacent premises to gain access to

other premises

24 Entering adjacent premises to gain access to other premises

(1) The Inspector-General may enter any premises (adjacent premises)

if it is necessary to do so for the purpose of gaining access to other

premises to conduct a review.

(2) However, the Inspector-General is not authorised to enter adjacent

premises under subsection (1) unless:

(a) the occupier of the premises has consented to the entry and

the Inspector-General has identified himself or herself if

required by the occupier; or

(b) the entry is made under an adjacent premises warrant.

Note 1:

See Subdivision F in relation to the issue of an adjacent premises

warrant.

Note 2:

If entry to the premises is with the occupier's consent, the

Inspector-General must leave the premises if the consent ceases to

have effect (see section 26).

(3) If the Inspector-General enters premises under an adjacent

premises warrant, the Inspector-General and any person assisting,

must take all reasonable steps to ensure that they cause as little

inconvenience to the occupier of the premises as is practicable.

Subdivision C--Persons assisting

25 Persons assisting Inspector-General

(1) In entering premises under section 20 or 24 (including under a

review warrant or an adjacent premises warrant) and exercising

powers or performing functions or duties under this Division, the

Inspector-General may be assisted by:

Part 3 Powers for conducting reviews: general

Division 4 Entering premises

Section 26

24 Inspector-General of Biosecurity Bill 2012 No. , 2012

(a) a member of staff; or

(b) a consultant engaged under section 59; or

if that assistance is necessary and reasonable.

(2) A person giving assistance under subsection (1) is a person

assisting the Inspector-General.

(3) A person assisting the Inspector-General:

(a) may enter the premises; and

(b) may exercise powers under this Division; and

assisting by the Inspector-General.

(4) A power exercised by a person assisting the Inspector-General as

mentioned in subsection (3) is taken for all purposes to have been

exercised by the Inspector-General.

(5) A function or duty performed by a person assisting the

Inspector-General as mentioned in subsection (3) is taken for all

purposes to have been performed by the Inspector-General.

(6) If a direction is given under paragraph (3)(c) in writing, the

direction is not a legislative instrument.

Subdivision D--Obligations and incidental powers of

Inspector-General

26 Consent

(1) Before obtaining the consent of an occupier of premises for the

purposes of paragraph 20(3)(a) or 24(2)(a), the Inspector-General

must inform the occupier of the following:

(a) the reasons for entering the premises;

(b) that the occupier may refuse consent.

(2) A consent has no effect unless the consent is voluntary.

Powers for conducting reviews: general Part 3

Entering premises Division 4

Section 27

Inspector-General of Biosecurity Bill 2012 No. , 2012 25

(3) A consent may be expressed to be limited to entry during a

particular period. If so, the consent has effect for that period unless

the consent is withdrawn before the end of that period.

(4) A consent that is not limited as mentioned in subsection (3) has

effect until the consent is withdrawn.

(5) If the Inspector-General entered premises because of the consent of

the occupier of the premises, the Inspector-General, and any person

assisting the Inspector-General, must leave the premises if the

consent ceases to have effect.

27 Notice of entry etc.

(1) Before entering premises under section 20 or 24 (including under a

review warrant or an adjacent premises warrant), the

Inspector-General must give reasonable notice of the proposed

entry to:

(a) the occupier of the premises; and

(b) if the premises are not owned or controlled by the

Commonwealth--the Director of Biosecurity.

(2) Before entering premises under a review warrant or an adjacent

premises warrant, the Inspector General must:

(a) announce that he or she is authorised to enter the premises;

and

(b) show identification to the occupier of the premises, or to

another person who apparently represents the occupier, if the

occupier or other person is present at the premises; and

to the premises.

28 Inspector-General to be in possession of warrant

If the Inspector-General is executing a review warrant or an

adjacent premises warrant, the Inspector-General must be in

possession of the warrant or a copy of the warrant.

Part 3 Powers for conducting reviews: general

Division 4 Entering premises

Section 29

26 Inspector-General of Biosecurity Bill 2012 No. , 2012

29 Details of warrant etc. to be given to occupier

(1) The Inspector-General must comply with subsection (2) if:

(a) a review warrant or an adjacent premises warrant is being

executed in relation to premises; and

(b) the occupier of the premises, or another person who

apparently represents the occupier, is present at the premises.

(2) The Inspector-General must, as soon as practicable:

(a) make a copy of the warrant available to the occupier or other

person; and

(b) inform the occupier or other person in writing of the rights

and responsibilities of the occupier or other person under

Subdivision E.

30 Use of force

In executing a review warrant or an adjacent premises warrant, the

Inspector-General, or a person assisting the Inspector-General, may

use such force against things as is necessary and reasonable in the

circumstances.

31 Compensation for damage to electronic equipment

(1) This section applies if:

(a) as a result of equipment being operated as mentioned in this

Division:

(i) damage is caused to the equipment; or

(ii) the data recorded on the equipment is damaged; or

(iii) programs associated with the use of the equipment, or

with the use of the data, are damaged or corrupted; and

(b) the damage or corruption occurs because:

(i) insufficient care was exercised in selecting the person

who was to operate the equipment; or

(ii) insufficient care was exercised by the person operating

the equipment.

(2) The Commonwealth must pay the owner of the equipment, or the

user of the data or programs, such reasonable compensation for the

Powers for conducting reviews: general Part 3

Entering premises Division 4

Section 32

Inspector-General of Biosecurity Bill 2012 No. , 2012 27

damage or corruption as the Commonwealth and the owner or user

agree on.

(3) However, if the owner or user and the Commonwealth fail to

agree, the owner or user may institute proceedings in a relevant

court for such reasonable amount of compensation as the relevant

court determines.

(4) In determining the amount of compensation payable, regard is to

be had to whether the occupier of the premises, or the occupier's

employees or agents, if they were available at the time, provided

any appropriate warning or guidance on the operation of the

equipment.

Subdivision E--Occupier's rights and responsibilities

32 Right to observe exercise of powers

(1) The occupier of premises entered by the Inspector-General under

section 20 or 24 (including under a review warrant or an adjacent

premises warrant), or another person who apparently represents the

occupier, is entitled to observe the exercise of powers by the

Inspector-General while on the premises, if the occupier or other

person is present at the premises while the powers are being

exercised.

(2) The right to observe the exercise of the powers ceases if the

occupier or other person impedes the exercise of the powers.

(3) This section does not prevent the Inspector-General exercising

powers in 2 or more areas of the premises at the same time.

33 Responsibility to provide facilities and assistance

(1) The occupier of premises entered by the Inspector-General under

section 20 or 24 (including under a review warrant or an adjacent

premises warrant), or another person who apparently represents the

occupier, must provide:

(a) the Inspector-General; and

(b) any person assisting the Inspector-General;

Part 3 Powers for conducting reviews: general

Division 4 Entering premises

Section 34

28 Inspector-General of Biosecurity Bill 2012 No. , 2012

with all reasonable facilities and assistance for the effective

exercise of their powers.

(2) A person commits an offence if:

(a) the person is subject to subsection (1); and

(b) the person fails to comply with that subsection.

Penalty for contravention of this subsection: 30 penalty units.

Subdivision F--Issue of warrants

34 Review warrants

Application for warrant

(1) The Inspector-General may apply to an issuing officer for a

warrant under this section in relation to premises.

Issue of warrant

(2) The issuing officer may issue the warrant if the issuing officer is

satisfied, by information on oath or affirmation, that it is

reasonably necessary that the Inspector-General should have access

to the premises for the purpose of conducting a review.

(3) However, the issuing officer must not issue the warrant unless the

Inspector-General or some other person has given to the issuing

officer, either orally or by affidavit, such further information (if

any) as the issuing officer requires concerning the grounds on

which the issue of the warrant is being sought.

Content of warrant

(4)

The

warrant

must:

(a) describe the premises to which the warrant relates; and

(b) state that the warrant is issued under this section; and

(d) authorise the Inspector-General from time to time while the

warrant remains in force:

(i) to enter the premises; and

Powers for conducting reviews: general Part 3

Entering premises Division 4

Section 35

Inspector-General of Biosecurity Bill 2012 No. , 2012 29

(ii) to exercise the powers set out in this Division for the

purpose of conducting a review; and

(e) state whether entry is authorised to be made at any time of

the day or during specified hours of the day; and

(f) specify the day (not more than 1 month after the issue of the

warrant) on which the warrant ceases to be in force.

35 Adjacent premises warrants

Application for warrant

(1) The Inspector-General may apply to an issuing officer for a

warrant under this section in relation to premises.

Issue of warrant

(2) The issuing officer may issue the warrant if the issuing officer is

satisfied, by information on oath or affirmation, that it is

reasonably necessary that the Inspector-General should have access

to the premises for the purpose of gaining access to other premises

to conduct a review.

(3) However, the issuing officer must not issue the warrant unless the

Inspector-General or some other person has given to the issuing

officer, either orally or by affidavit, such further information (if

any) as the issuing officer requires concerning the grounds on

which the issue of the warrant is being sought.

Content of warrant

(4)

The

warrant

must:

(a) describe the premises to which the warrant relates; and

(b) state that the warrant is issued under this section; and

(d) authorise the Inspector-General from time to time while the

warrant remains in force:

(i) to enter the premises; and

(ii) to remain on the premises for such period as is

reasonably necessary for the purpose of gaining access

to other premises to conduct a review; and

Part 3 Powers for conducting reviews: general

Division 4 Entering premises

Section 36

30 Inspector-General of Biosecurity Bill 2012 No. , 2012

(e) state whether entry is authorised to be made at any time of

the day or during specified hours of the day; and

(f) specify the day (not more than 14 days after the issue of the

warrant) on which the warrant ceases to be in force.

36 Powers of issuing officers

Powers conferred personally

(1) A power conferred on an issuing officer by this Division is

conferred on the issuing officer:

(a) in a personal capacity; and

(b) not as a court or a member of a court.

Powers need not be accepted

(2) The issuing officer need not accept the power conferred.

Protection and immunity

(3) An issuing officer exercising a power conferred by this Division

has the same protection and immunity as if the issuing officer were

exercising the power:

(a) as the court of which the issuing officer is a member; or

(b) as a member of the court of which the issuing officer is a

member.

Reports on reviews Part 4

Section 37

Inspector-General of Biosecurity Bill 2012 No. , 2012 31

Part 4--Reports on reviews

37 Reporting on reviews

(1) This section does not apply in relation to a Part 5 review.

Note:

Section 47 deals with reporting requirements for Part 5 reviews.

(2) After completing a review, the Inspector-General must prepare a

written report for the Agriculture Minister setting out:

(a) the subject and findings of the review; and

(b) the evidence and other material on which those findings are

based; and

(3) The report must not include recommendations in relation to, or

comments on:

(a) the policy of the Commonwealth Government in relation to

managing biosecurity risk; or

(b) particular decisions made under the Biosecurity Act 2012 or

any other law of the Commonwealth.

(4) In particular, the report must not include recommendations in

relation to, or comments on:

(a) a decision made under Division 3 of Part 3 of Chapter 3 of

the Biosecurity Act 2012 relating to a permit to bring or

import goods into Australian territory; or

(b) the outcome of a BIRA; or

a function, or the exercise of a power, under the Biosecurity

Act 2012.

(5) The Inspector-General may give a copy of the report to the Health

Minister or the Director of Biosecurity, or both.

38 Certain material to be excluded from reports

(1) A report on a review (including a Part 5 review) must not name, or

otherwise specifically identify:

Part 4 Reports on reviews

Section 39

32 Inspector-General of Biosecurity Bill 2012 No. , 2012

(a) an officer or employee of a Commonwealth body (other than

the Director of Biosecurity); or

(b) an officer or employee of a State or Territory body; or

(d) a member of the Australian Defence Force;

as being a person whose conduct has been considered in the course

of a review.

Note:

See section 47 in relation to reporting requirements for Part 5 reviews.

(2) A report on a review must not include any of the following:

(a) information given under section 10 if:

(i) the person who gave the information requested that the

information not be published because the information is

confidential; and

(ii) the Inspector-General agreed to the request;

(b) information contained in a document produced under

section 10 if:

(i) the person who produced the document requested that

the information not be published because the

information is confidential; and

(ii) the Inspector-General agreed to the request;

subsection 11(1) if the person who made the submission has

required its return or has withdrawn it under subsection

11(4);

(d) any part of a submission made in response to an invitation

under subsection 11(1) if the person who made the

submission has required that part to be returned or has

withdrawn that part under subsection 11(4).

39 Including criticism in reports

Criticism to which section applies

(1) This section applies if it is proposed to include material in a report

on a review (including a Part 5 review) that is expressly or

impliedly critical of any of the following persons:

(a) the Director of Biosecurity;

Reports on reviews Part 4

Section 39

Inspector-General of Biosecurity Bill 2012 No. , 2012 33

(b) the Director of Human Biosecurity;

officer or a group of such officers;

(d) a biosecurity officer, a biosecurity enforcement officer or a

group of such officers;

(e) an officer or employee of a Commonwealth body;

(f) a member of the Australian Defence Force;

(g) an officer or employee of a State or Territory body;

(h) a consultant to the Department;

(i) a biosecurity industry participant.

Note:

See section 47 in relation to reporting requirements for Part 5 reviews.

Opportunity for submissions to be made

(2) The material must not be included in the report unless:

(a) in the case of criticism relating to the Director of Human

Biosecurity or a person mentioned in paragraph (1)(c)--the

Inspector-General has given the Director of Human

Biosecurity a reasonable opportunity to make submissions to

the Inspector-General in relation to the material; and

(b) in any other case--the Inspector-General has given the

Director of Biosecurity a reasonable opportunity to make

submissions to the Inspector-General in relation to the

material.

(3) Submissions may be made orally or in writing, or both.

(4) Oral submissions may be made:

(a) by the Director of Human Biosecurity or the Director of

Biosecurity personally; or

(b) by another person on behalf of the Director of Human

Biosecurity or the Director of Biosecurity.

Protection from liability for respondents making submissions

(5) If the Director of Human Biosecurity or the Director of Biosecurity

makes a submission, in good faith, under this section, the Director

of Human Biosecurity or the Director of Biosecurity (as the case

may be) is not liable:

Part 4 Reports on reviews

Section 40

34 Inspector-General of Biosecurity Bill 2012 No. , 2012

(a) to any proceedings for contravening a law of the

Commonwealth because of making the submission; or

(b) to civil proceedings for loss, damage or injury of any kind

suffered by another person because of making the

submission.

No loss of legal professional privilege

(6) Information or a document does not cease to be the subject of legal

professional privilege merely because it is included or referred to

in a submission made under this section.

40 Legal professional privilege

Reports not to include privileged information or documents

(1) Information or a document must not be included in a report on a

review (including a Part 5 review) if the information or document:

(a) has been given or produced to the Inspector-General under

section 10, 13, 39 or 44; and

(b)

either:

(i) the subject of legal professional privilege; or

(ii) derived from information or a document that is the

subject of legal professional privilege.

Note:

See section 47 in relation to reporting requirements for Part 5 reviews.

Limited power to refer to privileged legal advice

(2) Despite subsection (1), a report on a review may include a

statement:

(a) to the effect that legal advice (being advice contained in

information or a document that was given or produced as

mentioned in paragraph (1)(a)) was considered in the course

of the review; and

(b) outlining, in general terms, the relevance of that advice, or of

any aspect of it, to the review.

Reports on reviews Part 4

Section 41

Inspector-General of Biosecurity Bill 2012 No. , 2012 35

Privilege not otherwise affected

(3) If a report on a review includes a statement relating to legal advice

as mentioned in subsection (2), the advice does not cease to be the

subject of legal professional privilege merely because:

(a) the report includes that statement; or

(b) the report is given to the Agriculture Minister; or

available under section 41 or 47.

41 Tabling etc. of reports

(1) This section does not apply in relation to a Part 5 review.

Note:

Section 47 deals with publication requirements for reports of Part 5

reviews.

(2) The Agriculture Minister must cause a copy of each report on a

review:

(a) to be tabled in each House of the Parliament; or

(b) to be otherwise made publicly available.

(3) If the Inspector-General has recommended that the report not be

made publicly available for a specified period, the report must not

be tabled or otherwise made publicly available until after the

specified period ends.

(4) Unless the report has been made publicly available earlier, the

report must be tabled in each House of Parliament within 25

sittings days of that House after:

(a) the day the Agriculture Minister receives the report; or

(b) if the Inspector-General has recommended that the report not

be made publicly available for a specified period--the day

the specified period ends.

Part 5 Requests for review of BIRA process

Section 42

36 Inspector-General of Biosecurity Bill 2012 No. , 2012

Part 5--Requests for review of BIRA process

42 Person may request Inspector-General to review BIRA process

(1) A person may request the Inspector-General to review the process

of conducting a particular BIRA if the person considers that:

(a) the process did not accord with the process required by the

Biosecurity Act 2012; and

(b) the departure from the process was significant; and

by the failure to conduct the BIRA in accordance with the

process required by that Act.

(2) A request under subsection (1) must:

(a) be in writing; and

(b) set out the grounds for making the request; and

BIRA report required by section 167 of the Biosecurity Act

2012 has been published.

43 Inspector-General must consider request for review

(1) If a request in relation to a BIRA is made under section 42, the

Inspector-General must consider the request as soon as practicable

after receiving it.

(2) If the Inspector-General is satisfied, having regard to the grounds

set out in the request, that it is appropriate to review the process of

conducting the BIRA, the Inspector-General must:

(a) review the process of conducting the BIRA in accordance

with this Part; and

(b) notify the person who made the request, in writing, when the

Inspector-General's report is published under section 47.

(3) If the Inspector-General is not satisfied, having regard to the

grounds set out in the request, that it is appropriate to review the

process of conducting the BIRA, the Inspector-General must notify

the person who made the request, in writing, of that decision.

Requests for review of BIRA process Part 5

Section 44

Inspector-General of Biosecurity Bill 2012 No. , 2012 37

44 Assistance from the Director of Biosecurity

(1) The Director of Biosecurity must comply with any reasonable

request from the Inspector-General for assistance for the purposes

of conducting a review under this Part.

(2) Without limiting subsection (1), the Inspector-General may request

the Director of Biosecurity to give information, produce documents

or answer questions relevant to the review.

(3) Information given or a document produced to the

Inspector-General in response to a request under this section does

not cease to be the subject of legal professional privilege merely

because it is given or produced to the Inspector-General in

response to that request.

45 Inspector-General may retain and make copies of documents

(1) If a document is produced under section 44, the Inspector-General:

(a) may take possession of, and make copies of, the document, or

take extracts from the document; and

(b) may retain possession of the document for such period as is

necessary for the purposes of the review to which the

document relates.

(2) While the Inspector-General retains possession of a document, he

or she must allow a person otherwise entitled to possession of the

document (or another person authorised by the person) to do any of

the following:

(a) inspect the document;

(b) make copies of the document;

at the times that the person would ordinarily be able to do so.

46 Inspector-General must consider all evidence provided

In conducting a review under this Part, the Inspector-General must

have regard to:

(a) any information given, documents produced and answers to

questions given under section 44; and

Part 5 Requests for review of BIRA process

Section 47

38 Inspector-General of Biosecurity Bill 2012 No. , 2012

(b) any other information the Inspector-General considers is

relevant.

47 Inspector-General must prepare report

(1) After completing a review of the process of conducting a BIRA

under this Part, the Inspector-General must prepare a report on the

review.

(2) The report must set out:

(a) the subject and findings of the review; and

(b) the evidence and other material on which those findings are

based; and

Note:

Certain material must not be included in a report prepared under this

section (see sections 38, 39, 40 and 61).

(3) The report must not include recommendations in relation to, or

comments on:

(a) the policy of the Commonwealth Government in relation to

managing biosecurity risk; or

(b) particular decisions made under the Biosecurity Act 2012 or

any other law of the Commonwealth.

(4) In particular, the report must not include recommendations in

relation to, or comments on:

(a) a decision made under Division 3 of Part 3 of Chapter 3 of

the Biosecurity Act 2012 relating to a permit to bring or

import goods into Australian territory; or

(b) the outcome of the BIRA to which the report relates; or

a function, or the exercise of a power, under the Biosecurity

Act 2012.

(5) The Inspector-General must give a copy of the report to the

Director of Biosecurity.

(6) The report must be published within the period, and in the manner,

prescribed by the regulations.

Administrative provisions Part 6

Appointment etc. of Inspector-General of Biosecurity Division 1

Section 48

Inspector-General of Biosecurity Bill 2012 No. , 2012 39

Part 6--Administrative provisions

Division 1--Appointment etc. of Inspector-General of

Biosecurity

48 Appointment

(1) The Inspector-General is to be appointed by the Agriculture

Minister by written instrument.

(2) The Agriculture Minister must not appoint a person as the

Inspector-General unless the Minister is satisfied that the person

has suitable qualifications or experience in relevant scientific,

auditing or systems assessment disciplines.

(3) The Inspector-General may be appointed on a full-time or

part-time basis.

49 Term of appointment

(1) The Inspector-General holds office for the period specified in the

instrument of appointment. The period must not exceed 5 years.

(2) The Inspector-General must not hold office for a total of more than

10 years.

50 Remuneration and allowances

(1) The Inspector-General is to be paid the remuneration that is

determined by the Remuneration Tribunal. If no determination of

that remuneration by the Tribunal is in operation, the

Inspector-General is to be paid the remuneration that is prescribed

by the regulations.

(2) The Inspector-General is to be paid the allowances that are

prescribed by the regulations.

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

Part 6 Administrative provisions

Division 1 Appointment etc. of Inspector-General of Biosecurity

Section 51

40 Inspector-General of Biosecurity Bill 2012 No. , 2012

51 Leave of absence

(1) The following provisions apply if the Inspector-General is

appointed on a full-time basis:

(a) the Inspector-General has the recreation leave entitlements

that are determined by the Remuneration Tribunal;

(b) the Agriculture Minister may grant the Inspector-General

leave of absence, other than recreation leave, on the terms

and conditions as to remuneration or otherwise that the

Minister determines.

(2) If the Inspector-General is appointed on a part-time basis, the

Agriculture Minister may grant leave of absence to the

Inspector-General on the terms and conditions that the Minister

determines.

52 Outside employment

(1) If the Inspector-General is appointed on a full-time basis, he or she

must not engage in paid employment outside the duties of his or

her office without the Agriculture Minister's approval.

(2) If the Inspector-General is appointed on a part-time basis, the

Inspector-General must not engage in paid employment that, in the

Agriculture Minister's opinion, conflicts or may conflict with the

proper performance of his or her duties.

53 Disclosure of interests

The Inspector-General must give written notice to the Agriculture

Minister of all interests, pecuniary or otherwise, that the

Inspector-General has or acquires and that conflict or could

conflict with the proper performance of the Inspector-General's

functions.

54 Other terms and conditions

The Inspector-General holds office on the terms and conditions (if

any) in relation to matters not covered by this Act that are

determined by the Agriculture Minister.

Administrative provisions Part 6

Appointment etc. of Inspector-General of Biosecurity Division 1

Section 55

Inspector-General of Biosecurity Bill 2012 No. , 2012 41

55 Resignation

(1) The Inspector-General may resign his or her appointment by giving

the Agriculture Minister a written resignation.

(2) The resignation takes effect on the day it is received by the

Agriculture Minister or, if a later day is specified in the

resignation, on that later day.

56 Termination of appointment

(1) The Agriculture Minister may terminate the appointment of the

Inspector-General:

(a) for misbehaviour; or

(b) if the Inspector-General is unable to perform the duties of his

or her office because of physical or mental incapacity; or

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the

benefit of his or her creditors; or

(d) if the Inspector-General fails, without reasonable excuse, to

comply with section 53.

Additional grounds: full-time Inspector-General

(2) The Agriculture Minister may terminate the appointment of an

Inspector-General appointed on a full-time basis if:

(a) the Inspector-General is absent, except on leave of absence,

for 14 consecutive days or for 28 days in any 12 months; or

(b) the Inspector-General engages, except with the Minister's

approval, in paid employment outside the duties of his or her

office (see subsection 52(1)).

Additional grounds: part-time Inspector-General

(3) The Agriculture Minister may terminate the appointment of an

Inspector-General appointed on a part-time basis if:

Part 6 Administrative provisions

Division 1 Appointment etc. of Inspector-General of Biosecurity

Section 57

42 Inspector-General of Biosecurity Bill 2012 No. , 2012

(a) the Inspector-General is absent, except on leave of absence,

for 7 consecutive days or for 14 days in any 12 months; or

(b) the Inspector-General engages in paid employment that, in

the Minister's opinion, conflicts or may conflict with the

proper performance of his or her duties (see subsection

52(2)).

57 Appointment of acting Inspector-General

The Agriculture Minister may, by written instrument, appoint a

person to act as the Inspector-General:

(a) during a vacancy in the office of the Inspector-General

(whether or not an appointment has previously been made to

the office); or

(b) during any period, or during all periods, when the

Inspector-General:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the

office.

Note:

For rules that apply to acting appointments, see sections 33AB and

33A of the Acts Interpretation Act 1901.

Administrative provisions Part 6

Staff and consultants Division 2

Section 58

Inspector-General of Biosecurity Bill 2012 No. , 2012 43

Division 2--Staff and consultants

58 Staff

The staff required to assist the Inspector-General are to be persons

engaged under the Public Service Act 1999 who are made available

by the Director of Biosecurity.

59 Consultants

(1) The Inspector-General may, on behalf of the Commonwealth,

engage a person who has suitable qualifications and experience as

a consultant to the Inspector-General.

(2) The terms and conditions of engagement are to be determined, in

writing, by the Inspector-General.

Part 7 Miscellaneous

Section 60

44 Inspector-General of Biosecurity Bill 2012 No. , 2012

Part 7--Miscellaneous

60 Inspector-General to have regard to minimising disruption

during review

In performing functions or exercising powers under this Act, the

Inspector-General must have regard to the desirability of

minimising any resulting disruption to:

(a) the performance of functions, or the exercise of powers, by

the Director of Biosecurity; and

(b) the operations or work undertaken by:

(i) persons who have been given a notice under section 10;

and

(ii) occupiers of premises entered under section 20 or 24.

61 Information that would be prejudicial to the public interest

(1) The Agriculture Minister may give the Inspector-General a

certificate stating that the disclosure of information relating to a

specified matter would:

(a) prejudice the security, defence or international relations of

the Commonwealth; or

(b) prejudice negotiations relating to a treaty or other

international agreement; or

which Australia is a party; or

(d) prejudice relations between the Commonwealth and a State

or Territory; or

(e) involve the disclosure of deliberations or decisions of the

Cabinet or of a Committee of the Cabinet; or

(f) involve the disclosure of deliberations or advice of the

Executive Council; or

(g) prejudice the prevention, investigation or prosecution of an

offence against any law; or

(h) prejudice the prevention or investigation of, or the conduct of

proceedings for recovery of civil penalties for, a

contravention of any law; or

Miscellaneous Part 7

Section 62

Inspector-General of Biosecurity Bill 2012 No. , 2012 45

(i) be contrary to an order of a court or tribunal; or

(j) be contrary to the public interest for any other reason that

could form the basis for a claim in a judicial proceeding that

information relating to the matter should not be disclosed or

documents relating to the matter should not be produced; or

(k) endanger the safety of any person; or

(l) prejudice the revenue of the Commonwealth.

(2) A certificate may be expressed to have effect for the purposes of

either or both of the following:

(a) the Inspector-General's information-gathering powers under

Division 2 of Part 3;

(b) the Inspector-General's reporting obligations under Part 4 or

section 47.

However, a certificate based on the ground referred to in

paragraph (1)(l) must only be expressed to have effect for the

purposes of the Inspector-General's reporting obligations.

(3) The following provisions apply while a certificate that is expressed

to have effect for the purposes of the Inspector-General's

information-gathering powers under Division 2 of Part 3 is in

force:

(a) a person must not be required under section 10 to give

information, produce documents or answer questions relating

to the matter specified in the certificate;

(b) any request made under section 10 before the certificate was

given ceases to have effect, so far as it relates to the matter

specified in the certificate.

(4) While a certificate that is expressed to have effect for the purposes

of the Inspector-General's reporting obligations under Part 4 or

section 47 is in force, information relating to the matter specified in

the certificate must not be included in a report on a review.

62 Annual report

(1) The Inspector-General must, as soon as practicable after the end of

each financial year, prepare and give to the Agriculture Minister a

report, for presentation to the Parliament, on the operations of the

Inspector-General during the year.

Part 7 Miscellaneous

Section 63

46 Inspector-General of Biosecurity Bill 2012 No. , 2012

Note:

See also section 34C of the Acts Interpretation Act 1901, which

contains extra rules about annual reports.

(2) The Inspector-General must include in the report:

(a) details of any directions given by the Agriculture Minister

under subsection 8(2) during the year; and

(b) details of any action taken, or proposed to be taken, by the

Director of Biosecurity since the last report made under this

section in response to the findings and any recommendations

set out in a report prepared by the Inspector-General under

section 37 or 47; and

carried out during the year.

(3) Sections 38, 39, 40 and 61 apply in relation to material relating to a

review that is to be included in an annual report required to be

prepared under this section as if the annual report were a report on

a review.

63 Delegation

(1) The Inspector-General may, in writing, delegate all or any of his or

her functions and powers under this Act to a member of staff.

(2) However, the Inspector-General may only delegate his or her

functions and powers under sections 10, 20, 34 and 35 to a member

of staff who is an SES employee or an acting SES employee.

(3) In performing functions or exercising powers under a delegation,

the delegate must comply with any directions of the

Inspector-General.

64 Secrecy

Person must not make record or disclose protected information or

protected document

(1) A person who is, or was, the Inspector-General, a member of staff,

or a consultant engaged under section 59, must not:

(a) make a record of protected information, or of all or part of a

protected document; or

Miscellaneous Part 7

Section 64

Inspector-General of Biosecurity Bill 2012 No. , 2012 47

(b) directly or indirectly disclose protected information, or all or

part of a protected document, to another person (other than

the person to whom the information or document relates) or

to a court;

if in doing so, the person is not acting in the course of performing

functions or exercising powers under, or in relation to, this Act.

Exception

(2) Subsection (1) does not apply if the person is authorised to make

the record or disclosure under subsection (3).

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection (see subsection 13.3(3) of the Criminal Code and

section 552 of the Biosecurity Act 2012 (applied by section 65 of this

Act)).

(3)

The

Inspector-General

may:

(a) make a record of protected information, or of all or part of a

protected document; or

(b) disclose protected information, or all or part of a protected

document, to another person or to a court; or

section 59:

(i) to make a record of protected information, or of all or

part of a protected document; or

(ii) to disclose protected information, or all or part of a

protected document, to another person or to a court;

if the Inspector-General has reasonable grounds to believe that

making the record or disclosure is necessary for the purpose of

preserving the safety of any person.

Fault-based offence

(4) A person commits an offence if the person contravenes

subsection (1).

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Note:

To identify the physical elements of this offence, see section 575 of

the Biosecurity Act 2012 (applied by section 65 of this Act).

Part 7 Miscellaneous

Section 65

48 Inspector-General of Biosecurity Bill 2012 No. , 2012

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes

subsection (1).

Civil penalty:

200 penalty units.

Note:

Civil penalty proceedings for a contravention of this civil penalty

provision may be brought under the Biosecurity Act 2012 (see

section 65 of this Act).

Court may not require information or documents

(6) Except where it is necessary to do so for the purpose of carrying

into effect the provisions of this Act, a person who is, or was, the

Inspector-General, a member of staff or a consultant engaged under

section 59 is not to be required:

(a) to disclose protected information to a court; or

(b) to produce all or part of a protected document to a court.

Definitions

(7) In this section:

court includes any tribunal, authority or person having power to

require the production of documents or the answering of questions.

produce includes permit access to.

protected document means a document that is obtained or made by

a person in the course of, or as a result of, performing functions or

exercising powers under this Act.

protected information means information that is disclosed to, or

obtained by, a person in the course of, or as a result of, performing

functions or exercising powers under this Act.

65 Application of the Biosecurity Act 2012

(1) Parts 1 and 5 of Chapter 11 of the Biosecurity Act 2012 have effect

in relation to a civil penalty provision of this Act as if that

provision were a civil penalty provision of the Biosecurity Act

2012.

Miscellaneous Part 7

Section 66

Inspector-General of Biosecurity Bill 2012 No. , 2012 49

(2) Part 5 of Chapter 11 of the Biosecurity Act 2012 has effect in

relation to section 64 of this Act as if that section were a provision

of the Biosecurity Act 2012.

66 Protection from civil proceedings

(1) Civil proceedings do not lie against the Commonwealth, the

Inspector-General or a member of staff in relation to anything

done, or omitted to be done, in good faith:

(a) by the Inspector-General or a member of staff in the

performance or purported performance of a function, or the

exercise or purported exercise of a power, conferred by this

Act; or

(b) by a person in providing or purporting to provide assistance

to the Inspector-General or a member of staff (as a result of a

request or direction made by the Inspector-General or a

member of staff) in the performance or purported

performance of a function, or the exercise or purported

exercise of a power, conferred by this Act.

(2) Civil proceedings do not lie against a person in relation to anything

done, or omitted to be done, in good faith by the person in

providing or purporting to provide assistance to the

Inspector-General or a member of staff (as a result of a request or

direction made by the Inspector-General or a member of staff) in

the performance or purported performance of a function, or the

exercise or purported exercise of a power, conferred by this Act.

67 Regulations

The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

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INSPECTOR-GENERAL OF BIOSECURITY BILL 2012 [2013]