NATIONAL HEALTH SECURITY AMENDMENT BILL 2009

i National Health Security Amendment Bill 2009 No. , 2009

Contents

Short title ............................................................................................ 1

Commencement .................................................................................. 1

Schedule(s) ......................................................................................... 3

Schedule 1--Amendme nts

Part 1--Emergency disease situations

National Health Security Act 2007

Part 2--Suspected security-sensitive biological agents

National Health Security Act 2007

Part 3--Inspectors' powers

National Health Security Act 2007

Part 4--Reporting

Div ision 1--Reporting to police

National Health Security Act 2007

Div ision 2--Periodic nil reporting

National Health Security Act 2007

Part 5--Cancellation of registration on application

National Health Security Act 2007

Part 6--Definition of biological agents

National Health Security Act 2007

National Health Security Amendment Bill 2009 No. , 2009 1

A Bill for an Act to amend the National Health

Security Act 2007, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the National Health Security Amendment

Act 2009.

2 Commence ment

(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.

2 National Health Security Amendment Bill 2009 No. , 2009

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedule 1,

Part 1

The day after this Act receives the Royal

Assent.

3. Schedule 1,

Part 2

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence with in the period of 6 months

beginning on the day on which this Act

receives the Royal Assent, they commence

on the first day after the end of that period.

4. Schedule 1,

Part 3

The day after this Act receives the Royal

Assent.

5. Schedule 1,

Part 4, Division 1

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence with in the period of 6 months

beginning on the day on which this Act

receives the Royal Assent, they commence

on the first day after the end of that period.

6. Schedule 1,

Part 4, Division 2

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence with in the period of 6 months

beginning on the day on which this Act

receives the Royal Assent, they commence

on the first day after the end of that period.

7. Schedule 1,

Part 5

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence with in the period of 6 months

beginning on the day on which this Act

receives the Royal Assent, they commence

on the first day after the end of that period.

National Health Security Amendment Bill 2009 No. , 2009 3

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

8. Schedule 1,

Part 6

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence with in the period of 6 months

beginning on the day on which this Act

receives the Royal Assent, they commence

on the first day after the end of that period.

Note:

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

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Schedule 1 A mendments

Part 1 Emergency disease situations

4 National Health Security Amendment Bill 2009 No. , 2009

Schedule 1

Amendments

Part 1

Emergency disease situations

National Health Security Act 2007

1 After Division 5 of Part 3

Insert:

Division 5A--Suspension of Division 5 to deal with threats

60A Minister may suspend Division 5 to deal with threats

(1) The Minister may, by legislative instrument, specify that one or

both of the following do not apply for a specified period in relation

to one or more specified security-sensitive biological agents,

subject to the conditions (if any) specified:

(a) all or specified provisions of Division 5;

(b) section 56, so far as it relates to specified provisions of the

SSBA Standards.

(2) The Minister may make a legislative instrument under

subsection (1) relating to a security-sensitive biological agent only

if:

(a) the Minister is satisfied, after considering advice from a

person covered by subsection (3), that there is a threat

involving the agent to one or more of the following:

(i) the health or safety of people;

(ii) the economy;

(iii) the environment; and

(b) the Minister is satisfied, after considering advice from the

Secretary, that the making of the legislative instrument would

help to reduce the threat and maintain adequate controls for

the security of all security-sensitive biological agents.

(3) This subsection covers:

(a) the Commonwealth Chief Medical Officer; and

(b) the Commonwealth Chief Veterinary Officer; and

Amend ments Schedule 1

Emergency disease situations Part 1

National Health Security Amendment Bill 2009 No. , 2009 5

technical knowledge in relation to security-sensitive

biological agents.

When legislative instrument takes effect

(4) A legislative instrument made under subsection (1) takes effect:

(a) on the day on which the instrument is made; or

(b) if the instrument specifies a later day as the day on which it

takes effect, on that day.

(5) Subsection (4) has effect despite section 12 of the Legislative

Instruments Act 2003.

Effect of legislative instrument

(6) A legislative instrument made under subsection (1) has effect

according to its terms.

60B Variation or revocation of suspension

(1) The Minister may, by legislative instrument, vary or revoke a

legislative instrument (the principal instrument) made under

subsection 60A(1) (whether or not the principal instrument has

been varied under this section before).

Preconditions for variation

(2) The Minister may vary the principal instrument only if:

(a) the Minister has considered advice about the variation from

the persons whose advice was considered for the purposes of

making the principal instrument; and

(b) the Minister is satisfied that the principal instrument as varied

would help to reduce the threat to which the principal

instrument relates and maintain adequate controls for the

security of all security-sensitive biological agents.

Preconditions for revocation

(3) The Minister may revoke the principal instrument only if, after

considering further advice from the persons whose advice was

considered for the purposes of making the principal instrument:

Schedule 1 A mendments

Part 1 Emergency disease situations

6 National Health Security Amendment Bill 2009 No. , 2009

(a) the Minister is satisfied that the threat, or one of the threats,

to which the principal instrument relates:

(i) no longer exists; or

(ii) is no longer such as to require the principal instrument

to be in force to address that threat; or

(b) the Minister is no longer satisfied that the principal

instrument adequately addresses the threat, or one of the

threats, to which it relates.

When variation or revocation takes effect

(4) The variation or revocation takes effect:

(a) on the day on which the instrument is made; or

(b) if the instrument specifies a later day as the day on which it

takes effect, on that day.

(5) Subsection (4) has effect despite section 12 of the Legislative

Instruments Act 2003.

Relationship between subsection (1) and subsections (2) and (3)

(6) Subsection (1) has effect subject to subsections (2) and (3).

60C Offence--failure to comply with conditions on suspension

A person commits an offence if:

(a) the person is subject to a requirement under a condition

specified in a legislative instrument made under this

Division; and

(b) the person does, or omits to do, an act; and

Penalty: 500 penalty units.

Amend ments Schedule 1

Suspected security-sensitive biological agents Part 2

National Health Security Amendment Bill 2009 No. , 2009 7

Part 2

Suspected security-sensitive biological

agents

National Health Security Act 2007

2 Subsection 3(1) (definition of dispose of)

Omit "security-sensitive" (wherever occurring).

3 Subsection 3(1) (definition of handling)

Omit "security-sensitive" (wherever occurring).

4 Subsection 3(1) (note 1 at the end of the definition of

handling)

Repeal the note, substitute:

Note 1:

Subsection 39(2) affects when an entity is treated for the purposes of

Division 5 of Part 3 as handling a security-sensitive biological agent

that is a toxin.

5 Subsection 3(1)

Insert:

sample of a biological agent includes:

(a) a subculture of the agent; and

(b) a preparation made from the agent.

6 Paragraph 30(2)(a)

Repeal the paragraph, substitute:

(a) the collection of certain information about security-sensitive

biological agents and about biological agents suspected on

the basis of testing in a laboratory of being security-sensitive

biological agents; and

(aa) the recording on a national register of information about the

nature and location of security-sensitive biological agents

legitimately handled by entities in Australia; and

7 Paragraph 30(2)(b)

After "agents", insert "and biological agents suspected on the basis of

testing in a laboratory of being security-sensitive biological agents".

Schedule 1 A mendments

Part 2 Suspected security-sensitive biological agents

8 National Health Security Amendment Bill 2009 No. , 2009

8 At the end of subsection 35(1)

Add "and biological agents that are or have been suspected, on the basis

of testing in a laboratory, of being security-sensitive biological agents".

9 Subsection 35(1) (note)

Repeal the note, substitute:

Note 1:

SSBA Standards must be complied with by certain entities that handle

or dispose of biological agents suspected of being security -sensitive

biological agents: see sections 38B and 38D.

Note 2:

SSBA Standards must be complied with by entities that handle

security-sensitive biological agents: see section 56.

10 At the end of subsection 35(2)

Add:

; (d) the handling (including transport) of biological agents

suspected, on the basis of testing in a laboratory, of being

security-sensitive biological agents;

(e) the disposal of biological agents that are or have been

suspected, on the basis of testing in a laboratory, of being

security-sensitive biological agents.

11 After subsection 35(3)

Insert:

(3A) A standard may set out different requirements relating to a

biological agent depending on whether the agent:

(a) is merely suspected by a specified entity, on the basis of

testing in a laboratory, of being a security-sensitive biological

agent; or

(b) is a security-sensitive biological agent (regardless of any

entity's knowledge or ignorance of that fact); or

biological agent; or

(d) is known by a specified entity to be a security-sensitive

biological agent and was previously suspected by a specified

entity, on the basis of testing in a laboratory, of being a

security-sensitive biological agent.

12 After Division 4 of Part 3

Insert:

Amend ments Schedule 1

Suspected security-sensitive biological agents Part 2

National Health Security Amendment Bill 2009 No. , 2009 9

Division 4A--Requirements relating to suspected

security-sensitive biological agents

Subdivision A--Application

38A Application of Division

This Division applies if:

(a) an entity (the initial tester) that operates a laboratory (the

initial testing laboratory) has tested a biological agent in the

initial testing laboratory to determine the identity of the

biological agent; and

(b) on the basis of that testing, the initial tester forms a

reasonable suspicion (but is not certain) that the biological

agent is a security-sensitive biological agent.

Subdivision B--Carrying out confirmatory testing or

destruction

38B Initial tester must have confirmatory testing or destruction

done

(1) The initial tester must, within 2 business days after forming the

suspicion or such longer period as the Secretary allows:

(a) arrange for the carrying out (by the initial tester or another

entity) of further testing (confirmatory testing) of the

biological agent to determine whether the biological agent is

a security-sensitive biological agent; or

(b) destroy the biological agent in accordance with the SSBA

Standards.

Note:

Sections 38C and 38P set out consequences for contravention of this

section.

(2) The initial tester need not comply with subsection (1) if:

(a) the initial tester's suspicion is that the biological agent is a

particular security-sensitive biological agent or included in a

particular class of security-sensitive biological agents; and

(b) the initial tester is a registered entity in relation to that

particular security-sensitive biological agent or all

security-sensitive biological agents in that particular class.

Schedule 1 A mendments

Part 2 Suspected security-sensitive biological agents

10 National Health Security Amendment Bill 2009 No. , 2009

Note:

In a prosecution of an offence against section 38C, the defendant bears

an evidential burden in relation to the matter in subsection (2) of this

section: see subsection 13.3(3) of the Criminal Code.

38C Offence--failure to have confirmatory testing or destruction

done

(1) An entity commits an offence if:

(a) the entity is subject to a requirement under section 38B; and

(b) the entity contravenes the requirement.

Penalty: 500 penalty units.

(2) Section 4K of the Crimes Act 1914 does not apply to an offence

against subsection (1).

Subdivision C--Compliance with SSBA standards

38D Compliance with SSBA Standards in handling biological agent

(1) The initial tester must comply with the SSBA Standards in relation

to the initial tester's handling and disposal of the biological agent

in the period:

(a) starting when the initial tester forms the suspicion; and

(b) ending at the earlier of the following times:

(i) the time the initial tester obtains the results of

confirmatory testing;

(ii) the time destruction of the biological agent is

completed.

(2) An entity provided by the initial tester with a sample of the

biological agent for confirmatory testing must comply with the

SSBA Standards in relation to the entity's handling and disposal of

the sample, and of any biological agent included in or derived from

the sample, in the period:

(a) starting when the entity is provided with the sample; and

(b) ending when the entity obtains the results of the confirmatory

testing.

Amend ments Schedule 1

Suspected security-sensitive biological agents Part 2

National Health Security Amendment Bill 2009 No. , 2009 11

38E Offence--failure to comply with SSBA Standards in handling

biological agent

An entity commits an offence if:

(a) the entity is required by section 38D to comply with the

SSBA Standards in relation to the entity's handling and

disposal of the biological agent, a sample of the biological

agent or a biological agent included in or derived from a

sample of the biological agent; and

(b) the entity contravenes the requirement.

Penalty: 500 penalty units.

Subdivision D--Further provisions relating to confirmatory

testing

38F Initial tester must report transfer of biological agent or sample

for confirmatory testing

(1) If the initial tester transfers the biological agent, or a sample of it,

for confirmatory testing to a laboratory other than the initial testing

laboratory or to another entity, the initial tester must give the

Secretary a report that:

(a) states that the initial tester has transferred the biological agent

or sample; and

(b) identifies:

(i) if the transfer was to another laboratory operated by the

initial tester--that laboratory; or

(ii) if the transfer was to another entity--the entity and

laboratory to which the transfer was made; and

(d) includes the information required by the approved form.

(2) The initial tester must give the Secretary the report within 2

business days after the transfer or such longer period as the

Secretary allows.

38G Offence--failure by initial tester to report transfer

(1) An entity commits an offence if:

Schedule 1 A mendments

Part 2 Suspected security-sensitive biological agents

12 National Health Security Amendment Bill 2009 No. , 2009

(a) the entity is required by section 38F to give the Secretary a

report; and

(b) the entity does not give the Secretary the report as required

by that section.

Penalty: 500 penalty units.

(2) Section 4K of the Crimes Act 1914 does not apply to an offence

against subsection (1).

38H Initial tester must report results of confirmatory testing to

Secretary

(1) If confirmatory testing is completed (by the initial tester or another

entity), the initial tester must give the Secretary a report that:

(a) states whether the biological agent is or is not a

security-sensitive biological agent; and

(b) is in a form approved by the Secretary; and

(2) The initial tester must give the Secretary the report within 2

business days after becoming aware of whether the biological

agent is or is not a security-sensitive biological agent or such

longer period as the Secretary allows.

(3) The initial tester need not comply with subsections (1) and (2) if:

(a) the initial tester is a registered entity; or

(b) the confirmatory testing:

(i) was done by the initial tester in the initial testing

laboratory; and

(ii) indicates that the biological agent is not a

security-sensitive biological agent.

Note 1:

Section 48 will require the initial tester to report to the Secretary

(subject to section 38K) if:

(a) the initial tester is a registered entity ; and

(b) confirmatory testing indicates that the biological agent is a

security-sensitive biological agent not included in the National

initial tester has handled the biological agent.

Note 2:

In a prosecution of an offence against section 38J, the defendant bears

an evidential burden in relation to the matter in subsection (3) of this

section: see subsection 13.3(3) of the Criminal Code.

Amend ments Schedule 1

Suspected security-sensitive biological agents Part 2

National Health Security Amendment Bill 2009 No. , 2009 13

38J Offence--failure to report results of confirmatory testing to

Secretary

(1) An entity commits an offence if:

(a) the entity is required by section 38H to give the Secretary a

report; and

(b) the entity does not give the Secretary the report as required

by that section.

Penalty: 500 penalty units.

(2) Section 4K of the Crimes Act 1914 does not apply to an offence

against subsection (1).

38K Reporting if biological agent disposed of afte r confirmatory

testing shows it is a security-sensitive biological agent

(1) This section applies if:

(a) it is determined from confirmatory testing that the biological

agent is a security-sensitive biological agent; and

(b) within 2 business days, or such longer period as the Secretary

allows, after making or becoming aware of the determination,

an entity that carried out the confirmatory testing or is the

initial tester disposes of its entire holdings of the biological

agent; and

Standards relating to the disposal of a biological agent that

was previously suspected, on the basis of testing in a

laboratory, of being a security-sensitive biological agent; and

(d) before the entity carried out the disposal, the biological agent

was not included on the National Register in relation to the

entity.

Requirement to report disposal

(2) The entity must give the Secretary a report that:

(a) states that the entity has disposed of its entire holdings of the

biological agent in accordance with the SSBA Standards

relating to the disposal of a biological agent that was

previously suspected, on the basis of testing in a laboratory,

of being a security-sensitive biological agent; and

(b) is in a form approved by the Secretary; and

Schedule 1 A mendments

Part 2 Suspected security-sensitive biological agents

14 National Health Security Amendment Bill 2009 No. , 2009

(3) The entity must give the Secretary the report within 2 business

days after completing the disposal or such longer period as the

Secretary allows.

Exemption from reporting under section 42 or 48 if report given

(4) If the entity gives the Secretary the report in accordance with

subsections (2) and (3) of this section, section 42 and paragraph

48(1)(a) do not apply, and are taken never to have applied, in

relation to the handling of the biological agent by the entity.

38L Offence--failure to report disposal

(1) An entity commits an offence if:

(a) the entity is required by section 38K to give the Secretary a

report; and

(b) the entity does not give the Secretary the report as required

by that section.

Penalty: 500 penalty units.

(2) Section 4K of the Crimes Act 1914 does not apply to an offence

against subsection (1).

Subdivision E--Further provisions relating to destruction

38M Initial tester must report destruction of biological agent

(1) If the biological agent is destroyed and confirmatory testing has not

been completed when the destruction occurs, the initial tester must

give the Secretary a report about the destruction that:

(a) is in a form approved by the Secretary; and

(b) includes the information required by the approved form.

(2) The initial tester must give the Secretary the report within 2

business days after the destruction, or such longer period as the

Secretary allows.

(3) The initial tester need not comply with subsections (1) and (2) if:

Amend ments Schedule 1

Suspected security-sensitive biological agents Part 2

National Health Security Amendment Bill 2009 No. , 2009 15

(a) the initial tester's suspicion is that the biological agent was a

particular security-sensitive biological agent or included in a

particular class of security-sensitive biological agents; and

(b) the initial tester is a registered entity in relation to that

particular security-sensitive biological agent or all

security-sensitive biological agents in that particular class.

Note:

In a prosecution of an offence against section 38N, the defendant

bears an evidential burden in relation to the matter in subsection (3) of

this section: see subsection 13.3(3) of the Criminal Code.

38N Offence--failure to report destruction

(1) An entity commits an offence if:

(a) the entity is required by section 38M to give the Secretary a

report; and

(b) the entity does not give the Secretary the report as required

by that section.

Penalty: 500 penalty units.

(2) Section 4K of the Crimes Act 1914 does not apply to an offence

against subsection (1).

38P Direction to dispose of biological agent for failure to comply

with section 38B

(1) This section applies if the initial tester contravenes section 38B.

Note:

It does not matter whether the initial tester has been convicted of an

offence against section 38C in relation to the non-compliance.

(2) The Secretary may give the initial tester a written direction,

requiring the initial tester, within the period specified in the

direction or such longer period as the Secretary allows, to dispose

of its entire holdings of the biological agent in accordance with the

SSBA Standards.

(3) A period specified in a direction given under subsection (2) must

be reasonable having regard to the circumstances.

38Q Offence--failure to dispose of biological agent as directed

(1) An entity commits an offence if:

(a) the entity is given a direction under subsection 38P(2); and

Schedule 1 A mendments

Part 2 Suspected security-sensitive biological agents

16 National Health Security Amendment Bill 2009 No. , 2009

(b) the entity does not comply with the direction within the

period allowed under that subsection.

Penalty: 500 penalty units.

(2) Section 4K of the Crimes Act 1914 does not apply to an offence

against subsection (1).

13 At the end of subsection 42(1)

Add:

Note 3:

Section 38K (Reporting if biological agent disposed of after

confirmatory testing shows it is a security-sensitive biological agent)

treats this section as never having applied in certain circumstances.

14 At the end of subsection 48(1)

Add:

Note:

Section 38K (Reporting if biological agent disposed of after

confirmatory testing shows it is a security-sensitive biological agent)

treats paragraph (1)(a) of this section as never having applied in

certain circumstances.

15 Division 5A of Part 3 (heading)

Repeal the heading, substitute:

Division 5A--Suspension of Divisions 4A and 5 to deal with

threats

16 Before subsection 60A(1)

Insert:

(1A) The Minister may, by legislative instrument, specify that one or

both of the following do not apply for a specified period in relation

to one or more biological agents that are or have been suspected,

on the basis of testing in a laboratory, of being specified

security-sensitive biological agents, subject to the conditions (if

any) specified:

(a) all or specified provisions of Division 4A;

(b) section 38D, so far as it relates to specified provisions of the

SSBA Standards.

Note:

The heading to section 60A is altered by omitting "Division" and substituting

"Divisions 4A and".

Amend ments Schedule 1

Suspected security-sensitive biological agents Part 2

National Health Security Amendment Bill 2009 No. , 2009 17

17 Subsections 60A(2), (4) and (6)

Before "(1)", insert "(1A) or".

18 Subsection 60B(1)

Omit "60A(1)", substitute "60A(1A) or (1)".

19 Paragraph 61(1)(a)

After "subsection", insert "38P(2),".

20 Subsection 61(2)

After "subsection", insert "38Q(1) or".

21 Subsection 61(3)

After "arrange for", insert "the biological agents or".

22 Paragraph 65(1)(d)

After "section", insert "38F, 38H, 38K, 38M,".

23 Paragraph 66(1)(b)

After "any", insert "biological agent that is, or is suspected of being, a".

24 Section 80 (before paragraph (a) of the definition of

reviewable decision)

Insert:

(aa) a decision under subsection 38P(2) to give a direction to an

entity requiring the entity to dispose of a biological agent

suspected on the basis of testing in a laboratory of being a

security-sensitive biological agent; or

25 Section 84 (subparagraph (b)(ii) of the definition of

protected information)

After "Division", insert "4A or".

26 Subsection 85(1)

After "security-sensitive biological agents", insert ", and biological

agents suspected of being security-sensitive biological agents,".

27 Subsection 85(3)

Amend ments Schedule 1

Inspectors' powers Part 3

National Health Security Amendment Bill 2009 No. , 2009 19

Part 3

--Inspectors' powers

National Health Security Act 2007

28 Subsection 3(1)

Insert:

offence-related powers has the meaning given by section 70A.

29 Subsection 3(1)

Insert:

offence-related warrant means:

(a) a warrant issued by a magistrate under section 70M; or

(b) a warrant signed by a magistrate under section 70N.

30 Subsection 3(1)

Insert:

person assisting an inspector has the meaning given by

section 70B.

31 Section 68

Repeal the section.

32 Section 70

Repeal the section, substitute:

70 Inspector may enter premises by consent or under a warrant

(1) If an inspector has reasonable grounds for suspecting that there

may be evidential material on any premises, the inspector may:

(a) enter the premises; and

(b) exercise the offence-related powers set out in section 70A.

(2) However, an inspector is not authorised to enter the premises

unless:

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

the inspector has shown his or her identity card if required by

the occupier; or

Schedule 1 A mendments

Part 3 Inspectors' powers

20 National Health Security Amendment Bill 2009 No. , 2009

(b) the entry is made under an offence-related warrant.

Note:

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

must leave the premises if the consent ceases to have effect: see

section 75.

70A Offence-related powe rs of inspectors

(1) The following are the offence-related powers that an inspector

may exercise in relation to premises under section 70:

(a) if entry to the premises is with the occupier's consent--the

power to search the premises and any thing on the premises

for the evidential material the inspector has reasonable

grounds for suspecting may be on the premises;

(b) if entry to the premises is under an offence-related warrant:

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

premises for the kind of evidential material specified in

the warrant; and

(ii) the power to seize evidential material of that kind if the

inspector finds it on the premises;

conduct tests on or take samples of evidential material

referred to in paragraph (a) or (b);

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

recording of the premises or evidential material referred to in

paragraph (a) or (b);

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

materials as the inspector requires for the purpose of

exercising powers in relation to the premises;

(f) the powers set out in subsections (2), (3) and (6).

Powers relating to electronic equipment

(2) The offence-related powers include the power to operate electronic

equipment on the premises to see whether:

(a) the equipment; or

(b) 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;

contains evidential material referred to in paragraph (1)(a) or (b).

Amend ments Schedule 1

Inspectors' powers Part 3

National Health Security Amendment Bill 2009 No. , 2009 21

(3) The offence-related powers include the following powers in

relation to evidential material described in subsection (2) found in

the exercise of the power under that subsection:

(a) if entry to the premises is under an offence-related warrant--

the power to seize the equipment and the disk, tape or other

storage device referred to in that subsection;

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

put the evidential material in documentary form and remove

the documents so produced from the premises;

transfer the evidential material 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) An inspector may operate electronic equipment as mentioned in

subsection (2) or (3) only if he or she believes on reasonable

grounds that the operation of the equipment can be carried out

without damage to the equipment.

(5) An inspector may seize equipment or a disk, tape or other storage

device as mentioned in paragraph (3)(a) only if:

(a) it is not practicable to put the evidential material in

documentary form as mentioned in paragraph (3)(b) or to

transfer the evidential material as mentioned in

paragraph (3)(c); or

(b) possession of the equipment or the disk, tape or other storage

device by the occupier could constitute an offence against a

law of the Commonwealth.

Seizing other evidential material

(6) If:

(a) entry to the premises is under an offence-related warrant; and

(b) the inspector, in the course of searching for the kind of

evidential material specified in the warrant, finds a thing that

Schedule 1 A mendments

Part 3 Inspectors' powers

22 National Health Security Amendment Bill 2009 No. , 2009

the inspector believes on reasonable grounds to be other

evidential material; and

necessary to seize the thing in order to prevent its

concealment, loss or destruction;

then the offence-related powers include seizing the thing.

70B Persons assisting inspectors

Inspectors may be assisted by other persons

(1) An inspector may, in entering premises under section 70 and in

exercising offence-related powers in relation to the premises, be

assisted by other persons if that assistance is necessary and

reasonable. A person giving such assistance is a person assisting

the inspector.

Powers of a person assisting the inspector

(2) A person assisting the inspector may:

(a) enter the premises; and

(b) exercise offence-related powers in relation to the premises,

but only in accordance with a direction given to the person by

the inspector.

(3) A power exercised by a person assisting the inspector as mentioned

in subsection (2) is taken for all purposes to have been exercised by

the inspector.

(4) If a direction is given under paragraph (2)(b) in writing, the

direction is not a legislative instrument.

70C Use of force in executing a warrant

In executing an offence-related warrant:

(a) an inspector executing the warrant may use such force

against persons and things as is necessary and reasonable in

the circumstances; and

(b) a person assisting the inspector may use such force against

things as is necessary and reasonable in the circumstances.

Amend ments Schedule 1

Inspectors' powers Part 3

National Health Security Amendment Bill 2009 No. , 2009 23

70D Inspector may ask questions and seek production of documents

Entry with consent

(1) If an inspector is authorised by section 70 to enter premises

because the occupier of the premises consented to the entry, the

inspector may ask the occupier to:

(a) answer any questions relating to the reasons for the inspector

entering the premises that are put by the inspector; and

(b) produce any document relating to the reasons for the

inspector entering the premises that is requested by the

inspector.

Entry under an offence-related warrant

(2) If an inspector is authorised to enter premises by an offence-related

warrant, the inspector may require any person on the premises to:

(a) answer any questions relating to the reasons for the inspector

entering the premises that are put by the inspector; and

(b) produce any document relating to the reasons for the

inspector entering the premises that is requested by the

inspector.

Offence

(3) A person commits an offence if:

(a) the person is subject to a requirement under subsection (2);

and

(b) the person fails to comply with the requirement.

Penalty for contravention of this subsection:30 penalty units.

70E Inspector to be in possession of warrant

If an offence-related warrant is being executed in relation to

premises, an inspector executing the warrant must be in possession

of:

(a) the warrant issued by the magistrate under section 70M, or a

copy of the warrant as so issued; or

(b) the form of warrant completed under subsection 70N(6), or a

copy of the form as so completed.

Schedule 1 A mendments

Part 3 Inspectors' powers

24 National Health Security Amendment Bill 2009 No. , 2009

70F Occupier to provide inspector with facilities and assistance

(1) The occupier of premises to which an offence-related warrant

relates, or another person who apparently represents the occupier,

must provide:

(a) an inspector executing the warrant; and

(b) any person assisting the inspector;

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.

70G Copies of seized things to be provided

(1) If an offence-related warrant is being executed and an inspector

seizes under this Subdivision:

(a) a document, film, computer file or other thing that can be

readily copied; or

(b) a storage device, the information in which can be readily

copied;

the inspector must, if requested to do so by the occupier of the

premises, or another person who apparently represents the occupier

and who is present when the warrant is executed, give a copy of the

thing or the information to the occupier or other person as soon as

practicable after the seizure.

(2) However, subsection (1) does not apply if possession of the

document, film, computer file, thing or information by the occupier

or other person could constitute an offence against a law of the

Commonwealth.

70H Receipts for things seized

(1) If a thing is seized under this Subdivision, an inspector must

provide a receipt for the thing.

(2) If 2 or more things are seized, they may be covered in the one

receipt.

Amend ments Schedule 1

Inspectors' powers Part 3

National Health Security Amendment Bill 2009 No. , 2009 25

70J Return of seized things

(1) Subject to any contrary order of a court, if an inspector seizes a

thing under this Subdivision, the Secretary must take reasonable

steps to return it if:

(a) the reason for its seizure no longer exists or it is decided that

it is not to be used in evidence; or

(b) the period of 60 days after its seizure ends;

whichever happens first, unless the thing is forfeited or forfeitable

to the Commonwealth or is the subject of a dispute as to

ownership.

(2) If, apart from this subsection, the Secretary would be required to

take reasonable steps to return a thing under subsection (1) because

of paragraph (1)(b), the Secretary is not required to do so if:

(a) proceedings in respect of which the thing may afford

evidence were instituted before the end of the 60 days and

have not been completed (including an appeal to a court in

relation to those proceedings); or

(b) the thing may continue to be retained because of an order

under section 70K; or

otherwise authorised (by a law, or an order of a court, of the

Commonwealth or of a State or Territory) to retain, destroy,

dispose of or otherwise deal with the thing; or

(d) to return the thing could cause an imminent risk of death,

serious illness, serious injury or serious damage to the

environment.

(3) A thing that is required to be returned under this section must be

returned to the person from whom it was seized (or to the owner if

that person is not entitled to possess it).

70K Magistrate may pe rmit a thing to be retained

(1) An inspector may apply to a magistrate for an order permitting the

retention of the thing for a further period if:

(a) before the end of 60 days after the seizure; or

(b) before the end of a period previously specified in an order of

a magistrate under this section;

Schedule 1 A mendments

Part 3 Inspectors' powers

26 National Health Security Amendment Bill 2009 No. , 2009

proceedings in respect of which the thing may afford evidence

have not commenced.

(2) If the magistrate is satisfied that it is necessary for the thing to

continue to be retained:

(a) for the purposes of an investigation as to whether an offence

against this Act, or an offence against the Crimes Act 1914 or

the Criminal Code that relates to this Act, has been

committed; or

(b) to enable evidence of such an offence to be secured for the

purposes of a prosecution;

the magistrate may order that the thing may continue to be retained

for a period specified in the order (which must not exceed 3 years).

(3) Before making the application, the inspector must:

(a) take reasonable steps to discover who has an interest in the

retention of the thing; and

(b) if it is practicable to do so, notify each person whom the

inspector believes to have such an interest of the proposed

application.

70L Disposal of things

(1) If:

(a) a thing is seized under this Subdivision; and

(b) apart from this section, the Secretary would be required to

take reasonable steps to return the thing to a person; and

(i) the Secretary cannot, despite making reasonable efforts,

locate the person; or

(ii) the person has refused to take possession of the thing;

the Secretary may dispose of the thing in such manner as he or she

thinks appropriate.

(2) If the operation of this section would result in an acquisition of

property from a person otherwise than on just terms, the

Commonwealth is liable to pay a reasonable amount of

compensation to the person.

(3) If the Commonwealth and the person do not agree on the amount

of the compensation, the person may institute proceedings in the

Amend ments Schedule 1

Inspectors' powers Part 3

National Health Security Amendment Bill 2009 No. , 2009 27

Federal Court of Australia for the recovery from the

Commonwealth of such reasonable amount of compensation as the

court determines.

(4) In this section:

acquisition of property has the same meaning as in paragraph

51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the

Constitution.

70M Issue of offence-related warrants

Application for warrant

(1) An inspector may apply to a magistrate for a warrant under this

section in relation to premises.

Issue of warrant

(2) The magistrate may issue the warrant if the magistrate is satisfied,

by information on oath or affirmation, that there are reasonable

grounds for suspecting that there is, or there may be within the next

72 hours, evidential material on the premises.

(3) However, the magistrate must not issue the warrant unless the

inspector or some other person has given to the magistrate, either

orally or by affidavit, such further information (if any) as the

magistrate 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 Subdivision; and

for under the warrant; and

(d) name one or more inspectors; and

(e) authorise the inspector or inspectors so named:

(i) to enter the premises; and

Schedule 1 A mendments

Part 3 Inspectors' powers

28 National Health Security Amendment Bill 2009 No. , 2009

(ii) to exercise the powers set out in sections 70, 70A, 70B,

70C and 70D in relation to the premises; and

(f) state whether the entry is authorised to be made at any time

of the day or during specified hours of the day; and

(g) specify the day (not more than one week after the issue of the

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

70N Offence-related warrants by telephone, fax etc.

Application for warrant

(1) An inspector may apply to a magistrate by telephone, fax or other

electronic means for a warrant under section 70M in relation to

premises if the inspector believes on reasonable grounds that the

delay that would occur if an application were made in person

would frustrate the effective execution of the warrant.

Voice communication

(2) The magistrate may require communication by voice to the extent

that it is practicable in the circumstances.

Information

(3) Before applying for the warrant, the inspector must prepare an

information of the kind mentioned in subsection 70M(2) in relation

to the premises that sets out the grounds on which the warrant is

sought. If it is necessary to do so, the inspector may apply for the

warrant before the information is sworn or affirmed.

Signing of warrant

(4) If the magistrate is satisfied:

(a) after considering the terms of the information; and

(b) after receiving such further information (if any) as the

magistrate requires concerning the grounds on which the

issue of the warrant is being sought;

that there are reasonable grounds for issuing the warrant, the

magistrate may complete and sign the same warrant that the

magistrate would issue under section 70M if the application had

been made under that section.

Amend ments Schedule 1

Inspectors' powers Part 3

National Health Security Amendment Bill 2009 No. , 2009 29

Notification

(5) If the magistrate completes and signs the warrant, the magistrate

must inform the inspector, by telephone, fax or other electronic

means, of:

(a) the terms of the warrant; and

(b) the day on which and the time at which the warrant was

signed.

Form of warrant

(6) The inspector must then complete a form of warrant in the same

terms as the warrant completed and signed by the magistrate,

stating on the form the name of the magistrate and the day on

which and the time at which the warrant was signed.

Completed form of warrant to be given to magistrate

(7) The inspector must also, not later than the day after the day on

which the warrant ceased to be in force or the day of execution of

the warrant, whichever is the earlier, send to the magistrate:

(a) the form of warrant completed by the inspector; and

(b) the information referred to in subsection (3), which must

have been duly sworn or affirmed.

Attachment

(8) The magistrate must attach to the documents provided under

subsection (7) the warrant signed by the magistrate.

Authority of warrant

(9) A form of warrant duly completed under subsection (6) is authority

for the same powers as are authorised by the warrant signed by the

magistrate.

(10) If:

(a) it is material, in any proceedings, for a court to be satisfied

that an exercise of a power was authorised by this section;

and

(b) the warrant signed by the magistrate authorising the exercise

of the power is not produced in evidence;

Schedule 1 A mendments

Part 3 Inspectors' powers

30 National Health Security Amendment Bill 2009 No. , 2009

the court must assume, unless the contrary is proved, that the

exercise of the power was not authorised by such a warrant.

70P Offence relating to warrants by telephone, fax etc.

An inspector must not:

(a) state in a document that purports to be a form of warrant

under section 70N the name of a magistrate unless that

magistrate signed the warrant; or

(b) state on a form of warrant under that section a matter that, to

the inspector's knowledge, departs in a material particular

from the terms of the warrant signed by the magistrate under

that section; or

that purports to be a form of warrant under that section that

the inspector knows:

(i) has not been approved by a magistrate under that

section; or

(ii) departs in a material particular from the terms of a

warrant signed by a magistrate under that section; or

(d) give to a magistrate a form of warrant under that section that

is not the form of warrant that the inspector purported to

execute.

Penalty: Imprisonment for 2 years.

33 At the end of section 72

Add:

(3) This section does not limit section 70B. That section does not limit

this section.

34 Sections 75 and 76

Repeal the sections, substitute:

75 Consent

(1) An inspector must, before obtaining the consent of an occupier of

premises for the purposes of paragraph 65(2)(a) or 70(2)(a), inform

the occupier that the occupier may refuse consent.

Amend ments Schedule 1

Inspectors' powers Part 3

National Health Security Amendment Bill 2009 No. , 2009 31

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

(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 an inspector entered premises because of the consent of the

occupier of the premises, the inspector, and any person assisting

the inspector, must leave the premises if the consent ceases to have

effect.

76 Details of warrant etc. to be given to occupier

If:

(a) a monitoring warrant or offence-related 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;

an inspector executing the warrant must, as soon as practicable:

(i) if the warrant is a monitoring warrant or an

offence-related warrant that was issued under

section 70M--make a copy of the warrant available to

the occupier or other person (which need not include the

signature of the magistrate who issued it);

(ii) if the warrant is an offence-related warrant that was

signed under section 70N--make a copy of the form of

warrant completed under subsection 70N(6) available to

the occupier or other person; and

(d) inform the occupier or other person of the rights and

responsibilities of the occupier or other person under

sections 70F and 78.

35 Subsection 77(1)

After "monitoring warrant", insert "or offence-related warrant".

36 After paragraph 77(1)(a)

Insert:

Schedule 1 A mendments

Part 3 Inspectors' powers

32 National Health Security Amendment Bill 2009 No. , 2009

(aa) show his or her identity card 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

37 At the end of section 77

Add:

(3) If:

(a) an inspector does not comply with subsection (1) because of

subsection (2); and

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

apparently represents the occupier, is present at the premises;

the inspector must, as soon as practicable after entering the

premises, show his or her identity card to the occupier or other

person.

38 Subsection 78(1)

After "monitoring warrant", insert "or offence-related warrant".

39 At the end of Subdivision G of Division 7 of Part 3

Add:

79A Compensation for damage to electronic equipme nt

(1) This section applies if:

(a) as a result of electronic equipment being operated as

mentioned in section 67 (about monitoring powers) or

section 70A (about offence-related powers):

(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

Amend ments Schedule 1

Inspectors' powers Part 3

National Health Security Amendment Bill 2009 No. , 2009 33

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 the Federal

Court of Australia or the Federal Magistrates Court for such

reasonable amount of compensation as the 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 and agents, if they were available at the time, provided

any appropriate warning or guidance on the operation of the

equipment.

(5) In this section:

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

addition of other data.

Schedule 1 A mendments

Part 4 Reporting

34 National Health Security Amendment Bill 2009 No. , 2009

Part 4

Reporting

Division 1

Reporting to police

National Health Security Act 2007

40 Subsection 47(2) (at the end of the note)

Add "and must also report some changes under section 48A".

41 Subsection 48(3) (note)

After "Note", insert "1".

42 At the end of subsection 48(3)

Add:

Note 2:

The registered entity must also give reports about certain reportable

events to police within a period prescribed by the regulations: see

section 48A.

43 After section 48

Insert:

48A Registered entity must re port certain reportable events to

police

(1) This section applies if:

(a) a reportable event occurs in relation to a registered entity and

a facility in a State or Territory; and

(b) the event is one described in paragraph 48(1)(f) or prescribed

by the regulations for the purposes of this section.

(2) The registered entity must give a member of the police force of the

State or Territory a report of the event that:

(a) is in a form approved by the Secretary; and

(b) includes the information required by the approved form.

Note:

Section 55 deals with the application of the reporting requirements in

relation to individuals.

(3) The registered entity must give the report within the period

prescribed by the regulations.

Amend ments Schedule 1

Reporting Part 4

National Health Security Amendment Bill 2009 No. , 2009 35

(4) Regulations prescribing a period for the purposes of subsection (3)

may:

(a) prescribe different periods in relation to different reportable

events; and

(b) prescribe a period in relation to a reportable event that ends

before or after the event occurs.

48B Offence--failure to report reportable event to police

(1) An entity commits an offence if:

(a) the entity is required by section 48A to give a report; and

(b) the entity does not give the report as required by that section.

Penalty: 500 penalty units.

(2) Section 4K of the Crimes Act 1914 does not apply to an offence

against subsection (1).

44 Paragraph 53(1)(b)

Omit "to the Secretary under subsection 48(3)", substitute "under

subsection 48(3) or section 48A".

45 Paragraph 53(1)(c)

Omit "to the Secretary as required by that subsection", substitute "as

required by that subsection or section".

46 Subsection 55(1)

Omit "to the Secretary under subsection 42(1) or 48(3)", substitute

"under subsection 42(1) or 48(3) or section 48A".

47 Subsection 55(1) (note)

Omit "to the Secretary".

48 Paragraph 55(2)(b)

Omit "the Secretary a report under subsection 42(1) or 48(3)",

substitute "a report under subsection 42(1) or 48(3) or section 48A".

49 Paragraph 55(2)(c)

Omit "the Secretary a report under that subsection", substitute "a report

under that subsection or section".

Schedule 1 A mendments

Part 4 Reporting

36 National Health Security Amendment Bill 2009 No. , 2009

50 Paragraph 55(2)(d)

Omit "the Secretary a joint report under that subsection", substitute "a

joint report under that subsection or section".

Division 2

Periodic nil reporting

National Health Security Act 2007

51 At the end of subsection 48(1)

Add:

; (i) a period for which both the following conditions are met

ends:

(i) the duration of the period is prescribed by the

regulations for the purposes of this subparagraph;

(ii) there is no occurrence in the period of a reportable event

that is described in paragraph (h) and is prescribed by

the regulations for the purposes of this subparagraph.

Amend ments Schedule 1

Cancellation of registration on application Part 5

National Health Security Amendment Bill 2009 No. , 2009 37

Part 5

Cancellation of registration on application

National Health Security Act 2007

52 Paragraph 38(1)(a)

Omit "or 52 in relation to a registered entity", substitute ", 52 or 55A

relating to the registration of an entity".

53 At the end of Subdivision B of Division 5 of Part 3

Add:

55A Cancellation of entity's registration on application

(1) An entity that is a registered entity may apply, in a form approved

by the Secretary, for:

(a) cancellation (total cancellation) of the entity's registration

relating to all security-sensitive biological agents for which

the entity is registered; or

(b) cancellation (facility cancellation) of the entity's registration

so far as it relates to one or more specified facilities.

(2) The Secretary must decide:

(a) to cancel the registration in accordance with the application;

(b) to refuse the application.

(3) However, the Secretary:

(a) may decide on total cancellation only if he or she is satisfied

that the entity does not handle any security-sensitive

biological agent that is included on the National Register in

relation to the entity and a facility; and

(b) may decide on facility cancellation only if he or she is

satisfied that the entity does not handle at any of the facilities

specified in the application any security-sensitive biological

agent that is included on the National Register in relation to

the entity and any of those facilities.

(4) If the Secretary decides to cancel the registration, he or she must

notify the entity in writing of the decision (whether the cancellation

is total cancellation or facility cancellation). The notice must

include the information (if any) prescribed by the regulations.

Schedule 1 A mendments

Part 5 Cancellation of reg istration on application

38 National Health Security Amendment Bill 2009 No. , 2009

Note:

If the Secretary decides to refuse the application for cancellation,

section 81 requires him or her to notify the entity.

(5) Failure to comply with subsection (4) does not affect the validity of

the decision.

54 Section 80 (after paragraph (a) of the definition of

reviewable decision)

Insert:

(aaa) a decision under section 55A to refuse an entity's application

for cancellation of its registration; or

Commonwealth of Australia Bills

NATIONAL HEALTH SECURITY AMENDMENT BILL 2009