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This is a Bill, not an Act. For current law, see the Acts databases.
1996-97-98
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Primary
Industries and Energy Legislation Amendment Bill (No. 2)
1998
No. ,
1998
(Primary Industries and
Energy)
A Bill for an Act to amend or
repeal various Acts administered by the Department of Primary Industries and
Energy, and for related purposes
Contents
Part 1—Repeal of the Dried Vine Fruits Equalization Act
1978 8piel2h1.html
Part 2—Saving provision 8piel2h1.html
A Bill for an Act to amend or repeal various Acts
administered by the Department of Primary Industries and Energy, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Primary Industries and Energy Legislation
Amendment Act (No. 2) 1998.
(1) Subject to subsection (2), this Act commences on the day on which it
receives the Royal Assent.
(2) Schedule 2 commences on 1 January 1999.
Subject to section 2, 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Act is amended or repealed as set out in the applicable items in the Schedule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.
1 After Part 7A
Insert:
(1) In this Part:
current application has the meaning given by section
69EX.
information includes, but is not limited to, information
obtained from trials or laboratory experiments.
previous application has the meaning given by section
69EX.
relevant information has the meaning given by section
69EX.
(2) Expressions used in this Part that are defined or otherwise used in
the Code set out in the Schedule to the Agricultural and Veterinary Chemicals
Code Act 1994 have the same meanings as in that Code.
(1) This Part modifies the Agvet Codes for the purpose of giving effect to
Australia’s obligations under paragraph 3 of Article 39 of the Agreement
on Trade-Related Aspects of Intellectual Property Rights set out in Annex 1C to
the Marrakesh Agreement establishing the World Trade Organization, done at
Marrakesh on 15 April 1994.
Note: The English text of the Marrakesh Agreement
establishing the World Trade Organization is set out in Australian Treaty Series
1995 No. 8.
(2) The Agvet Codes have effect subject to this Part.
This Part applies to an application (the current
application) made to the NRA after the commencement of this Part for
approval of an active constituent for a proposed or existing chemical product
where:
(a) the NRA cannot grant the application without using information (the
relevant information) given to the NRA in connection with a
previous application (the previous application) made to the NRA
(other than a previous application made before the commencement of this Part)
for approval of an active constituent for a proposed or existing chemical
product; and
(b) the relevant information has not been made publicly available in
Australia; and
(c) at the time immediately before the previous application was made, no
application had been made to the NRA for approval of the active constituent to
which that application related.
The NRA must not grant the current application unless:
(a) the person who made that application:
(i) has given to the NRA information that makes it unnecessary for the NRA
to use the relevant information in connection with that application;
or
(ii) has given to the NRA evidence that satisfies the NRA that the person
who made the previous application has consented to the NRA using the relevant
information in connection with the current application; or
(b) at least 5 years have elapsed since the previous application was
determined by the NRA or was withdrawn, as the case may be.
(1) If:
(a) the NRA approves an active constituent for a proposed or existing
chemical product; and
(b) the NRA was prohibited by section 69EY from giving the
approval;
the approval is not invalid.
(2) However, the NRA must cancel the approval when it finds out that the
giving of the approval was prohibited by section 69EY.
The power of the NRA under subsection 16(1) of the Agvet Codes to approve
the same active constituent for a proposed or existing chemical product on
applications made by different persons is subject to section 69EY.
Except as provided by section 69EY, the power of the NRA under subsection
58(1) of the Agvet Codes to use information obtained by it from any source for
the purpose of performing any of its functions or exercising any of its powers
under those Codes is not affected.
Part
1—Repeal of the Dried Vine
Fruits Equalization Act 1978
Repeal the Act.
(1) Despite its repeal, the Dried Vine Fruits Equalization Act 1978,
as in force immediately before 1 January 1999, continues to apply in relation to
all export sales of exported dried fruit to which a separate account for a
previous season relates.
(2) In this section:
previous season means the season starting on 1 January 1997
or 1 January 1998.
1 Section 3
Insert:
enter, in relation to an aircraft, vehicle or ship, includes
go on board.
2 Section 3 (definition of
establishment)
Repeal the definition, substitute:
establishment includes premises.
3 Section 3
Insert:
evidential material means any of the following things,
including such a thing in electronic form:
(a) a thing with respect to which an offence against this Act has been
committed or is suspected, on reasonable grounds, to have been
committed;
(b) a thing as to which there are reasonable grounds for suspecting that
it will afford evidence as to the commission of an offence against this
Act;
(c) a thing as to which there are reasonable grounds for suspecting that
it is intended to be used for the purpose of committing an offence against this
Act.
4 Section 3
Insert:
executing officer, for a warrant, means the person named in
the warrant as being responsible for executing the warrant.
5 Section 3
Insert:
magistrate means a magistrate who is remunerated by salary or
otherwise.
6 Section 3
Insert:
occupier of premises means the person apparently in charge of
the premises.
7 Section 3 (paragraph (a) of the definition of
offence against this Act)
Repeal the paragraph.
8 Section 3 (paragraphs (b) and (c) of the
definition of offence against this Act)
Omit “or the regulations”.
9 Section 3
Insert:
officer assisting, in relation to a warrant, means:
(a) an authorized officer who is assisting in executing the warrant;
or
(b) a person who is not an authorized officer, but who has been authorized
by the relevant executing officer to assist in executing the warrant.
10 Section 3 (definition of
premises)
Repeal the definition, substitute:
premises includes the following:
(a) a building, aircraft, vehicle or ship;
(b) a place (whether enclosed, or built on, or not);
(c) a part of a thing or place referred to in paragraph (a) or
(b).
11 Section 3
Insert:
preparation, in relation to prescribed goods, includes the
following:
(a) the slaughter or killing of animals and the dressing of carcasses from
which prescribed goods are obtained;
(b) the processing, packing or storage of prescribed goods;
(c) the treatment of prescribed goods;
(d) the handling or loading of prescribed goods.
12 Section 3
Insert:
this Act includes the regulations.
13 After subsection 7(3)
Insert:
(3A) Without limiting the generality of subsection (2), regulations made
for the purposes of subsection (1):
(a) may provide that the export of prescribed goods, or the export of
prescribed goods to a specified place, is prohibited unless the goods have been
prepared in accordance with an arrangement that has been approved by the
Secretary; and
(b) may make provision for and in relation to:
(i) the approval of an arrangement subject to specified conditions or
restrictions; or
(ii) the variation, suspension or revocation of an approval of an
arrangement; or
(iii) the variation, suspension or revocation of any or all of the
conditions or restrictions to which an approval of an arrangement is subject, or
the imposition of further conditions or restrictions; or
(iv) persons (including persons approved by the Secretary under the
regulations and authorized officers) who may exercise powers and perform
functions under, or for the purposes of, an approved arrangement.
14 Subsection 7(4)
Omit “subparagraph (3)(b)(ii)”, substitute “subparagraphs
(3)(b)(ii) and (3A)(b)(i)”.
15 Part III (heading)
Repeal the heading, substitute:
16 Sections 10 and 11
Repeal
the sections, substitute:
The powers an authorized officer may exercise under paragraphs 10A(1)(b)
and 10D(1)(b) in relation to particular premises are as follows:
(a) to search the premises and any thing on the premises;
(b) to inspect, examine and take samples of any thing on the
premises;
(c) to take photographs (including video or audio recordings) or to make
sketches of the premises or any thing on the premises;
(d) to take extracts from, or make copies of, any document, book or record
on the premises;
(e) to secure the premises or any thing on the premises.
(1) For the purpose of finding out whether any or all of the provisions of
this Act are being complied with, an authorized officer, at any time and with
any necessary help, may:
(a) enter:
(i) any registered premises; or
(ii) any other premises with the consent of the occupier; and
(b) exercise the powers set out in section 10.
(2) If the relevant premises are an aircraft, vehicle or ship, an
authorized officer may stop and detain the aircraft, vehicle or ship for the
purpose of exercising a power mentioned in subsection (1).
(1) An authorized officer may apply to a magistrate for a warrant under
this section in relation to particular premises.
(2) Subject to subsection (3), the magistrate may issue a warrant if
satisfied, by information on oath or affirmation, that it is reasonably
necessary that the authorized officer should have access to the premises for the
purpose of finding out whether any or all of the provisions of this Act are
being complied with.
(3) The magistrate must not issue a warrant unless the authorized officer
or another person has given the magistrate, either orally (on oath or
affirmation) or by affidavit, such further information as the magistrate
requires about the grounds on which the issue of the warrant is being
sought.
(4) A warrant must:
(a) authorize an authorized officer named in the warrant, with such
assistance and by such force as is necessary and reasonable, from time to time,
while the warrant remains in force, to enter the premises and exercise powers of
the kind set out in section 10 in relation to the premises; and
(b) state whether an entry under the warrant is authorized to be made at
any time of the day or night or during specified hours of the day or night;
and
(c) specify the day (not more than 6 months after the issue of the
warrant) on which the warrant ceases to have effect; and
(d) state the purpose for which the warrant is issued.
(1) This section applies when an authorized officer has entered premises
under section 10A or under a warrant issued under section 10B.
(2) If the authorized officer suspects, on reasonable grounds,
that:
(a) particular evidential material is in or on the premises; and
(b) it is necessary to seize the evidential material in order to prevent
it from being concealed, lost or destroyed; and
(c) it is necessary to do so without the authority of a warrant under
section 10E because the circumstances are serious and urgent;
the authorized officer may seize the evidential material if he or she finds
it there.
(1) Subject to subsection (2), if an authorized officer has reasonable
grounds for suspecting that there may be, on any premises, particular evidential
material, the officer, at any time and with any necessary help, may:
(a) enter the premises; and
(b) exercise the powers set out in section 10; and
(c) seize that evidential material, if the officer finds it on the
premises.
(2) An authorized officer is not authorized to enter premises under
subsection (1) unless:
(a) the premises are registered premises; or
(b) the occupier of the premises has consented to the entry.
(3) If the relevant premises are an aircraft, vehicle or ship, an
authorized officer may stop and detain the aircraft, vehicle or ship for the
purpose of exercising a power mentioned in subsection (1).
(1) An authorized officer may apply to a magistrate for a warrant under
this section in relation to particular premises.
(2) Subject to subsection (3), a magistrate may issue the warrant if
satisfied, by information on oath or affirmation, that there are reasonable
grounds for suspecting that there is, or may be within the next 72 hours, any
evidential material at the premises.
(3) A magistrate must not issue a warrant unless the authorized officer or
some other person has given the magistrate, either orally (on oath or
affirmation) or by affidavit, such further information as the magistrate
requires about the grounds on which the issue of the warrant is being
sought.
(4) The warrant must:
(a) state the offence to which the warrant relates; and
(b) describe the premises to which the warrant relates; and
(c) describe the kinds of evidential material that are to be searched for
under the warrant; and
(d) state the name of the authorized officer who is to be responsible for
executing the warrant; and
(e) state the period for which the warrant remains in force, which must
not be more than 7 days; and
(f) state whether the warrant may be executed at any time or only during
particular hours.
(5) The warrant must also state that the warrant authorizes the seizure of
a thing (other than evidential material of the kind referred to in paragraph
(4)(c)) found at the premises in the course of the search that the executing
officer or an officer assisting believes on reasonable grounds to be:
(a) evidential material in relation to an offence to which the warrant
relates; or
(b) evidential material in relation to another offence against this
Act;
if the executing officer or an officer assisting believes on reasonable
grounds that seizure of the thing is necessary to prevent its concealment, loss
or destruction or its use in committing an offence against this Act.
(6) Paragraph (4)(e) does not prevent the issue of successive warrants in
relation to the same premises.
(7) If the application for the warrant is made under section 10F, this
section applies as if:
(a) subsection (2) referred to 48 hours rather than 72 hours;
and
(b) paragraph (4)(e) referred to 48 hours rather than 7 days.
(1) A warrant under this Division that is in force in relation to premises
authorizes the executing officer or an officer assisting:
(a) to enter the premises; and
(b) to exercise powers of the kind set out in paragraphs 10(b) to (e)
(inclusive); and
(c) to search the premises and any thing on the premises for the kinds of
evidential material specified in the warrant, and to seize things of those kinds
found at the premises; and
(d) to seize other things found at the premises in the course of the
search that the executing officer or an officer assisting believes on reasonable
grounds to be:
(i) evidential material in relation to an offence to which the warrant
relates; or
(ii) evidential material in relation to another offence against this
Act;
if the executing officer or an officer assisting believes on reasonable
grounds that seizure of the thing is necessary to prevent its concealment, loss
or destruction or its use in committing an offence against this Act.
(2) If the warrant states that it may be executed only during particular
hours, the warrant must not be executed outside those hours.
(3) If things are seized under a warrant, the warrant authorizes the
executing officer to make the things available to officers of other agencies if
it is necessary to do so for the purpose of investigating or prosecuting an
offence to which the things relate.
(1) An authorized officer may apply to a magistrate for a warrant under
section 10B or 10E by telephone, facsimile or other electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person
would frustrate the effective execution of the warrant.
(2) The magistrate may require voice communication to the extent that it
is practicable in the circumstances.
(3) An application under this section must include all information
required to be provided in an ordinary application for a warrant under section
10B or 10E, as the case requires, but the application may, if necessary, be made
before the information is sworn or affirmed.
(4) If a magistrate to whom an application is made under this section is
satisfied:
(a) after having considered the information mentioned in subsection (3);
and
(b) after having received any further information that the magistrate
requires about 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 form of warrant that would be issued under
section 10B or 10E, as the case requires.
(5) If a magistrate signs a warrant under subsection (4):
(a) the magistrate must notify the authorized officer, by telephone,
facsimile or other electronic means, of the terms of the warrant and the date on
which and the time at which it was signed, and write on it the reasons for the
granting of the warrant; and
(b) the officer must complete a form of warrant in the terms notified to
the officer by the magistrate and write on it the name of the magistrate and the
date on which and the time at which the warrant was signed.
(6) If an authorized officer completes a form of warrant under subsection
(5), the officer must, not later than the day after the day on which the warrant
ended or was executed, whichever is the earlier, give or transmit to the
magistrate who signed the warrant the form of warrant completed by the officer
and, if the information mentioned in subsection (3) was not sworn or affirmed,
that information duly sworn or affirmed.
(7) The magistrate must attach to the documents provided under subsection
(6) the warrant signed by the magistrate.
(8) A form of warrant duly completed by an authorized officer under
subsection (5) is, if it is in accordance with the terms of the warrant signed
by the magistrate, authority for any entry, search, seizure, or other exercise
of power that the warrant so signed authorizes.
(9) If:
(a) it is material, in any proceedings, for a court to be satisfied that
an exercise of power was authorized under this section; and
(b) the warrant signed by the magistrate under this section authorizing
the exercise of power is not produced in evidence;
the court must assume, unless the contrary is proved, that the exercise of
power was not authorized by such a warrant.
(1) This section applies if an authorized officer suspects, on reasonable
grounds, that:
(a) particular evidential material is in or on an aircraft, vehicle or
ship; and
(b) it is necessary to exercise a power under subsection (2) in order to
prevent the evidential material being concealed, lost or destroyed;
and
(c) it is necessary to exercise the power without the authority of a
warrant under section 10E because the circumstances are serious and
urgent.
(2) The authorized officer may:
(a) stop and detain the aircraft, vehicle or ship; and
(b) search the aircraft, vehicle or ship and any thing in or on the
aircraft, vehicle or ship, for the evidential material; and
(c) seize the evidential material if he or she finds it there.
(3) If, in the course of searching for the evidential material, the
authorized officer finds other evidential material, the authorized officer may
seize that other evidential material if he or she suspects, on reasonable
grounds, that:
(a) it is necessary to seize it in order to prevent its concealment, loss
or destruction; and
(b) it is necessary to seize it without the authority of a warrant under
section 10E because the circumstances are serious and urgent.
(4) The authorized officer must exercise his or her powers subject to
section 10J.
When an authorized officer exercises a power under section 10H in
relation to an aircraft, vehicle or ship, he or she:
(a) may use such assistance as is necessary; and
(b) must search the aircraft, vehicle or ship in a public place or in some
other place to which members of the public have ready access; and
(c) must not detain the aircraft, vehicle or ship for longer than is
necessary and reasonable to search it and any thing found in or on the aircraft,
vehicle or ship; and
(d) may use such force as is necessary and reasonable in the
circumstances, but must not damage the aircraft, vehicle or ship or any thing
found in or on the aircraft, vehicle or ship by forcing open a part of the
aircraft, vehicle or ship or thing unless:
(i) the person (if any) apparently in charge of the aircraft, vehicle or
ship has been given a reasonable opportunity to open that part or thing;
or
(ii) it is not possible to give that person such an opportunity.
In executing a warrant:
(a) the executing officer may obtain such assistance as is necessary and
reasonable in the circumstances; and
(b) the executing officer, or an authorized officer who is assisting in
executing the warrant, may use such force against persons and things as is
necessary and reasonable in the circumstances; and
(c) a person who is not an authorized officer, but who has been authorized
to assist in executing the warrant, may use such force against things as is
necessary and reasonable in the circumstances.
(1) The executing officer must, before any person enters premises under a
warrant:
(a) announce that he or she is authorized by the warrant to enter the
premises; and
(b) give any person at the premises an opportunity to allow entry to the
premises.
(2) The authorized officer does not have to comply with subsection (1) if
he or she believes on reasonable grounds that immediate entry to the premises is
required to ensure:
(a) the safety of a person (including the authorized officer);
or
(b) that the effective execution of the warrant is not
frustrated.
(1) If a warrant in relation to premises is being executed and the
occupier of the premises, or another person who apparently represents the
occupier, is present at the premises, the executing officer or an officer
assisting must make a copy of the warrant available to that person.
(2) The executing officer must identify himself or herself to the person
at the premises.
(3) The copy of the warrant referred to in subsection (1) need not include
the signature of the magistrate who issued the warrant.
(1) If a warrant issued in relation to premises is being executed and the
occupier of the premises, or another person who apparently represents the
occupier, is present at the premises, the person is, subject to Part 1C of the
Crimes Act 1914, entitled to observe the search being
conducted.
(2) The right to observe the search being conducted ceases if the person
impedes the search.
(3) This section does not prevent 2 or more areas of the premises being
searched at the same time.
(1) A person who enters premises under this Part may bring to the premises
and use any equipment reasonably necessary for the examination or processing of
things found at the premises for the purposes of exercising a power conferred on
the person under this Part.
(2) If:
(a) it is not practicable to examine or process the things at the
premises; or
(b) the occupier of the premises consents in writing;
the things may be moved to another place so that the examination or
processing can be carried out.
(3) If things containing electronically stored information are moved to
another place under subsection (2), the person referred to in subsection (1)
must, if it is practicable to do so:
(a) tell the occupier the address of the place and the time at which the
examination or processing will be carried out; and
(b) allow the occupier, or a representative of the occupier, to be present
during the examination or processing.
(4) A person who enters premises under this Part may operate equipment
already at the premises to carry out the examination or processing of a thing
found at the premises for the purposes of exercising a power conferred on the
person under this Part, if the person believes on reasonable grounds
that:
(a) the equipment is suitable for the examination or processing;
and
(b) the examination or processing can be carried out without damage to the
equipment or the thing.
(1) A person who enters premises under this Part may operate electronic
equipment at the premises for the purposes of exercising a power conferred on
the person under this Part if he or she believes on reasonable grounds that the
operation of the equipment can be carried out without damage to the
equipment.
(2) If the person, after operating the equipment, finds that evidential
material is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device;
or
(b) if the material can, by using facilities at the premises, be put in
documentary form—operate the facilities to put the material in that form
and seize the documents so produced; or
(c) if the material can be transferred to a disk, tape or other storage
device that:
(i) is brought to the premises; or
(ii) is at the premises and the use of which for the purpose has been
agreed to in writing by the occupier of the premises;
operate the equipment or other facilities to copy the material to the
storage device and take the storage device from the premises.
(3) A person may seize equipment under paragraph (2)(a) only if:
(a) it is not practicable to put the material in documentary form as
mentioned in paragraph (2)(b) or to copy the material as mentioned in paragraph
(2)(c); or
(b) possession of the equipment by the occupier could constitute an
offence.
(4) If the person believes on reasonable grounds that:
(a) evidential material may be accessible by operating electronic
equipment at the premises; and
(b) expert assistance is required to operate the equipment; and
(c) if he or she does not take action under this subsection, the material
may be destroyed, altered or otherwise interfered with;
he or she may do whatever is necessary to secure the equipment, whether by
locking it up, placing a guard or otherwise.
(5) The person must give notice to the occupier of the premises of his or
her intention to secure equipment and of the fact that the equipment may be
secured for up to 24 hours.
(6) The equipment may be secured:
(a) for a period not exceeding 24 hours; or
(b) until the equipment has been operated by the expert;
whichever happens first.
(7) If the person believes on reasonable grounds that the expert
assistance will not be available within 24 hours, he or she may apply to a
magistrate for an extension of that period.
(8) The person must give notice to the occupier of the premises of his or
her intention to apply for an extension, and the occupier is entitled to be
heard in relation to the application.
(1) If:
(a) equipment is damaged because of being operated as mentioned in section
11D or 11E; and
(b) the damage was caused by:
(i) insufficient care being exercised in selecting the person who was to
operate the equipment; or
(ii) insufficient care being exercised by the person (other than the
occupier or a person employed by the occupier) operating the
equipment;
compensation for the damage is payable to the owner of the
equipment.
(2) Compensation is payable out of money appropriated by the Parliament
for the purpose.
(3) In determining the amount of compensation payable, regard is to be had
to whether the occupier of the premises and the employees and agents of the
occupier, if they were available at the time, had provided any warning or
guidance as to the operation of the equipment that was appropriate in the
circumstances.
(1) Subject to subsection (2), if a person who enters premises under this
Part seizes:
(a) a document, film, computer file or other thing that can readily be
copied; or
(b) a storage device the information in which can readily be
copied;
the person must, if asked to do so by the occupier of the premises or
another person who apparently represents the occupier and is present when the
seizure takes place, give a copy of the thing or the information to that person
as soon as practicable after the seizure.
(2) Subsection (1) does not apply if:
(a) the thing that has been seized was seized under paragraph 11E(2)(b) or
(c); or
(b) possession by the occupier of the document, film, computer file, thing
or information could constitute an offence.
(1) Subject to any contrary order of a court, if a person seizes a thing
under this Part, the person must 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 first occurs, unless the thing is forfeited or forfeitable to the
Commonwealth or is the subject of a dispute as to ownership.
(2) At the end of the 60 days specified in subsection (1), the person must
take reasonable steps to return the thing to the person from whom it was seized
(or to the owner if that person is not entitled to possess it) unless:
(a) proceedings in which the thing may be used in evidence were begun
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 officer may retain the thing because of an order under section
11J; or
(c) the officer is otherwise authorized or required (by a law, or an order
of a court, of the Commonwealth, or of a State or a Territory) to retain,
destroy or dispose of the thing.
(1) If a person seizes a thing under this Part; and:
(a) before the end of 60 days after the seizure; or
(b) before the end of a period previously stated in an order of a
magistrate under this section;
proceedings in which the thing may be used in evidence have not been
brought, the officer may apply to a magistrate for an order that he or she may
keep the thing for a further period.
(2) If the magistrate is satisfied that it is necessary for the authorized
officer to continue to keep the thing:
(a) for the purposes of an investigation as to whether an offence has been
committed; or
(b) to enable evidence of an offence to be secured for the purposes of a
prosecution;
the magistrate may order that the officer may keep the thing for a period
stated in the order.
(3) Before
making the application, the authorized officer 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 who the authorized
officer believes to have such an interest of the proposed application.
(4) A function of making an order conferred on a magistrate by this
section is conferred on the magistrate in a personal capacity and not as a court
or a member of a court.
(5) Without limiting the generality of subsection (4), an order made by a
magistrate under this section has effect only by virtue of this Act and is not
taken, by implication, to be made by a court.
(6) A magistrate performing a function of, or connected with, making an
order under this section has the same protection and immunity as if he or she
were performing that function as, or as a member of, a court (being the court of
which the magistrate is a member).
(7) The Governor-General may make arrangements with the Governor of a
State, the Chief Minister for the Australian Capital Territory or the
Administrator of the Northern Territory for the performance, by all or any of
the persons who from time to time hold office as magistrates in that State or
Territory, of the function of making orders under this section.
The Secretary may authorize any evidential material seized under this
Part to be released to the owner, or to the person from whose possession it was
seized, either unconditionally or on any conditions that the Secretary thinks
fit.
An authorized officer may not exercise any powers under this Part in
relation to premises (other than premises entered under a warrant) if:
(a) the occupier of the premises has required the officer to produce his
or her identity card for inspection by the occupier; and
(b) the officer fails to comply with the requirement.
(1) Before obtaining the consent of a person for the purposes of entering
premises under section 10A or 10D, an authorized officer must tell the person
that the person may refuse to give consent.
(2) An entry by an authorized officer in consequence of the consent of a
person is not lawful unless the person voluntarily consented to the
entry.
(1) If a thing is seized under this Part, or moved under subsection
11D(2), an authorized officer must provide a receipt for the thing.
(2) If 2 or more things are seized or moved, they may be covered in the
one receipt.
(1) Subject to subsection (2), an authorized officer who has entered
registered premises or any other premises under a warrant may, to the extent
that is reasonably necessary for the purpose of finding out whether any or all
of the provisions of this Act are being complied with, require a person to give
information to the officer and to produce any documents referred to by the
officer.
(2) An authorized officer who has entered any premises with the consent of
the occupier may ask the occupier to give information to the officer and to
produce any documents referred to by the officer.
(3) An authorized officer is not entitled to make a requirement of a
person under subsection (1) unless the officer produces his or her identity card
for inspection by the person.
(4) A person must not fail to comply with a requirement under subsection
(1).
Penalty: 30 penalty units.
(1) The Secretary may, by written notice given to a person, require the
person, within a reasonable time stated in the notice, to give the Secretary any
information, or produce to the Secretary any documents, referred to in the
notice that relate to any prescribed goods that have been, or are proposed to
be, exported.
(2) Without limiting subsection (1), the information or documents referred
to in the notice may relate to:
(a) the preparation of any prescribed goods that have been, or are
proposed to be, exported; or
(b) the material or ingredients of which such goods are or are proposed to
be composed, or from which they are or are proposed to be derived; or
(c) any animals that are proposed to be used, or have been used, in the
preparation of such goods; or
(d) the source of:
(i) any prescribed goods of the kind mentioned in paragraph (a);
or
(ii) any material or ingredients of the kind mentioned in paragraph (b);
or
(iii) any animals of the kind mentioned in paragraph (c).
(3) A person must not fail to comply with a notice under subsection
(1).
Penalty: Imprisonment for 12 months.
Note: Subsection 4B(2) of the Crimes Act 1914 allows
a court to impose an appropriate fine instead of, or in addition to, a term of
imprisonment. If a body corporate is convicted of the offence, subsection 4B(3)
of that Act allows a court to impose a fine of an amount that is not greater
than 5 times the maximum fine that could be imposed by the court on an
individual convicted of the same offence.
(4) A person is not excused from giving information or producing a
document under subsection (1) on the ground that the information or the
production of the document, as the case may be, might tend to incriminate the
person or make the person liable to a penalty.
(5) However, if the information is given or the document is produced by an
individual, the information or the production of the document, and any
information or thing (including any document) obtained as a direct or indirect
result of the giving of the information or the production of the document, as
the case may be, is not admissible in evidence against the individual in
proceedings other than proceedings for an offence against section 16.
17 Section 12
After “powers”, insert “, or in the performance of the
authorized officer’s functions,”.
18 Subsection 13(1)
Repeal the subsection (but not the penalty), substitute:
(1) Subject to subsection (2), the owner or occupier of premises entered
by an authorized officer under this Part must, if requested by an authorized
officer to do so, provide reasonable assistance to the authorized officer for
the purpose of the exercise of the authorized officer’s powers under this
Part in relation to the premises.
19 Subsection 19(1)
After “powers”, insert “or functions”.
20 Subsection 19(2)
After “power”, insert “or function”.
21 Subsection 19(3)
After “power”, insert “, or the performance of a
function,”.
22 Section 20
Omit all the words from and including “the purpose of” to and
including “in the instrument”, substitute:
the purpose of:
(a) the exercise by that person or those persons of the powers of an
authorized officer under this Act or of such of those powers as are specified in
the instrument; or
(b) the performance by that person or those persons of the functions of an
authorized officer under this Act or of such of those functions as are specified
in the instrument.
23 Subsections 22(1) and
(2)
After “authority”, insert “, or in the performance or
purported performance of any function,”.
24 Subsections 22(1) and
(2)
Omit “or the regulations”.
25 Paragraph 23(1)(b)
Omit “or the regulations”.
26 Subsections 24A(1), (3), (6) and
(7)
Omit “or the regulations”.
27 Paragraph 25(2)(a)
Omit “of:”, substitute “of premises;”.
28 Subparagraphs 25(2)(a)(i) and
(ii)
Repeal the subparagraphs.
29 Paragraph 25(2)(e)
Omit “or the regulations”.
30 Paragraph 25(2)(f)
Omit “$1,000”, substitute “50 penalty
units”.
31 After paragraph 25(5)(a)
Insert:
(ab) any matter contained in any instrument or writing that:
(i) sets out the requirements for the preparation of prescribed goods in
Australia that are to be imported into a country; and
(ii) is made by the authority or body in that country responsible for
regulating the importation of prescribed goods into that country;
as in force at a particular time or as in force from time to time;
or
32
Persons exercising certain powers and functions
(1) If, immediately before the commencement of this Schedule, an order
conferred, or purported to confer, a power or function on an authorized
officer, the order, in so far as it conferred or purported to confer the power
or function, is taken to have been validly made for all purposes and continues
to have effect according to its terms on and after that commencement.
(2) If, before the commencement of this Schedule:
(a) a person had been approved, or was included in a class of persons that
had been approved, under an order to exercise a power or perform a function that
was otherwise required under the order to be performed or exercised by an
authorized officer; and
(b) the approval had not been revoked;
the approval is taken to have been validly made for all purposes and
continues to have effect according to its terms on and after that
commencement.
1 Subsection 3(1)
Insert:
imported as a trade sample, in relation to food, has the
meaning given by subsection 7(3).
2 At the end of subsection
7(1)
Add:
; or (d) food that is imported as a trade sample.
3 Subsection 7(2)
After “consumption”, insert “if it has not been imported
as a trade sample and”.
4 At the end of section 7
Add:
(3) Food of a particular kind is imported as a trade sample
if:
(a) the food is imported for the purposes of scientific or commercial
evaluation; and
(b) the food is not imported for consumption by any person; and
(c) the food is:
(i) in liquid form and has a volume of less than 20 litres or such lesser
volume (if any) as is prescribed by the regulations in respect of food of that
kind; or
(ii) not in liquid form and has a weight of 20 kilograms or such lesser
weight (if any) as is prescribed by the regulations in respect of food of that
kind.
5 After subsection 9(1)
Insert:
(1A) A person (other than an officer of Customs, or an authorised officer,
acting in the course of his or her duties) must not deal in any manner with
examinable food that the person knows:
(a) has been imported into Australia; and
(b) is food in respect of which a food control certificate has been
issued; and
(c) is food for which an imported food inspection advice has not been
issued;
unless the owner of the food obtains the approval of an authorised officer
to deal with the food in that manner.
Penalty: Imprisonment for 10 years.
6 Subsection 9(3)
After “(1)”, insert “, (1A)”.
7 Subsection 9(3)
After “(1)(a) and (b)”, insert “, (1A)(a), (b) and
(c)”.
8 Subsection 19(1)
Omit “to:”, substitute “under subsection
(1A)”.
9 Paragraphs 19(1)(a) and
(b)
Repeal the paragraphs.
10 After subsection 19(1)
Insert:
(1A) The Secretary may:
(a) approve a food processing operation mentioned in subsection (1) for
the purposes of this Part; or
(b) revoke any such approval.
11 Subsection 19(2)
Omit “(1)”, substitute “(1A)”.
12 After subparagraph
35(c)(i)
Insert:
(ia) has been identified in an imported food inspection advice as failing
food; or
13 At the end of section 35
Add:
(2) Without limiting subsection (1), the Secretary may publish:
(a) the name of the importer of the food; or
(b) the brand of the food.
14 After subsection 39(1)
Insert:
(1A) The Secretary may approve the payment of compensation in respect of
food if:
(a) the Secretary is satisfied, on reasonable grounds, that the food is no
longer suitable for the purpose for which it was imported as a result of an
inspection, or inspection and analysis, of the food under the Food Inspection
Scheme; and
(b) a claim for compensation is made by or on behalf of the owner in an
approved form accompanied by such documents as are required by the form to
accompany the claim.
15 Subsection 39(3)
Omit “this section”, substitute “subsection
(1)”.
16 After subsection 39(3)
Insert:
(3A) The compensation payable under subsection (1A) in respect of food is
the amount agreed between the Secretary and the owner or owners of the food as
being the difference between the market value of the food immediately before it
became unsuitable for the purpose for which it was imported and the amount (if
any) for which the food is sold by the owner or owners.
17 Subsection 39(4)
Omit “at the time of its destruction”, substitute “at the
time referred to in subsection (3) or (3A), as the case
requires,”.
18 Subsection 39(6) (definition of
owner)
Omit “that is permitted to be treated or required to be destroyed or
re-exported”.
19 Subsection 42(1) (definition of reviewable
decision)
Omit “(4)”, substitute “(5)”.
1 Subsection 3(1)
Insert:
plant class, for the purpose of variety denomination, means a
class consisting of all plants:
(a) that belong to a single botanical genus; or
(b) that belong to a group of closely related genera;
that is specified from time to time as a plant class in the
Registrar’s List of Plant Classes maintained under subsection
61(1A)
2 Subsection 3(1)
Insert:
Union means the Union for the Protection of New Varieties of
Plants as defined in Article 1 of the Convention.
3 Paragraph 27(5)(a)
After “another plant variety”, insert “of the same plant
class”.
4 Subparagraphs 53(1)(c)(i) and
(ii)
Repeal the subparagraphs, substitute:
(i) any other plant variety of the same plant class; or
(ii) a plant of any other variety of the same plant class.
5 After subsection 61(1)
Insert:
(1A) The Registrar must maintain, for the purposes of this Act, a list of
all plant classes to be known as the Registrar’s List of Plant
Classes.
(1B) In maintaining that list the Registrar must, for so long as the Union
maintains the document presently known as the List of Classes for Variety
Denomination Purposes, have regard to that list and to any variations to that
list as so maintained.
(1C) The list maintained by the Registrar must be kept as a part of the
Register.
6 At the end of section 62
Add:
(3) For the purposes of subsection (2), a reference to an entry in the
Register does not include a reference to the Registrar’s List of Plant
Classes or to any part of that list.