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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
A BILL FOR
An Act to provide for the protection of plants from pests, the regulation
of the movement of plants into, within and out of the State, and the control,
destruction and suppression of pests; to repeal the Fruit and Plant
Protection Act 1992 and the Noxious Insects Act 1934; to
make related amendments to other Acts; and for other purposes.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Interpretation
4 Pests and plant related
products
5 Quarantine stations
Part 2—Protection of plant health
Division 1—Reporting of pest affected plants and plant
related products and noxious insects
6 Reporting of pest affected
plants and plant related products and noxious insects
Division 2—Control and
prevention
7 Prohibition on introducing pest affected plants or plant
related products
8 Quarantine areas
9 Orders relating to pest affected
plants or plant related products
10 Action in emergency
situations
11 Prohibition on sale of pest affected plants or plant related
products
Part 3—Packaging, identifying and transporting plants
and plant related products
Division 1—Packaging and labelling of fruits,
vegetables and nuts
12 Packaging and labelling of fruit, vegetables
and nuts for sale
13 Identification of plants sold for propagation
Division 2—Manifests
14 Manifests
Part 4—Accreditation and registration
schemes
Division 1—Accreditation of production
areas
15 Accreditation of production areas
Division 2—Accreditation of
persons
16 Application for accreditation
17 Grant of
accreditation
18 Authority conferred by accreditation
19 Assurance
certificates and evidence of verification
20 Conditions of
accreditation
21 Periodic fees and returns
22 Variation of
accreditation
23 Surrender of accreditation
24 Suspension or cancellation
of accreditation
25 Offences
Division 3—Registration of
importers
26 Application for registration
27 Grant of
registration
28 Conditions of registration
29 Periodic fees and
returns
30 Variation of registration
31 Surrender of
registration
32 Suspension or cancellation of
registration
33 Offence
Division 4—Register
34 Register
Division 5—Reviews and appeals
35 Review by
Minister
36 Appeal to District Court
Part 5—Enforcement
Division 1—Approved auditors
37 Approved
auditors
38 Duty of auditor to report certain matters
39 Offence to hinder
or obstruct auditor
Division 2—Inspectors
Subdivision 1—Appointment and identification
40 Appointment of
Chief Inspector and deputy
41 Appointment of inspectors
42 Identification
of inspectors
Subdivision 2—Powers
43 General powers
44 Power to
investigate
45 Power to issue plant health certificates
Subdivision 3—Miscellaneous
46 Immunity from
liability
47 Warrant procedures
48 Offence to hinder etc
inspectors
Part
6—Miscellaneous
49 Delegation
50 Compensation
51 False or
misleading statements
52 Self-incrimination
53 Service of notices and
orders
54 Vicarious liability
55 Evidence
56 Commencement of
prosecution of offences
57 Continuing offences
58 General
defence
59 Incorporation of codes and standards
60 Regulations
Schedule 1—Related amendments, repeal and transitional
provisions
Part 1—Related amendments
Division 1—Preliminary
1 Amendment
provisions
Division 2—Amendment of Citrus Industry
Act 2005
2 Amendment of section 5—Functions of
Board
Division 3—Amendment of Phylloxera and Grape
Industry Act 1995
3 Amendment of section
3—Interpretation
4 Amendment of section 27—Members of Board to be
inspectors
Part 2—Repeal
5 Repeal
Part 3—Transitional
provisions
6 Transitional provisions
7 Regulations
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Plant Health Act 2008.
This Act will come into operation on a day to be fixed by
proclamation.
(1) In this Act, unless the contrary intention appears—
accreditation conditions—see section 20;
accredited person means a person accredited under Part 4
Division 2;
approved auditor means a person approved to be an auditor
under Part 5 Division 1;
assurance certificate means—
(a) an assurance certificate issued by an accredited person under Part 4
Division 2; or
(b) a certificate corresponding to an assurance certificate issued under a
corresponding law;
Chief Inspector means the Chief Inspector appointed under
Part 5 Division 2;
corresponding law means a law of another State declared by
the regulations to be a law that corresponds to this Act;
disease means a bacterium, fungus, protozoa, phytoplasma,
virus or any other organism or pathogen;
importer means a person who brings or introduces plants or
plant related products into the State for the purposes of sale or any other
commercial purpose;
inspector means an inspector appointed under Part 5 Division
2;
label includes a ticket, manifest, cartnote, stamp, tag or
sticker;
noxious insect means any species of migratory or gregarious
grasshopper;
packaging includes the whole or any part of a package,
container, crate, covering, packing or material of any description that is being
or has been used to cover or contain a plant or plant related product;
pest—see section 4;
place includes any land, road or premises;
plant means—
(a) the whole or any part of a tree, vine, flower, shrub, vegetable or
other vegetation; and
(b) the whole or any part of the fruit or nut of a tree, vine or shrub;
and
(c) any material used for the propagation of a tree, vine, flower, shrub,
vegetable or other vegetation,
whether alive or dead (including timber that has been sawn or
dressed);
plant health certificate means—
(a) a plant health certificate issued by an inspector under Part 5
Division 2; or
(b) a certificate corresponding to a plant health certificate issued under
a corresponding law;
plant related product means—
(a) soil, potting mix, packaging, agricultural machinery or equipment;
and
(b) any other material or item declared by the Minister under
section 4 to be a plant related product;
premises means any land, building or structure (including a
moveable building or structure);
quarantine station means a place declared by the Minister
under section 5 to be a quarantine station;
registered importer means an importer registered under Part 4
Division 3;
sell includes possess, offer, display or consign for
sale;
soil does not include clean sand;
State includes a Territory;
vehicle includes an aircraft, a train or a vessel.
(2) For the purposes of this Act—
(a) soil or potting mix will be taken to be affected by a pest if a plant
affected by a pest has been growing in the soil or potting mix;
(b) a plant related product (other than soil or potting mix) will be taken
to be affected by a pest if the product has been used to contain or cover, or
has been in contact with, a plant, soil or potting mix affected by a
pest.
4—Pests
and plant related products
(1) The Minister may, by notice in the Gazette, declare—
(a) a disease; or
(b) an insect, a mite or other arthropod, a snail, slug or nematode;
or
(c) any other organism; or
(d) any other condition,
that affects or may affect a plant or plant related product to be a pest
for the purposes of this Act.
(2) The Minister may, by notice in the Gazette, declare material or an
item to be a plant related product for the purposes of this Act.
(3) The Minister may, by notice in the Gazette, vary or revoke a notice
under this section.
(1) The Minister may, by notice in the Gazette, declare a place to be a
quarantine station in which a plant or plant related product may, subject to
this Act, be held, examined, disinfected, treated, destroyed or otherwise
disposed of.
(2) The Minister may, by notice in the Gazette, vary or revoke a notice
under this section.
Part
2—Protection of plant health
Division
1—Reporting of pest affected plants and plant related products and noxious
insects
6—Reporting of
pest affected plants and plant related products and noxious
insects
(1) A person who knows or has reason to suspect that a plant or plant
related product is affected by a pest must—
(a) immediately report the matter to an inspector by the quickest
practicable means; and
(b) provide the inspector with such further information as the inspector
may reasonably require; and
(c) take all reasonable measures to prevent the spread of the
pest.
Maximum penalty:
(a) in the case of a body corporate—$100 000;
(b) in the case of a natural person—$20 000.
(2) A person who knows or has reason to suspect that noxious insects have
appeared on premises (whether or not occupied by the person) must immediately
report the matter to an inspector by the quickest practicable means.
Maximum penalty: $1 250.
Expiation fee: $160.
(3) A report is not required under this section with respect to a
particular matter if the person knows or reasonably believes that the matter has
already been reported to an inspector.
(4) A person who grows, propagates or processes plants or plant related
products for profit or gain will, if the plants or plant related products are
affected by a pest, be taken to know or have reason to suspect that the plants
or plant related products are so affected in the absence of proof to the
contrary.
Division 2—Control
and prevention
7—Prohibition
on introducing pest affected plants or plant related
products
(1) Subject to this section, a person must not bring or introduce into the
State a pest or a plant, or plant related product, affected by a pest.
(2) The Minister may, for the purpose of preventing the introduction into,
or spread within, the State of a pest, prohibit, by notice in the Gazette, the
bringing or introduction into the State of a specified class of plant or plant
related product (either absolutely or subject to conditions).
(3) The Minister may, by notice in the Gazette, vary or revoke a notice
under subsection (2).
(4) The Minister may, for the purposes of furthering agricultural
interests, scientific research or the biological control of a pest, by notice in
writing, exempt a person from complying with this section subject to conditions
set out in the notice.
(5) The Minister must consult widely with, and take into account the
advice of, members of the agricultural and scientific communities before taking
action under subsection (4).
(6) The Minister may, by further notice in writing, vary or revoke a
notice under subsection (4).
(7) A person—
(a) who contravenes or fails to comply with this section or a notice under
this section; or
(b) who purchases or takes delivery of anything brought or introduced into
the State in contravention of this section or a notice under this
section,
is guilty of an offence.
Maximum penalty:
(a) in the case of a minor offence—$5 000;
(b) in any other case—
(i) in the case of a body corporate—$100 000;
(ii) in the case of a natural person—$20 000.
Expiation fee: In the case of a minor offence—$315.
(8) In this section—
minor offence means an offence that consists of a person
bringing or introducing anything into the State, or purchasing or taking
delivery of anything brought or introduced into the State, for domestic use,
consumption or enjoyment (and not for the purposes of sale or any other
commercial purpose).
(1) The Minister may, by notice in the Gazette, declare the whole of the
State, or a portion of the State specified in the notice, to be a quarantine
area—
(a) in respect of all pests; or
(b) in respect of those pests specified in the notice.
(2) A notice under this section may do 1 or more of the
following:
(a) prohibit the removal from a quarantine area of—
(i) a plant of a species or kind specified in the notice that might, in
the opinion of the Minister, transmit a pest; and
(ii) a plant related product of a kind specified in the notice that might,
in the opinion of the Minister, transmit a pest;
(b) require the owners or occupiers of premises within the quarantine area
to take measures (including the destruction of plants and plant related
products), specified in the notice, that are, in the opinion of the Minister,
necessary for the control or eradication of a pest;
(c) require the owners or occupiers of premises within specified portions
of the quarantine area to take more stringent measures (including the
destruction of plants and plant related products), specified in the notice, than
the owners or occupiers of other premises within the quarantine area;
(d) prohibit absolutely or subject to exceptions and conditions specified
in the notice persons, vehicles, machinery or equipment entering or departing
from the quarantine area or a specified portion of the quarantine
area;
(e) prohibit absolutely or subject to exceptions and conditions specified
in the notice the bringing or introducing into the quarantine area
of—
(i) a plant of a species or kind specified in the notice; and
(ii) any plant related product of a kind specified in the
notice;
(f) prohibit the planting, propagation or harvesting of plants, or plants
of a specified species or kind, within the quarantine area during a period
specified in the notice.
(3) The Minister may, by notice in the Gazette, vary or revoke a notice
under this section.
(4) A person—
(a) who contravenes or fails to comply with a notice under this section;
or
(b) who purchases or takes delivery of anything brought or introduced into
a quarantine area in contravention of a notice under this section,
is guilty of an offence.
Maximum penalty:
(a) in the case of a minor offence—$5 000;
(b) in any other case—
(i) in the case of a body corporate—$100 000;
(ii) in the case of a natural person—$20 000.
Expiation fee: In the case of a minor offence—$315.
(5) In this section—
minor offence means an offence that consists
of—
(a) a person bringing or introducing anything into, or removing anything
from, a quarantine area for domestic use, consumption or enjoyment (and not for
the purposes of sale or any other commercial purpose); or
(b) a person purchasing or taking delivery of anything brought or
introduced into, or removed from, a quarantine area for domestic use,
consumption or enjoyment (and not for the purposes of sale or any other
commercial purpose).
9—Orders relating
to pest affected plants or plant related products
(1) If the Chief Inspector knows or reasonably suspects that a plant or
plant related product is or might become affected by a pest, he or she may, with
the approval of the Minister, issue such orders under this section as may be
reasonably necessary to prevent or minimise the outbreak or spread of the pest
to any of the following persons:
(a) a person who owns or has possession or control of the plant or plant
related product;
(b) a person who sold or supplied the plant or plant related
product;
(c) an owner or occupier of premises in the area specified in the
order.
(2) The Chief Inspector may issue 1 or more of the following orders in
relation to any plant or plant related product that is or might become affected
by a pest:
(a) an order requiring that it be kept at a specified place for a
specified period or otherwise restricting or prohibiting its movement;
(b) an order requiring that it be subjected to specified
treatment;
(c) an order requiring that it be subjected to examinations or tests at
specified intervals or that other specified action be taken for the purposes of
determining the presence of a pest;
(d) an order restricting or prohibiting its sale or supply or restricting
the purposes for which it may be used;
(e) if it has been sold or supplied—an order requiring that it be
recalled;
(f) an order requiring that it be destroyed or disposed of in a specified
manner;
(g) an order prohibiting the planting, propagation or harvesting of
plants, or plants of a specified species or kind, on specified land during a
specified period;
(h) an order requiring any other action be taken as may be reasonably
necessary in the circumstances.
(3) An order issued under this section may be subject to such conditions
as the Chief Inspector specifies in the order.
(4) If the Chief Inspector cannot, after reasonable inquiry, locate a
person of whom the Chief Inspector intended to make any requirement for action
by an order, the Chief Inspector may—
(a) cause the action to be taken by an inspector or other person;
and
(b) recover costs and expenses reasonably incurred under this subsection
by action in a court of competent jurisdiction as a debt owed by the owner of
the plant or plant related product in respect of which action was taken by the
inspector or other person.
(5) An order under this section—
(a) must be in writing; and
(b) may be of general or limited application; and
(c) may, by further order of the Chief Inspector, be varied or
revoked.
(6) An order that is of a continuing nature has effect for such period as
is specified in the order (and, if an order of such a nature is issued on the
basis of a suspicion, the Chief Inspector must, as soon as practicable, take
reasonable steps to determine whether that suspicion is correct).
(7) If a person refuses or fails to comply with an order, the Chief
Inspector may cause an inspector or other person to take any necessary action to
give effect to the order.
(8) The Chief Inspector may recover costs and expenses reasonably incurred
under subsection (7) by action in a court of competent jurisdiction as a
debt owed by the person to whom the order was issued.
(9) A person to whom an order has been issued under this section who
contravenes or fails to comply with the order is guilty of an offence.
Maximum penalty:
(a) in the case of a body corporate—$100 000;
(b) in the case of a natural person—$20 000.
10—Action in
emergency situations
(1) If an inspector considers on reasonable grounds that urgent action is
required for the purposes of controlling, preventing the spread of, or
eradicating a pest, the inspector may, after giving such notice (if any) as may
be reasonable in the circumstances, take any action that could be required to be
taken by notice or order under this Part, or cause such action to be
taken.
(2) Action may be taken or caused to be taken under this section whether
or not an order or notice has been issued in relation to the pest under this
Part.
11—Prohibition on
sale of pest affected plants or plant related products
(1) A person must not, without the approval of the Chief Inspector, sell
or supply—
(a) a plant or plant related product affected by a pest; or
(b) a plant or plant related product subject to an order under this
Part.
Maximum penalty:
(a) in the case of a body corporate—$100 000;
(b) in the case of a natural person—$20 000.
(2) The owner of premises in relation to which an order is in force under
this Part must notify the Chief Inspector of any intended sale of the premises
or part of the premises at least 28 days before the date of
settlement.
Maximum penalty: $5 000.
Expiation fee: $315.
(3) If a person is guilty of an offence against this section, a court may
(in addition to any other penalty that may be imposed) order the person to pay
to the person to whom the plant or plant related product was sold or supplied
such compensation as the court thinks fit.
Part 3—Packaging,
identifying and transporting plants and plant related
products
Division
1—Packaging and labelling of fruits, vegetables and
nuts
12—Packaging and
labelling of fruit, vegetables and nuts for sale
(1) A person must not pack for sale or sell any fruit, vegetables or nuts
in packaging unless the packaging—
(a) is in good repair; and
(b) is clean and free of extraneous visible matter; and
(c) is free of any objectionable odour; and
(d) is labelled in accordance with the regulations.
Maximum penalty: $5 000.
Expiation fee: $315.
(2) A person must not pack for sale or sell any fruit, vegetables or nuts
in used packaging except in accordance with the regulations (which may prohibit
the use of certain used packaging absolutely or subject to
conditions).
Maximum penalty: $5 000.
Expiation fee: $315.
13—Identification
of plants sold for propagation
A person must not sell any prescribed plant for propagation unless it is
accompanied by a label or other notice in writing containing the information
prescribed by the regulations.
Maximum penalty: $5 000.
Expiation fee: $315.
(1) A person must not bring or introduce into the State plants or plant
related products for sale or any other commercial purpose unless, before so
doing, a manifest that conforms to the requirements of the Minister about its
form, contents and the manner in which it is made has been lodged with the Chief
Inspector.
Maximum penalty: $5 000.
Expiation fee: $315.
(2) A person must not tranship, or transport through the State, plants or
plant related products for sale in another State unless, before so doing, a
manifest that conforms to the requirements of the Minister about its form,
contents and the manner in which it is made has been lodged with the Chief
Inspector.
Maximum penalty: $5 000.
Expiation fee: $315.
(3) A person referred to in subsection (1) or (2) must, at a
quarantine station or on the request of an inspector, produce a copy of the
manifest.
Maximum penalty: $5 000.
Expiation fee: $315.
Part
4—Accreditation and registration schemes
Division
1—Accreditation of production areas
15—Accreditation
of production areas
(1) If the Minister is satisfied that, through the exercise of good
management by the producers and processors of plants or plant related products
in a specified area, the area is free of a specified pest or specified pests,
the Minister may, by notice in the Gazette, declare that area to be free of the
pest or pests specified in the notice and authorise the use of specified
statements in respect of plants or plant related products produced or processed
in that area when advertising, packaging or selling those plants or plant
related products.
(2) The Minister may, by notice in the Gazette, vary or revoke a notice
under this section.
(3) A person must only use a statement specified in a notice under this
section in respect of plants or plant related products produced or processed in
the area specified in the notice.
Maximum penalty: $20 000.
Expiation fee: $500.
Division
2—Accreditation of persons
16—Application for
accreditation
(1) An application for accreditation for the purposes of this Division
must be made to the Minister and must—
(a) be in the manner and form, and contain the information, required by
the Minister; and
(b) be accompanied by the fee fixed by the regulations.
(2) The Minister may, by written notice, require the
applicant—
(a) to provide the Minister with further information, documents or records
relevant to the application; or
(b) to allow an inspector or an approved auditor to inspect premises,
facilities, vehicles, plant or equipment, or any other thing, proposed to be
used by the applicant in connection with the issuing of certificates under the
proposed accreditation.
(3) The Minister may refuse the application if the applicant does not
comply with such a request.
(4) The applicant may, with the approval of the Minister or at the request
of the Minister, amend the application before the Minister has finished
considering it.
(1) On application for accreditation, the Minister must grant the
accreditation sought by the applicant or another accreditation if
satisfied—
(a) that the applicant is a suitable person to hold such accreditation;
and
(b) if the applicant is a body corporate—that each director of the
body corporate is a suitable person to be the director of a body corporate that
holds such accreditation; and
(c) that the applicant satisfies any requirements for accreditation
relating to protocols, operational procedures or other matters prescribed by the
regulations.
(2) For the purposes of determining the suitability of a person under
subsection (1), the Minister may, without limitation, take into
account—
(a) any offence committed by the person against—
(i) this Act or an Act repealed by this Act; or
(ii) a corresponding law; or
(iii) a prescribed Act; or
(b) any offence of dishonesty committed by the person.
(3) Accreditation may be granted in the form the Minister considers
appropriate.
18—Authority
conferred by accreditation
Accreditation authorises the person named in the accreditation to do either
or both of the following:
(a) to issue assurance certificates in relation to the movement of a plant
or plant related product within the State, into or out of the State, or for
another purpose;
(b) to verify assurance certificates or other documents, or the packaging
or labelling of plants and plant related products,
in accordance with the terms and conditions of the accreditation.
19—Assurance
certificates and evidence of verification
(1) An assurance certificate may be issued in a form approved by the
Minister.
(2) An assurance certificate issued in respect of a plant or plant related
product—
(a) grown, produced, processed, packed, used, treated or tested in the
State; or
(b) to be brought or introduced into the State,
may certify that the plant or plant related product complies with specified
requirements of this Act or a corresponding law in relation to the control or
prevention of the spread of pests.
(3) Without limiting the generality of subsection (2), an assurance
certificate issued in respect of a plant or plant related product may certify as
to any of the following matters:
(a) that it is free of any or a specified pest;
(b) that it is free of any or a specified pest, disease, pest infestation,
infection or condition within the meaning of a corresponding law;
(c) that it is in a specified condition;
(d) that it is from a specified area;
(e) that it has been treated in a specified way or with specified
treatments;
(f) that it has been transported in a specified manner or via a specified
route;
(g) that it meets specified requirements;
(h) as to any other matter specified in the certificate.
(4) Verification of assurance certificates or other documents, or the
packaging or labelling of plants and plant related products may be evidenced in
a manner and form approved by the Minister.
20—Conditions
of accreditation
(1) The Minister may impose conditions on a person's accreditation
(accreditation conditions).
(2) Without limiting the conditions that may be imposed under
subsection (1), the conditions may include the following:
(a) a condition restricting the class or type of certificate that may be
issued;
(b) a condition restricting the activities in respect of which a
certificate may be issued;
(c) a condition restricting the class or type of assurance certificate or
other document that may be verified;
(d) a condition restricting the use of the accreditation in some other
way;
(e) a condition as to the records to be kept by the accredited
person;
(f) a condition requiring compliance with prescribed protocols and
operational procedures;
(g) a condition requiring compliance with applicable codes or rules made
under this Act as in force from time to time;
(h) a condition relating to the audit from time to time of all or part of
the operations authorised by the accreditation (including the payment of all or
part of the costs of the audit) and the reporting of the results of the audit to
the Minister;
(i) a condition requiring the accredited person to provide, in the manner
and form determined by the Minister, such other information as the Minister may
from time to time require;
(j) any other condition that the Minister thinks fit.
(3) An accredited person must not contravene a condition of the person's
accreditation.
Maximum penalty:
(a) in the case of a contravention of a prescribed
condition—$5 000;
(b) in any other case—
(i) in the case of a body corporate—$100 000;
(ii) in the case of a natural person—$20 000.
Expiation fee: In the case of a contravention of a prescribed
condition—$315.
(1) An accredited person must, for each period fixed by regulation and not
later than the date fixed by regulation—
(a) pay to the Minister the fee fixed by regulation; and
(b) lodge with the Minister a return that conforms to the requirements of
the Minister about its form, contents and the manner in which it is
made.
(2) If an accredited person fails to lodge the return or pay the
accreditation fee in accordance with this section, the Minister may, by written
notice, require the accredited person to make good the default and, in addition,
to pay to the Minister the amount prescribed as a penalty for default.
(3) If an accredited person—
(a) fails to comply with a notice under subsection (2) within 14 days
after the giving of the notice—the accreditation is suspended until the
notice is complied with; and
(b) fails to comply with any such a notice within 3 months after the
giving of the notice—the accreditation is cancelled.
(4) The Minister must cause written notice of the suspension or
cancellation to be given to the person.
(1) The Minister may vary the terms or conditions of a person's
accreditation by written notice to the person as the Minister considers
appropriate.
(2) The Minister's power under this section may be exercised on the
Minister's own initiative or on the application of the accredited person and
payment of the prescribed fee.
(1) An accredited person may surrender the person's accreditation to the
Minister.
(2) At the time accreditation to issue assurance certificates is
surrendered, the person must also surrender any unissued assurance certificates
to the Minister.
Maximum penalty: $1 250.
Expiation fee: $160.
24—Suspension or
cancellation of accreditation
(1) The Minister may suspend or cancel the accreditation of an accredited
person if—
(a) the accredited person obtained the accreditation improperly;
or
(b) an accredited person—
(i) has ceased to undertake the activity authorised by the accreditation;
or
(ii) has not paid fees or charges payable to the Minister or an approved
auditor within the required time; or
(iii) has been guilty of a contravention of a condition of the
accreditation; or
(iv) has committed an offence against this Act; or
(v) has been convicted of an indictable offence.
(2) A suspension under this section may be for a specified period, or
until the fulfilment of specified conditions, or until further order of the
Minister.
(3) A suspension under this section may—
(a) be effective immediately; or
(b) be expressed to have effect at a specified future time; or
(c) be expressed to have effect at a specified future time unless a
specified condition is fulfilled.
(4) The Minister must—
(a) notify the accredited person in writing of the action taken or
proposed to be taken specifying the reasons for the action; and
(b) allow the accredited person at least 14 days within which to make
submissions to the Minister in relation to the action or proposed action (as the
case may be).
(5) If the Minister suspends or cancels an accreditation, the person must,
within 14 days of the suspension or cancellation, return the accreditation
(and, if relevant, any unissued assurance certificates) to the
Minister.
Maximum penalty: $1 250.
Expiation fee: $160.
(6) In this section—
accredited person includes a person whose accreditation has
been suspended.
(1) A person must not verify that—
(a) an assurance certificate or other document relating to a plant or
plant related product required under this Act or a corresponding law;
or
(b) the packaging or labelling of plants or plant related products,
complies with the requirements of this Act or a corresponding law (as the
case may be) except as authorised by accreditation granted under this
Division.
Maximum penalty:
(a) in the case of a body corporate—$100 000;
(b) in the case of a natural person—$20 000.
(2) A person must not issue an assurance certificate in relation to a
plant or plant related product except as authorised by accreditation granted
under this Division.
Maximum penalty:
(a) in the case of a body corporate—$100 000;
(b) in the case of a natural person—$20 000.
(3) A person must not issue anything that purports to be an assurance
certificate unless the person is accredited under this Division to do
so.
Maximum penalty:
(a) in the case of a body corporate—$100 000;
(b) in the case of a natural person—$20 000.
(4) A person must not alter or permit to be altered any information or
statement in an assurance certificate unless—
(a) the alteration is authorised in writing by the accredited person who
issued the certificate; or
(b) the alteration—
(i) relates to the splitting of a consignment to which the certificate
relates; and
(ii) is made by an inspector or a person authorised by accreditation
granted under this Division to split consignments.
Maximum penalty:
(a) in the case of a body corporate—$100 000;
(b) in the case of a natural person—$20 000.
Division
3—Registration of importers
26—Application for
registration
(1) An application for registration as an importer under this Division
must be made to the Minister and must—
(a) be in the manner and form, and contain the information required by the
Minister; and
(b) be accompanied by the fee fixed by the regulations.
(2) The Minister may, by written notice, require the applicant to provide
the Minister with further information, documents or records relevant to the
application.
(3) The Minister may refuse an application if the applicant does not
comply with such a request.
(4) The applicant may, with the approval of the Minister or at the request
of the Minister, amend the application before the Minister has finished
considering it.
(1) The Minister must grant an application for registration as an importer
if satisfied—
(a) that the applicant is a suitable person to be so registered;
and
(b) if the applicant is a body corporate—that each director of the
body corporate is a suitable person to be the director of a body corporate that
is so registered; and
(c) that the applicant satisfies any requirements for registration
relating to protocols, operational procedures or other matters prescribed by the
regulations.
(2) For the purposes of determining the suitability of a person under
subsection (1), the Minister may, without limitation, take into
account—
(a) any offence committed by the person against—
(i) this Act or an Act repealed by this Act; or
(ii) a corresponding law; or
(iii) a prescribed Act; or
(b) any offence of dishonesty committed by the person.
(3) Registration may be granted in the form the Minister considers
appropriate.
(1) The Minister may impose conditions on a person's registration as an
importer.
(2) Without limiting the conditions that may be imposed under
subsection (1), the conditions may include—
(a) a condition restricting the type of plant or plant related product
that the person may bring or introduce into the State; and
(b) a condition as to the records to be kept by the registered importer;
and
(c) a condition requiring compliance with prescribed protocols and
operational procedures; and
(d) a condition requiring compliance with applicable codes or rules made
under this Act as in force from time to time; and
(e) a condition requiring the registered importer to provide, in the
manner and form determined by the Minister, such information as the Minister may
from time to time require; and
(f) any other condition that the Minister thinks fit.
(3) A registered importer must not contravene a condition of the
importer's registration.
Maximum penalty:
(a) in the case of a body corporate—$20 000;
(b) in the case of a natural person—$5 000.
Expiation fee:
(a) in the case of a body corporate—$500;
(b) in the case of a natural person—$315.
(1) A registered importer must, for each period fixed by regulation and
not later than the date fixed by regulation—
(a) pay to the Minister the fee fixed by regulation; and
(b) lodge with the Minister a return that conforms to the requirements of
the Minister about its form, contents and the manner in which it is
made.
(2) If a registered importer fails to lodge the return or pay the
registration fee in accordance with this section, the Minister may, by written
notice, require the registered importer to make good the default and, in
addition, to pay to the Minister the amount prescribed as a penalty for
default.
(3) If a registered importer—
(a) fails to comply with a notice under subsection (2) within 14 days
after the giving of the notice—the registration is suspended until the
notice is complied with; and
(b) fails to comply with any such a notice within 3 months after the
giving of the notice—the registration is cancelled.
(4) The Minister must cause written notice of the suspension or
cancellation to be given to the importer.
(1) The Minister may vary the terms or conditions of an importer's
registration by written notice to the importer as the Minister considers
appropriate.
(2) The Minister's power under this section may be exercised on the
Minister's own initiative or on the application of the registered importer and
payment of the prescribed fee.
A registered importer may surrender the registration to the
Minister.
32—Suspension or
cancellation of registration
(1) The Minister may suspend or cancel the registration of an importer
if—
(a) the registration was obtained improperly; or
(b) the registered importer—
(i) has ceased to undertake the activity authorised by the registration;
or
(ii) has not paid fees or charges payable to the Minister within the
required time; or
(iii) has been guilty of a contravention of a condition of the
registration; or
(iv) has committed an offence against this Act; or
(v) has been convicted of an indictable offence.
(2) A suspension under this section may be for a specified period, or
until the fulfilment of specified conditions, or until further order of the
Minister.
(3) A suspension under this section may—
(a) be effective immediately; or
(b) be expressed to have effect at a specified future time; or
(c) be expressed to have effect at a specified future time unless a
specified condition is fulfilled.
(4) The Minister must—
(a) notify the registered importer in writing of the action taken or
proposed to be taken specifying the reasons for the action; and
(b) allow the registered importer at least 14 days within which to
make submissions to the Minister in relation to the action or proposed action
(as the case may be).
(5) If the Minister suspends or cancels a registration, the holder of the
registration must, within 14 days of the suspension or cancellation, return
the registration to the Minister.
Maximum penalty: $1 250.
Expiation fee: $160.
(6) In this section—
registered importer includes an importer whose registration
has been suspended.
A person must not bring or introduce into the State plants or plant related
products for sale or any other commercial purpose except as authorised by
registration granted under this Division.
Maximum penalty:
(a) in the case of a body corporate—$20 000;
(b) in the case of a natural person—$5 000.
Expiation fee:
(a) in the case of a body corporate—$500;
(b) in the case of a natural person—$315.
(1) The Minister must maintain a register of—
(a) production areas accredited under Division 1; and
(b) persons accredited under Division 2; and
(c) importers registered under Division 3.
(2) The register may contain the information and be kept in the form that
the Minister considers appropriate.
Division 5—Reviews
and appeals
(1) A person may apply to the Minister for review of a decision of the
Minister—
(a) refusing an application for the grant of accreditation under Division
2; or
(b) refusing an application for the grant of registration under Division
3; or
(c) imposing or varying conditions of any such accreditation or
registration; or
(d) suspending or cancelling any such accreditation or
registration.
(2) An application for review of a decision of the Minister must be made
within 28 days after the day on which the person is given written notice of
the decision.
(3) The Minister may determine an application for review as the Minister
thinks fit.
(4) A review must be determined within 28 days of the application
being lodged with the Minister.
(5) If a review is not determined within that period, the Minister is to
be taken to have confirmed the decision.
(1) An applicant for a review under this Division who is not satisfied
with the decision of the Minister on the review may appeal to the Administrative
and Disciplinary Division of the District Court against the decision.
(2) Subject to subsection (4), an appeal must be instituted within
28 days of the making of the decision appealed against.
(3) The Minister must, if required by the applicant for the review, state
in writing the reasons for the decision.
(4) If the reasons of the Minister are not given to the applicant for the
review in writing at the time of making the decision and that person (within
28 days of the making of the decision) requires the Minister to state the
reasons in writing, the time for instituting an appeal runs from the time at
which that person receives the written statement of those reasons.
(1) The Minister may approve a person as an auditor for the purposes of
this Act if the Minister is satisfied that the person can provide satisfactory
and efficient audit services for the purposes of this Act and that the services
will be provided by suitably qualified persons.
(2) An approval is subject to conditions imposed by the
Minister.
(3) Without limiting subsection (2), the conditions may include the
following:
(a) a condition requiring the person to enter into an agreement (an
audit agreement) with the Minister;
(b) a condition limiting the functions or powers of the person;
(c) a condition limiting the area of the State in which those functions or
powers may be exercised;
(d) a condition fixing fees to be paid to the Minister.
(4) An audit agreement—
(a) must regulate the provision of audit services for the purposes of this
Act; and
(b) must provide that the agreement terminates if the approval is
withdrawn by the Minister; and
(c) must set out the requirements relating to audit reports including the
content of the reports; and
(d) may regulate the charges to be made by the auditor for audit services
under this Act (by fixing specific charges or maximum and minimum charges or by
setting out a method of calculating charges); and
(e) may regulate the withdrawal of audit services for non-payment of
charges; and
(f) may provide for the suspension of obligations under the agreement in
specified circumstances; and
(g) may contain any other provision agreed between the Minister and the
person.
(5) The Minister and an approved auditor may, by agreement, vary or
terminate an audit agreement.
(6) The Minister may, by written notice to the approved
auditor—
(a) impose a further condition of approval; or
(b) vary or revoke a condition of approval; or
(c) cancel the approval if satisfied that the auditor is in breach of a
condition of the approval or a term of the audit agreement between the auditor
and the Minister.
(7) An approval or audit agreement under this section does not derogate
from the right of an inspector to exercise a power under this Act.
38—Duty of auditor
to report certain matters
If, in the course of conducting an audit in respect of an accredited
person, an approved auditor forms a reasonable belief that the accredited
person—
(a) has engaged or is engaging in conduct that constitutes a breach of a
prescribed accreditation condition; or
(b) has engaged or is engaging in conduct of a prescribed kind,
the auditor must, as soon as reasonably practicable, inform the Minister of
the name and address of the accredited person and the details about the facts
and circumstances giving rise to the belief.
Maximum penalty: $5 000.
39—Offence to
hinder or obstruct auditor
A person who hinders or obstructs a person performing an audit under this
Division is guilty of an offence.
Maximum penalty: $5 000.
Subdivision
1—Appointment and identification
40—Appointment of
Chief Inspector and deputy
(1) The Minister may, by instrument in writing, appoint a person to be the
Chief Inspector for the purposes of this Act.
(2) The Minister may, by instrument in writing, appoint a person to be the
deputy of the Chief Inspector, and a person so appointed has, while acting in
the absence of the Chief Inspector, all the powers and functions of the Chief
Inspector under this or any other Act.
(1) The Minister may, by instrument in writing, appoint persons to be
inspectors for the purposes of this Act.
(2) An appointment under subsection (1) may be conditional.
42—Identification
of inspectors
(1) An inspector must be issued with an identity card in a form approved
by the Minister—
(a) containing a photograph of the person and the person's name or a
unique identification code; and
(b) stating that the person is an inspector under this Act.
(2) An inspector must, at the request of a person in relation to whom the
inspector intends to exercise any powers under this Act or any other Act,
produce his or her identity card for inspection by the person.
(3) If a person in possession of an identity card issued to the person
under this section ceases to be an inspector, the person must immediately return
the identity card to the Minister.
Maximum penalty: $1 250.
(1) An inspector may—
(a) enter and search and, if necessary, use reasonable force to break into
or open—
(i) any premises or vehicle; or
(ii) part of, or anything in or on, any premises or vehicle; and
(b) enter premises to carry out an investigation under section 44;
and
(c) enter premises to—
(i) apply, instal, inspect or retrieve a bait, lure, trap or other
equipment for the purpose of monitoring, controlling or eradicating a pest;
or
(ii) carry out any other work or operation as may be necessary for the
identification, destruction or suppression of a pest; and
(d) give directions with respect to the stopping or movement of a vehicle;
and
(e) require a person to produce a document, including a written record
that reproduces in an understandable form information stored by computer,
microfilm or other process; and
(f) examine, copy or take extracts from a document or information so
produced or require a person to provide a copy of any such document or
information; and
(g) verify that a certificate or other document relating to a plant or
plant related product complies with the requirements of this Act or a
corresponding law; and
(h) verify that the packaging or labelling of plants or plant related
products complies with the requirements of this Act or a corresponding law;
and
(i) take photographs, films or audio, video or other recordings;
and
(j) seize and retain any insect or other pest, or plant or plant related
product, that the inspector reasonably suspects has been used in, or may
constitute evidence of, a contravention of this Act; and
(k) seize any plant or plant related product brought into a place, removed
from a place, or moved from 1 place to another, in contravention of this Act;
and
(l) require a person holding or required to hold an accreditation or
registration under this Act to produce it for inspection; and
(m) require the owner of any plant, plant related product or other thing
to deliver it to a quarantine station; and
(n) identify, by marking, tagging or otherwise, any premises, plant, plant
related product or other thing in respect of which powers have been exercised
under this Act; and
(o) erect signs at, on or near any place or area in respect of which
powers have been exercised under this Act; and
(p) require a person who the inspector reasonably suspects has committed,
is committing, or is about to commit, a contravention of this Act to state the
person's full name and usual place of residence and to produce evidence of the
person's identity; and
(q) require a person who the inspector reasonably suspects has knowledge
of matters in respect of which information is required for the administration or
enforcement of this Act to answer questions in relation to those matters;
and
(r) give a direction required in connection with the exercise of a power
conferred by this Act or otherwise in connection with the administration or
enforcement of this Act.
(2) An inspector—
(a) may only exercise the powers conferred by subsection (1) as
reasonably required for the administration and enforcement of this Act;
and
(b) may only exercise the power to use force under subsection (1)(a)
on the authority of a warrant issued by a magistrate or in circumstances in
which the inspector reasonably believes that urgent action is required in order
to prevent or mitigate the spread of a pest; and
(c) may only exercise the power conferred by subsection (1)(c) if the
occupier of the premises—
(i) has been given 24 hours notice in writing; or
(ii) has consented to the entry.
(3) Despite subsection (2)(c), this section does not authorise an
inspector to enter a part of premises occupied as a residence
except—
(a) with the consent of the occupier; or
(b) on the authority of a warrant issued by a magistrate.
(4) If an inspector seizes any plant or plant related product under
subsection (1)(k), the inspector may do 1 or more of the following in
relation to the plant or plant related product:
(a) retain it;
(b) cleanse, disinfect or otherwise treat it or subject it to
treatment;
(c) submit it for scientific testing and analysis for the purposes of
determining whether it is affected by a pest or a chemical residue;
(d) return it to its owner subject to any specified conditions (including
conditions requiring payment of costs and expenses reasonably incurred in taking
action in relation to it under this section);
(e) destroy or otherwise dispose of it.
(5) An inspector may be assisted in the exercise of powers under this Act
by such persons as the inspector considers necessary in the
circumstances.
(6) An inspector may require an occupier of premises or a person
apparently in charge of a vehicle or other thing to give to the inspector or a
person assisting the inspector such assistance as is reasonably required by the
inspector for the effective exercise of powers under this Act.
(1) An inspector may carry out an investigation as reasonably necessary
for the purposes of—
(a) determining whether a plant or plant related product is affected by a
pest; or
(b) determining the presence of noxious insects or other pests;
or
(c) identifying or tracing any cause or source or potential cause or
source of a pest.
(2) An inspector may, for the purposes of an investigation under this
section, examine, take samples from or test any insect or other pest, plant or
plant related product.
45—Power to issue
plant health certificates
(1) An inspector may issue a plant health certificate in a form approved
by the Minister in relation to plants or plant related products—
(a) grown, produced, processed, packed, used, treated or tested in the
State; or
(b) to be brought or introduced into the State.
(2) Without limiting the generality of subsection (1), a plant health
certificate issued in relation to a plant or plant related product may certify
as to any of the following matters:
(a) that it is free of any or a specified pest;
(b) that it is free of any or a specified pest, disease, pest infestation,
infection or condition within the meaning of a corresponding law;
(c) that it is in a specified condition;
(d) that it is from a specified area;
(e) that it has been treated in a specified way or with specified
treatments;
(f) that it has been transported in a specified manner or via a specified
route;
(g) that it complies with specified accreditation conditions;
(h) that it meets specified requirements;
(i) as to any other matter specified in the certificate.
(3) Before issuing a plant health certificate in relation to a plant or
plant related product, the inspector may do 1 or more of the
following:
(a) inspect the plant or plant related product;
(b) take samples of or from the plant or plant related product;
(c) supervise the treatment or grading of the plant or plant related
product;
(d) inspect or test materials, chemicals or equipment used to treat or
grade the plant or plant related product;
(e) do any other thing the inspector reasonably considers necessary in the
circumstances.
(4) A plant health certificate may be issued in relation to the movement
of a plant or plant related product within the State, into or out of the State,
or for another purpose.
(5) A person who is not an inspector must not issue a plant health
certificate.
Maximum penalty:
(a) in the case of a body corporate—$100 000;
(b) in the case of a natural person—$20 000.
(6) A person must not alter, or permit to be altered, any information or
statement in a plant health certificate unless—
(a) the alteration is authorised in writing by an inspector; or
(b) the alteration—
(i) relates to the splitting of a consignment to which the certificate
relates; and
(ii) is made by a person authorised by accreditation granted under Part 4
Division 2 to split consignments.
Maximum penalty:
(a) in the case of a body corporate—$100 000;
(b) in the case of a natural person—$20 000.
(1) No civil liability attaches to an inspector, or a person assisting an
inspector, for an act or omission in the exercise or performance, or purported
exercise or performance of powers, functions or duties conferred or imposed by
or under this Act or another Act or any law.
(2) An action that would, but for subsection (1), lie against an
inspector or person lies instead against the Crown.
(3) This section does not prejudice rights of action of the Crown in
respect of an act or omission not in good faith.
(1) A magistrate must not issue a warrant for the purposes of this Part
unless satisfied that the warrant is reasonably required in the
circumstances.
(2) An application for a warrant may be made personally or, if, in the
opinion of the applicant, the warrant is urgently required and there is not
enough time to lodge a written application and appear before a magistrate, by
fax transmission or telephone.
(3) The grounds of an application for a warrant must be verified by
affidavit.
(4) If an application for the issue of a warrant is made by fax
transmission, the following provisions apply:
(a) the application must be in a form approved by the Chief
Magistrate;
(b) the application must be accompanied (through fax transmission) by an
affidavit made by the applicant verifying the facts referred to in the
application;
(c) the applicant must be available to speak to the magistrate by
telephone;
(d) the magistrate is entitled to assume, without further inquiry, that a
person who identifies himself or herself as the applicant acting in the capacity
of an inspector during a telephone conversation with the magistrate is indeed
the applicant acting in that capacity;
(e) the magistrate may, on being satisfied as to the circumstances of
urgency and the grounds for the issue of a warrant, make out and sign a
warrant;
(f) the warrant is to be taken to have been issued, and comes into force,
when signed by the magistrate;
(g) the magistrate must forward the warrant to the applicant by fax
transmission.
(5) If an application for a warrant is made by telephone, the following
provisions apply:
(a) the applicant must inform the magistrate of the applicant's name and
identify himself or herself as an inspector and the magistrate, on receiving
that information, is entitled to assume its accuracy without further
inquiry;
(b) the applicant must inform the magistrate of the purpose for which the
warrant is required, the grounds on which it is sought and the circumstances
giving rise to the urgency of the application;
(c) the magistrate may, on being satisfied as to the circumstances of
urgency and the grounds for the issue of the warrant, inform the applicant of
the facts on which the magistrate relies as grounds for the issue of the
warrant, and must not proceed to issue the warrant unless the applicant
undertakes to make an affidavit verifying those facts;
(d) if the applicant gives such an undertaking, the magistrate may then
make out and sign a warrant;
(e) the warrant is to be taken to have been issued, and comes into force,
when signed by the magistrate;
(f) the magistrate must inform the applicant of the terms of the
warrant;
(g) the applicant must fill out and sign a warrant form (the
duplicate warrant) that—
(i) sets out the name of the magistrate who issued the original and the
terms of the warrant; and
(ii) complies with any other prescribed requirements;
(h) the applicant must, as soon as practicable after the issue of the
warrant, forward to the magistrate an affidavit verifying the facts referred to
in paragraph (c) and a copy of the duplicate warrant.
(6) A warrant, if not executed at the expiration of 1 month from the
date of its issue, then expires.
48—Offence to
hinder etc inspectors
A person who—
(a) hinders or obstructs an inspector, a person assisting an inspector, or
an animal accompanying an inspector, in the exercise of powers under this Act;
or
(b) refuses or fails to comply with a requirement or direction of an
inspector under this Act; or
(c) removes, damages or interferes with any notice, sign, identification
mark, label, tape, seal, lock or other device used for the purposes of this Act;
or
(d) when required by an inspector under this Act to answer a question,
refuses or fails to answer the question to the best of the person's knowledge,
information and belief; or
(e) falsely represents, by words or conduct, that he or she is an
inspector,
is guilty of an offence.
Maximum penalty: $5 000.
(1) The Minister may delegate to a body or person (including a person for
the time being holding or acting in a specified office or position) a function
or power of the Minister under this Act.
(2) The Chief Inspector may delegate to a person (including an inspector)
a function or power of the Chief Inspector under this Act.
(3) A delegation under this section—
(a) must be by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the power of the delegator to act in any
matter; and
(d) is revocable at will.
(4) A function or power delegated by the Minister under this section may,
if the instrument of delegation so provides, be further delegated.
(1) The Minister may pay compensation to any person who has suffered loss
or damage as a direct consequence of a notice or an order made under Part
2.
(2) An application for compensation under this section—
(a) must be in writing; and
(b) must be made in a manner and form determined by the Minister;
and
(c) must be supported by such evidence as the Minister may
require.
(3) No action lies against the Minister to compel the Minister to make a
payment of compensation under this section.
51—False or
misleading statements
A person must not make a statement that is false or misleading in a
material particular (whether by reason of the inclusion or omission of a
particular) in an application made, information provided, or a certificate
issued, under this Act.
Maximum penalty:
(a) if the person made the statement knowing that it was false or
misleading—$10 000;
(b) in any other case—$5 000.
If a person is required to answer a question or to produce, or provide a
copy of, a document or information under this Act and the answer or document or
information would tend to incriminate the person or make the person liable to a
penalty, the person must nevertheless answer or produce, or provide a copy of,
the document or information, but the answer or document or information will not
be admissible in evidence against the person in proceedings for an offence or
for the imposition of a penalty other than proceedings in respect of the making
of a false or misleading statement or declaration.
53—Service of
notices and orders
(1) A notice or order required or authorised by this Act to be given or
issued to a person may be given or issued—
(a) by delivering it personally to the person or an agent of the person;
or
(b) by leaving it for the person at the person's place of residence or
business with someone apparently over the age of 16 years; or
(c) by posting it to the person or agent of the person at the person's or
agent's last known place of residence or business.
(2) Without limiting subsection (1), a notice or order required or
authorised to be given to a person under this Act may be given or
issued—
(a) by posting it to the person at the address last provided to the
Minister by the person for that purpose; or
(b) by transmitting it to the person by fax transmission or email to the
fax number or email address last provided to the Minister by the person for that
purpose; or
(c) in the case of a company or registered body within the meaning of the
Corporations Act 2001 of the Commonwealth—in accordance with that
Act.
(1) For the purposes of this Act, an act or omission of an employee or
agent will be taken to be the act or omission of the employer or principal
unless it is proved that the act or omission did not occur in the course of the
employment or agency.
(2) If a body corporate commits an offence against this Act, each member
of the governing body of the body corporate is guilty of an offence and liable
to the penalty applicable to the principal offence unless it is proved that the
member could not by the exercise of reasonable diligence have prevented the
commission of that offence.
(1) In proceedings, a certificate apparently executed by the Minister
certifying as to a matter relating to—
(a) the accreditation of a place; or
(b) the accreditation of a person; or
(c) the registration of an importer; or
(d) the appointment of an inspector; or
(e) the approval of an auditor; or
(f) an order or approval of the Chief Inspector or any other inspector;
or
(g) a delegation; or
(h) an exemption; or
(i) a notice; or
(j) an application; or
(k) the receipt or non-receipt of information; or
(l) the amount of costs and expenses incurred in taking specified
action,
under this Act constitutes proof, in the absence of proof to the contrary,
of the matters so certified.
(2) An allegation in a complaint—
(a) that a specified person is or was the owner or occupier of specified
property; or
(b) that specified plants or plant related products were within a
specified area; or
(c) that specified plants or plant related products are or were affected
by a pest; or
(d) that something done was done without the approval of the Chief
Inspector,
constitutes proof, in the absence of proof to the contrary, of the matters
so alleged.
56—Commencement of
prosecution of offences
Proceedings for an offence under this Act may be commenced at any time
within 3 years of the day on which the offence is alleged to have been
committed.
(1) If an offence against a provision of this Act is committed by a person
by reason of a continuing act or omission—
(a) the person is liable, in addition to the penalty otherwise applicable
to the offence, to a penalty for each day during which the act or omission
continues of not more than an amount equal to one-fifth of the maximum penalty
prescribed for that offence; and
(b) if the act or omission continues after the person is convicted of the
offence, the person is guilty of a further offence against that provision and
liable, in addition to the penalty otherwise applicable to the further offence,
to a penalty for each day during which the act or omission continues after that
conviction, of not more than an amount equal to one-fifth of the maximum penalty
prescribed for that offence.
(2) For the purposes of this section, an obligation to do something is to
be regarded as continuing until the act is done despite the fact that any period
within which, or time before which, the act is required to be done has expired
or passed.
It is a defence to a charge of an offence against this Act if the defendant
proves that the offence did not result from any failure on the part of the
defendant to take reasonable care to avoid the commission of the
offence.
59—Incorporation
of codes and standards
(1) A notice given by the Minister, or a regulation made, under this Act
may—
(a) be of general or limited application; and
(b) apply, adopt or incorporate, with or without modification, any code,
standard or other document prepared or approved by a body or authority referred
to in the notice or regulation as in force from time to time or as in force at a
specified time.
(2) If a code, standard or other document is applied, adopted or
incorporated in a notice or regulation—
(a) a copy of the code, standard or other document must be kept available
for inspection by members of the public, without charge and during normal office
hours, at the office of the Chief Inspector; and
(b) in any legal proceedings, evidence of the contents of the code,
standard or other document may be given by production of a document apparently
certified by or on behalf of the Minister as a true copy of the code, standard
or other document.
(1) The Governor may make such regulations as are contemplated by, or as
are necessary or expedient for the purposes of, this Act.
(2) Without limiting subsection (1), the regulations
may—
(a) fix fees to be paid in respect of a matter under this Act and
regulate, or provide for the Minister to regulate, the payment, recovery, waiver
or reduction of such fees; and
(b) exempt, or provide for the Minister to exempt, a class of persons,
plants, plant related products or activities from the application of this Act or
a specified provision of this Act unconditionally or subject to specified
conditions; and
(c) impose fines, not exceeding $5 000, for offences against the
regulations; and
(d) fix expiation fees, not exceeding $315, for alleged offences against
the regulations.
(3) Regulations under this Act may—
(a) be of general application or limited application; and
(b) make different provision according to the matters or circumstances to
which they are expressed to apply; and
(c) provide that a matter or thing in respect of which regulations may be
made is to be determined according to the discretion of the Minister or the
Chief Inspector; and
(d) include evidentiary provisions to facilitate proof of contraventions
of the regulations for the purposes of proceedings for offences.
(4) Regulations under this Act may provide for fees that vary or are
determined by the Minister according to factors specified in the
regulations.
Schedule 1—Related
amendments, repeal and transitional provisions
Part 1—Related amendments
Division 1—Preliminary
In this Part, a provision under a heading to a Division referring to the
amendment of a specified Act amends the Act so specified.
Division 2—Amendment of Citrus Industry
Act 2005
2—Amendment of
section 5—Functions of Board
Section 5(1)(i)—delete "Fruit and Plant Protection
Act 1992" and substitute:
Plant Health Act 2008
Division 3—Amendment of Phylloxera and Grape
Industry Act 1995
3—Amendment of
section 3—Interpretation
Section 3, definition of Chief Inspector—delete
"Fruit and Plant Protection Act 1992" and substitute:
Plant Health Act 2008
4—Amendment of
section 27—Members of Board to be inspectors
Section 27—delete "Fruit and Plant Protection Act 1992"
and substitute:
Plant Health Act 2008
Part 2—Repeal
(1) The Fruit and Plant Protection Act 1992 is
repealed.
(2) The Noxious Insects Act 1934 is repealed.
Part 3—Transitional provisions
(1) The person holding appointment as the Chief Inspector, deputy of the
Chief Inspector, or inspector, under the repealed Act immediately before the
commencement of this Schedule will become, on the commencement of this clause, a
person holding the corresponding appointment under this Act.
(2) The notice signed by the Minister on 6 February 2006 (see Gazette 16
February 2006 p552) as varied from time to time and in force immediately before
the commencement of this Schedule continues in force and will be taken to be a
notice in force under this Act (and the Plant Quarantine Standard South
Australia adopted under clause 7.1 of that notice will be taken to be
adopted in the notice under section 59 of this Act).
(3) A declaration under section 4 of the repealed Act in operation
immediately before the commencement of this Schedule that a condition of fruit
or plants is a disease will be taken to be a declaration of a pest under
section 4 of this Act.
(4) A declaration under section 5 of the repealed Act in operation
immediately before the commencement of this Schedule that a place is a
quarantine station will be taken to be a declaration that a place is a
quarantine station under section 5 of this Act.
(5) A notice under section 13 of the repealed Act in force immediately
before the commencement of this Schedule prohibiting the introduction or
importation into the State of any specified class of fruit, plant, soil,
packaging or other thing will be taken to be a notice prohibiting the bringing
or introduction into the State of a specified class of plant or plant related
product under section 7 of this Act.
(6) A declaration under section 14 of the repealed Act in operation
immediately before the commencement of this Schedule that a place is a
quarantine area will be taken to be a declaration that a place is a quarantine
area under section 8 of this Act.
(7) A declaration under section 18 of the repealed Act in operation
immediately before the commencement of this Schedule will be taken to be a
declaration under section 15 of this Act.
(8) A notice incorporating a code, standard or other document under
section 29 of the repealed Act in force immediately before the commencement of
this Schedule will be taken to be a notice in force under this Act incorporating
a code, standard or other document under section 59 of this Act.
(9) In this clause—
repealed Act means the Fruit and Plant Protection
Act 1992 repealed under Part 2 of this Schedule.
(1) The Governor may, by regulation, make additional provisions of a
saving or transitional nature consequent on the enactment of this Act.
(2) A provision of a regulation made under subclause (1) may, if the
regulation so provides, take effect from the commencement of this Act or from a
later day.
(3) To the extent to which a provision takes effect under
subclause (2) from a day earlier than the day of the regulation's
publication in the Gazette, the provision does not operate to the disadvantage
of a person by—
(a) decreasing the person's rights; or
(b) imposing liabilities on the person.
(4) The Acts Interpretation Act 1915 will, except to the
extent of any inconsistency with the provisions of this Schedule, apply to any
amendment or repeal effected by this Schedule.