Biosecurity and Agriculture Management Act 2007

 

Biosecurity and Agriculture Management Act 2007

CONTENTS

Part 1 — Preliminary

1.Short title2

2.Commencement2

3.Objects of Act2

4.Relationship with other Acts3

5.Act binds the Crown3

6.Meaning of terms used in this Act4

7.Meaning of “contaminated”14

8.Meaning of “owner” in relation to land15

9.Meaning of “animal feed”16

10.When organism is to be taken to be on land17

Part 2 — Biosecurity

Division 3 — Biosecurity within Western Australia

22.Declared pests18

Division 6 — Biosecurity Council

48.Biosecurity Council19

49.Membership of Biosecurity Council20

50.Functions of Biosecurity Council20

51.Annual report20

Part 4 — Inspection and compliance

Division 1 — Preliminary

63.Meaning of terms used in this Part21

Division 2 — Inspection and other functions

64.Purposes for which an inspection may be carried out21

65.Entry and access to place or conveyance, and inspection powers22

66.Obtaining records24

67.Other directions25

Division 3 — Entry warrants

68.Applying for entry warrant27

69.Applications, how they are to be made28

70.Issuing an entry warrant29

71.Effect of entry warrant30

72.Report on entry and search30

Division 4 — Seizure, treatment, destruction and recall powers

73.Power to seize, treat or destroy31

74.SAT review: seizure33

75.SAT review: forfeiture33

76.Power to direct that organism or potential carrier be moved for treatment33

77.Power to direct person to treat, refrain from treating, destroy or dispose of thing34

78.SAT review: section 77 direction35

79.Treatment or destruction to prevent risk36

80.SAT review: treatment or destruction notice37

81.Provisions do not limit making of regulations37

82.Inspector may direct removal of organism or potential carrier37

83.SAT review: direction to remove from State38

84.Recall of organism or substance38

85.Notice may be published40

86.SAT review: recall notice40

87.Remedial action40

Division 5 — General

88.Time and place for compliance41

89.Direction may be given orally or in writing41

90.Exercise of power may be recorded41

91.Use of force and assistance41

92.Offences42

93.Self‑incriminating information42

Division 6 — Remedial action by Director General

94.Taking remedial action43

95.Charge on land to secure cost of remedial action44

96.Priority of charge44

97.Dealing with certain charged land45

98.Recovery of unpaid charge amount45

99.Certificate of charge amount46

100.Withdrawal of memorial46

Division 7 — Registration of memorials and notices affecting land

101.Approved form of memorials and notices47

102.Exemption from stamp duty47

103.Notice to mortgagees48

Part 5 — Legal proceedings

Division 1 — Legal proceedings

104.Prosecutions, who may commence49

105.Time for bringing prosecution49

106.Court’s power to make ancillary orders on conviction49

107.Order as to costs of analysis50

108.Penalties for continuing offences50

109.Injunctions to ensure compliance with this Act51

Division 2 — Responsibility of certain persons

110.Liability of body corporate’s officers52

111.Liability of principal for acts of agent53

112.Liability of employer for offence of employee53

Division 3 — Evidentiary provisions

113.Meaning of “specified”54

114.Proof of exemptions55

115.Evidence of place of offence55

116.Evidence of seller or packer of container55

117.Evidence of purpose or intent56

118.Evidence of authorisation and enforcement matters56

119.Evidence of scientific matters57

120.Evidence of type or class of organism or thing58

121.Documentary and signed evidence59

122.Evidence of documents and service60

123.Evidence of ownership or occupancy60

124.Provisions are in addition to the Evidence Act 190661

Division 4 — Modified penalties for certain offences

125.Meaning of terms used in this Division61

126.Infringement notices62

127.Withdrawal of infringement notice62

128.Effect of payment of modified penalty63

Part 6 — Financial provisions

Division 1 — Declared Pest Account

Subdivision 1 — General

129.Meaning of terms used in this Division64

Division 2 — Industry funding schemes

140.Terms used in this Division64

141.Establishment of accounts, management committees and schemes65

142.Constitution and administration of prescribed accounts65

143.Management committee66

144.Contributions to account — prescribed scheme66

145.Application of prescribed account67

146.Treasurer may make advances to a prescribed account in event of a deficiency69

147.Review of regulations69

Division 3 — Modified Penalties Revenue Account

148.Modified Penalties Revenue Account70

149.Use of funds in Modified Penalties Revenue Account70

Part 7 — Administration

Division 1 — The Western Australian Agriculture Authority

150.Western Australian Agriculture Authority72

151.Purpose of Western Australian Agriculture Authority72

152.Powers of Authority72

153.Treasurer to consider proposals under section 152(3)(b)74

154.Intellectual property74

155.Execution of documents by Authority75

156.Accountability under this Division76

Division 2 — Compiling and publishing essential information

157.Publication of certain declarations76

158.Records of status of various organisms77

159.The department’s electronic site77

160.Information available on department’s electronic site77

161.Availability of published information78

Division 3 — Inspectors

162.Appointment of inspectors78

163.Director General has functions of inspector79

164.Identification cards79

Division 6 — Service of documents

172.Service on the Director General80

173.Method of service80

174.Alternate methods of service of documents relating to land81

175.Service of notice by publication82

176.Service where more than one owner or occupier83

177.Time of service84

178.Description of person or land84

179.Documents binding on subsequent owners and occupiers84

180.Non‑exclusivity of this Division85

Division 7 — General

181.Delegation by Minister85

182.Delegation by Director General85

187.Immunity from tortious liability86

Part 8 — Regulations, codes of practice and local laws

188.Regulations — general power87

189.Regulations prescribing high impact organisms87

190.Regulations and management plans may adopt codes or legislation and other references87

191.Codes of practice88

192.Regulations and codes of practice: consultation89

Schedule 1  Matters for which regulations may be made

Notes

Compilation table97

Provisions that have not come into operation97

Defined Terms

 

Biosecurity and Agriculture Management Act 2007

An Act to provide for —

·the control of certain organisms;

·the use of agricultural and veterinary chemicals;

·the identification and attainment of standards of quality and safety for agricultural products, animal feeds, fertilisers and other substances and things;

·the establishment of a Declared Pest Account, a Modified Penalties Revenue Account and accounts for industry funding schemes; and

·related matters.

The Parliament of Western Australia enacts as follows:

Part 1  Preliminary

1.Short title

This is the Biosecurity and Agriculture Management Act 2007.

2.Commencement

(1)This Act comes into operation on a day fixed by proclamation.

(2)Different days may be fixed under subsection (1) for different provisions.

3.Objects of Act

(1)The objects of this Act are to provide effective biosecurity and agriculture management for the State by providing the means to —

(a)control the entry, establishment, spread and impact of organisms that have or may have an adverse effect on —

(i)other organisms; or

(ii)human beings; or

(iii)the environment or part of the environment; or

(iv)agricultural activities, fishing or pearling activities, or related commercial activities, carried on, or intended to be carried on, in the State or part of the State;

and

(b)control the use of agricultural and veterinary chemicals; and

(c)establish standards to ensure the safety and quality of agricultural products; and

(d)raise funds for biosecurity-related purposes.

(2)Nothing in this Act empowers the regulation of diseases which affect only human health.

4.Relationship with other Acts

(1)Each of the following written laws must be read with this Act as if they formed a single Act —

(a)the Biosecurity and Agriculture Management Rates and Charges Act 2007;

(b)the Land Tax Assessment Act 2002, in its application to the assessment of rates payable under Part 6 Division 1 Subdivision 2;

(c)the Taxation Administration Act 2003, in its application to rates payable under Part 6 Division 1 Subdivision 2.

(2)The provisions of this Act are in addition to the provisions of the following Acts —

(a)the Agricultural and Veterinary Chemicals (Western Australia) Act 1995;

(b)the Animal Welfare Act 2002;

(c)the Environmental Protection Act 1986;

(d)the Exotic Diseases of Animals Act 1993;

(e)the Genetically Modified Crops Free Areas Act 2003;

(f)the Health Act 1911;

(g)the Poisons Act 1964;

(h)the Police Act 1892.

(3)Except as provided in section 40(3), if a provision of this Act is inconsistent with a provision of an Act referred to in subsection (2), the latter provision prevails to the extent of the inconsistency.

5.Act binds the Crown

This Act binds the Crown in right of the State and, so far as the legislative power of the State permits, the Crown in all its other capacities.

6.Meaning of terms used in this Act

In this Act, unless the contrary intention appears —

agricultural activity includes apiculture, aquaculture, silviculture, viticulture and the raising or supply of plants or animals, and any related activity, including fallowing or resting land used for an agricultural activity;

agricultural product means —

(a)a plant; or

(b)stock; or

(c)an animal product; or

(d)a commodity derived from a plant or an animal product; or

(e)any other product of an agricultural activity;

Agvet Code of Western Australia has the meaning given to that term in the Agricultural and Veterinary Chemicals (Western Australia) Act 1995;

analysis means an examination, biological assay, bacteriological assay, chemical assay or any other assay or test relevant to determining the classification, quality, composition or any other particular of an organism, agricultural product, animal feed, fertiliser, chemical product or other substance or thing;

animal means a living or previously living thing except a human being, plant or micro‑organism, and includes —

(a)the ovum, semen or any other genetic material of an animal; and

(b)an animal when in the embryonic or larval stage or any other immature stage;

animal feed has the meaning given in section 9;

animal product means —

(a)a carcass or a part of a carcass of an animal; or

(b)meat, skin, hide, hair, wool, horn, feather, antler, feet, offal, viscera or blood of an animal; or

(c)fat, milk, whey, cream, butter, cheese, egg or part of an egg, or other food derived from an animal; or

(d)honey, beeswax, honeycomb or any other product of bees; or

(e)a secretion, excretion, faecal matter or other waste of an animal; or

(f)any other animal tissue;

authorisation includes a licence, permit, registration, approval or accreditation under this Act;

Authority means the Western Australian Agriculture Authority established under section 150;

biosecurity means protection from the adverse effect an organism has or may have on —

(a)another organism; or

(b)a human being; or

(c)the environment, or part of the environment; or

(d)agricultural activities, fishing or pearling activities, or related commercial activities carried on, or intended to be carried on, in the State or part of the State;

Biosecurity Council means the Biosecurity Council established under section 48;

breed includes hatch;

CALM Act Minister means the Minister administering the Conservation and Land Management Act 1984;

charge amount, in relation to land, means the amount secured by a charge on the land arising under section 95;

chemical product means —

(a)an agricultural chemical product as defined in the Agvet Code of Western Australia; or

(b)a veterinary chemical product; or

(c)a substance prescribed for the purposes of this definition;

code of practice means a code of practice issued or approved under section 191;

container includes —

(a)a case, box, bag, wrapper or material of any kind used or intended to be used to cover, contain or package something; and

(b)a bulk container, or any means of bulk transport, used or intended to be used to cover, contain or package something;

contaminated, in relation to an animal, agricultural product, animal feed, fertiliser or other substance or thing, has the meaning given by section 7;

control, in relation to a declared pest or other organism, includes eradicate, destroy, prevent the presence or spread of, manage, examine or test for, survey for or monitor the presence or spread of, and treat;

conveyance means a vehicle, vessel, aircraft or train;

cultivate includes culture;

declared pest means —

(a)a prohibited organism; or

(b)an organism for which a declaration under section 22(2) is in force;

Declared Pest Account means the account established under section 137(1);

department means the department principally assisting in the administration of this Act;

Director General means the chief executive officer of the department;

disease means —

(a)a disease that is capable of having a detrimental effect on an animal or a plant and includes —

(i)a micro‑organism; and

(ii)a disease agent; and

(iii)an infectious agent; and

(iv)a parasite at any stage of its life cycle;

or

(b)a genetic disorder of an animal or plant;

electronic site, in relation to the department, means —

(a)a website on the internet; or

(b)a site on another public electronic system, or other site approved under the regulations,

established and maintained under section 159;

environment has the meaning given to that term in the Environmental Protection Act 1986 section 3;

export means to take out of, or cause to be taken out of, Western Australia;

fertiliser means —

(a)a substance containing nitrogen, phosphorus, potassium or any other element required for plant growth, or a compound of such a substance, manufactured, prepared, produced or supplied for the purpose of fertilising the soil or supplying nutriments to plants; or

(b)a substance used for conditioning the soil for the purpose of fertilising the soil or supplying nutriments to plants; or

(c)a substance prescribed for the purposes of this definition,

but does not include —

(d)animal or plant manure or other unmanufactured refuse except to the extent that the manure or refuse is mixed with a substance referred to in paragraph (a), (b) or (c) and is so mixed, manufactured, prepared, produced or supplied as a fertiliser; or

(e)a substance prescribed not to be a fertiliser;

fish has the meaning given to that term in the Fish Resources Management Act 1994 and includes pearl oyster;

fisheries officer means a fisheries officer appointed under the Fish Resources Management Act 1994 section 11;

high impact organism means a prohibited organism that has been prescribed as a high impact organism;

identification card means —

(a)in relation to an inspector appointed under section 162 — the identity card issued to the inspector under section 164(1); and

(b)in relation to an inspector who is a fisheries officer, an inspector as that term is defined in the Pearling Act 1990, a wildlife officer or a police officer — a like identification issued to the person under the written law under which the person was appointed as such an officer or inspector;

identifier means a brand, stencil, eartag, earmark, electronic device or other device or marking used to identify an organism, an agricultural product, a place or a prescribed potential carrier;

import means to bring, or cause to be brought, into Western Australia;

import permit means a permit issued under section 16(2);

infected means actually infected or liable, by reason of contact or proximity, to be infected;

infested means actually infested or liable, by reason of contact or proximity, to be infested;

inspection point means a place designated as an inspection point under section 166;

inspector means —

(a)in relation to the identification or movement of stock — an inspector appointed under section 162 or a police officer; and

(b)in relation to fish — an inspector appointed under section 162, a fisheries officer or an inspector appointed under the Pearling Act 1990 section 35(1); and

(c)in relation to a declared pest other than fish — an inspector appointed under section 162 or a wildlife officer; and

(d)in relation to anything else — an inspector appointed under section 162;

keep means have in possession or be in control of, and includes exhibit;

label means —

(a)when used as a noun — an identifier or a tag, mark or statement in writing however effected, and whether or not comprising a trade mark, logo or other distinguishing or descriptive material; and

(b)when used as a verb — to mark a package, container or other thing to identify it or its contents by affixing to it or inserting in it an identifier or a tag, stamp, mark or statement referred to in paragraph (a);

land means — 

(a)all land within the limits of the State; and

(b)all marine and other waters within the limits of the State; and

(c)all coastal waters of the State as defined by section 3(1) of the Coastal Waters (State Powers) Act 1980 of the Commonwealth; and

(d)the sea‑bed and subsoil beneath, and all islands and structures within, the waters referred to in paragraphs (b) and (c); and

(e)in respect of fish managed by the State under an arrangement with the Commonwealth under the Fish Resources Management Act 1994 Part 3 or the Pearling Act 1990, the waters of the Australian fishing zone as defined by the Fisheries Management Act 1991 of the Commonwealth;

Land Titles Register means the Register as defined in the Transfer of Land Act 1893;

management plan means a plan that is in force under section 45 for the management of an area;

maximum residue limit, in relation to a chemical product or other prescribed substance, means the maximum residue limit prescribed in respect of that chemical product or substance in relation to —

(a)an animal, agricultural product, animal feed, fertiliser or other substance or thing; or

(b)a prescribed organism or other thing from which an agricultural product, animal feed, fertiliser or other substance or thing may be derived;

Minister for the Environment means the Minister administering the Environmental Protection Act 1986;

Minister for Fisheries means the Minister administering the Fish Resources Management Act 1994;

Modified Penalties Revenue Account means the account established under section 148(1);

occupier, in relation to land, means a person who is in occupation or control of the land, or is entitled to be in occupation or control of the land, whether or not that person owns the land;

organism means —

(a)a living thing, except a human being or part of a human being; or

(b)a prion or other prescribed organic agent that can cause disease; or

(c)a disease;

owner —

(a)in relation to land — has the meaning given to that term in section 8 or 129, as the case requires; and

(b)in relation to a vehicle — has the meaning given to that term in the Road Traffic Act 1974; and

(c)in relation to a vessel — has the meaning given to that term in the Western Australian Marine Act 1982; and

(d)in relation to a thing other than land, a vehicle or a vessel — includes an agent or manager of the owner, and any other person who has possession or control of the thing at the material time;

pearl oyster has the meaning given to that term in the Pearling Act 1990;

permitted organism means an organism for which a declaration is in force under section 11;

pest control notice means a notice under section 31(1);

pest exclusion notice means a notice under section 27(1);

pest keeping notice means a notice under section 35(1);

place means land, premises or a conveyance, or a part of land, premises or a conveyance;

plant means any vegetation or fungus and includes —

(a)a cutting or the leaf, flower or flower head of a plant; and

(b)the fruit or seed of a plant; and

(c)the peel, skin or shell of a fruit or seed of a plant; and

(d)genetic material of a plant; and

(e)any other product or part of a plant;

potential carrier means —

(a)anything that is capable of carrying an organism; or

(b)anything that is capable of carrying anything else that is capable of carrying an organism;

premises includes a building or structure, or part of a building or structure, of any type;

prescribed means prescribed under regulations made under this Act;

prohibited organism means an organism for which a declaration is in force under section 12;

public authority means —

(a)a Minister of the State; or

(b)an agency or an organisation as those terms are defined in the Public Sector Management Act 1994; or

(c)a body, corporate or unincorporate, that is established or continued for a public purpose by the State, regardless of the way it is established; or

(d)a local government or regional local government;

quality assurance scheme means a scheme relating to animals, agricultural products, potential carriers, animal feed or fertilisers that is designed to assure that the animals, plants, agricultural products, potential carriers, animal feed or fertilisers —

(a)are of a particular quality or grade; or

(b)are in a particular condition; or

(c)were produced in a particular area or place; or

(d)were produced in a particular manner; or

(e)have been treated in a particular way; or

(f)are free from a particular organism, chemical residue, contaminant or adulterant; or

(g)comply with particular conditions or requirements;

quarantine facility means a place used or to be used as a quarantine facility under an arrangement under section 165 or another secure facility used for quarantine purposes;

record means a document or record of information, irrespective of how the information is recorded or stored or able to be recovered and includes —

(a)a thing from which images, sounds or writings can be reproduced, with or without the aid of anything else; and

(b)a thing on which information is recorded or stored, whether electronically, magnetically, mechanically or by some other means;

residue, in relation to a chemical product or other prescribed substance, includes residue of a derivative or metabolite of the chemical product or other substance;

residue management notice means a notice given under section 52;

stock means any animal prescribed for the purposes of this definition;

supply includes do, or cause or permit the doing of, any of the following —

(a)sell;

(b)send or deliver for sale or on sale;

(c)dispose of under a hire purchase agreement;

(d)give;

(e)offer to do an act that would be a supply (including an act referred to in any of the above paragraphs),

and includes supply under a contract for work or labour that also involves the supply of any thing;

treat includes disinfect, disinfest, clean, vaccinate or apply other prophylactic measures, and isolate;

unimproved value, in relation to land —

(a)has the meaning given to that term in the Valuation of Land Act 1978; and

(b)in relation to a part of a lot, as that term is defined in the Land Tax Assessment Act 2002, has the meaning given in section 13 of that Act;

unlisted organism has the meaning given to that term in section 14;

vehicle has the meaning given to that term in the Road Traffic Act 1974;

veterinary chemical product means a veterinary chemical product as defined in the Agvet Code of Western Australia except that —

(a)despite section 5(4) of the Code, it includes a substance or mixture of substances that is —

(i)prepared in accordance with the instructions of a veterinary surgeon by a person registered under the Health Practitioner Regulation National Law (Western Australia) in the pharmacy profession in the course of practice as a pharmacist; or

(ii)prepared by a veterinary surgeon in the course of practice as a veterinary surgeon;

and

(b)it does not include a substance prescribed for the purposes of this definition;

veterinary surgeon means a registered veterinary surgeon as defined in the Veterinary Surgeons Act 1960;

wildlife officer means a wildlife officer designated as such under the Conservation and Land Management Act 1984.

[Section 6 amended by No. 35 of 2010 s. 31.]

7.Meaning of “contaminated”

For the purposes of this Act an animal, agricultural product, animal feed, fertiliser or other substance or thing is contaminated if —

(a)it contains more of a chemical product or other substance than the maximum residue limit of that chemical product or other substance prescribed in relation to that animal, agricultural product, animal feed, fertiliser or other substance or thing; or

(b)it contains such an amount of a chemical product or other substance that ordinary use of the animal, agricultural product, animal feed, fertiliser or other substance or thing is likely to result, directly or indirectly, in the presence of more than the maximum residue limit of that chemical product or other substance in another animal, agricultural product, animal feed, fertiliser or other substance or thing; or

(c)it contains a substance or thing, other than a substance or thing in relation to which a maximum residue limit is prescribed, in the circumstances prescribed in relation to that substance or thing; or

(d)the regulations prescribe circumstances in which an animal, agricultural product, animal feed, fertiliser or other substance or thing is contaminated, and those circumstances occur in relation to the animal, agricultural product, animal feed, fertiliser or other substance or thing.

8.Meaning of “owner” in relation to land

(1)For the purposes of this Act, other than Part 6 Division 1, a person is an owner of land if the person is —

(a)in relation to land alienated from the Crown, the holder (at law or in equity) of an estate in fee simple in the land; or

(b)in relation to land that the Crown has lawfully agreed to alienate, the person who is entitled to the benefit of the agreement; or

(c)in relation to land held under a lease lawfully granted by the Crown, the lessee; or

(d)in relation to any other land, the public authority that has the care, control or management of the land or, if there is no such public authority, the Crown.

(2)For the purposes of this Act, an owner of land referred to in subsection (1)(a), (b) or (c) (private land) is to be taken to be the owner, in addition to that land, of —

(a)the land comprising any road that —

(i)intersects the private land; or

(ii)bounds the private land and is fenced only on the side further from the common boundary of the road and the private land;

and

(b)the land comprising half of the width of any road that bounds the private land and is fenced on both sides being the half that is nearer the common boundary of the road and the private land; and

(c)the land comprising half the width of any road that separates the private land from other private land being the half that is nearer the common boundary of the road and the first‑mentioned private land.

(3)Subsection (2) does not apply to or in relation to a road dedicated and open to public use and fenced on both sides.

9.Meaning of “animal feed”

(1)In this Act —

animal feed means a substance, mixture or compound consumed or intended for consumption by an animal or supplied for consumption by an animal, including —

(a)basic animal feed; and

(b)processed animal feed or manufactured animal feed; and

(c)a by‑product, additive, supplement or nutrient; and

(d)any other substance that is prescribed for the purposes of this definition.

(2)In this section —

additive means a substance or combination of substances added to basic animal feed for continuous long‑term administration to an animal for a specific purpose;

basic animal feed means grain, seeds, hay, meat, fish or milk used as animal feed, or in the preparation of animal feed;

by‑product means —

(a)a by‑product of the production of basic animal feed or processed animal feed; or

(b)a by‑product of the production of food for human consumption; or

(c)another substance prescribed for the purposes of this definition;

manufactured animal feed means a feed consisting of, or containing —

(a)a feed made mainly or partly of basic animal feed (but not consisting solely of one or more basic animal feeds or products derived from milk); or

(b)a processed animal feed, additive or supplement; or

(c)a stock lick;

processed animal feed means —

(a)a basic animal feed that has been changed in form by chemical, physical or mechanical treatment; or

(b)a by‑product.

10.When organism is to be taken to be on land

For the purposes of this Act, a reference to an organism being on land is to be taken to include a reference to an organism that is —

(a)on or in any water on or under the land; or

(b)in the air above the land.

Part 2 — Biosecurity

[Divisions 1 and 2 (s. 11-21) have not come into operation 2.]

Division 3 — Biosecurity within Western Australia

22.Declared pests

(1)A prohibited organism is a declared pest for the whole of Western Australia.

(2)The Minister may declare that any other organism of a kind specified or described in the declaration is a declared pest for an area if there are reasonable grounds for believing that the organism —

(a)has or may have an adverse effect on —

(i)another organism in the area; or

(ii)human beings in the area; or

(iii)the environment, or part of the environment, in the area; or

(iv)agricultural activities, fishing or pearling activities, or related commercial activities, carried on, or intended to be carried on, in the area;

or

(b)may have an adverse effect on any of those things if it were present in the area, or if it were present in the area in greater numbers or to a greater extent.

(3)A declaration under this section may assign the declared pest to a category designated by the regulations.

(4)Before making a declaration under this section the Minister must consult with —

(a)any other Minister who in the opinion of the Minister has a relevant interest; and

(b)if the Minister is of the opinion that such consultation is necessary for the purpose of properly informing himself or herself as to whether or not the declaration should be made, the Biosecurity Council.

(5)The area for which an organism is declared to be a declared pest may be the whole or part of the State.

(6)The declaration may set out or identify a management plan that must be followed by a person who has a duty under section 30 to control the declared pest.

(7)Section 157 applies to a declaration made under subsection (2).

[23-42.Have not come into operation 2.]

[Divisions 4 and 5 (s. 43‑47) have not come into operation 2.]

Division 6 — Biosecurity Council

48.Biosecurity Council

(1)The Minister must establish a Biosecurity Council by an instrument signed by the Minister that sets out —

(a)the membership of the Council; and

(b)any other matters in relation to the operation and procedures of the Council that the Minister considers appropriate.

(2)The Minister may, by instrument signed by the Minister, amend an instrument made under subsection (1).

(3)Subject to the instrument made under subsection (1), the Biosecurity Council may determine its own procedures.

(4)Each member of the Biosecurity Council must be paid such remuneration and allowances as the Minister, on the recommendation of the Minister for Public Sector Management, determines in the case of that member.

49.Membership of Biosecurity Council

(1)The Biosecurity Council must —

(a)be comprised of members who, in the opinion of the Minister, have a general or specific interest and expertise in the management of biosecurity in the State; and

(b)include members of community and producer organisations.

(2)The regulations may make provision for the nomination of members referred to in subsection (1) by prescribed community and producer organisations.

50.Functions of Biosecurity Council

The functions of the Biosecurity Council are —

(a)to advise the Minister or the Director General, as the case requires, on any matter related to biosecurity, whether referred to the Council by the Minister or the Director General or of its own motion; and

(b)if the Minister so approves, to advise any other Minister on any matter related to biosecurity.

51.Annual report

(1)The Biosecurity Council must on or before 30 November in each year make and submit to the Minister an annual report of its proceedings for the year ending on the preceding 30 June.

(2)The Minister must cause a copy of the annual report to be laid before each House of Parliament within 14 sitting days of the House after the report is received by the Minister.

[Part 3 (s. 52‑62) has not come into operation 2.]

Part 4 — Inspection and compliance

Division 1 — Preliminary

63.Meaning of terms used in this Part

In this Part, unless the contrary intention appears —

dwelling means —

(a)a building, structure or tent, or part of a building, structure or tent, that is ordinarily used for human habitation; or

(b)a mobile home,

and it does not matter that it is uninhabited from time to time;

entry warrant means a warrant issued under Division 3;

inspection purposes means the purposes set out in section 64;

mobile home means a conveyance, other than a vessel —

(a)that is ordinarily used for human habitation; and

(b)that is permanently or semi‑permanently stationary in a single location;

structure does not include a conveyance.

Division 2 — Inspection and other functions

64.Purposes for which an inspection may be carried out

An inspection may be carried out for any or all of the following purposes —

(a)to search for or inspect any organism, agricultural product, animal feed, identifier, chemical product or potential carrier, or anything else regulated by this Act;

(b)to search for and inspect any records that are kept under or for the purposes of this Act, or that are relevant to determining whether this Act is being complied with;

(c)to ascertain whether this Act, or a management plan, code of practice, direction, notice or other instrument given, issued, made or adopted under this Act is being complied with;

(d)to search for and seize or otherwise obtain evidence of a contravention of this Act;

(e)any other prescribed purpose.

65.Entry and access to place or conveyance , and inspection powers

(1)For inspection purposes, an inspector may —

(a)at any time stop, detain, board or enter a conveyance (except a conveyance that is a mobile home); and

(b)at any time enter a place that is not a dwelling; and

(c)at any time enter a dwelling with the consent of the person apparently in control of the dwelling; and

(d)at any time enter a place, including a dwelling, in accordance with an entry warrant; and

(e)take onto or into the place any assistants, contractors, animals, vehicles, instruments, equipment or materials that are needed to carry out the inspection; and

(f)remain on or in the place, with the assistants, contractors, animals, vehicles, instruments, equipment or materials, for as long as is necessary to complete the inspection; and

(g)inspect and open any package, compartment, cupboard or container of any kind, and inspect its contents; and

(h)restrain, muster, round up, yard, draft or otherwise move or handle any stock or other animal; and

(i)patrol and inspect any fence on or bounding land or premises; and

(j)take samples or specimens of or from organisms, agricultural products, chemical products, animal feed, fertilisers, water, soil or potential carriers; and

(k)survey and mark out land for any purpose relevant to carrying out the inspection; and

(l)photograph or film a place or conveyance and anything in or on the place or conveyance; and

(m)label any thing to indicate its identity or contents.

(2)Before obtaining the consent of a person for the purposes of subsection (1)(c), the inspector must inform the person —

(a)that the inspector wants to exercise the power under subsection (1)(c); and

(b)of the reason why the inspector wants to exercise the power; and

(c)that the person can refuse to consent to the inspector doing so.

(3)Before exercising a power under subsection (1)(a), (b) or (i) an inspector must take reasonable steps to inform the owner, occupier or person in charge of the place, as the case requires, of his or her intention to exercise the power.

(4)Subsection (3) does not apply if —

(a)the inspector reasonably suspects that to do so will endanger any person, including the inspector, or jeopardise the purpose of the proposed entry or the effectiveness of any search of the place; or

(b)the power is to be exercised in a public place or quarantine facility.

(5)In subsection (4) —

public place includes —

(a)a place to which the public, or any section of the public, has or is permitted to have access, whether on payment or not; and

(b)a place to which the public has access with the express or implied approval of, or without interference from, the occupier of the place; and

(c)a school, university or other place of education, other than a part of it to which neither a student nor the public usually has access.

66.Obtaining records

(1)In this section —

relevant record means a record that —

(a)contains information about the storage, handling, transport, possession, supply, use or distribution of organisms, agricultural products, potential carriers, chemical products, animal feed or fertilisers; or

(b)is required to be kept under this Act; or

(c)contains information that is relevant to a contravention of this Act.

(2)For inspection purposes an inspector may do all or any of the following —

(a)direct a person who has the custody or control of a record to give the inspector the record or a copy of it;

(b)direct a person who has the custody or control of a record, computer or thing to make or print out a copy of the record or to operate the computer or thing;

(c)operate a computer or other thing on which a record is or may be stored;

(d)direct a person who is or appears to be in control of a record that the inspector suspects on reasonable grounds is a relevant record to give the inspector a translation, code, password or other information necessary to gain access to or interpret and understand the record;

(e)take extracts from or make copies of, or download or print out, or photograph or film, a record that the inspector suspects on reasonable grounds is a relevant record;

(f)seize and retain, for so long as is necessary for the purposes of this Act, a computer or other thing on which a record is or may be stored;

(g)seize a record that the inspector suspects on reasonable grounds is a relevant record and retain it for as long as is necessary for the purposes of this Act;

(h)take reasonable measures to secure or protect a record, or computer or other thing on which a record is or may be stored, against damage or unauthorised removal or interference.

(3)If an inspector seizes or is given a record, the inspector must if practicable allow a person who otherwise has custody or control of it to have reasonable access to it.

67.Other directions

(1)An inspector may —

(a)for inspection purposes, direct a person who is on or in a place, or who is or appears to be in possession or control of a place or thing, to —

(i)state his or her full name and residential address and telephone number, and a local address and telephone number if the person is away from home and the inspector thinks it may be necessary to contact the person before he or she returns home; and

(ii)produce evidence of the person’s identity; and

(iii)give the inspector any information in the person’s possession or control as to the name and address of the owner of the place or thing; and

(iv)give the inspector, orally or in writing, any information in the person’s possession or control that is relevant to carrying out the inspection; and

(b)for inspection purposes, direct a person who is or appears to be in possession or control of an organism, prescribed potential carrier, animal feed, fertiliser or chemical product to give the inspector any information in the person’s possession or control as to the name and address of any person from whom the organism, potential carrier, animal feed, fertiliser or chemical product was obtained or to whom a similar organism, potential carrier, animal feed, fertiliser or chemical product has been supplied; and

(c)direct a person who is or appears to be in control of a place to give the inspector a plan, or access to a plan, of the place; and

(d)direct a person who is or appears to be in control of a place or thing to give the inspector any assistance that the inspector reasonably needs to carry out the inspector’s functions in relation to the place or thing; and

(e)direct a person who is or appears to be in control of a conveyance to take the conveyance to an inspection point, quarantine facility or other place for inspection or treatment; and

(f)direct a person who is or could be carrying an organism or potential carrier to go to an inspection point, quarantine facility or other place for inspection or treatment; and

(g)direct an importer or other person who is or appears to be in control of a consignment of goods or a potential carrier to remove the consignment or potential carrier to an inspection point, quarantine facility or other place for inspection or treatment; and

(h)direct a person who is or appears to be in control of an organism to do anything necessary to identify the organism; and

(i)direct a person who is or appears to be in control of an animal to restrain, muster, round up, yard, draft or otherwise move or handle the animal or to remove the animal to an inspection point, quarantine facility or other place for inspection or treatment; and

(j)direct a person who is or appears to be in control of any goods, conveyance, package or container to label it to identify its contents; and

(k)direct a person who is or appears to be in control of an organism or other thing regulated under this Act to keep that organism or other thing in the possession of that person until further directed by the inspector; and

(l)direct a person who is or appears to be in control of an organism or other thing regulated under this Act to leave that organism or other thing at an inspection point, quarantine facility or other place until further directed by the inspector.

(2)If a person does not comply with a direction under subsection (1)(e), (f), (g) or (i) the inspector may do anything the inspector considers necessary to achieve, so far as is practicable, the purpose of the direction.

(3)Without limiting subsection (2), an inspector may move a conveyance to achieve the purpose of the direction.

Division 3 — Entry warrants

68. Applying for entry warrant

(1)An inspector may apply to a justice for an entry warrant authorising the entry of a place for inspection purposes.

(2)An inspector may apply for an entry warrant for a place even if, under Division 2, the inspector may enter the place without an entry warrant.

(3)The application must be in accordance with section 69 and must include the prescribed information (if any).

69.Applications, how they are to be made

(1)In this section —

application means an application for an entry warrant;

remote communication means any way of communicating at a distance including by telephone, fax, email and radio.

(2)A reference in this section to making an application includes a reference to giving information in support of the application.

(3)An application must be made in person before a justice unless —

(a)the warrant is needed urgently; and

(b)the applicant reasonably suspects that a justice is not available within a reasonable distance of the applicant,

in which case —

(c)it may be made to the justice by remote communication; and

(d)the justice must not grant it unless satisfied about the matters in paragraphs (a) and (b).

(4)An application must be made in writing unless —

(a)the application is made by remote communication; and

(b)it is not practicable to send the justice written material,

in which case —

(c)it may be made orally; and

(d)the justice must make a written record of the application and any information given in support of it.

(5)An application must be made on oath unless —

(a)the application is made by remote communication; and

(b)it is not practicable for the justice to administer an oath to the applicant,

in which case —

(c)it may be made in an unsworn form; and

(d)if the justice issues an entry warrant, the applicant must as soon as is practicable send the justice an affidavit verifying the application and any information given in support of it.

(6)If on an application made by remote communication a justice issues an entry warrant, the justice must if practicable send a copy of the original warrant to the applicant by remote communication, but otherwise —

(a)the justice must send the applicant by remote communication any information that must be set out in the warrant; and

(b)the applicant must complete a form of warrant with the information received and give the justice a copy of the form as soon as is practicable after doing so; and

(c)the justice must attach the copy of the form to the original warrant and any affidavit received from the applicant and make them available for collection by the applicant.

(7)The copy of the original warrant sent, or the form of the warrant completed, as the case may be, under subsection (6) has the same force and effect as the original warrant.

(8)If an applicant contravenes subsection (5)(d) or (6)(b), any evidence obtained under the entry warrant is not admissible in proceedings in a court.

70.Issuing an entry warrant

(1)A justice may issue an entry warrant if satisfied that it is necessary for an inspector to enter a place for inspection purposes.

(2)An entry warrant must contain —

(a)a reasonably particular description of the place to which it relates; and

(b)a reasonably particular description of the inspection purpose for which entry to the place is required; and

(c)the period in which it may be executed; and

(d)the date and time when it was issued; and

(e)any other prescribed matter.

71.Effect of entry warrant

(1)An entry warrant has effect according to its content and this section.

(2)An entry warrant may be executed by any inspector.

(3)If in the course of executing an entry warrant in an area an inspector by chance finds a thing that is not specified in the warrant that the inspector suspects on reasonable grounds is —

(a)a declared pest for the area where the warrant is executed, an unlisted organism or other thing prescribed for the purposes of this subsection; or

(b)evidence of a contravention of this Act,

the inspector may seize the thing if the inspector reasonably suspects that it is necessary to do so for one or more of the following purposes —

(c)to prevent the thing from being sold, disposed of, concealed, damaged, destroyed, interfered with or lost;

(d)to preserve the thing’s evidentiary value;

(e)to submit the thing to an analysis;

(f)to prevent the thing being used in the commission of an offence under this Act.

72.Report on entry and search

An inspector who has entered and searched a place under an entry warrant must give a written report of the result of the entry and search to the Director General.

Division 4 — Seizure, treatment, destruction and recall powers

73.Power to seize, treat or destroy

(1)Subject to the regulations (if any) an inspector may —

(a)seize and detain an organism or potential carrier until —

(i)it can be determined whether the organism or potential carrier was imported in contravention of section 15; or

(ii)it can be determined whether the organism is a declared pest; or

(iii)it can be determined whether the organism or potential carrier is infected or infested with a declared pest or is contaminated; or

(iv)the organism or potential carrier is treated, destroyed, disposed of or otherwise dealt with under subsection (2); and

(b)seize and detain an agricultural product, animal feed, fertiliser, chemical product or other substance or thing until it can be determined whether it is infected or infested with a declared pest or is contaminated; and

(c)without limiting paragraph (a) or (b), seize and detain an organism, potential carrier, agricultural product, animal feed, fertiliser, chemical product or other substance or thing until it is treated, destroyed, disposed of or otherwise dealt with under subsection (2) if there are reasonable grounds for believing that —

(i)an offence under this Act is being or has been committed in relation to the organism, potential carrier, agricultural product, animal feed, fertiliser, chemical product or other substance or thing; or

(ii)the organism is a declared pest; or

(iii)the organism, potential carrier, agricultural product, animal feed, fertiliser, chemical product or other substance or thing is infected or infested with a declared pest or is contaminated.

(2)If an inspector seizes a thing under subsection (1), the inspector may do any of the following —

(a)direct the person from whom the thing is seized to keep the thing in accordance with the directions of the inspector;

(b)remove and keep the thing so seized;

(c)treat the thing so seized to control declared pests or unlisted organisms or to lessen the risk of the spread of declared pests or unlisted organisms;

(d)whether or not proceedings have been or are intended to be taken under this Act in respect of the thing seized, but subject to subsection (4) and the regulations (if any) —

(i)destroy, dispose of or otherwise deal with the thing; or

(ii)direct the person from whom the thing is seized to destroy, dispose or otherwise deal with the thing; or

(iii)declare anything so seized to be forfeited to the Crown;

(e)subject to such direction, if any, as the inspector thinks fit to make under section 77 or 79, restore anything so seized to the person from whom it was seized.

(3)An organism or potential carrier may be treated under subsection (2)(c) whether or not the organism or potential carrier is infected or infested with a declared pest or unlisted organism.

(4)An action must not be taken under subsection (2)(d) before the expiry of the time within which an application may be made under section 74 for a review of the decision to seize the thing or, where an application has been so made, before the determination of the application.

74.SAT review: seizure

(1)Subject to the regulations referred to in subsection (4), a person aggrieved by the seizure of any thing under section 73 may apply to the State Administrative Tribunal for a review of the decision to seize the thing.

(2)In dealing with an application under subsection (1) the State Administrative Tribunal may determine whether the thing seized must be destroyed, disposed of, forfeited to the Crown, restored to the person from whom it was seized or otherwise dealt with.

(3)Subsection (2) does not limit the powers that the State Administrative Tribunal Act 2004 gives the State Administrative Tribunal.

(4)The regulations may prescribe circumstances relating to a matter of emergency or urgent need in which subsection (1) does not apply.

75.SAT review: forfeiture

(1)Subject to the regulations referred to in subsection (2), a person aggrieved by a declaration under section 73(2)(d)(iii) may apply to the State Administrative Tribunal for a review of the declaration.

(2)The regulations may prescribe circumstances relating to a matter of emergency or urgent need in which subsection (1) does not apply.

76.Power to direct that organism or potential carrier be moved for treatment

(1)An inspector may —

(a)direct the owner, consignor, consignee or person in control of an organism or potential carrier to take the organism or potential carrier, in accordance with the direction, to a place specified in the direction for it to be treated to control declared pests or unlisted organisms or to lessen the risk of the spread of declared pests or unlisted organisms; and

(b)at that place treat the organism or potential carrier accordingly.

(2)A direction may be given under subsection (1)(a), and an organism or potential carrier may be treated under subsection (1)(b), whether or not the organism or potential carrier is infected or infested with a declared pest or unlisted organism.

(3)The direction must —

(a)be in writing; and

(b)inform the person to whom the direction is given that failure to comply with the direction could result in a fine, the Director General taking remedial action under section 87, or both.

77.Power to direct person to treat, refrain from treating, destroy or dispose of thing

(1)An inspector may direct the owner, consignor, consignee or person in control of an organism, potential carrier, agricultural product, animal feed, fertiliser, chemical product or other substance or thing to treat, refrain from treating, destroy or otherwise dispose of it if there are reasonable grounds for believing that —

(a)an offence under this Act is being or has been committed in relation to the organism, potential carrier, agricultural product, animal feed, fertiliser, chemical product or other substance or thing; or

(b)it is infected or infested with a declared pest or unlisted organism or is contaminated.

(2)A direction may be given under this section in relation to an organism, potential carrier, agricultural product, animal feed, fertiliser, chemical product or other substance or thing whether or not it has been seized and detained under section 73(1).

(3)An inspector may direct a person to do any or all of the following —

(a)deliver each or any specified declared pest in the person’s possession to the inspector at a specified time and place;

(b)destroy each or any specified declared pest in the person’s possession within a specified period and by a specified means;

(c)produce evidence that a direction under paragraph (b) has been complied with.

(4)The direction must —

(a)be in writing; and

(b)inform the person to whom the direction is given that failure to comply with the direction could result in a fine, the Director General taking remedial action under section 87, or both.

78.SAT review: section 77 direction

(1)Subject to the regulations referred to in subsection (4), a person aggrieved by a direction under section 77 may apply to the State Administrative Tribunal for a review of the direction.

(2)The commencement of a proceeding under subsection (1) in respect of a direction to destroy any thing has the effect of staying the operation of the direction.

(3)The State Administrative Tribunal may act under the State Administrative Tribunal Act 2004 section 25(6) in relation to a direction that is stayed under subsection (2) as if the direction were stayed by an order of the Tribunal under section 25 of that Act, and section 25(7) of that Act applies accordingly.

(4)The regulations may prescribe circumstances relating to a matter of emergency or urgent need in which subsection (1) does not apply.

79.Treatment or destruction to prevent risk

(1)If —

(a)the Director General —

(i)has reasonable grounds for believing that an organism, a progenitor of that organism or a potential carrier was imported; and

(ii)is not satisfied that it was imported in accordance with this Act;

or

(b)the Director General —

(i)has reasonable grounds for believing that an organism, a progenitor of that organism or potential carrier was brought from one area of the State into another area of the State; and

(ii)is not satisfied that it was brought into that area in accordance with this Act,

the Director General may, by notice given to the owner, require the owner to treat or destroy the organism or potential carrier, and any progeny of the organism, in the manner and within the time specified in the notice.

(2)Subsection (1) does not apply to the progeny of an organism if the progeny was imported, or brought into the relevant area, in accordance with this Act.

(3)The notice must —

(a)be in writing; and

(b)inform the person to whom the notice is given that failure to comply with the notice could result in a fine, the Director General taking remedial action under section 87, or both.

(4)A person to whom a notice is given under this section must not contravene the notice, unless that person has a lawful excuse for the contravention.

Penalty: a fine of $20 000.

80.SAT review: treatment or destruction notice

(1)Subject to the regulations referred to in subsection (4), a person aggrieved by a requirement in a notice given by the Director General under section 79 may apply to the State Administrative Tribunal for a review of the requirement.

(2)The commencement of a proceeding under subsection (1) in respect of a requirement to destroy any thing has the effect of staying the operation of the requirement.

(3)The State Administrative Tribunal may act under the State Administrative Tribunal Act 2004 section 25(6) in relation to a direction that is stayed under subsection (2) as if the direction were stayed by an order of the Tribunal under that section, and section 25(7) of that Act applies accordingly.

(4)The regulations may prescribe circumstances relating to a matter of emergency or urgent need in which subsection (1) does not apply.

81.Provisions do not limit making of regulations

Nothing in section 73, 77 or 79 limits or restricts the making of regulations under Schedule 1.

82.Inspector may direct removal of organism or potential carrier

If an inspector has reasonable grounds for believing that —

(a)an organism or prescribed potential carrier has been imported in contravention of section 15; or

(b)an imported organism or an imported prescribed potential carrier is infected or infested with a declared pest or an unlisted organism,

the inspector may direct the importer of the organism or prescribed potential carrier to remove it from the State or from an area of the State.

83.SAT review: direction to remove from State

(1)Subject to the regulations referred to in subsection (3) a person aggrieved by a direction under section 82 may apply to the State Administrative Tribunal for a review of the direction.

(2)An organism or prescribed potential carrier the subject of a direction referred to in subsection (1) may be detained by the Director General until the direction is reviewed.

(3)The regulations may prescribe circumstances relating to a matter of emergency or urgent need in which subsection (1) does not apply.

84.Recall of organism or substance

(1)In this section —

recallable substance means an agricultural product, animal feed, fertiliser or other thing, or a batch of an agricultural product, animal feed, fertiliser or other thing, which is, or appears to the Director General to be, infected or infested with a declared pest or contaminated.

(2)The Director General may, by notice in writing given to a person (the notified person) who has, or has had, possession or control of a prohibited organism or a recallable substance, require that person to do any one or more of the things mentioned in subsection (4).

(3)The notice must —

(a)be in writing; and

(b)inform the person to whom it is given that failure to comply with the notice could result in a fine, the Director General taking remedial action under section 87, or both.

(4)The things that a notified person may be required to do under subsection (2) are as follows —

(a)not to supply, or to stop supplying, the prohibited organism or recallable substance, either immediately or within a specified period;

(b)to take any action stated in the notice that the notified person is reasonably capable of taking to recover stocks of the prohibited organism or recallable substance from any other person —

(i)to whom the prohibited organism or recallable substance has been supplied by the notified person; or

(ii)who has possession or control of any such prohibited organism or recallable substance directly or indirectly because of supply by the notified person;

(c)to take any action that is specified in the notice, or that the notified person thinks necessary, to prevent or reduce any harmful effects that may have resulted from the use of the prohibited organism or recallable substance;

(d)to destroy, as specified in the notice, stocks of the prohibited organism or recallable substance in the possession or control of, or recovered by, the notified person or to deal with them as specified in the notice;

(e)to report to the Director General within the specified period on the action taken by the notified person under the notice.

(5)A person to whom a notice is given under this section must comply with the notice, unless that person has a lawful excuse for failing to do so.

Penalty: a fine of $20 000.

85.Notice may be published

After giving a notice under section 84, the Director General may, but is not required to, publish a notice in the Gazette or in any other manner that the Director General thinks fit setting out a brief statement of the matters to which the notice under section 84 relates.

86.SAT review: recall notice

(1)Subject to the regulations referred to in subsection (4) a person aggrieved by a requirement in a notice given by the Director General under section 84 may apply to the State Administrative Tribunal for a review of the requirement.

(2)The commencement of a proceeding under subsection (1) in respect of a requirement to destroy any thing has the effect of staying the operation of the requirement.

(3)The State Administrative Tribunal may act under the State Administrative Tribunal Act 2004 section 25(6) in relation to a direction that is stayed under subsection (2) as if the direction were stayed by an order of the Tribunal under that section, and section 25(7) of that Act applies accordingly.

(4)The regulations may prescribe circumstances relating to a matter of emergency or urgent need in which subsection (1) does not apply.

87.Remedial action

If a person does not comply with a direction under section 76(1)(a) or 77, or a requirement of a notice under section 79 or 84, the Director General may —

(a)take remedial action in accordance with section 94; and

(b)recover the cost of taking remedial action from the person accordingly.

Division 5 — General

88.Time and place for compliance

An inspector may specify the date and time when, and place where, a direction must be complied with.

89.Direction may be given orally or in writing

(1)Unless otherwise specified, a direction may be given under this Part orally or in writing.

(2)A direction given orally must be confirmed in writing within 5 working days after it is given, unless within that period it is complied with or cancelled.

(3)Failure to comply with subsection (2) does not invalidate the direction.

90.Exercise of power may be recorded

An inspector may record the exercise of a power under this Part, including by making an audiovisual recording.

91.Use of force and assistance

(1)In this section —

security officer means a person who holds a security officer’s licence under the Security and Related Activities (Control) Act 1996.

(2)An inspector may use assistance and force that is reasonably necessary in the circumstances when carrying out a function under this Act.

(3)However, if the use of reasonable force is likely to cause significant damage to property, the inspector is not entitled to use force without the authority of the Director General in the particular case.

(4)An inspector may request a police officer, a security officer, or other person, to assist the inspector in carrying out functions under this Act.

(5)While a police officer, security officer or other person is assisting an inspector at the request of the inspector and in accordance with this Act, the police officer, security officer or other person has the same functions as an inspector, and the same liability and protection as an inspector in relation to carrying out the functions.

92.O ffences

A person commits an offence if the person —

(a)without lawful excuse, wilfully obstructs, hinders or resists an inspector who is carrying out a function under this Act; or

(b)without lawful excuse, wilfully obstructs, hinders or resists a person assisting an inspector who is carrying out a function under this Act; or

(c)without lawful excuse, does not comply with a direction under this Part; or

(d)without lawful excuse, does not comply with any other lawful requirement (however described) of an inspector under this Act; or

(e)wilfully makes a false statement to, or misleads, an inspector who is carrying out a function under this Act.

Penalty: a fine of $20 000.

93.Self‑incriminating information

(1)A person is not excused from giving any information to an inspector in response to a direction or requirement of the inspector on the ground that the information might tend to incriminate the person or render the person liable to a penalty.

(2)However, if the person gives the information after objecting on the ground referred to in subsection (1), neither the information given by the person, nor the fact that it was given by the person, is admissible in evidence in any civil or criminal proceedings against the person except in proceedings for perjury or for an offence under this Act arising out of the person’s giving false or misleading information.

(3)If an objection is made and the information is recorded, in writing or otherwise, the record must set out the fact of the objection having been made.

Division 6 — Remedial action by Director General

94.Taking remedial action

(1)For the purpose of taking remedial action under section 38 or 87 or under the regulations the Director General —

(a)may do anything that has not been done by the owner, occupier or other person required to comply with a notice, direction or other requirement; and

(b)may do anything incidental to doing something under paragraph (a).

(2)If the Director General is to take remedial action under section 38 or 87 or under the regulations, an inspector may exercise any of the powers specified in section 65(1)(b), (c), (d), (e) and (f) that are necessary or expedient for the purposes of taking the remedial action, as if the remedial action were an inspection purpose.

(3)The regulations may make provision as to any or all of the following —

(a)the procedure for taking remedial action;

(b)the determination of the costs of remedial action under section 38 or 87 or under the regulations;

(c)the payment of the costs of the remedial action;

(d)the recovery of the costs payable.

(4)Nothing in this section affects the liability of a person to be proceeded against for an offence under this Act or the recovery of a penalty in any such proceedings.

95.Charge on land to secure cost of remedial action

(1)The amount payable under section 94 in relation to taking remedial action in respect of anything that has not been done by the owner of land is a charge on the land —

(a)whether or not the amount is due for payment; and

(b)whether or not a memorial of the charge has been registered under section 101(4).

(2)If the charge amount is not paid by the due date, the Director General may lodge a memorial of the charge with the Registrar of Titles.

(3)The liability of the owner to pay the charge amount continues until it is paid, despite any disposition of the land.

(4)If part of the work was carried out on land comprising a number of separate lots or parcels —

(a)the charge attaches to each separate lot or parcel; and

(b)the charge amount on a lot or parcel is the amount that is the same proportion of the total charge amount as the unimproved value of the lot or parcel is of the total unimproved value of the land.

(5)This section does not apply in relation to land owned by, or vested in, a public authority or the State.

96.Priority of charge

(1)When a memorial of a charge on land is registered under section 101(4), the charge is the first charge on the land and has priority over all other mortgages, charges and encumbrances over the land.

(2)However, if there is another statutory charge on the same land that ranks as a first charge under another Act, the relative priority of the charges must be determined according to the order of registration.

97.Dealing with certain charged land

A memorial lodged under section 95(2) is to provide that, after it is registered, the Registrar of Titles is not to register any dealing with the land, without the consent of the Director General, unless the Director General has lodged a withdrawal of the memorial and the withdrawal has been registered.

98.Recovery of unpaid charge amount

(1)If an amount charged on land that is under the operation of the Transfer of Land Act 1893 remains unpaid after the due date, the Director General has and may exercise in respect of the land the functions conferred by that Act on a mortgagee under a mortgage in respect of which a default has been made in payment.

(2)If an amount charged on land that is alienated from the Crown but is not under the operation of the Transfer of Land Act 1893 remains unpaid after the due date, the Director General has and may exercise in respect of the land the functions referred to in subsection (1) with such modifications as are necessary because the land is not under the operation of that Act.

(3)If an amount charged on land that is the subject of a lease or licence under the Land Administration Act 1997 remains unpaid after the due date, the Director General has and may exercise in respect of the land the functions conferred by that Act upon a mortgagee under a mortgage in respect of which a default has been made in payment.

(4)The Director General must not exercise a power of sale in relation to land referred to in this section unless the Director General is satisfied that other reasonable means of recovering the amount charged on the land have been exhausted.

(5)The existence of a charge or registration of a memorial of a charge on land does not affect the Director General’s discretion to proceed for recovery of the unpaid amount in proceedings unrelated to the charge.

99.Certificate of charge amount

(1)The Director General must, on application by the owner of land or a purchaser of land, issue a certificate —

(a)stating whether there is a charge on the land under this Division; and

(b)if there is — stating the charge amount, or, if the charge amount is yet to be determined, estimating the amount.

(2)If a certificate has been issued the Director General cannot —

(a)assert the existence of a charge not disclosed in the certificate; or

(b)assert that a charge covered (at the date of the certificate) an amount exceeding the amount disclosed in the certificate.

(3)However, giving an estimate of the charge amount in the certificate does not prevent the Director General from determining a different charge amount if further relevant information becomes available.

(4)The fee (if any) prescribed is payable for the issue of the certificate.

100. Withdrawal of memorial

If a memorial of a charge on land is registered in the Land Titles Register, then, on payment of the charge amount, the Director General must lodge a withdrawal of memorial with the Registrar of Titles.

Division 7 — Registration of memorials and notices affecting land

101.Approved form of memorials and notices

(1)In this Division —

land document means —

(a)a notification or removal of notification lodged with the Registrar of Titles under Part 3 Division 1; or

(b)a memorial or withdrawal of memorial lodged with the Registrar of Titles under Part 4 Division 6;

register, in relation to a land document, means —

(a)endorse the particulars of the document on the certificate of title for the land to which the document relates; and

(b)register or enter the particulars of the document in the Land Titles Register.

(2)A land document must be in a form approved by the Registrar.

(3)The Registrar of Titles may —

(a)approve the form of land documents; and

(b)require the Director General to give to the Registrar the information specified in the land document and any further information required by the Registrar for the purpose of registering the land document.

(4)The Registrar of Titles may, on the lodging of a land document and payment of any relevant fee, register the document.

102.Exemption from stamp duty

A land document registered under section 101 is exempt from stamp duty.

103.Notice to mortgagees

When a memorial is registered under section 101, the Director General must notify all mortgagees who hold registered mortgages over the land to that effect (but failure to do so does not invalidate the registration of the memorial).

Part 5 — Legal proceedings

Division 1 — Legal proceedings

104. Prosecutions, who may commence

A prosecution for an offence under this Act may only be commenced by the Director General or a person authorised to do so by the Director General.

105.Time for bringing prosecution

(1)A prosecution for an offence under this Act must be commenced within 5 years after the date on which the offence is alleged to have been committed.

(2)Despite subsection (1), if a prosecution notice alleging an offence under this Act specifies the day on which evidence of the alleged offence first came to the attention of a person authorised to institute the prosecution under section 104 —

(a)the prosecution may be commenced within 5 years after that day; and

(b)the prosecution notice need not contain particulars of the day on which the offence is alleged to have been committed.

(3)The day on which evidence first came to the attention of a person authorised to institute a prosecution under section 104 is, in the absence of evidence to the contrary, the day specified in the prosecution notice.

106.Court’s power to make ancillary orders on conviction

If a court convicts a person of an offence under this Act, the court may, if the court thinks it appropriate in the circumstances of the case, do any or all of the following —

(a)order the offender to notify persons specified in the order, or persons in a class of persons specified in the order, of the commission of the offence and the conviction of the offender;

(b)if the offender is a person or public authority required under a written law to make an annual report — order the offender to include in the report notice of the commission of the offence and the conviction of the offender;

(c)order the offender to take measures specified in the order, within the time specified in the order —

(i)to prevent, control, abate or mitigate damage caused by the commission of the offence;

(ii)to prevent any continuation or repetition of the offence;

(d)order the offender to pay the Director General, a public authority or another person the costs reasonably incurred by the Director General, authority or person in repairing any damage caused as a result of the commission of the offence;

(e)make any other order the court thinks appropriate in the circumstances.

107.Order as to costs of analysis

In any proceedings under this Act, if evidence is given of an analysis made for the purposes of this Act, the court may, in addition to any penalty or other order as to costs, and without regard to the outcome of the proceedings generally, make an order as to the costs of and incidental to the obtaining of the analysis and the giving of evidence as to the analysis.

108.Penalties for continuing offences

For the purposes of the Interpretation Act 1984 section 71, in relation to an offence committed under this Act, the penalty for each separate and further offence committed by a person is —

(a)for an individual, a fine of $1 000; and

(b)for a body corporate, a fine of $5 000.

109.Injunctions to ensure compliance with this Act

(1)The Director General may apply to the Supreme Court or the District Court for an injunction restraining a person —

(a)from doing something that would, or would be likely to, constitute an offence under this Act; or

(b)from aiding, abetting, counselling or procuring the commission of an offence under this Act; or

(c)from conspiring with others to contravene or bring about the commission of an offence under this Act; or

(d)from attempting to do anything referred to in paragraph (a), (b) or (c).

(2)The Director General may apply to the Supreme Court or the District Court to enjoin a person to do something where the person’s omission to do it constitutes or would constitute an offence under this Act.

(3)The court may grant an injunction whether or not the person has previously committed the offence, or would, if the injunction is not granted, be likely to commit or to continue to commit the offence.

(4)An interim injunction may be granted before final determination of an application under subsection (1).

(5)The court is not to require, as a condition of granting an interim injunction, that an undertaking be given as to damages or costs.

(6)The taking of proceedings against a person for an offence under this Act is not affected by —

(a)the making of an application for an injunction in relation to the commission of the offence; or

(b)the grant of or refusal to grant an injunction; or

(c)the rescission, variation or expiry of an injunction.

Division 2 — Responsibility of certain persons

110.Liability of body corporate’s officers

(1)In this section —

officer, in relation to a body corporate, has the same meaning as in the Corporations Act 2001 of the Commonwealth but does not include an employee of the body corporate unless the employee was concerned in the management of the body corporate.

(2)If a body corporate is charged with an offence under this Act, each person who was an officer of the body corporate at the time of the alleged offence may also be charged with the offence.

(3)If a body corporate and an officer are charged as permitted by subsection (2) and the body corporate is convicted of the offence, the officer is to be taken to have also committed the offence, subject to subsection (6).

(4)If a body corporate commits an offence under this Act, then, although the body corporate is not charged with the offence, every person who was an officer of the body corporate at the time the offence was committed may be charged with the offence.

(5)If an officer is charged as permitted by subsection (4) and it is proved that the body corporate committed the offence, the officer is to be taken to have also committed the offence, subject to subsection (6).

(6)If under this section an officer is charged with an offence it is a defence to prove that —

(a)the offence was committed without the officer’s consent or connivance; and

(b)the officer took all the measures to prevent the commission of the offence that the officer could reasonably be expected to have taken having regard to the officer’s functions and to all the circumstances.

111. Liability of principal for acts of agent

(1)If a person (the agent) acting, otherwise than as an employee, for or on behalf of another person (the principal) is charged with an offence under this Act, the principal may also be charged with the offence.

(2)If an agent and a principal are charged as permitted by subsection (1) and the agent is convicted of the offence, the principal is to be taken to have also committed the offence, subject to subsection (5).

(3)If a person (the agent) acting, otherwise than as an employee, for or on behalf of another person (the principal) commits an offence under this Act, then, although the agent is not charged with the offence, the principal may be charged with the offence.

(4)If a principal is charged as permitted by subsection (3) and it is proved that the agent committed the offence, the principal is to be taken to have committed the offence, subject to subsection (5).

(5)If under this section a principal is charged with an offence it is a defence to prove that —

(a)the offence was committed without the principal’s consent or connivance; and

(b)the principal took all the measures to prevent the commission of the offence that the principal could reasonably be expected to have taken having regard to all the circumstances.

112.Liability of employer for offence of employee

(1)If an employee of another person (the employer) is charged as an employee with an offence under this Act, the employer may also be charged with the offence whether or not the employee acted without the employer’s authority or contrary to the employer’s orders or instructions.

(2)If an employee and an employer are charged as permitted by subsection (1) and the employee is convicted of the offence, the employer is to be taken to have also committed the offence, subject to subsection (5).

(3)If an employee of another person (the employer) commits an offence under this Act as an employee, then, although the employee is not charged with the offence, the employer may be charged with the offence whether or not the employee acted without the employer’s authority or contrary to the employer’s orders or instructions.

(4)If an employer is charged as permitted by subsection (3) and it is proved that the employee committed the offence, the employer is to be taken to have committed the offence, subject to subsection (5).

(5)If under this section an employer is charged with an offence it is a defence to prove that —

(a)the offence was committed without the employer’s consent or connivance; and

(b)the employer took all the measures to prevent the commission of the offence that the employer could reasonably be expected to have taken having regard to all the circumstances.

Division 3 — Evidentiary provisions

113.Meaning of “specified”

In this Division —

specified, in relation to a claim, prosecution notice or other document, means specified in the claim, prosecution notice or document.

114.Proof of exemptions

In any proceedings under this Act the onus of proving that —

(a)at the time of the alleged offence a person was exempted from a provision of this Act; or

(b)anything was done or omitted to be done with lawful excuse or authority or reasonable excuse; or

(c)a person, organism or thing was not in the State,

lies upon the person making that assertion.

115.Evidence of place of offence

In any proceedings under this Act an allegation in the prosecution notice —

(a)that an area or place is, or was during a specified period, within an area described in a declaration, notice or advertisement published under this Act; or

(b)that a person, conveyance or other thing referred to in the prosecution notice was in a specified area or place; or

(c)that an act occurred in a specified area or place,

is, in the absence of evidence to the contrary, proof that the area or place was within that described area or that the person, conveyance or thing was in, or that the act occurred in, that specified area or place, as the case requires.

116.Evidence of seller or packer of container

In any proceedings for an offence under this Act an allegation in the prosecution notice that a person whose name is marked on the outside or inside of any container, or on the label of a container, as the seller or packer of the container, is the seller or packer of the container is, in the absence of evidence to the contrary, taken to be proved.

117.Evidence of purpose or intent

(1)In any proceedings for an offence under this Act an allegation in the prosecution notice —

(a)that an act occurred for a specified purpose; or

(b)that anything was done with a specified intent or knowledge,

is, on proof of the act occurring or the thing being done and in the absence of evidence to the contrary, taken to be proved.

(2)In any proceedings for an offence under this Act an allegation in the prosecution notice of the following matters is, in the absence of evidence to the contrary, taken to be proved —

(a)that a specified thing is or was intended or prepared for supply or has been supplied;

(b)that the supply or intended supply of a specified thing was to a specified market.

118.Evidence of authorisation and enforcement matters

(1)In proceedings for an offence under this Act, an allegation in the prosecution notice of any of the following matters is, in the absence of evidence to the contrary, taken to be proved —

(a)that the prosecutor is authorised to commence the prosecution;

(b)that at a specified time a specified person was an inspector or a person assisting an inspector under section 91;

(c)that at a specified time a specified person was or was not authorised to do a specified thing under an authorisation;

(d)that at a specified time a specified person was or was not the holder of an authorisation;

(e)that at a specified time a place, conveyance or other thing was or was not the subject of an authorisation or exemption under this Act;

(f)that at a specified time a specified person was or was not the subject of an authorisation or exemption under this Act;

(g)that at a specified time an authorisation or exemption was cancelled, suspended or for any other reason of no effect;

(h)that at a specified time an authorisation or exemption was subject to any specified condition;

(i)that at a specified time a person held a specified office;

(j)that at a specified time a specified amount of costs, charges or expenses was lawfully incurred for the purposes of this Act;

(k)that at a specified time a prescribed fee had not been paid;

(l)that at a specified time a specified thing was seized under this Act;

(m)that at a specified time a person was or was not a veterinary surgeon or a person registered under the Health Practitioner Regulation National Law (Western Australia) in the pharmacy profession.

(2)In proceedings for an offence under this Act a notice, authorisation or exemption, issued under this Act, including the conditions applying to any such thing, may be proved by tendering a copy of it certified by the Director General to be a true copy of the original.

[Section 118 amended by No. 35 of 2010 s. 32.]

119.Evidence of scientific matters

(1)In this section —

approved analyst means an analyst, or an analyst in a class of analyst, approved by the Director General to carry out analysis for the purposes of this Act or specified provisions of this Act.

(2)In any proceedings for an offence under this Act, a report by an approved analyst is, in the absence of evidence to the contrary, proof of —

(a)the identity of the thing analysed; and

(b)the result of the analysis; and

(c)the matters stated in the report; and

(d)the fact that the prescribed method, if any, for carrying out the analysis has been followed by the analyst in making the analysis.

(3)In any proceedings for an offence under this Act, a report by an approved analyst that contains a statement that the sample was taken under this Act is, in the absence of evidence to the contrary, proof of the fact that —

(a)the sample was taken in the manner prescribed, if any; and

(b)the sample was taken from the material identified in the report as the material sampled.

(4)Where in any proceedings brought under this Act or otherwise proof is given of the contents of any sample analysed under this Act and that the sample was taken in accordance with the regulations, the sample is to be taken to be representative of the material sampled.

120.Eviden ce of type or class of organism or thing

In proceedings for an offence under this Act, an allegation in the prosecution notice of any of the following matters is, in the absence of evidence to the contrary, taken to be proved —

(a)that an organism is of a particular kind;

(b)that a thing is a potential carrier;

(c)that at a specified time a specified organism was a permitted organism;

(d)that at a specified time a specified organism was a prohibited organism;

(e)that at a specified time a specified organism was an unlisted organism;

(f)that at a specified time a specified organism was a declared pest for a specified area;

(g)that at a specified time a specified organism was a declared pest of a specified category;

(h)that a substance is or is not a chemical product of a particular kind;

(i)that a substance is or is not an animal feed of a particular kind or intended as an ingredient of an animal feed;

(j)that a substance is or is not a fertiliser;

(k)that a specified maximum residue limit was the relevant maximum residue limit.

121.Documentary and signed evidence

(1)In proceedings for an offence under this Act, production of a copy of —

(a)a code or other document that has been adopted by the regulations; or

(b)a code of practice; or

(c)a declaration made under section 11, 12 or 22(2),

certified by the Director General as a true copy as at any date or during any period is proof of the contents of the code, document or declaration as at that date or during that period.

(2)In the absence of evidence to the contrary, it is to be presumed that a document purporting to have been signed by the Minister, the Director General, an inspector or an approved analyst (as defined in section 119(1)) was signed by a person who at the time was the Minister, the Director General, an inspector or an approved analyst, as the case may be.

(3)In the absence of evidence to the contrary, it is to be presumed that a document purporting to have been signed by a delegate of the Minister or the Director General was signed by a person who at the time was such a delegate and was authorised to sign it.

122.Evidence of documents and service

(1)In proceedings under this Act in which a document issued to a party has to be proved —

(a)the party is to be taken to have received notice to produce the document; and

(b)the document may be proved by the production of a copy of the original document, certified by a person authorised to issue the original as a true copy of the original; and

(c)due service of the document may be proved by the certification of the person authorised to issue the original document that the original was given on the date specified in the certificate.

(2)The validity of any document or of its due service is not affected by any error, misdescription or irregularity which does not mislead or which is not likely to mislead.

123.Evidence of ownership or occupancy

(1)In proceedings under this Act, in addition to other methods of proof available —

(a)evidence that the person proceeded against is rated under the Local Government Act 1995 as the owner of land; or

(b)evidence by the certificate of —

(i)the Registrar of Deeds and Transfers, or an Assistant Registrar of Deeds and Transfers, that a person appears from a memorial of registration of a deed, conveyance or other instrument, to be the owner of land; or

(ii)the chief executive officer of the department of the Public Service principally assisting in the administration of the Mining Act 1978, that a person is registered in that department as the owner or occupier of land; or

(iii)the chief executive officer of the department of the Public Service principally assisting in the administration of the Conservation and Land Management Act 1984, that a person is the holder of a permit, licence or lease granted under Part VIII of that Act, or regulations made under that Act, in respect of land,

is, in the absence of evidence to the contrary, proof that such person is the owner or occupier, as the case may be, of the land.

(2)All courts and all persons having by law, or by consent of parties, authority to hear, receive and examine evidence, must, for the purposes of this Act, take judicial notice of the signature attached to a certificate referred to in subsection (1)(b).

(3)An averment in a claim, prosecution notice or other document in proceedings under this Act that a person is or was at a specified time, the owner or occupier of specified land is, in the absence of evidence to the contrary, taken to be proved.

124.Provisions are in addition to the Evidence Act 1906

This Division is in addition to and does not affect the operation of the Evidence Act 1906.

Division 4 — Modified penalties for certain offences

125.Meaning of terms used in this Division

In this Division —

alleged offender means a person suspected of having committed a prescribed offence;

prescribed offence means an offence under this Act, or under any regulations or management plan made under this Act, prescribed to be an offence for which an infringement notice may be issued.

126.Infringement notices

(1)An inspector who has reason to believe that a person has committed a prescribed offence may, within 21 days after the alleged offence is believed to have been committed, give an infringement notice to the alleged offender.

(2)An infringement notice must —

(a)be in the prescribed form; and

(b)contain a description of the alleged offence; and

(c)advise that if the alleged offender does not wish to be prosecuted for the alleged offence, the amount of money specified in the notice as the modified penalty for the offence may be paid to the Director General within 28 days after the date of the notice; and

(d)inform the alleged offender how and where the money may be paid.

(3)In an infringement notice the amount specified as the modified penalty for the alleged offence must be the amount that was the prescribed modified penalty for that offence at the time that the alleged offence is believed to have been committed.

(4)The Director General may, in a particular case, extend the period of 28 days within which the modified penalty may be paid and the extension may be allowed whether or not the period of 28 days has elapsed.

127.Withdrawal of infringement notice

(1)The Director General may withdraw an infringement notice.

(2)To withdraw an infringement notice the Director General must give the alleged offender a notice in the prescribed form stating that the infringement notice has been withdrawn.

(3)An infringement notice may be withdrawn whether or not the modified penalty specified in the notice has been paid.

(4)If an infringement notice is withdrawn after the modified penalty has been paid, the amount paid must be refunded.

128.Effect of payment of modified penalty

(1)If the modified penalty specified in an infringement notice is paid within 28 days or any further time allowed, and the notice has not been withdrawn, the bringing of proceedings and the imposition of penalties are prevented to the same extent as they would be if the alleged offender had been convicted by a court of, and punished for, the alleged offence.

(2)The payment of an amount as a modified penalty is not to be regarded as an admission for the purposes of any proceedings, whether civil or criminal.

Part 6 — Financial provisions

Division 1 — Declared Pest Account

Subdivision 1 — General

129.Meaning of terms used in this Division

In this Division —

Commissioner has the meaning given to that term by the Taxation Administration Act 2003;

operating account means an agency special purpose account established and maintained under the Financial Management Act 2006 section 16;

owner has the meaning given to that term in the Land Tax Assessment Act 2002, and includes a person taken to be an owner of land under section 8 of that Act;

rate means a rate determined in relation to land under section 130(1);

rate determination means a determination under section 130(1);

rates amount means an amount payable by way of rates under this Division.

[Subdivisions 2 and 3 (s. 130-139) have not come into operation 2.]

Division 2 — Industry funding schemes

140.Terms used in this Division

In this Division —

management committee means a management committee established by regulations made under section 141(1)(b);

prescribed account means an account established by regulations made under section 141(1)(a).

141.Establishment of accounts, management committees and schemes

(1)The Governor may make regulations establishing —

(a)an account for a prescribed sector of agricultural activity; and

(b)a management committee for the account consisting of either or both of the following —

(i)producers from that sector of agricultural activity;

(ii)persons who have a financial interest in that sector of agricultural activity;

and

(c)a scheme requiring or facilitating the payment of contributions to the account.

(2)The regulations may relate to an agricultural activity in the whole of the State or in part of the State.

(3)Before the regulations are made, the Minister must consult with —

(a)each organisation (if any) that is prescribed for the purposes of this section; and

(b)any other association, union or body that in the opinion of the Minister is representative of the interests of producers from the sector of agricultural activity for which the account is to be established; and

(c)such producers from the sector of agricultural activity for which the account is to be established as the Minister thinks fit.

142.Constitution and administration of prescribed accounts

(1)A prescribed account consists of —

(a)contributions paid or collected in accordance with the regulations for the purposes of the prescribed account; and

(b)the proceeds of the sale of any capital assets purchased using money from the prescribed account; and

(c)income of the prescribed account from investment; and

(d)any other money lawfully paid into the prescribed account.

(2)A prescribed account must be —

(a)identified as an account for the purpose for which it is established; and

(b)established —

(i)as an operating account; or

(ii)as part of an operating account nominated by the Director General.

143.Management committee

(1)A management committee must —

(a)advise the Director General on the administration of the prescribed account; and

(b)exercise such other functions (if any) as are conferred on the management committee under the regulations.

(2)The regulations establishing a management committee may make provision as to the constitution and procedures of the management committee.

(3)Except as provided under this Act, a management committee may determine its own procedures.

144.Contributions to account — prescribed scheme

(1)A scheme established by regulations made under section 141(1)(c) may provide for —

(a)producers from the sector of agricultural activity for which the account was established to make contributions to the account in the manner and on the basis prescribed; and

(b)the manner of collection of contributions to the account.

(2)The scheme may provide for the circumstances in which contributions to the account will be refunded.

(3)The scheme may allow for the costs of collecting contributions to be deducted from or paid out of those contributions.

(4)If the regulations provide for the expiry of the regulations on a fixed day, the regulations may make provisions of a savings or transitional nature that are to apply on the expiry of regulations.

145.Application of prescribed account

(1)A prescribed account may be applied for —

(a)any of the following purposes, if that purpose is set out in the regulations establishing the account —

(i)the payment of compensation to any person who has suffered loss, or incurred costs or expenses, of a prescribed kind as a result of an animal, agricultural product or other thing being infected or infested with a declared pest specified by the regulations establishing the account or as a result of actions or measures taken under this Act to control that declared pest;

(ii)the costs and expenses of destroying animals, agricultural products or things under this Act because they are infected or infested with a declared pest prescribed by the regulations establishing the account or as a result of other actions or measures taken under this Act to control that declared pest;

(iii)the costs of programs and other measures approved by the management committee for the control of, or for the advancement and improvement of control measures for, a declared pest prescribed by the regulations establishing the account;

(iv)the purchase of capital assets required in connection with the purposes mentioned in this paragraph;

and

(b)the refund of contributions in prescribed circumstances; and

(c)the payment of any amount required to be paid under section 146(3) and interest on that amount; and

(d)the repayment of an amount charged to the Consolidated Account and used for a purpose prescribed by the regulations establishing the account; and

(e)the costs and expenses of administering the account.

(2)Compensation and costs and expenses must not be paid under subsection (1)(a)(i) or (ii) except to a person who has paid contributions under the scheme in accordance with the regulations.

(3)The amounts of compensation and costs and expenses referred to in subsection (1)(a)(i) and (ii) must be determined in accordance with the regulations.

(4)The amount of costs and expenses payable under subsection (1)(a)(iii) and (e) must be approved by the management committee.

(5)The amount referred to in subsection (1)(d) may be applied as set out in that paragraph even though the amount was charged to the Consolidated Account before the regulations establishing the account were made.

(6)The regulations may exclude a person from receiving compensation and costs and expenses from the prescribed account in any of the following circumstances —

(a)if the person is, according to the regulations, in default;

(b)if the person has been convicted of an offence of failing to comply with a requirement under a written law to report the presence or suspected presence of a prescribed declared pest or to control a prescribed declared pest;

(c)if a like benefit is payable under another prescribed written law;

(d)in other prescribed circumstances.

146.Treasurer may make advances to a prescribed account in event of a deficiency

(1)Where the Treasurer is of the opinion that the money standing to the credit of a prescribed account is not sufficient to meet payments required in accordance with a scheme set out in the regulations, the Treasurer may advance to the prescribed account money sufficient for the time being to make up the deficiency.

(2)The Treasurer may impose conditions on a payment under subsection (1), including conditions on the payment of interest, as the Treasurer considers appropriate.

(3)Money paid under subsection (1) must be repaid to the Treasurer and charged to the relevant prescribed account by the Director General when money is available to the account to make repayment.

(4)Money paid under subsection (1), so long as it is not repaid under subsection (3), is a charge on the relevant prescribed account.

147.Review of regulations

(1)The Minister must carry out a review of the operation and effectiveness of any regulations made for the purposes of establishing a prescribed account as soon as is practicable after —

(a)the fifth anniversary of the day on which the regulations commence, or such earlier day as is prescribed in the regulations; and

(b)every fifth anniversary of that day, or such earlier day as is prescribed in the regulations.

(2)The Minister must prepare a report based on the review and must cause it to be laid before each House of Parliament as soon as is practicable after the report is prepared, and in any event not later than 12 months after the requirement for the review arose.

Division 3 — Modified Penalties Revenue Account

148.Modified Penalties Revenue Account

(1)An account called the Modified Penalties Revenue Account must be established —

(a)as an operating account; or

(b)as part of an operating account of the department nominated by the Director General.

(2)The following must be credited to the Modified Penalties Revenue Account —

(a)money received by the Director General as payment of modified penalties;

(b)any other money received by the Director General in connection with infringement notices given under section 126;

(c)any other money lawfully payable to the account.

149.Use of funds in Modified Penalties Revenue Account

(1)Money may be debited to the Modified Penalties Revenue Account for any or all of the following purposes —

(a)the enforcement of this Act, including the operation of the infringement notice system under Part 5 Division 4;

(b)the training of inspectors;

(c)the cost of measures to control declared pests;

(d)the cost of programs to promote public awareness of the requirements of this Act;

(e)purposes approved by the Minister.

(2)The amount that is to be debited to the Modified Penalties Revenue Account for the purposes referred to in subsection (1)(a), (b), (c) and (d) must be determined annually by the Director General and no other amount may be debited to the account for those purposes.

(3)No amount may be debited to the Modified Penalties Revenue Account for a purpose referred to in subsection (1)(e) except as determined by the Minister.

Part 7 — Administration

Division 1 — The Western Australian Agriculture Authority

150.Western Australian Agriculture Authority

(1)The Western Australian Agriculture Authority is established.

(2)The Authority is a body corporate with perpetual succession.

(3)Proceedings may be taken by or against the Authority in its corporate name.

(4)The Authority is to be governed by the Minister.

(5)The Authority is an agent of the State and has the status, immunities and privileges of the State.

151.Purpose of Western Australian Agriculture Authority

The Authority is established —

(a)to further and promote the best interests of biosecurity and agriculture management; and

(b)to perform such other functions as are conferred on it under this or any other Act.

152.Powers of Authority

(1)In this section —

acquire includes taking —

(a)by way of a lease, licence, easement or bailment; or

(b)in any other manner in which an interest in property may be acquired;

business concern means a company, a partnership, a trust, a joint venture, or any other business arrangement but does not include a research body;

dispose of includes dispose of —

(a)by way of a lease, licence, easement or bailment; or

(b)in any other manner in which an interest in property may be disposed of;

participate in includes form, promote, establish, enter into, manage, dissolve, wind‑up, and do things incidental to participating in, a business concern;

property means property of every kind, whether real or personal, tangible or intangible, corporeal or incorporeal, and any interest in property;

research body means a body, whether incorporated or not, which —

(a)has its principal office within the Commonwealth; and

(b)has among its principal objects the carrying out of research, investigation, inquiries or studies into biosecurity, agricultural activities or management or related matters within the Commonwealth.

(2)The Authority has all the powers it needs to perform its functions.

(3)The Authority may —

(a)acquire, develop, dispose of, and otherwise deal with, property; and

(b)subject to section 153, participate in any business concern or research body and acquire, hold and dispose of shares, units or other interests in, or relating to, a business concern or research body; and

(c)enter into a contract or arrangement; and

(d)develop and turn to account any technology, software, resource or intellectual property and, for that purpose, apply for, hold, receive, exploit and dispose of any intellectual property; and

(e)use the expertise and resources of the department to provide consultancy, advisory or other services for profit.

(4)In exercising any power under this section the Authority may act in conjunction with —

(a)any person or firm, or public authority; or

(b)any department of the Public Service, or any agency, of the Commonwealth.

153.Treasurer to consider proposals under section 152(3)(b)

(1)Before the Authority exercises any power conferred by section 152(3)(b) in relation to a business concern, the Authority must —

(a)notify the Treasurer of the proposal; and

(b)seek the Treasurer’s approval to it,

unless it is of a kind that the Treasurer has determined in writing need not be so notified.

(2)If the Treasurer approves the proposal, the Treasurer may impose requirements to be complied with by the Authority in connection with it.

(3)The Treasurer may also give directions to be complied with generally by the Authority in the exercise of the powers referred to in subsection (1).

154.Intellectual property

(1)Any intellectual property, or right to apply for, hold, receive, exploit or dispose of intellectual property, that the State acquires on or after the day on which this section comes into operation is, by operation of this section, assigned to the Authority.

(2)In subsection (1) —

intellectual property means intellectual property —

(a)created in the course of the performance of functions under this Act; or

(b)otherwise created in the course of the performance of functions by a person in that person’s capacity as a person employed or engaged in the department.

155.Execution of documents by Authority

(1)The Authority is to have a common seal.

(2)A document is duly executed by the Authority if —

(a)the common seal of the Authority is affixed to it in accordance with subsections (3) and (4); or

(b)it is signed on behalf of the Authority by the Minister; or

(c)it is signed on behalf of the Authority, as authorised under subsection (5), by the Director General or another person.

(3)The common seal of the Authority is not to be affixed to a document except as authorised by the Authority.

(4)The common seal of the Authority is to be affixed to a document in the presence of the Minister, and the Minister is to sign the document to attest that the common seal was so affixed.

(5)The Authority may, by writing under its seal, authorise the Director General or another person to sign documents on behalf of the Authority, either generally or subject to any conditions or restrictions specified in the authorisation.

(6)A document purporting to be executed in accordance with this section is to be presumed to be duly executed until the contrary is shown.

(7)A document executed by the Director General or another person under this section without the common seal of the Authority is not to be regarded as a deed unless it is executed as a deed as authorised under subsection (5).

(8)When a document is produced bearing a seal purporting to be the common seal of the Authority, it is to be presumed that the seal is the common seal of the Authority until the contrary is shown.

(9)For the purposes of this Act, a facsimile of —

(a)the Authority’s seal; or

(b)the signature of the Minister or a person authorised under subsection (5) to execute deeds or other documents,

may be used, and a deed or other document purporting to be endorsed with such a facsimile is, until the contrary is shown, to be regarded as bearing the facsimile under this subsection.

156.Accountability under this Division

Any acts or things done under section 152 or 154 are to be regarded as —

(a)services under the control of the department for the purposes of the Financial Management Act 2006 section 52; and

(b)operations of the department for the purposes of Part 5 of that Act.