Commonwealth Consolidated Acts Commonwealth Consolidated Acts
Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994
1 Subsection 3(1)
Insert:
"civil penalty order" has the same meaning as in the Agricultural and Veterinary Chemicals (Administration) Act 1992 .
2 Subsection 3(1)
Insert:
"civil penalty provision" means a provision declared by this Act to be a civil penalty provision.
3 Subsection 3(1) (definition of occupier )
Repeal the definition.
4 Subsection 3(1) (definition of premises )
Repeal the definition.
5 Subsection 15(2) (penalty)
Repeal the penalty.
6 After subsection 15(2)
Insert:
(2AA) A person commits an offence of strict liability if the person contravenes subsection ( 2).
Penalty: 50 penalty units.
Note: For strict liability, see section 6.1 of the Criminal Code .
7 Subsection 15(2A)
Omit " Subsection ( 2)", substitute " Subsection ( 2AA)".
8 Subsection 15(2B)
Repeal the subsection, substitute:
(2B) Subsection ( 2) is a civil penalty provision.
Note 1: For monitoring and investigation powers of inspectors in relation to this Act, see Part 7AA of the Agricultural and Veterinary Chemicals (Administration) Act 1992 .
Note 2: Division 1 of Part 7AB of the Agricultural and Veterinary Chemicals (Administration) Act 1992 provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 3: For infringement notices, enforceable undertakings and formal warnings in relation to contraventions of this provision, see Divisions 2, 3 and 6 of Part 7AB of the Agricultural and Veterinary Chemicals (Administration) Act 1992 .
9 Subsection 20(3) (penalty)
Repeal the penalty.
10 After subsection 20(3)
Insert:
(3A) A person commits an offence of strict liability if the person contravenes subsection ( 3).
Penalty: 50 penalty units.
Note: For strict liability, see section 6.1 of the Criminal Code .
11 Subsection 20(4)
Omit " Subsection ( 3)", substitute " Subsection ( 3A)".
12 Subsection 20(5)
Repeal the subsection, substitute:
( 5 ) Subsection ( 3) is a civil penalty provision.
Note 1: For monitoring and investigation powers of inspectors in relation to this Act, see Part 7AA of the Agricultural and Veterinary Chemicals (Administration) Act 1992 .
Note 2: Division 1 of Part 7AB of the Agricultural and Veterinary Chemicals (Administration) Act 1992 provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 3: For infringement notices, enforceable undertakings and formal warnings in relation to contraventions of this provision , see Divisions 2, 3 and 6 of Part 7AB of the Agricultural and Veterinary Chemicals (Administration) Act 1992 .
13 Sections 21 to 32
Repeal the sections.
14 Section 34
Repeal the section, substitute:
(1) A person is not excused from:
(a) giving information; or
(b) producing a document or thing; or
(c) answering a question asked by an inspector;
under this Act on the ground that doing so might tend to incriminate the person or expose the person to a penalty.
(2) However, in the case of an individual, none of the following:
(a) the information or answer given;
(b) the document or thing produced;
(c) the giving of the information or the answer, or the producing of the document or thing;
(d) any information, document or thing obtained as a direct or indirect consequence of giving the information or answer, or producing the document or thing;
is admissible in evidence against the individual in:
(e) criminal proceedings, other than:
(i) proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (which deal with false or misleading information or documents) that relates to this Act; or
(ii) proceedings for an offence against section 149.1 of the Criminal Code (which deals with obstruction of Commonwealth public officials) that relates to this Act; or
(f) civil proceedings for a contravention of a civil penalty provision.
15 Section 35
Repeal the section.
16 Subsection 36(1) (penalty)
Repeal the penalty.
17 Subsection 36(2)
Repeal the subsection, substitute:
(2) A person commits an offence of strict liability if the person contravenes subsection ( 1).
Penalty: 50 penalty units.
Note: For strict liability, see section 6.1 of the Criminal Code .
(3) Subsection ( 1) is a civil penalty provision.
Note 1: For monitoring and investigation powers of inspectors in relation to this Act, see Part 7AA of the Agricultural and Veterinary Chemicals (Administration) Act 1992 .
Note 2: Division 1 of Part 7AB of the Agricultural and Veterinary Chemicals (Administration) Act 1992 provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 3: For infringement notices, enforceable undertakings and formal warnings in relation to contraventions of this provision , see Divisions 2, 3 and 6 of Part 7AB of the Agricultural and Veterinary Chemicals (Administration) Act 1992 .
Agricultural and Veterinary Chemicals (Administration) Act 1992
18 Section 4
Insert:
"civil penalty order" has the meaning given by subsection 69EJ(4).
19 Section 4
Insert:
"civil penalty provision" means a provision declared by this Act or the Collection Act to be a civil penalty provision.
20 Section 4
Insert:
"Collection Act" means the Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994 .
21 Section 4
Insert:
"confidential commercial information" has the same meaning as in the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 .
22 Section 4
Insert:
"copy" , in relation to a warrant issued under section 69EH or 69EHA (or a form of warrant completed under subsection 69EHB(6)), includes:
(a) a copy sent by fax or other electronic means; or
(b) a copy of a copy so sent.
23 Section 4
Insert:
"damage" has the same meaning as in the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 .
24 Section 4
Insert:
"data" has the same meaning as in the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 .
25 Section 4
Insert:
"evidential burden" , in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
26 Section 4
Insert:
"evidential material" means any of the following:
(a) a thing with respect to which an offence against this Act or the Collection Act has been committed or is suspected, on reasonable grounds, to have been committed;
(b) a thing with respect to which a civil penalty provision has been contravened or is suspected, on reasonable grounds, to have been contravened;
(c) a thing that there are reasonable grounds for suspecting will afford evidence as to the commission of such an offence or contravention of such a civil penalty provision;
(d) a thing that there are reasonable grounds for suspecting is intended to be used for the purpose of committing such an offence or contravening such a civil penalty provision.
27 Section 4
Insert:
"executive officer" of a body corporate means a person, by whatever name called and whether or not a director of the body, who is concerned in, or takes part in, the management of the body.
28 Section 4
Insert:
"investigation powers" has the meaning given by sections 69EBA, 69EBB and 69EBC.
29 Section 4
Insert:
"investigation warrant" means:
(a) a warrant issued under section 69EHA; or
(b) a warrant signed by a magistrate under section 69EHB, being a warrant of the same kind as would have been issued under section 69EHA.
30 Section 4
Insert:
"monitoring powers" has the meaning given by sections 69EAC, 69EAD and 69EAE.
31 Section 4
Insert:
"monitoring warrant" means:
(a) a warrant issued under section 69EH; or
(b) a warrant signed by a magistrate under section 69EHB, being a warrant of the same kind as would have been issued under section 69EH.
32 Section 4
Insert:
"occupier" has the same meaning as in the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 .
33 Section 4
Insert:
"person assisting" an inspector:
(a) in relation to the exercise of monitoring powers--has the meaning given by section 69EAF; and
(b) in relation to the exercise of investigation powers--has the meaning given by section 69EBD.
34 Section 4
Insert:
"premises" has the same meaning as in the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 .
35 Section 4
Insert:
"prescribed civil penalty provision" means a civil penalty provision that is prescribed by the regulations.
36 Section 4
Insert:
"relevant data" means information relevant to determining whether:
(a) this Act, or the Collection Act, has been, or is being, complied with; or
(b) information provided under this Act, or the Collection Act, is correct; or
(c) levy is payable under the Collection Act.
37 Section 4
Insert:
"warrant" means a monitoring warrant or an investigation warrant.
38 After subsection 11(1)
Insert:
(1A) The APVMA may only delegate its powers under section 130 or section 131AA of the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 to a member of staff who is an SES, or acting SES, employee.
39 After paragraph 59(c)
Insert:
(ca) any amounts paid to the APVMA, on behalf of the Commonwealth, under section 149A of the Agvet Codes;
40 After paragraph 61(2)(c)
Insert:
(ca) particulars of any exercise of powers under section 131AA of the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 during that year;
41 Subsection 69A(1)
Omit "(1)".
42 Subsection 69A(2)
Repeal the subsection.
43 Before section 69B
Insert:
44 Subsection 69B(1) (penalty)
Repeal the penalty.
45 After subsection 69B(1)
Insert:
(1AA) A person commits an offence if the person contravenes subsection ( 1).
Penalty: 300 penalty units.
46 Subsection s 69B(1A) and (1B)
Omit " Subsection ( 1)", substitute " Subsection ( 1AA)" .
47 Subsection 69B(1C)
Omit "In subparagraph ( 1)(a)(i), strict liability applies to the physical element of circumstance", substitute "For the purposes of subsection ( 1AA), strict liability applies to the physical element of circumstance in subparagraph ( 1)(a)(i)".
48 Subsection 69B(1D )
Omit "In subparagraph ( 1)(a)(ii), strict liability applies to the physical element of circumstance", substitute "For the purposes of subsection ( 1AA), strict liability applies to the physical element of circumstance in subparagraph ( 1)(a)(ii)".
49 After subsection 69B(1D)
Insert:
(1E) Subsection ( 1) is a civil penalty provision.
Note 1: Part 7AB provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 2: For the evidential burden in civil penalty proceedings in relation to the matters in subsection ( 1B), s ee section 69EJP.
50 After subsection 69B(3)
Insert:
(3A) A consent given under subsection ( 1B) may be subject to any conditions that the APVMA thinks appropriate.
(3B) The APVMA may impose a condition, by writing, on a consent at any time while the consent is in force.
51 Before section 69CA
Insert:
Subdivision B -- Provision of information
52 Section 69CD (heading)
Repeal the heading, substitute:
69CD Contraventions relating to providing information under sections 69CA and 69CB
53 After subsection 69CD(2)
Insert:
Civil penalty provision
(2A) A person contravenes this subsection if:
(a) the person is required to provide information under section 69CA or 69CB; and
(b) the person fails to provide the information under that section.
(2B) Subsection ( 2A) is a civil penalty provision.
Note: Part 7AB provides for pecuniary penalties for contraventions of civil penalty provisions.
54 Before section 69C
Insert:
Subdivision C -- Chemical products etc. subject to international agreements
55 Before section 69D
Insert:
56 Paragraph 69D(1A)(b)
Omit "brief particulars of".
57 After section 69D
Insert:
Subdivision E -- Miscellaneous
58 Subsection 69E(1) (penalty)
Repeal the penalty.
58A Subsection 69E(2)
Omit all the words after "does not", substitute:
apply:
(a) in relation to an active constituent or chemical product prescribed by the regulations; or
(b) to a person in respect of a particular year ending on 30 June if the total quantity of the active constituents that were, or were included in chemical products that were, imported, manufactured or exported by the person during that year was not greater than a quantity prescribed by the regulations for the purposes of this section.
59 Subsection 69E(2A)
Repeal the subsection, substitute:
(2A) A person commits an offence of strict liability if the person contravenes subsection ( 1).
Penalty: 50 penalty units.
Note 1: For strict liability, see section 6.1 of the Criminal Code .
Note 2: A defendant bears an evidential burden in relation to the matters in subsection ( 2). See subsection 13.3(3) of the Criminal Code .
(2B) Subsection ( 1) is a civil penalty provision.
Note 1: Part 7AB provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 2: For the evidential burden in civil penalty proceedings in relation to the matters in subsection ( 2), s ee section 69EJP.
60 Subsection 69EA(1) (penalty)
Repeal the penalty.
61 After subsection 69EA(1)
Insert:
(1AA) A person commits an offence of strict liability if the person contravenes subsection ( 1).
Penalty: 50 penalty units.
Note: For strict liability, see section 6.1 of the Criminal Code .
(1AB) Subsection ( 1) is a civil penalty provision.
Note: Part 7AB provides for pecuniary penalties for contraventions of civil penalty provisions.
62 Subsection 69EA(1A) (penalty)
Repeal the penalty.
63 Subsection 69EA(2)
Repeal the subsection, substitute:
(2) A person commits an offence of strict liability if the person contravenes subsection ( 1A).
Penalty: 50 penalty units.
Note: For strict liability, see section 6.1 of the Criminal Code .
(3) Subsection ( 1A) is a civil penalty provision.
Note: Part 7AB provides for pecuniary penalties for contraventions of civil penalty provisions.
64 Division 3 of Part 7A
Repeal the Division, substitute:
Part 7AA -- Investigative powers
Subdivision A -- Monitoring powers etc.
69EAB Powers available to inspectors for monitoring compliance
(1) Subject to subsections ( 2) and (3), for the purpose of finding out whether this Act or the Collection Act has been, or is being, complied with, or of assessing the correctness of information provided under this Act or the Collection Act, or of finding out whether levy is payable under the Collection Act, an inspector may:
(a) enter any premises; and
(b) exercise the monitoring powers.
(2) If premises mentioned in paragraph ( 1)(a) are a residence, an inspector may only enter the premises if:
(a) the premises are used for commercial purposes in relation to active constituents or chemical products, in addition to residential purposes; and
(b) paragraph ( 3)(a) or (b) is satisfied.
(3) An inspector is not authorised to enter premises under subsection ( 1) unless:
(a) the occupier of the premises has consented to the entry and the inspector has shown his or her identity card if required by the occupier; or
(b) the entry is made under a monitoring warrant.
Note: If entry to the premises is with the occupier's consent, the inspector must leave the premises if th e consent ceases to have effect. S ee section 69ED.
69EAC Monitoring powers--with consent or with warrant
(1) The following are the monitoring powers that an inspector may exercise in relation to premises:
(a) the power to search the premises and any thing on the premises;
(b) the power to examine or observe any activity conducted on the premises;
(c) the power to inspect, examine, take measurements of or conduct tests on any thing on the premises;
(d) the power to make any still or moving image or any recording of the premises or any thing on the premises;
(e) the power to inspect any document on the premises;
(f) the power to take extracts from, or make copies of, any such document;
(g) the power to take and keep samples of any thing on the premises;
(h) the power to open any container at the premises for the purpose of inspecting, or taking a sample of, its contents provided that the container is resealed after the inspection is made or the sample is taken;
(i) the power to give directions for dealing with a container, or a label on a container, that has been opened or sampled in accordance with paragraph ( h);
(j) the power to destroy or make harmless, or give directions for the destruction or making harmless of, a chemical product at the premises;
(k) the power to take onto the premises such equipment and materials as the inspector requires for the purpose of exercising powers in relation to the premises;
(l) the powers set out in subsections 69EAD(1) and (3) and 69EAE(1).
(2) A person who is given a direction under subsection ( 1) must comply with the direction.
(3) A person commits an offence of strict liability if the person contravenes subsection ( 2).
Penalty: 30 penalty units.
Note: For strict liability, see section 6.1 of the Criminal Code .
(4) Subsection ( 2) is a civil penalty provision.
Note: Part 7AB provides for pecuniary penalties for contraventions of civil penalty provisions.
69EAD Operating electronic equipment
(1) The monitoring powers include the power to:
(a) operate electronic equipment on the premises; and
(b) use a disk, tape or other storage device that:
(i) is on the premises; and
(ii) can be used with the equipment or is associated with it.
(2) The monitoring powers include the powers mentioned in subsection ( 3) if relevant data is found in the exercise of the power under subsection ( 1).
(3) The powers are as follows:
(a) the power to operate electronic equipment on the premises to put the relevant data in documentary form and remove the documents so produced from the premises;
(b) the power to operate electronic equipment on the premises to transfer the relevant data to a disk, tape or other storage device that:
(i) is brought to the premises for the exercise of the power; or
(ii) is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises;
and remove the disk, tape or other storage device from the premises.
(4) An inspector may operate electronic equipment as mentioned in subsection ( 1) or (3) only if the inspector believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
Note: For comp e nsation for damage to electronic equipment, see section 69EDE.
69EAE Securing evidence of the contravention of a related provision
(1) The monitoring powers include the power to secure a thing for a period not exceeding 7 days if:
(a) the thing is found during the exercise of monitoring powers on the premises; and
(b) an inspector believes on reasonable grounds that the thing affords evidence of one or more of the following:
(i) the commission of an offence against this Act or the Collection Act;
(ii) the contravention of a civil penalty provision;
(iii) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act or the Collection Act; and
(c) the inspector believes on reasonable grounds that:
(i) it is necessary to secure the thing in order to prevent it from being concealed, lost or destroyed before a warrant to seize the thing is obtained; and
(ii) it is necessary to secure the thing without a warrant because the circumstances are serious and urgent.
The thing may be secured by locking it up, placing a guard or any other means.
(2) If an inspector believes on reasonable grounds that the thing needs to be secured for more than 7 days, the inspector may apply to a magistrate for an extension of that period.
(3) The inspector must give notice to the occupier of the premises, or another person who apparently represents the occupier, of his or her intention to apply for an extension. The occupier or other person is entitled to be heard in relation to that application.
(4) The provisions of this Part relating to the issue of monitoring warrants apply, with such modifications as are necessary, to the issue of an extension.
(5) The 7 day period may be extended more than once.
69EAF Persons assisting inspectors
Inspectors may be assisted by other persons
(1) When exercising monitoring powers, an inspector may be assisted by other persons in exercising powers or performing functions or duties under this Part, if that assistance is necessary and reasonable. A person giving such assistance is a person assisting the inspector.
Powers, functions and duties of a person assisting the inspector
(2) A person assisting the inspector:
(a) may enter the premises; and
(b) may exercise powers and perform functions and duties under this Part for the purposes of assisting the inspector to determine whether:
(i) this Act, or the Collection Act, has been, or is being, complied with; or
(ii) information provided under this Act, or the Collection Act, is correct; or
(iii) levy is payable under the Collection Act; and
(c) must do so in accordance with a direction given to the person assisting by the inspector.
(3) A power exercised by a person assisting the inspector as mentioned in subsection ( 2) is taken for all purposes to have been exercised by the inspector.
(4) A function or duty performed by a person assisting the inspector as mentioned in subsection ( 2) is taken for all purposes to have been performed by the inspector.
(5) If a direction is given under paragraph ( 2)(c) in writing, the direction is not a legislative instrument.
69EAG Use of force in executing a monitoring warrant
In executing a monitoring warrant, an inspector and a person assisting the inspector may use such force against things as is necessary and reasonable in the circumstances.
Subdivision B -- Powers of inspectors to ask questions and seek production of documents
69EAH Inspector may ask questions and seek production of documents
(1) This section applies if an inspector enters premises for the purposes of determining whether:
(a) this Act, or the Collection Act, has been, or is being, complied with; or
(b) information provided under this Act, or the Collection Act, is correct; or
(c) levy is payable under the Collection Act.
(2) If the entry is authorised because the occupier of the premises consented to the entry, the inspector may ask the occupier to answer any questions, and produce any document, relating to:
(a) the operation of this Act or the Collection Act; or
(b) the information.
(3) If the entry is authorised by a monitoring warrant, the inspector may require any person on the premises to answer any questions, and produce any document, relating to:
(a) the operation of this Act or the Collection Act; or
(b) the information.
Offence
(4) A person commits an offence if:
(a) the person is subject to a requirement under subsection ( 3); and
(b) the person fails to comply with the requirement.
Penalty for contravention of this subsection: 50 penalty units.
If a person produces a document to an inspector in accordance with a requirement under section 69EAH, the inspector may make copies of, or take extracts from, the document.
Subdivision A -- Investigation powers
(1) Subject to subsections ( 2) and (3), if an inspector has reasonable grounds for suspecting that there may be evidential material on any premises, the inspector may:
(a) enter the premises; and
(b) exercise the investigation powers.
(2) If premises mentioned in paragraph ( 1)(a) are a residence, an inspector may only enter the premises if:
(a) the premises are used for commercial purposes in relation to active constituents or chemical products, in addition to residential purposes; and
(b) paragraph ( 3)(a) or (b) is satisfied.
(3) An inspector is not authorised to enter the premises unless:
(a) the occupier of the premises has consented to the entry and the inspector has shown his or her identity card if required by the occupier; or
(b) the entry is made under an investigation warrant.
Note: If entry to the premises is with the occupier's consent, the inspector must leave the premises if the consent ceases to have effect . S ee section 69ED.
(1) T he following are the investigation powers that an inspector may exercise in relation to premises under section 69EB:
(a) if entry to the premises is with the occupier's consent--the power to search the premises and any thing on the premises for the evidential material the inspector has reasonable grounds for suspecting may be on the premises;
(b) if entry to the premises is under an investigation warrant:
(i) the power to search the premises and any thing on the premises for the kind of evidential material specified in the warrant; and
(ii) the power to seize evidential material of that kind if the inspector finds it on the premises;
(c) the power to inspect, examine, take measurements of, and conduct tests on evidential material referred to in paragraph ( a) or (b);
(d) the power to make any still or moving image or any recording of the premises or evidential material referred to in paragraph ( a) or (b) ;
(e) the power to inspect any document on the premises;
(f) the power to take extracts from, or make copies of, any such document;
(g) the power to take and keep samples of any thing on the premises;
(h) the power to open any container at the premises for the purpose of inspecting, or taking a sample of, its contents provided that the container is resealed after the inspection is made or the sample is taken;
(i) the power to give directions for dealing with a container, or a label on a container, that has been opened or sampled in accordance with paragraph ( h);
(j) the power to destroy or make harmless, or give directions for the destruction or making harmless of, a chemical product at the premises;
(k) the power to take onto the premises such equipment and materials as the inspector requires for the purpose of exercising powers in relation to the premises;
(l) the powers set out in subsections 69EBB(1) and (2) and subsections 69EBC(2) and (3 ).
(2) A person who is given a direction under subsection ( 1) must comply with the direction.
(3) A person commits an offence of strict liability if the person contravenes subsection ( 2).
Penalty: 30 penalty units.
Note: For strict liability, see section 6.1 of the Criminal Code .
(4) Subsection ( 2) is a civil penalty provision.
Note: Part 7AB provides for pecuniary penalties for contraventions of civil penalty provisions.
69EBB Operating electronic equipment
(1) The investigation powers include the power to:
(a) operate electronic equipment on the premises; and
(b) use a disk, tape or other storage device that:
(i) is on the premises; and
(ii) can be used with the equipment or is associated with it;
if an inspector has reasonable grounds for suspecting that the electronic equipment, disk, tape or other storage device is or contains evidential material.
(2) The investigation powers include the following powers in relation to evidential material found in the exercise of the power under subsection ( 1):
(a) if entry to the premises is under an investigation warrant--the power to seize the equipment and the disk, tape or other storage device referred to in that subsection;
(b) the power to operate electronic equipment on the premises to put the evidential material in documentary form and remove the documents so produced from the premises;
(c) the power to operate electronic equipment on the premises to transfer the evidential material to a disk, tape or other storage device that:
(i) is brought to the premises for the exercise of the power; or
(ii) is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises;
and remove the disk, tape or other storage device from the premises.
(3) An inspector may operate electronic equipment as mentioned in subsection ( 1) or (2) only if the inspector believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
Note: For compensation for damage to electronic equipment, see section 69EDE.
(4) An inspector may seize equipment or a disk, tape or other storage device as mentioned in paragraph ( 2)(a) only if:
(a) it is not practicable to put the evidential material in documentary form as mentioned in paragraph ( 2)(b) or to transfer the evidential material as mentioned in paragraph ( 2)(c); or
(b) possession of the equipment or the disk, tape or other storage device by the occupier could constitute an offence against a law of the Commonwealth.
69EBC Seizing evidence of related offences and civil penalty provisions
(1) This section applies if an inspector enters premises under an investigation warrant to search for evidential material.
(2) The investigation powers include seizing a thing that is not evidential material of the kind specified in the warrant if:
(a) in the course of searching for the kind of evidential material specified in the warrant, the inspector finds the thing; and
(b) the inspector believes on reasonable grounds that the thing affords evidence of one or more of the following:
(i) the commission of an offence against this Act or the Collection Act;
(ii) the contravention of a civil penalty provision;
(iii) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act or the Collection Act; and
(c) the inspector believes on reasonable grounds that it is necessary to seize the thing in order to prevent its concealment, loss or destruction or to protect the health of the public or of any person.
(3) If an inspector seizes a thing as mentioned in subsection ( 2), the investigation powers include :
(a) the power to direct the occupier of the premises or the owner of the thing to keep it at the premises, or at other premises under the control of the occupier or owner that will, in the opinion of the inspector, cause least danger to the health of the public or of any person; and
(b) the power to give any other directions for, or with respect to, the detention of the thing.
(4) A person who is given a direction under subsection ( 3) must comply with the direction.
(5) A person commits an offence of strict liability if the person contravenes subsection ( 4).
Penalty: 30 penalty units.
Note: For strict liability, see section 6.1 of the Criminal Code .
(6) Subsection ( 4) is a civil penalty provision.
Note: Part 7AB provides for pecuniary penalties for contraventions of civil penalty provisions.
69EBD Persons assisting inspectors
Inspectors may be assisted by other persons
(1) When exercising investigation powers, an inspector may be assisted by other persons in exercising powers or performing functions or duties under this Part, if that assistance is necessary and reasonable. A person giving such assistance is a person assisting the inspector.
Powers, functions and duties of a person assisting the inspector
(2) A person assisting the inspector:
(a) may enter premises; and
(b) may exercise powers and perform functions and duties under this Part in relation to evidential material; and
(c) must do so in accordance with a direction given to the person assisting by the inspector.
(3) A power exercised by a person assisting the inspector as mentioned in subsection ( 2) is taken for all purposes to have been exercised by the inspector.
(4) A function or duty performed by a person assisting the inspector as mentioned in subsection ( 2) is taken for all purposes to have been performed by the inspector.
(5) If a direction is given under paragraph ( 2)(c) in writing, the direction is not a legislative instrument.
69EBE Use of force in executing an investigation warrant
In executing an investigation warrant, an inspector and a person assisting the inspector may use such force against things as is necessary and reasonable in the circumstances.
Subdivision B -- Powers of inspectors to ask questions and seek production of documents
69EC Inspector may ask questions and seek production of documents
(1) This section applies if an inspector enters premises to search for evidential material.
(2) If the entry is authorised because the occupier of the premises consented to the entry, the inspector may ask the occupier to answer any questions, and produce any document, relating to evidential material.
(3) If the entry is authorised by an investigation warrant, the inspector may require any person on the premises to answer any questions, and produce any document, relating to evidential material of the kind specified in the warrant.
(4) A person commits an offence if:
(a) the person is subject to a requirement under subsection ( 3); and
(b) the person fails to comply with the requirement.
Penalty for contravention of this subsection: 50 penalty units.
If a person produces a document to an inspector in accordance with a requirement under section 69EC, the inspector may make copies of, or take extracts from, the document.
Division 3 -- Obligations and incidental powers of inspectors
(1) Before obtaining the consent of an occupier of premises for the purposes of paragraph 69EAB(3)(a) or 69EB(3)(a), an inspector must inform the occupier that the occupier may refuse consent.
(2) A consent has no effect unless the consent is voluntary.
(3) A consent may be expressed to be limited to entry during a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.
(4) A consent that is not limited as mentioned in subsection ( 3) has effect until the consent is withdrawn.
(5) If an inspector entered premises because of the consent of the occupier of the premises, the inspector, and any person assisting the inspector, must leave the premises if the consent ceases to have effect.
69EDA Announcement before entry under warrant
(1) Before entering premises under a warrant, an inspector must:
(a) announce that:
(i) he or she is authorised to enter the premises; and
(ii) any person assisting the inspector is authorised to enter the premises; and
(b) show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises; and
(c) give any person at the premises an opportunity to allow entry to the premises.
(2) However, an inspector is not required to comply with subsection ( 1) if the inspector believes on reasonable grounds that immediate entry to the premises is required:
(a) to ensure the safety of a person; or
(b) to ensure that the effective execution of the warrant is not frustrated.
(3) If:
(a) an inspector does not comply with subsection ( 1) because of subsection ( 2); and
(b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;
the inspector must, as soon as practicable after entering the premises, show his or her identity card to the occupier or other person.
69EDB Inspector to be in possession of warrant
An inspector executing a warrant must be in possession of:
(a) the warrant issued by the magistrate under section 69EH or 69EHA, or a copy of the warrant as so issued; or
(b) the form of warrant completed under subsection 69EHB(6), or a copy of the form as so completed.
69EDC Details of warrant etc. to be given to occupier
(1) An inspector must comply with subsection ( 2) i f:
(a) a warrant is being executed in relation to premises; and
(b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises.
(2) The inspector executing the warrant must, as soon as practicable:
(a) do one of the following:
(i) if the warrant was issued under section 69EH or 69EHA--make a copy of the warrant available to the occupier or other person (which need not include the signature of the magistrate who issued it);
(ii) if the warrant was signed by a magistrate under section 69EHB--make a copy of the form of warrant completed under subsection 69EHB(6) available to the occupier or other person; and
(b) inform the occupier or other person of the rights and responsibilities of the occupier or other person under Division 5 of this Part.
69EDD Expert assistance to operate electronic equipment
(1) This section applies if an inspector enters premises under a warrant.
Securing equipment
(2) An inspector may do whatever is necessary to secure any electronic equipment that is on the premises if the inspector believes on reasonable grounds that:
(a) in the case of a monitoring warrant:
(i) there is relevant data on the premises; and
(ii) the relevant data may be accessible by operating the equipment; and
(iii) expert assistance is required to operate the equipment; and
(iv) the relevant data may be destroyed, altered or otherwise interfered with, if the inspector does not take action under this subsection; and
(b) in the case of an investigation warrant:
(i) there is evidential material of the kind specified in the warrant on the premises; and
(ii) the evidential material may be accessible by operating the electronic equipment; and
(iii) expert assistance is required to operate the equipment; and
(iv) the evidential material may be destroyed, altered or otherwise interfered with, if the inspector does not take action under this subsection.
The equipment may be secured by locking it up, placing a guard or any other means.
(3) The inspector must give notice to the occupier of the premises , or another person who apparently represents the occupier, of:
(a) the inspector's intention to secure the equipment; and
(b) the fact that the equipment may be secured for up to 72 hours.
Period equipment may be secured
(4) The equipment may be secured until the earlier of the following happens:
(a) the 72 - hour period ends;
(b) the equipment has been operated by the expert.
Note: For compensation for damage to electronic equipment, see section 69EDE.
Extensions
(5) The inspector may apply to a magistrate for an extension of the 72 - hour period, if the inspector believes on reasonable grounds that the equipment needs to be secured for a longer period.
(6) Before making the application, the inspector must give notice to the occupier of the premises , or another person who apparently represents the occupier, of the inspector's intention to apply for an extension. The occupier or other person is entitled to be heard in relation to that application.
(7) The provisions of this Part relating to the issue of a warrant apply, with such modifications as are necessary, to the issue of an extension.
(8) The 72 - hour period may be extended more than once.
69EDE Compensation for damage to electronic equipment
(1) This section applies if:
(a) as a result of equipment being operated as mentioned in this Part:
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
(2) The APVMA must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the APVMA and the owner or user agree on.
(3) However, if the owner or user and the APVMA fail to agree, the owner or user may institute proceedings in a court of competent jurisdiction for such reasonable amount of compensation as the court determines.
(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier's employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.
Division 4 -- Execution of an investigation warrant interrupted
69EE Completing execution of an investigation warrant after temporary cessation
(1) This section applies if an inspector, and all persons assisting, who are executing an investigation warrant in relation to premises temporarily cease its execution and leave the premises.
(2) The inspector, and persons assisting, may complete the execution of the warrant if:
(a) the warrant is still in force; and
(b) the inspector and persons assisting are absent from the premises:
(i) for not more than 1 hour; or
(ii) if there is an emergency situation, for not more than 12 hours or such longer period as allowed by a magistrate under subsection ( 5); or
(iii) for a longer period if the occupier of the premises consents in writing.
Application for extension in emergency situation
(3) An inspector, or person assisting, may apply to a magistrate for an extension of the 12 - hour period mentioned in subparagraph ( 2)(b)(ii) if:
(a) there is an emergency situation; and
(b) the inspector or person assisting believes on reasonable grounds that the inspector and the persons assisting will not be able to return to the premises within that period.
(4) If it is practicable to do so, before making the application, the inspector or person assisting must give notice to the occupier of the premises of his or her intention to apply for an extension.
Extension in emergency situation
(5) A magistrate may extend the period during which the inspector and persons assisting may be away from the premises if:
(a) an application is made under subsection ( 3); and
(b) the magistrate is satisfied, by information on oath or affirmation, that there are exceptional circumstances that justify the extension; and
(c) the extension would not result in the period ending after the warrant ceases to be in force.
69EEA Completing execution of an investigation warrant stopped by court order
An inspector, and any persons assisting, may complete the execution of an investigation warrant that has been stopped by an order of a court if:
(a) the order is later revoked or reversed on appeal; and
(b) the warrant is still in force when the order is revoked or reversed.
Division 5 -- Occupier's rights and responsibilities
69EF Occupier entitled to observe execution of warrant
( 1) The occupier of premises to which a warrant relates , or another person who apparently represents the occupier, is entitled to observe the execution of the warrant if the occupier or other person is present at the premises while the warrant is being executed.
(2) The right to observe the execution of the warrant ceases if the occupier or other person impedes that execution.
(3) This section does not prevent the execution of the warrant in 2 or more areas of the premises at the same time.
69EFA Occupier to provide inspector with facilities and assistance
(1) The occupier of premises to which a warrant relates , or another person who apparently represents the occupier, must provide:
(a) an inspector executing the warrant; and
(b) any person assisting;
with all reasonable facilities and assistance for the effective exercise of their powers.
(2) A person commits an offence if:
(a) the person is subject to subsection ( 1); and
(b) the person fails to comply with that subsection.
Penalty for contravention of this subsection: 30 penalty units.
Division 6 -- General provisions relating to seizure
69EG Copies of seized things to be provided
(1) Subject to subsection ( 2), if an inspector who has entered premises under an investigation warrant seizes:
(a) a document, film, computer file or other thing that can be readily copied; or
(b) a storage device the information in which can be readily copied;
the inspector must, if asked to do so by the occupier of the premises or another person who apparently represents the occupier and is present when the seizure takes place, give a copy of the thing or the information to the occupier or other person as soon as practicable after the seizure.
(2) However, the inspector is not required to comply with the request if possession of the document, film, computer file, thing or information by the occupier or other person could constitute an offence against a law of the Commonwealth.
69EGA Receipts for seized things
( 1) An inspector must provide a receipt for a thing that is seized under an investigation warrant.
(2) One receipt may cover 2 or more things seized.
(1) An inspector must take reasonable steps to return a thing seized under an investigation warrant when the earliest of the following happens:
(a) the reason for the thing's seizure no longer exists;
(b) it is decided that the thing is not to be used in evidence;
(c) the period of 60 days after the thing's seizure ends.
Exceptions
(2 ) Subsection ( 1):
(a) is subject to any contrary order of a court; and
(b) does not apply if the thing:
(i) is forfeited or forfeitable to the Commonwealth (see section 69ET); or
(ii) is the subject of a dispute as to ownership.
(3) T he inspector is not required to take reasonable steps to return a thing because of paragraph ( 1)(c) if :
(a) proceedings in which the thing may be used in evidence were begun before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or
(b) the inspector may keep the thing because of an order under section 69EGC; or
(c) the inspector is authorised by this Part or by an order of a court to keep, destroy or dispose of the thing.
69EGC Magistrate may permit a thing to be kept
(1) If:
(a) before the end of 60 days after an inspector seizes a thing under an investigation warrant; or
(b) before the end of a period previously stated in an order under this section in respect of a thing seized by an inspector as mentioned in paragraph ( a);
proceedings in which the thing may be used in evidence have not been brought, the inspector may apply to a magistrate for an order that he or she may keep the thing for a further period.
(2) Before making the application, the inspector must:
(a) take reasonable steps to discover who has an interest in the retention of the thing; and
(b) if it is practicable to do so, notify each person who the inspector believes has such an interest of the proposed application.
Order to retain thing
(3) A magistrate may order that the thing may continue to be retained for a period specified in the order if the magistrate is satisfied that it is necessary for the thing to continue to be retained:
(a) for the purposes of an investigation as to whether:
(i) an offence against this Act or the Collection Act has been committed; or
(ii) a civil penalty provision has been contravened; or
(b) for the purposes of an investigation as to whether an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act or the Collection Act has been committed; or
(c) to enable evidence of:
(i) an offence mentioned in paragraph ( a) or (b) to be secured for the purposes of a prosecution; or
(ii) a contravention mentioned in paragraph ( a) to be secured for the purposes of proceedings for a civil penalty order.
(4) The period specified must not exceed 3 years.
(1) The APVMA may dispose of a thing seized under an investigation warrant if:
(a) an inspector has taken reasonable steps to return the thing to a person; and
(b) either:
(i) the inspector has been unable to locate the person; or
(ii) the person has refused to take possession of the thing.
(2) The APVMA may dispose of the thing in such manner as it considers appropriate.
Division 7 -- Applying for warrants etc.
Application for warrant
(1) An inspector may apply to a magistrate for a monitoring warrant under this section in relation to premises.
Issue of warrant
(2) The magistrate may issue the warrant if the magistrate is satisfied, by information on oath or affirmation, that it is reasonably necessary that one or more inspectors should have access to the premises for the purpose of determining whether:
(a) this Act, or the Collection Act, has been, or is being, complied with; or
(b) information provided under this Act, or the Collection Act, is correct; or
(c) levy is payable under the Collection Act.
(3) However, the magistrate must not issue the warrant unless the inspector or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the monitoring warrant is being sought.
Content of warrant
(4) The monitoring warrant must:
(a) describe the premises to which the warrant relates; and
(b) state that the warrant is issued under this section; and
(c) state the purpose for which the warrant is issued; and
(d) authorise one or more inspectors (whether or not named in the warrant) from time to time while the warrant remains in force:
(i) to enter the premises; and
(ii) to exercise the monitoring powers in relation to the premises; and
(e) state whether entry is authorised to be made at any time of the day or during specified hours of the day; and
(f) specify the day (not more than 6 months after the issue of the warrant) the warrant ceases to be in force.
(5) If the application for the warrant is made under section 69EHB, this section applies as if paragraph ( 4)(f) required the warrant to specify the period for which the warrant is to remain in force, which must not be more than 48 hours.
Application for warrant
( 1) An inspector may apply to a magistrate for an investigation warrant under this section in relation to premises.
Issue of warrant
(2) The magistrate may issue the investigation warrant if the magistrate is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there may be within the next 72 hours, evidential material on the premises.
(3) However, the magistrate must not issue the investigation warrant unless the inspector or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought.
Content of warrant
(4) The investigation warrant must:
(a) state the offence or offences, or civil penalty provision or civil penalty provisions, to which the warrant relates; and
(b) describe the premises to which the warrant relates; and
(c) state that the warrant is issued under this section; and
(d) specify the kinds of evidential material that are to be searched for under the warrant; and
(e) state that the evidential material specified may be seized under the warrant; and
(f) state that any thing found in the course of executing the warrant that the person executing the warrant believes on reasonable grounds to be evidence of one or more of the following:
(i) the commission of an offence against this Act or the Collection Act;
(ii) the contravention of a civil penalty provision;
(iii) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act or the Collection Act;
may be seized under the warrant; and
(g) name one or more inspectors; and
(h) authorise the inspectors named in the warrant:
(i) to enter the premises; and
(ii) to exercise the powers set out in Divisions 2, 3 and 4 of this Part in relation to the premises; and
(i) state whether entry is authorised to be made at any time of the day or during specified hours of the day; and
(j) specify the day ( not more than 1 week after the issue of the warrant) the warrant ceases to be in force.
(5) If the application for the warrant is made under section 69EHB, this section applies as if:
(a) subsection ( 2) referred to 48 hours rather than 72 hours; and
(b) paragraph ( 4)(j) required the warrant to specify the period for which the warrant is to remain in force, which must not be more than 48 hours.
69EHB Warrants by telephone, fax etc.
Application for warrant
(1) An inspector may apply to a magistrate by telephone, fax or other electronic means for a warrant in relation to premises:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
(2) The magistrate may require communication by voice to the extent that it is practicable in the circumstances.
(3) Before applying for a warrant, the inspector must:
(a) in the case of a monitoring warrant-- prepare an information of the kind mentioned in subsection 69EH(2); and
(b) in the case of an investigation warrant-- prepare an information of the kind mentioned in subsection 69EHA(2);
in relation to the premises that sets out the grounds on which the warrant is sought. If it is necessary to do so, the inspector may apply for the warrant before the information is sworn or affirmed.
Magistrate may complete and sign warrant
(4) The magistrate may complete and sign the same warrant that would have been issued under section 69EH or 69EHA if the magistrate is satisfied that there are reasonable grounds for doing so:
(a) after considering the terms of the information; and
(b) after receiving such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought.
(5) After completing and signing the warrant, the magistrate must inform the inspector, by telephone, fax or other electronic means, of :
(a) the terms of the warrant; and
(b) the day and time the warrant was signed.
Obligations on inspector
(6) The inspector must then do the following:
(a) complete and sign a form of warrant in the same terms as the warrant completed and signed by the magistrate;
(b) state on the form the following:
(i) the name of the magistrate;
(ii) the day and time the warrant was signed by the magistrate;
(c) send the following to the magistrate:
(i) the form of warrant completed by the inspector;
(ii) the information referred to in subsection ( 3), which must have been duly sworn or affirmed.
(7) The inspector must comply with paragraph ( 6)(c) by the end of the day after the earlier of the following:
(a) the day the warrant ceases to be in force;
(b) the day the warrant is executed.
Magistrate to attach documents together
(8) The magistrate must attach the documents provided under paragraph ( 6)(c) to the warrant signed by the magistrate.
(1) A form of warrant duly completed under subsection 69EHB(6) is authority for the same powers as are authorised by the warrant signed by the magistrate under subsection 69EHB(4).
(2) In any proceedings, a court is to assume (unless the contrary is proved) that an exercise of power was not authorised by a warrant under section 69EHB if:
(a) it is material, in those proceedings, for the court to be satisfied that the exercise of power was authorised by that section; and
(b) the warrant signed by the inspector authorising the exercise of the power is not produced in evidence.
69EHD Offence relating to warrants by telephone, fax etc.
An inspector must not:
(a) state in a document that purports to be a form of warrant under section 69EHB the name of a magistrate unless that magistrate signed the warrant; or
(b) state on a form of warrant under that section a matter that, to the inspector's knowledge, departs in a material particular from the terms of the warrant signed by the magistrate under that section; or
(c) purport to execute, or present to another person, a document that purports to be a form of warrant under that section that the inspector knows departs in a material particular from the terms of a warrant signed by a magistrate under that section; or
(d) purport to execute, or present to another person, a document that purports to be a form of warrant under that section where the inspector knows that no warrant in the terms of the form of warrant has been completed and signed by a magistrate; or
(e) give to a magistrate a form of warrant under that section that is not the form of warrant that the inspector purported to execute.
Penalty: Imprisonment for 2 years.
Division 8 -- Powers of magistrates
69EI Powers of issuing officers
Powers conferred personally
(1) A power conferred on a magistrate by this Part is conferred on the magistrate:
(a) in a personal capacity; and
(b) not as a court or a member of a court.
Powers need not be accepted
(2) The magistrate need not accept the power conferred.
Protection and immunity
(3) A magistrate exercising a power conferred by this Part has the same protection and immunity as if the magistrate were exercising the power:
(a) as the court of which the magistrate is a member; or
(b) as a member of the court of which the magistrate is a member.
65 Division 4 of Part 7A (heading)
Repeal the heading.
66 Before section 69EP
Insert:
Division 1 -- Civil penalty orders
Subdivision A -- Obtaining a civil penalty order
Application for order
(1) The APVMA may, on behalf of the Commonwealth, apply to a court of competent jurisdiction for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty.
(2) The APVMA must make the application within 6 years of the alleged contravention.
Court may order person to pay pecuniary penalty
(3) If the court is satisfied that the person has contravened the civil penalty provision, the court may order the person to pay to the Commonwealth such pecuniary penalty for the contravention as the court determines to be appropriate.
Note: Section 69EJA sets out the maximum penalty that the court may order the person to pay.
(4) An order under subsection ( 3) is a civil penalty order .
Determining pecuniary penalty
(5) In determining the pecuniary penalty, the court may take into account all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered because of the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the person has previously been found by a court to have engaged in any similar conduct; and
(e) the extent to which the person has cooperated with the authorities; and
(f) if the person is a body corporate:
(i) the level of the employees, officers or agents of the body corporate involved in the contravention; and
(ii) whether the body corporate exercised due diligence to avoid the contravention; and
(iii) whether the body corporate had a corporate culture conducive to compliance.
69EJA Maximum penalties for contravention of civil penalty provisions
Penalty for body corporate
(1) The pecuniary penalty for a contravention of a civil penalty provision by a body corporate must not exceed 5 times the amount of the maximum monetary penalty that could be imposed by a court if the body corporate were convicted of an offence constituted by conduct that is the same as the conduct constituting the contravention.
Penalty for individuals
(2) The pecuniary penalty for a contravention of a civil penalty provision by an individual must not exceed 3 times the amount of the maximum monetary penalty that could be imposed by a court if the person were convicted of an offence constituted by conduct that is the same as the conduct constituting the contravention.
Penalty for contravention of subsection 69EJR(1)
(3) The pecuniary penalty for a contravention, by an executive officer of a body corporate, of subsection 69EJR (1) in relation to the contravention by the body corporate of a civil penalty provision must not exceed 12% of the amount of the maximum monetary penalty that could be imposed on the body corporate for the contravention.
69EJB Civil enforcement of penalty
(1) A pecuniary penalty is a debt payable to the Commonwealth.
(2) The Commonwealth may enforce a civil penalty order as if it were an order made in civil proceedings against a person to recover a debt due by the person. The debt arising from the order is taken to be a judgement debt.
69EJC Conduct contravening more than one civil penalty provision
(1) If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Division against a person in relation to the contravention of any one or more of those provisions.
(2) However, the person is not liable to more than one pecuniary penalty under this Division in relation to the same conduct.
(1) A court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character.
Note: For continuing contraventions of civil penalty provisions, see section 69EJL.
(2) However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions.
69EJE Proceedings may be heard together
A court may direct that 2 or more proceedings for civil penalty orders be heard together.
69EJF Civil evidence and procedure rules for civil penalty orders
A court must apply the rules of evidence and procedure for civil matters when hearing and determining an application for a civil penalty order.
69EJG Contravening a civil penalty provision is not an offence
A contravention of a civil penalty provision is not an offence.
Subdivision B -- Civil proceedings and criminal proceedings
69EJH Civil proceedings after criminal proceedings
A court may not make a civil penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention.
69EJI Criminal proceedings during civil proceedings
(1) Proceedings for a civil penalty order against a person for a contravention of a civil penalty provision are stayed if:
(a) criminal proceedings are commenced or have already been commenced against the person for an offence; and
(b) the offence is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention.
(2) The proceedings for the order (the civil proceedings ) may be resumed if the person is not convicted of the offence. Otherwise, the civil proceedings are dismissed.
69EJJ Criminal proceedings after civil proceedings
Criminal proceedings may be commenced against a person for conduct that is the same, or substantially the same, as conduct that would constitute a contravention of a civil penalty provision regardless of whether a civil penalty order has been made against the person in relation to the contravention.
69EJK Evidence given in civil proceedings not admissible in criminal proceedings
(1) Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual for an offence if:
(a) the individual previously gave the evidence or produced the documents in proceedings for a civil penalty order against the individual for an alleged contravention of a civil penalty provision (whether or not the order was made); and
(b) the conduct alleged to constitute the offence is the same, or substantially the same, as the conduct alleged to constitute the contravention.
(2) However, subsection ( 1) does not apply to criminal proceedings in relation to the falsity of the evidence given by the individual in the proceedings for the civil penalty order.
Subdivision C -- Miscellaneous
69EJL Continuing contraventions of civil penalty provisions
(1) If an act or thing is required under a civil penalty provision to be done:
(a) within a particular period; or
(b) before a particular time;
then the obligation to do that act or thing continues until the act or thing is done (even if the period has expired or the time has passed).
(2) A person who contravenes a civil penalty provision that requires an act or thing to be done:
(a) within a particular period; or
(b) before a particular time;
commits a separate contravention of that provision in respect of each day during which the contravention occurs (including the day the relevant civil penalty order is made or any later day).
69EJM Ancillary contravention of civil penalty provisions
(1) A person must not:
(a) attempt to contravene a civil penalty provision; or
(b) aid, abet, counsel or procure a contravention of a civil penalty provision; or
(c) induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or
(d) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil penalty provision; or
(e) conspire with others to effect a contravention of a civil penalty provision.
Civil penalty
(2) A person who contravenes subsection ( 1) in relation to a civil penalty provision is taken to have contravened the provision.
Note: Section 69EJO (which provides that a person's state of mind does not need to be proven in relation to a civil penalty provision) does not apply to the extent that proceedings relate to the contravention of subsection ( 1).
(1) A person is not liable to have a civil penalty order made against the person for a contravention of a civil penalty provision if:
(a) at or before the time of the conduct constituting the contravention, the person:
(i) considered whether or not facts existed; and
(ii) was under a mistaken but reasonable belief about those facts; and
(b) had those facts existed, the conduct would not have constituted a contravention of the civil penalty provision.
(2) For the purposes of subsection ( 1), a person may be regarded as having considered whether or not facts existed if:
(a) the person had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
(b) the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
(3) A person who wishes to rely on subsection ( 1) or (2) in proceedings for a civil penalty order bears an evidential burden in relation to that matter.
(1) In proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, it is not necessary to prove:
(a) the person's intention; or
(b) the person's knowledge; or
(c) the person's recklessness; or
(d) the person's negligence; or
(e) any other state of mind of the person.
(2) Subsection ( 1) does not apply to the extent that the proceedings relate to a contravention of subsection 69EJM(1) (which is about ancillary contraventions of civil penalty provisions).
(3) Subsection ( 1) does not affect the operation of section 69EJN (which is about mistake of fact).
(4) Subsection ( 1) does not apply to the extent that the civil penalty provision, or a provision that relates to the civil penalty provision, expressly provides otherwise.
69EJP Evidential burden for exceptions
In proceedings for a civil penalty order, a person who wishes to rely on any exception, exemption, excuse, qualification or justification in relation to a civil penalty provision bears an evidential burden in relation to that matter.
69EJQ Liability of body corporate for actions by employees, agents or officers
If an element of a civil penalty provision is done by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, the element must also be attributed to the body corporate.
69EJR Liability of executive officers
(1) An executive officer of a body corporate contravenes this subsection if:
(a) the body corporate contravenes a civil penalty provision; and
(b) the officer knew that the contravention would occur; and
(c) the officer was in a position to influence the conduct of the body in relation to the contravention; and
(d) the officer failed to take all reasonable steps to prevent the contravention.
(2) Subsection ( 1) is a civil penalty provision.
Note: Subdivision A of this Division provides for pecuniary penalties for contraventions of civil penalty provisions.
(1) For the purposes of section 69EJR, in determining whether an executive officer of a body corporate failed to take all reasonable steps to prevent the contravention of a civil penalty provision, a court is to have regard to:
(a) what action (if any) the officer took towards ensuring that the body's employees, agents and contractors have a reasonable knowledge and understanding of the requirements to comply with this Act or the Collection Act, in so far as those requirements affect the employees, agents or contractors concerned; and
(b) what action (if any) the officer took when he or she became aware that the body was contravening this Act or the Collection Act.
(2) This section does not, by implication, limit the generality of section 69EJR.
Division 2 -- Infringement notices
69EK When an infringement notice may be given
(1) If an inspector has reasonable grounds to believe that a person has contravened a prescribed civil penalty provision, the inspector may give the person an infringement notice for the alleged contravention .
(2) The infringement notice must be given within 12 months after the day the contravention is alleged to have taken place.
(3) A single infringement notice must relate only to a single contravention of a single prescribed civil penalty provision.
69EKA Matters to be included in an infringement notice
(1) An infringement notice must:
(a) be identified by a unique number; and
(b) state the day it is given; and
(c) state the name of the person to whom the notice is given; and
(d) state the name of the person who gave the notice; and
(e) give brief details of the alleged contravention, including:
(i) the provision that was allegedly contravened; and
(ii) the maximum penalty that a court could impose for the contravention; and
(iii) the time (if known) and day of, and the place of, the alleged contravention; and
(f) state the amount that is payable under the notice; and
(g) give an explanation of how payment of the amount is to be made; and
(h) state that, if the person to whom the notice is given pays the amount within 28 days after the day the notice is given, then (unless the notice is withdrawn) proceedings seeking a civil penalty order will not be brought in relation to the alleged contravention; and
(i) state that payment of the amount is not an admission of liability; and
(j) state that the person may apply to the APVMA to have the period in which to pay the amount extended; and
(k) state that the person may choose not to pay the amount and, if the person does so, proceedings seeking a civil penalty order may be brought in relation to the alleged contravention; and
(l) set out how the notice can be withdrawn; and
(m) state that if the notice is withdrawn proceedings seeking a civil penalty order may be brought in relation to the alleged contravention; and
(n) state that the person may make written representations to the APVMA seeking the withdrawal of the notice.
(2) For the purposes of paragraph ( 1)(f), the amount to be stated in the notice for the alleged contravention of the provision must not exceed one - fifth of the maximum penalty that a court could impose on the person for that contravention.
(3) The regulations may, subject to subsection ( 2), provide for a scale of amounts that may apply for an alleged contravention.
69EKB Extension of time to pay amount
(1) A person to whom an infringement notice has been given may apply to the APVMA for an extension of the period referred to in paragraph 69EKA(1)(h).
(2) If the application is made before the end of that period, the APVMA may, in writing, extend that period. The APVMA may do so before or after the end of that period.
(3) If the APVMA extends that period, a reference in this Division to the period referred to in paragraph 69EKA(1)(h) is taken to be a reference to that period so extended.
(4) If the APVMA does not extend that period, a reference in this Division to the period referred to in paragraph 69EKA(1)(h) is taken to be a reference to the period that ends on the later of the following days:
(a) the day that is the last day of the period referred to in paragraph 69EKA(1)(h);
(b) the day that is 7 days after the day the person was given notice of the APVMA's decision not to extend.
(5) The APVMA may extend the period more than once under subsection ( 2).
69EKC Withdrawal of an infringement notice
Representations seeking withdrawal of notice
(1) A person to whom an infringement notice has been given may make written representations to the APVMA seeking the withdrawal of the notice.
Withdrawal of notice
(2) The APVMA may withdraw an infringement notice given to a person (whether or not the person has made written representations seeking the withdrawal).
(3) When deciding whether or not to withdraw an infringement notice (the relevant infringement notice ), the APVMA:
(a) must take into account any written representations seeking the withdrawal that were given by the person to the APVMA; and
(b) may take into account the following:
(i) whether a court has previously imposed a penalty on the person for a contravention of a prescribed civil penalty provision if the contravention is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention in the relevant infringement notice;
(ii) the circumstances of the alleged contravention;
(iii) whether the person has paid an amount, stated in an earlier infringement notice, for a contravention of a prescribed civil penalty provision if the contravention is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention in the relevant infringement notice;
(iv) any other matter the APVMA considers relevant.
Notice of withdrawal
(4) Notice of the withdrawal of the infringement notice must be given to the person. The withdrawal notice must state:
(a) the person's name and address; and
(b) the day the infringement notice was given; and
(c) the identifying number of the infringement notice; and
(d) that the infringement notice is withdrawn; and
(e) that proceedings seeking a civil penalty order may be brought in relation to the alleged contravention.
Refund of amount if infringement notice withdrawn
(5) If:
(a) the APVMA withdraws the infringement notice; and
(b) the person has already paid the amount stated in the notice;
the Commonwealth must refund to the person an amount equal to the amount paid.
69EKD Effect of payment of amount
(1) If the person to whom an infringement notice for an alleged contravention of a provision is given pays the amount stated in the notice before the end of the period referred to in paragraph 69EKA(1)(h):
(a) any liability of the person for the alleged contravention is discharged; and
(b) proceedings seeking a civil penalty order may not be brought against the person in relation to the alleged contravention; and
(c) the person is not regarded as having admitted liability for the alleged contravention.
(2) Subsection ( 1) does not apply if the notice has been withdrawn.
This Division does not:
(a) require an infringement notice to be given to a person for an alleged contravention of a prescribed civil penalty provision; or
(b) affect the liability of a person for an alleged contravention of a prescribed civil penalty provision if:
(i) the person does not comply with an infringement notice given to the person for the contravention; or
(ii) an infringement notice is not given to the person for the contravention; or
(iii) an infringement notice is given to the person for the contravention and is subsequently withdrawn; or
(c) prevent the giving of 2 or more infringement notices to a person for an alleged contravention of a prescribed civil penalty provision; or
(d) limit a court's discretion to determine the amount of a penalty to be imposed on a person who is found to have contravened a prescribed civil penalty provision.
Division 3 -- Enforceable undertakings
69EL Acceptance of undertakings
(1) The APVMA may accept any of the following undertakings:
(a) a written undertaking given by a person that the person will, in order to comply with a provision of this Act or the Collection Act, take specified action;
(b) a written undertaking given by a person that the person will, in order to comply with a provision of this Act or the Collection Act, refrain from taking specified action;
(c) a written undertaking given by a person that the person will take specified action directed towards ensuring one or more of the following:
(i) that the person does not commit an offence against this Act or the Collection Act;
(ii) that the person does not contravene a civil penalty provision;
(iii) that the person is unlikely to commit an offence against this Act or the Collection Act, or to contravene a civil penalty provision, in the future.
(2) The undertaking must be expressed to be an undertaking under this section.
(3) The person may withdraw or vary the undertaking at any time, but only with the written consent of the APVMA.
(4) The APVMA's consent is not a legislative instrument.
(5) The APVMA may, by written notice given to the person, cancel the undertaking.
(6) The APVMA must publish the undertaking on the APVMA's website.
(7) However, the APVMA is not required to publish so much of the undertaking that the APVMA is satisfied:
(a) is confidential commercial information; or
(b) is personal information (within the meaning of the Privacy Act 1988 ); or
(c) should not be disclosed because it would be against the public interest to do so.
69ELA Enforcement of undertakings
(1) If:
(a) a person has given an undertaking under section 69EL; and
(b) the undertaking has not been withdrawn or cancelled; and
(c) the APVMA considers that the person has breached the undertaking;
the APVMA may, on behalf of the Commonwealth, apply to a court of competent jurisdiction for an order under subsection ( 2).
(2) If the court is satisfied that the person has breached the undertaking, the court may make any or all of the following orders:
(a) an order directing the person to comply with the undertaking;
(b) an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;
(c) any order that the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;
(d) any other order that the court considers appropriate.
Restraining injunctions
(1) If a person has engaged, is engaging or is proposing to engage, in conduct that constitutes an offence against this Act or the Collection Act or a contravention of a civil penalty provision, a court of competent jurisdiction may, on application by any person, grant an injunction:
(a) restraining the first - mentioned person from engaging in the conduct; and
(b) if, in the court's opinion, it is desirable to do so--requiring the first - mentioned person to do a thing.
Performance injunctions
(2) If:
(a) a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do a thing; and
(b) the refusal or failure was, is or would be, an offence against this Act or the Collection Act or a contravention of a civil penalty provision;
the court may, on application by any person, grant an injunction requiring the first - mentioned person to do that thing.
Grant of interim injunctions
(3) Before deciding an application for an injunction under this section, the court may grant an interim injunction:
(a) restraining a person from engaging in conduct; or
(b) requiring a person to do a thing.
69EMA Discharging or varying injunctions
A court may discharge or vary an injunction granted by that court under this Division.
69EMB Certain limits on granting injunctions not to apply
Restraining injunctions
(1) The power of a court under this Division to grant an injunction restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the person has previously engaged in conduct of that kind; and
(c) whether or not the conduct involves a serious and immediate risk of:
(i) an effect that is harmful to human beings; or
(ii) an unintended effect that is harmful to animals, plants or things, or to the environment.
Performance injunctions
(2) The power of a court under this Division to grant an injunction requiring a person to do a thing may be exercised:
(a) whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that thing; and
(b) whether or not the person has previously refused or failed to do that thing; and
(c) whether or not the conduct involves a serious and immediate risk of:
(i) an effect that is harmful to human beings; or
(ii) an unintended effect that is harmful to animals, plants or things, or to the environment.
69EMC Other powers of a court unaffected
The powers conferred on a court under this Division are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.
Division 5 -- Substantiation notices
69EN APVMA may require claims to be substantiated etc.
(1) This section applies if a person has made a claim or representation in relation to:
(a) the import, or possible import, of a chemical product by the person or another person; or
(b) the export of a chemical product by the person or another person.
(2) The APVMA may give the person who made the claim or representation a written notice that requires the person to do either or both of the following:
(a) give information or produce documents to the APVMA that could be capable of substantiating or supporting the claim or representation;
(b) give infor m ation or produce documents to the APVMA that are of a kind specified in the notice;
within 21 days after the notice is given to the person who made the claim or representation.
(3) Any kind of information or documents that the APVMA specifies under paragraph ( 2)(b) must be a kind that the APVMA is satisfied is relevant to substantiating or supporting the claim or representation.
(4) The notice must:
(a) name the person to whom it is given; and
(b) specify the claim or representation to which it relates; and
(c) explain the effect of sections 69ENA and 69ENB.
(5) The notice may relate to more than one claim or representation that the person has made.
(6) This section does not apply to a person who made the claim or representation if the person:
(a) made the claim or representation by publishing it on behalf of another person in the course of carrying on a business of providing information; and
(b) does not have a commercial relationship with the other person other than for the purpose of:
(i) publishing claims or representations promoting, or apparently intended to promote, the other person's business or other activities; or
(ii) the other person supplying goods or services.
69ENA Compliance with substantiation notices
(1) A person given a substantiation notice under section 69EN must comply with the notice:
(a) within the period specified in the notice; or
(b) within such further time as the APVMA allows under subsection ( 3).
(2) A person given a substantiation notice under section 69EN may apply to the APVMA for further time to comply with the notice. An application must be in writing and made within 21 days after the notice is given to the person.
(3) The APVMA may, by written notice given to the person, extend the period within which the person must comply with the notice.
(4) Despite subsection ( 1), an individual may refuse or fail to give particular information or produce a particular document in compliance with a substantiation notice on the ground that the information, or production of the document, might tend to incriminate the individual or to expose the individual to a penalty.
69ENB Failure to comply with substantiation notice
(1) A person contravenes this section if:
(a) the person is given a notice under section 69EN; and
(b) the person fails to comply with the notice:
(i) within the period specified in the notice; or
(ii) if the APVMA has allowed the person further time under subsection 69ENA(3)--within such further time.
(2) Subsection ( 1) does not apply if:
(a) the person is an individual; and
(b) the person refuses or fails to give particular information or produce a particular document in compliance with a substantiation notice; and
(c) the information, or production of the document, might tend to incriminate the individual or to expose the individual to a penalty.
(3) A person commits an offence if the person contravenes subsection ( 1).
Penalty: 50 penalty units.
Note : A defendant bears an evidential burden in relation to the matter in subsection ( 2). See subsection 13.3(3) of the Criminal Code .
(4) Subsection ( 1) is a civil penalty provision.
Note 1 : Division 1 of this Part provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 2: For the evidential burden in civil penalty proceedings in relation to the matter in subsection ( 2), see section 69EJP .
69EO APVMA may issue a formal warning
(1) The APVMA may, by written notice, issue a formal warning to a person if the APVMA has reasonable grounds to suspect that the person may have contravened this Act or the Collection Act.
(2) A formal warning under subsection ( 1) is not a legislative instrument.
67 Subsections 69EP(6) and 69EP(7) (penalties)
Repeal the penalties, substitute:
Penalty: 50 penalty units.
68 Section 69EQ
Before "this Part", insert "Part 7A, 7AA or".
69 Section 69ER
Repeal the section, substitute:
69ER False or misleading information or document
(1) A person commits an offence if, for the purposes of, or in connection with, the making of a decision by the APVMA as to whether it should give a consent under section 69B, the person:
(a) gives information (whether orally or in writing) that the person knows to be false or misleading in a material particular; or
(b) produces a document that the person knows to be false or misleading in a material particular without:
(i) indicating to the person to whom the document is produced that it is false or misleading and the respect in which it is false or misleading; and
(ii) providing correct information to that person if the person producing the document is in possession of, or can reasonably acquire, the correct information.
Penalty: 300 penalty units.
(2) A person commits an offence if, in compliance or purported compliance with a requirement made by an inspector under Part 7A, Part 7AA or this Part or for the purposes of, or in connection with, any provision of Part 7A (other than section 69B), Part 7AA or this Part, the person:
(a) gives information (whether orally or in writing) that the person knows to be false or misleading in a material particular; or
(b) produces a document that the person knows to be false or misleading in a material particular without:
(i) indicating to the person to whom the document is produced that it is false or misleading and the respect in which it is false or misleading; and
(ii) providing correct information to that person if the person producing the document is in possession of, or can reasonably acquire, the correct information.
Penalty: 60 penalty units.
70 Subsections 69ET(1), 69EU(1) and 69EU(3)
Before "this Part", insert "Part 7A, 7AA or".
71 Paragraph 69EU(5)(a)
Before "this Part", insert "Part 7A, 7AA or".
72 Subsection 69F(2)
Omit "particular".
73 Subsection 69F(5)
Omit "who has ceased to be an inspector must, as soon as practicable,", substitute "must, within 14 days of ceasing to be an inspector,".
74 After section 69H
Insert:
69HA Protection of inspectors etc.
An inspector, a person assisting an inspector, or other member of the staff of the APVMA, is not liable to any proceedings relating to an act done, or omitted to be done, in good faith in the performance or purported performance of a function, or in the exercise or purported exercise of a power, conferred on the inspector, person or member by this Act or the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 .
Agricultural and Veterinary Chemicals Code Act 1994
75 Paragraph 6(2)(i)
Repeal the paragraph, substitute:
(i) prescribing penalties of not more than 50 penalty units for offences against the regulations; or
(j) declaring provisions of the regulations to be civil penalty provisions.
76 Subsection 3(1) of the Code set out in the Schedule
Insert:
"agvet law" means:
(a) the Agvet Code of this, or another, jurisdiction; or
(b) the Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994 ; or
(c) the Agricultural and Veterinary Chemicals (Administration) Act 1992 .
77 Subsection 3(1) of the Code set out in the Schedule
Insert:
"agvet penalty provision" means:
(a) a civil penalty provision of the Agvet Code of this, or another, jurisdiction; or
(b) a civil penalty provision of the Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994 ; or
(c) a civil penalty provision of the Agricultural and Veterinary Chemicals (Administration) Act 1992 .
78 Subsection 3(1) of the Code set out in the Schedule
Insert:
"approved active constituent" means an active constituent that complies with the relevant particulars set out in the Record for the constituent.
79 Subsection 3(1) of the Code set out in the Schedule
Insert:
"civil penalty order" has the meaning given by section 145A.
80 Subsection 3(1) of the Code set out in the Schedule
Insert:
"civil penalty provision" means a provision declared by this Code to be a civil penalty provision.
81 Subsection 3(1) of the Code set out in the Schedule (definition of continued use )
Repeal the definition.
82 Subsection 3(1) of the Code set out in the Schedule
Insert:
"copy" , in relation to a warrant issued under section 143 or 143A (or a form of warrant completed under subsection 143B(6)), includes:
(a) a copy sent by fax or other electronic means; or
(b) a copy of a copy so sent.
83 Subsection 3(1) of the Code set out in the Schedule
Insert:
"damage" , in relation to data, includes damage by erasure of data or addition of other data.
84 Subsection 3(1) of the Code set out in the Schedule
Insert:
"data" includes:
(a) information in any form; and
(b) any program (or part of a program).
85 Subsection 3(1) of the Code set out in the Schedule
Insert:
"evidential burden" , in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
86 Subsection 3(1) of the Code set out in the Schedule
Insert:
"evidential material" means any of the following:
(a) a thing with respect to which an offence against an agvet law has been committed or is suspected, on reasonable grounds, to have been committed;
(b) a thing with respect to which an agvet penalty provision has been contravened or is suspected, on reasonable grounds, to have been contravened;
(c) a thing that there are reasonable grounds for suspecting will afford evidence as to the commission of such an offence or contravention of such an agvet penalty provision;
(d) a thing that there are reasonable grounds for suspecting is intended to be used for the purpose of committing such an offence or contravening such an agvet penalty provision.
87 Subsection 3(1) of the Code set out in the Schedule
Insert:
"executive officer" of a body corporate means a person, by whatever name called and whether or not a director of the body, who is concerned in, or takes part in, the management of the body.
88 Subsection 3(1) of the Code set out in the Schedule
Insert:
"investigation powers" has the meaning given by sections 132A, 132B and 132C.
89 Subsection 3(1) of the Code set out in the Schedule
Insert:
"investigation warrant" means:
(a) a warrant issued under section 143A; or
(b) a warrant signed by a magistrate under section 143B, being a warrant of the same kind as would have been issued under section 143A .
90 Subsection 3(1) of the Code set out in the Schedule
Insert:
"manufacture" , in relation to a chemical product, means:
(a) to produce the chemical product; or
(b) to engage in any part of the process of producing the chemical product, or any component or ingredient of the chemical product as part of that process, or of bringing the chemical product to its final state, including by formulating, processing, assembling, packaging, labelling, storing, sterilising, testing, supplying or releasing for supply.
91 Subsection 3(1) of the Code set out in the Schedule
Insert:
"monitoring powers" has the meaning given by sections 131A, 131B and 131C.
92 Subsection 3(1) of the Code set out in the Schedule
Insert:
"monitoring warrant" means:
(a) a warrant issued under section 143; or
(b) a warrant signed by a magistrate under section 143B, being a warrant of the same kind as wou ld have been issued under section 143 .
93 Subsection 3(1) of the Code set out in the Schedule
Insert:
"person assisting" an inspector:
(a) in relation to the exercise of monitoring powers--has the meaning given by section 131D; and
(b) in relation to the exercise of investigation powers--has the meaning given by section 132E.
94 Subsection 3(1) of the Code set out in the Schedule
Insert:
"prescribed civil penalty provision" means a civil penalty provision that is prescribed by the regulations.
95 Subsection 3(1) of the Code set out in the Schedule
Repeal the definition, substitute:
"registered chemical product" means a chemical product that complies with the relevant particulars set out in the Register for the product.
96 Subsection 3(1) of the Code set out in the Schedule
Insert:
"relevant data" means information relevant to determining whether:
(a) an agvet law has been, or is being, complied with; or
(b) information provided under an agvet law is correct.
97 Subsection 3(1) of the Code set out in the Schedule
Insert:
"use" , in relation to an active constituent for a proposed or existing chemical product, or in relation to a chemical product, includes deal with the constituent or product.
98 Subsection 3(1) of the Code set out in the Schedule
Insert:
"warrant" means a monitoring warrant or an investigation warrant.
99 Section 8A of the Code set out in the Schedule
Renumber as section 8AA .
100 Division 5 of Part 2 of the Code set out in the Schedule (heading)
Repeal the heading, substitute:
Division 5 -- Suspending and cancelling approvals and registrations
101 Before section 35 of the Code set out in the Schedule
Insert:
(1) This Division provides for suspension and cancellation of approvals and registrations.
(2) In most cases, the APVMA must not suspend or cancel an approval or registration without giving notice to the holder (section 34P).
(3) In most cases, the APVMA must not suspend or cancel an approval or registration without giving notice to the co - ordinators for other jurisdictions (section 35).
(4) The APVMA may suspend or cancel an approval or registration:
(a) if it is necessary to prevent imminent risk to persons of death, serious injury or serious illness (section 35A); or
(b) if a condition of the approval or registration is contravened (section 36); or
(c) if the holder does not comply with a requirement under section 32, 33, 159, 160A or 161 to give the APVMA information, a report or a sample (section 38); or
(d) if the holder has given information that is false or misleading (section 38A); or
(e) if primary and secondary holders cannot agree on compensation during the course of arbitration (section 39); or
(f) if it appears to the APVMA that the criteria for approval or registration are not, or are no longer, satisfied (section 41); or
(g) at the request of the holder if the APVMA agrees with the reasons for the request (section 42).
(5) A suspension must be for a stated period, and does not prevent cancellation (section 43).
(6) Section 44 deals with inter - related suspensions and cancellations.
(7) Suspensions and cancellations are done by entries in the Record, the Register and the relevant APVMA file (section 45).
(8) Notice of suspension and cancellation must be given to certain persons and must be published in the Gazette (section 45A).
(9) If the APVMA suspends or cancels the approval of a constituent or the registration of a product, then:
(a) certain persons are taken to have a permit to possess, have custody of or use of the constituent or product for a limited period (section 45B); and
(b) such persons may only supply the constituent or product in accordance with instructions contained in the notice provided by the APVMA under section 45A (section 45C).
(10) Section 46 sets out how suspensions and cancellations are revoked.
34P Notice of proposed suspension or cancellation to be given to holder
(1) The APVMA must not suspend or cancel an approval or registration unless it has given the holder a written notice that:
(a) states that the APVMA proposes to suspend or cancel the approval, or suspend or cancel the registration, as the case may be; and
(b) sets out the reasons for the proposed suspension or cancellation; and
(c) invites the holder to make, within a reasonable period specified in the notice, submissions to the APVMA in relation to the proposed suspension or cancellation.
(2) The APVMA must not make a decision relating to the proposed suspension or cancellation, as the case may be, until it has had regard to any submission made by the person in response to an invitation under paragraph ( 1)(c).
(3) A written notice under subsection ( 1) must specify the period of the suspension.
(4) Subsection ( 1) does not apply to a suspension or cancellation under section 34AA, 35A, 39 or 42.
102 Section 35 of the Code set out in the Schedule
Before "The APVMA", insert "(1)".
103 Section 35 of the Code set out in the Schedule
Omit "The APVMA", substitute "Subject to subsection ( 2), the APVMA".
104 At the end of section 35 of the Code set out in the Schedule
Add:
(2) Subsection ( 1) does not apply to a suspension or cancellation under section 35A.
105 After section 35 of the Code set out in the Schedule
Insert:
(1) The APVMA may suspend or cancel the registration of a chemical product if the APVMA considers that doing so is necessary to prevent imminent risk to persons of death, serious injury or serious illness.
Note: Section 43 deals with the effect of suspension of registration.
(2) The APVMA may suspend or cancel the registration of the product under subsection ( 1) whether or not the product is being used in accordance with instructions for its use that the APVMA has approved.
Note: Sections 34P and 35 do not apply to a suspension or cancellation under this section.
106 Section 37 of the Code set out in the Schedule
Repeal the section.
107 Section 38 of the Code set out in the Schedule (heading)
Repeal the heading, substitute:
108 Subsection 38(1) of the Code set out in the Schedule
Repeal the subsection, substitute:
(1) If the holder of an approval or registration fails, without reasonable excuse, to comply with a requirement contained in a notice under subsection 32(1) or section 33 or 159, or to comply with section 160A or 161, the APVMA may suspend the approval or registration.
109 Subsections 38(2) and (3) of the Code set out in the Schedule
After "information,", insert "results,".
110 After section 38 of the Code set out in the Schedule
Insert:
(1) The APVMA may suspend or cancel the approval of an active constituent for a proposed or existing chemical product if:
(a) the holder has given information:
(i) in or in connection with an application for approval of the constituent; or
(ii) in response to a notice under section 33 or 159; or
(iii) as required by section 160A or 161; and
(b) the information was false or misleading in a material particular.
(2) The APVMA may suspend or cancel the registration of a chemical product if:
(a) the holder has given information:
(i) in or in connection with an application for registration of the product; or
(ii) in response to a notice under section 33 or 159; or
(iii) as required by section 160A or 161; and
(b) the information was false or misleading in a material particular.
111 Paragraphs 39(1)(a) and (2)(a) of the Code set out in the Schedule
Omit "applicant" (wherever occurring), substitute "holder".
112 At the end of section 39 of the Code set out in the Schedule
Add:
Note: Section 34P does not apply to a suspension or cancellation under this section.
113 Section 41 of the Code set out in the Schedule
Repeal the section, substitute:
(1) The APVMA may suspend or cancel the approval of an active constituent for a proposed or existing chemical product, or the registration of a chemical product, if it appears to the APVMA:
(a) for an active constituent--that the constituent may not meet the safety criteria; or
(b) for a chemical product--that the product may not meet the safety criteria, the trade criteria or the efficacy criteria; or
(c) that the constituent or product may not comply with any requirement prescribed by the regulations.
(2) The APVMA may suspend or cancel the approval of a label for containers for a chemical product if it appears to the APVMA that the label may not meet the labelling criteria or may not comply with any requirement prescribed by the regulations.
114 Section 42 of the Code set out in the Schedule (heading)
Repeal the heading, substitute:
42 Cancellation of approval or registration at request of holder
115 Paragraph 42(1)(a) of the Code set out in the Schedule
Omit "interested person in relation to an approval or registration or an approved person", substitute "holder".
116 At the end of section 42 of the Code set out in the Schedule
Add:
Note: Section 34P does not apply to a suspension or cancellation under this section.
117 Subsection 44(1) of the Code set out in the Schedule
Omit "only approval, or all the approvals,", substitute "approval".
118 Subsection 45(1) of the Code set out in the Schedule
Omit "(1)".
119 Subsection 45(1) of the Code set out in the Schedule
Omit "relevant Record or Register or recording in the relevant file", substitute "Record or Register (as appropriate) or recording in the relevant APVMA file".
120 Section 45A of the Code set out in the Schedule
Repeal the section, substitute:
45A Notice of suspension or cancellation
(1) If the APVMA suspends or cancels the approval of an active constituent, the registration of a chemical product or the approval of a label, it must:
(a) give written notice of the suspension or cancellation to the holder and to any other person to whom, in its opinion, such a notice should be given; and
(b) publish in the Gazette , and in any other manner that it thinks appropriate, notice of the suspension or cancellation containing any information that it thinks relevant.
(2) A notice under subsection ( 1):
(a) must include a statement that the APVMA will publish a notice of the suspension or cancellation in the Gazette ; and
(b) in respect of a suspension or cancellation of the approval of an active constituent for a proposed or existing chemical product or the registration of a chemical product--must contain the following matters:
(i) brief reasons for the suspension or cancellation;
(ii) instructions for possessing, having custody of or using the constituent or product;
(iii) a warning of the consequences of failing to comply with the instructions, including a statement of any period after which it will be an offence against this Code to supply the constituent or product or to possess or have custody of the constituent or product with the intention of supplying it;
(iv) any other warnings or explanations in relation to the constituent or product that the APVMA thinks desirable.
(3) If the reason, or one of the reasons, for the suspension or cancellation was:
(a) for an active constituent--that the constituent may not meet the safety criteria; or
(b) for a chemical product--that the product may not meet the safety criteria, the trade criteria or the efficacy criteria; or
(c) for a label--that the label may not meet the labelling criteria;
the notice published in the Gazette must contain a statement to that effect and must include the matters mentioned in subparagraphs ( 2)(b)(ii), (iii) and (iv).
(4) Subsection ( 1) does not require notice of the cancellation under section 42 of an approval or registration to be given to the holder who requested the cancellation.
45B Permit taken to have been issued
Holder and certain persons taken to have permit
(1) If notice of the suspension or cancellation is given to a holder or other person under paragraph 45A(1)(a), the holder or person is taken to have been issued with a permit to possess, have custody of or use the constituent or product, or the product as labelled, in accordance with the instructions contained in the notice.
(2) A permit that is taken to have been issued under subsection ( 1) remains in force until:
(a) 1 year after the day of the suspension or cancellation; or
(b) the APVMA revokes the suspension or cancellation; or
(c) the APVMA, by notice published in the Gazette , declares that this subsection ceases to apply in respect of the constituent or product;
whichever first occurs.
Certain persons who possess etc. constituent or product taken to have permit
(3) If notice of the suspension or cancellation is published under paragraph 45A(1)(b), a person who possesses, has custody of or uses the constituent or product, or the product as labelled, in accordance with the instructions contained in the notice, is taken to have been issued with a permit to possess, have custody of or use the constituent or product, or product as labelled, in accordance with those instructions.
(4) A permit that is taken to have been issued under subsection ( 3) remains in force until whichever of the events mentioned in paragraph ( 2)(a), (b) or (c) first occurs.
Deemed permit does not authorise manufacture or import
(5) A permit that is taken to have been issued to a holder or other person under subsection ( 1) or (3) does not authorise the holder or person to manufacture or import the constituent or product.
45C Possession or custody with intention of supply
(1) This section applies if a person has possession or custody of the constituent or product with the intention of supplying it.
(2) If notice of the suspension or cancellation is:
(a) given to the person under paragraph 45A(1)(a); or
(b) published under paragraph 45A(1)(b);
the person may only possess, have custody of or otherwise deal with the constituent or product if the possession, custody or dealing is in accordance with the instructions contained in the notice.
(3) Subsection ( 2) does not apply to a possession, custody or dealing if the constituent was an approved active constituent or the product was a registered chemical product or a reserved chemical product when the possession, custody or use took place because of its having been approved or registered or having become reserved after its previous approval or registration had been cancelled.
(4) Subsection ( 2) does not apply to a person (other than a person to whom a notice is given under paragraph 45A(1)(a)) if the person proves that, when the person possessed, had custody of or otherwise dealt with the constituent or product, the person did not know, and could not reasonably be expected to have known, of the existence of the notice published in the Gazette or that the possession, custody or dealing was not in accordance with the instructions contained in the Gazette notice.
(5) A person commits an offence if the person contravenes subsection ( 2).
Penalty: 300 penalty units.
Note 1: A defendant bears an evidential burden in relation to the matter in subsection ( 3). See subsection 13.3(3) of the Criminal Code .
Note 2: A defendant bears a legal burden in relation to the matter in subsection ( 4). See section 13.4 of the Criminal Code .
(6) For the purposes of subsection ( 5), strict liability applies to the physical elements of circumstance:
(a) in paragraph ( 2)(a), that the notice is a notice given to the person under paragraph 45A(1)(a); and
(b) in paragraph ( 2)(b), that the publishing of the notice was under paragraph 45A(1)(b).
Note: For strict liability, see section 6.1 of the Criminal Code .
(7) Subsection ( 2) is a civil penalty provision.
Note 1: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 2: For the evidential burden in civil penalty proceedings in relation to the matter in subsection ( 3), see section 145CD.
121 Subsection 46(1) of the Code set out in the Schedule
Omit "relevant Record or Register", substitute "Record or Register (as appropriate)".
122 Subsection 46(2) of the Code set out in the Schedule
Repeal the subsection, substitute:
(2) If the APVMA revokes the suspension or cancellation of an approval or registration, it must, within 14 days:
(a) give written notice of the revocation to the holder and to any other person to whom, in its opinion, such a notice should be given; and
(b) publish in the Gazette , and in any other manner that it thinks appropriate, notice of the revocation containing any information that it thinks relevant.
123 Subsection 74(1) of the Code set out in the Schedule (penalty)
Repeal the penalty.
124 Subsection 74(1) of the Code set out in the Schedule (note)
Repeal the note.
125 After subsection 74(2) of the Code set out in the Schedule
Insert:
(2A) A person commits an offence if the person contravenes subsection ( 1).
Penalty: 200 penalty units.
Note : A defendant bears an evidential burden in relation to the matters in paragraphs ( 1)(a) to (d). See subsection 13.3(3) of the Criminal Code .
126 Subsection 74(3) of the Code set out in the Schedule
Omit " subsection ( 1)", substitute " subsection ( 2A)".
127 After subsection 74(3) of the Code set out in the Schedule
Insert:
(3A) Subsection ( 1) is a civil penalty provision.
Note 1: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 2: For the evidential burden in civil penalty proceedings in relation to the matters in paragraphs ( 1)(a) to (d), see section 145CD.
128 Subsection 75(1) of the Code set out in the Schedule (penalty)
Repeal the penalty.
129 Subsection 75(1) of the Code set out in the Schedule (note)
Repeal the note.
130 After subsection 75(2) of the Code set out in the Schedule
Insert:
(2A) A person commits an offence if the person contravenes subsection ( 1).
Penalty: 200 penalty units.
Note : A defendant bears an evidential burden in relation to the matters in paragraphs ( 1)(a) to (c). See subsection 13.3(3) of the Criminal Code .
131 Subsection 75(3) of the Code set out in the Schedule
Omit " subsection ( 1)", substitute " subsection ( 2A)".
132 After subsection 75(3) of the Code set out in the Schedule
Insert:
(3A) Subsection ( 1) is a civil penalty provision.
Note 1: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 2: For the evidential burden in civil penalty proceedings in relation to the matters in paragraphs ( 1)(a) to (c), see section 145CD.
133 Subsection 76(1) of the Code set out in the Schedule (penalty)
Repeal the penalty.
134 Subsection 76(1) of the Code set out in the Schedule (note)
Repeal the note.
135 After subsection 76(2) of the Code set out in the Schedule
Insert:
(2A) A person commits an offence if the person contravenes subsection ( 1).
Penalty: 300 penalty units.
Note: A defendant bears an evidential burden in relation to the matters in paragraphs ( 1)(a) to (c). See subsection 13.3(3) of the Criminal Code .
136 Subsection 76(3) of the Code set out in the Schedule
Omit " subsection ( 1)", substitute " subsection ( 2A)".
137 After subsection 76(3) of the Code set out in the Schedule
Insert:
(3A) Subsection ( 1) is a civil penalty provision.
Note 1: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 2: For the evidential burden in civil penalty proceedings in relation to the matters in paragraphs ( 1)(a) to (c), see section 145CD.
138 Subsection 77(1) of the Code set out in the Schedule (penalty)
Repeal the penalty.
139 Subsection 77(1) of the Code set out in the Schedule (note)
Repeal the note.
140 After subsection 77(1) of the Code set out in the Schedule
Insert:
(1A) A person commits an offence if the person contravenes subsection ( 1).
Penalty: 300 penalty units.
Note: The defendant bears an evidential burden in relation to establishing that the supply is in accordance with the conditions or is authorised by a permit. See subsection 13.3(3) of the Criminal Code .
141 Subsection 77(2) of the Code set out in the Schedule
Omit " subsection ( 1)", substitute " subsection ( 1A)".
142 At the end of section 77 of the Code set out in the Schedule
Add:
(3) Subsection ( 1) is a civil penalty provision.
Note 1: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 2: For the evidential burden in civil penalty proceedings in relation to establishing that the supply is in accordance with the conditions or is authorised by a permit, see section 145CD.
143 Subsection 78(1) of the Code set out in the Schedule (penalty)
Repeal the penalty.
144 Subsection 78(1) of the Code set out in the Schedule (note)
Repeal the note.
145 After subsection 78(2) of the Code set out in the Schedule
Insert:
(2A) A person commits an offence if the person contravenes subsection ( 1).
Penalty: 300 penalty units.
Note: A defendant bears an evidential burden in relation to the matters in paragraphs ( 1)(a) to (c). See subsection 13.3(3) of the Criminal Code .
146 Subsection 78(3) of the Code set out in the Schedule
Omit " subsection ( 1)", substitute " subsection ( 2A)".
147 After subsection 78(3) of the Code set out in the Schedule
Insert:
(3A) Subsection ( 1) is a civil penalty provision.
Note 1: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 2: For the evidential burden in civil penalty proceedings in relation to the matters in paragraphs ( 1)(a) to (c), see section 145CD.
148 Subsection 79 (1) of the Code set out in the Schedule (penalty)
Repeal the penalty.
149 Subsection 79 (1) of the Code set out in the Schedule (note)
Repeal the note.
150 After subsection 79(1) of the Code set out in the Schedule
Insert:
(1A) A person commits an offence if the person contravenes subsection ( 1).
Penalty: 300 penalty units.
Note: The defendant bears an evidential burden in relation to establishing that the supply is in accordance with the conditions or is authorised by a permit. See subsection 13.3(3) of the Criminal Code .
151 Subsection 79(2) of the Code set out in the Schedule
Omit " subsection ( 1)", substitute " subsection ( 1A)".
152 At the end of section 79 of the Code set out in the Schedule
Add:
(3) Subsection ( 1) is a civil penalty provision.
Note 1: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 2: For the evidential burden in civil penalty proceedings in relation to establishing that the supply is in accordance with the conditions or is authorised by a permit, see section 145CD.
153 Section 79A of the Code set out in the Schedule
Repeal the section.
154 Subsection 79B(1) of the Code set out in the Schedule (penalty)
Repeal the penalty.
155 After subsection 79B(1) of the Code set out in the Schedule
Insert:
(1A) A person commits an offence if the person contravenes subsection ( 1).
Penalty: 300 penalty units.
156 At the end of section 79B of the Code set out in the Schedule
Add:
(3) Subsection ( 1) is a civil penalty provision.
Note: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
157 Subsection 80(1) of the Code set out in the Schedule (penalty)
Repeal the penalty.
158 Subsection 80(1) of the Code set out in the Schedule (note)
Repeal the note.
159 After subsection 80(1) of the Code set out in the Schedule
Insert:
(1A) A person commits an offence if the person contravenes subsection ( 1).
Penalty: 300 penalty units.
Note: A defendant bears an evidential burden in relation to establishing that the supply is authorised by a permit. See subsection 13.3(3) of the Criminal Code .
160 Subsection 80(2) of the Code set out in the Schedule
Omit " subsection ( 1)", substitute " subsection ( 1A)".
161 At the end of section 80 of the Code set out in the Schedule
Add:
(3) Subsection ( 1) is a civil penalty provision.
Note 1: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 2: For the evidential burden in civil penalty proceedings in relation establishing that the supply is authorised by a permit, see section 145CD.
162 Subsection 81(1) of the Code set out in the Schedule (penalty)
Repeal the penalty.
163 After subsection 81(1) of the Code set out in the Schedule
Insert:
(1A) A person commits an offence if the person contravenes subsection ( 1).
Penalty: 300 penalty units.
Note: A defendant bears an evidential burden in relation to the matter in subsection ( 3). See subsection 13.3(3) of the Criminal Code .
164 Subsection 81(2) of the Code set out in the Schedule
Omit " subsection ( 1)", substitute " subsection ( 1A)".
165 At the end of section 81 of the Code set out in the Schedule
Add:
(4) Subsection ( 1) is a civil penalty provision.
Note 1: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 2: For the evidential burden in civil penalty proceedings in relation to the matter in subsection ( 3), see section 145CD.
166 Section 82 of the Code set out in the Schedule
Repeal the section.
167 Subsection 83(1) of the Code set out in the Schedule (penalty)
Repeal the penalty.
168 After subsection 83(1) of the Code set out in the Schedule
Insert:
(1A) A person commits an offence if the person contravenes subsection ( 1).
Penalty: 300 penalty units.
Note: The defendant bears an evidential burden in relation to the matter in subsection ( 2). See subsection 13.3(3) of the Criminal Code .
169 Subsection 83(2) of the Code set out in the Schedule
Omit " Subsection ( 1)", substitute " Subsection ( 1A)".
170 At the end of section 83 of the Code set out in the Schedule
Add:
(3) Subsection ( 1) is a civil penalty provision.
Note: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
171 Subsection 84(1) of the Code set out in the Schedule (penalty)
Repeal the penalty.
172 Paragraph 84(2)(b) of the Code set out in the Schedule
Omit "section 55", substitute "paragraph 45A(1)(b)".
173 After subsection 84(3) of the Code set out in the Schedule
Insert:
(3A) A person commits an offence if the person contravenes subsection ( 1).
Penalty: 300 penalty units.
174 Subsection 84(4) of the Code set out in the Schedule
Omit " Subsection ( 1)", substitute " Subsection ( 3A)".
175 At the end of section 84 of the Code set out in the Schedule
Add:
(5) Subsection ( 1) is a civil penalty provision.
Note 1: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 2: For the evidential burden in civil penalty proceedings in relation to the matter in subsection ( 3), see section 145CD.
176 Subsection 85(1) of the Code set out in the Schedule (penalty)
Repeal the penalty.
177 Subsection 85(2) of the Code set out in the Schedule
Omit "section 55", substitute "paragraph 45A(1)(b)".
178 After subsection 85(3) of the Code set out in the Schedule
Insert:
(3A) A person commits an offence if the person contravenes subsection ( 1).
Penalty: 300 penalty units.
179 Subsection 85(4) of the Code set out in the Schedule
Omit " Subsection ( 1)", substitute " Subsection ( 3A)".
180 At the end of section 85 of the Code set out in the Schedule
Add:
(6) Subsection ( 1) is a civil penalty provision.
Note 1: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 2: For the evidential burden in civil penalty proceedings in relation to the matter in subsection ( 3), see section 145CD.
181 Subsection 86(1) of the Code set out in the Schedule
Omit "commits an offence", substitute "contravenes this subsection".
182 Subsection 86(1) of the Code set out in the Schedule (penalty)
Repeal the penalty.
183 After subsection 86(1) of the Code set out in the Schedule
Insert:
(1A) A person commits an offence if the person contravenes subsection ( 1).
Penalty: 300 penalty units.
184 Subsection 86(2) of the Code set out in the Schedule
Omit "commits an offence", substitute "contravenes this subsection".
185 Subsection 86(2) of the Code set out in the Schedule (penalty)
Repeal the penalty.
186 After subsection 86(2) of the Code set out in the Schedule
Insert:
(2A) A person commits an offence if the person contravenes subsection ( 2).
Penalty: 300 penalty units.
187 After subsection 86(3) of the Code set out in the Schedule
Insert:
(3A) Subsections ( 1) and (2) do not apply :
(a) if a person acts in accordance with a direction given to the person under:
( i ) subsection 131A(1) or 132A(1) of this Code; or
( ii ) subsection 69EAC(1) or 69EBA(1) of the Agricultural and Veterinary Chemicals (Administration) Act 1992 ; or
(b) to the extent that the person is authorised by a permit to engage in the conduct concerned.
188 Subsection 86(4) of the Code set out in the Schedule
Omit " Subsection ( 1) and (2)", substitute " Subsections ( 1A) and (2A)".
189 Subsection 86(4) of the Code set out in the Schedule (note)
Omit "matter in subsection ( 4)", substitute "matters in subsections ( 3), (3A) and (4)".
190 At the end of section 86 of the Code set out in the Schedule
Add:
(5) Subsections ( 1) and (2) are civil penalty provisions.
Note 1: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 2: For the evidential burden in civil penalty proceedings in relation to the matters in subsections ( 3) and (3A), see section 145CD.
191 Subsection 87(2) of the Code set out in the Schedule (penalty)
Repeal the penalty.
192 After subsection 87(3) of the Code set out in the Schedule
Insert:
(3A) A person commits an offence if the person contravenes subsection ( 2).
Penalty: 300 penalty units.
193 Subsection 87(4) of the Code set out in the Schedule
Omit " Subsection ( 2)", substitute " Subsection ( 3A)".
194 At the end of section 87 of the Code set out in the Schedule
Add:
(5) Subsection ( 2) is a civil penalty provision.
Note 1: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 2: For the evidential burden in civil penalty proceedings in relation to the matter in subsection ( 3), see section 145CD.
195 Section 87A of the Code set out in the Schedule
Repeal the section.
196 Subsection 88(2) of the Code set out in the Schedule (penalty)
Repeal the penalty.
197 Subsection 88(2) of the Code set out in the Schedule (note)
Repeal the note.
198 After subsection 88(2) of the Code set out in the Schedule
Insert:
(2A) A person commits an offence if the person contravenes subsection ( 2).
Penalty: 50 penalty units.
Note: A defendant bears an evidential burden in relation to the matters in paragraphs ( 2)(c) and (d). See subsection 13.3(3) of the Criminal Code .
199 Subsection 88(3) of the Code set out in the Schedule
Omit " subsection ( 2)", substitute " subsection ( 2A)".
200 At the end of section 88 of the Code set out in the Schedule
Add:
(4) Subsection ( 2) is a civil penalty provision.
Note 1: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 2: For the evidential burden in civil penalty proceedings in relation to the matters in paragraphs ( 2)(c) and (d), see section 145CD.
201 Subsection 89(1) of the Code set out in the Schedule (penalty)
Repeal the penalty.
202 After subsection 89(5) of the Code set out in the Schedule
Insert:
(5A) A person commits an offence if the person contravenes subsection ( 1).
Penalty: 50 penalty units.
203 Subsection 89(6) of the Code set out in the Schedule
Omit " Subsection ( 1)", substitute " Subsection ( 5A)".
204 At the end of section 89 of the Code set out in the Schedule
Add:
(8) Subsection ( 1) is a civil penalty provision.
Note: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
205 Paragraph 90(1)(a) of the Code set out in the Schedule
Omit "as soon as practicable make a record in or to the effect of", substitute "within 28 days make a record in".
206 Subsection 90(1) of the Code set out in the Schedule (penalty)
Repeal the penalty.
207 After subsection 90(1) of the Code set out in the Schedule
Insert:
(1A) A person commits an offence if the person contravenes subsection ( 1).
Penalty: 120 penalty units.
208 Subsection 90(2) of the Code set out in the Schedule
Omit " Subsection ( 1)", substitute " Subsection ( 1A)".
209 At the end of section 90 of the Code set out in the Schedule
Add:
(4) Subsection ( 1) is a civil penalty provision.
Note: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
210 After subsection 91(1A) of the Code set out in the Schedule
Insert:
(1AA) A person commits an offence if the person contravenes subsection ( 1).
Penalty: 120 penalty units.
211 Subsection 91(1B) of the Code set out in the Schedule
Omit " Subsection ( 1)", substitute " Subsection ( 1AA)".
212 Subsection 91(1C) of the Code set out in the Schedule
Omit "In subsection ( 1)", substitute "For the purposes of subsection ( 1AA)".
213 After subsection 91(1C) of the Code set out in the Schedule
Insert:
(1D) Subsection ( 1) is a civil penalty provision.
Note 1: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 2: For the evidential burden in civil penalty proceedings in relation to the matters in subsection ( 1A), see section 145CD.
214 Subsection 91(2) of the Code set out in the Schedule (penalty)
Repeal the penalty.
215 After subsection 91(2) of the Code set out in the Schedule
Insert:
(2A) A person commits an offence if the person contravenes subsection ( 1).
Penalty: 120 penalty units.
Note: The defendant bears an evidential burden in relation to the matters in paragraphs ( 2)(a) and (b). See subsection 13.3(3) of the Criminal Code .
216 Subsection 91(3) of the Code set out in the Schedule
Omit " Subsection ( 2)", substitute " Subsection ( 2A)".
217 At the end of section 91 of the Code set out in the Schedule
Add:
(4) Subsection ( 2) is a civil penalty provision.
Note 1: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 2: For the evidential burden in civil penalty proceedings in relation to the matters in paragraphs ( 2)(a) and (b), see section 145CD.
218 Subsection 92(2) of the Code set out in the Schedule (penalty)
Repeal the penalty.
219 After subsection 92(2) of the Code set out in the Schedule
Insert:
(2A) A person commits an offence if the person contravenes subsection ( 1).
Penalty: 120 penalty units.
Note: The defendant bears an evidential burden in relation to the matters in subsection ( 2). See subsection 13.3(3) of the Criminal Code .
220 Subsection 92(3) of the Code set out in the Schedule
Omit " Subsection ( 1)", substitute " Subsection ( 2A)".
221 At the end of section 92 of the Code set out in the Schedule
Add:
(4) Subsection ( 1) is a civil penalty provision.
Note 1: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 2: For the evidential burden in civil penalty proceedings in relation to the matter in subsection ( 2), see section 145CD.
222 Subsection 94(1) of the Code set out in the Schedule (penalty)
Repeal the penalty.
223 After subsection 94(1) of the Code set out in the Schedule
Insert:
(1A) A person commits an offence if the person contravenes subsection ( 1).
Penalty: 120 penalty units.
224 Subsection 94(2) of the Code set out in the Schedule
Omit " Subsection ( 1)", substitute " Subsection ( 1A)".
225 At the end of section 94 of the Code set out in the Schedule
Add:
(3) Subsection ( 1) is a civil penalty provision.
Note: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
226 Subsection 95(1) of the Code set out in the Schedule (penalty)
Repeal the penalty.
227 After subsection 95(1) of the Code set out in the Schedule
Insert:
(1A) A person commits an offence if the person contravenes subsection ( 1).
Penalty: 120 penalty units.
228 Subsection 95(2) of the Code set out in the Schedule
Omit " Subsection ( 1)", substitute " Subsection ( 1A)".
229 At the end of section 95 of the Code set out in the Schedule
Insert:
(3) Subsection ( 1) is a civil penalty provision.
Note: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
230 Subsection 97(1) of the Code set out in the Schedule
Omit "paragraph 131(1)(c) or 132(1)(d)", substitute "section 131A or 132A".
231 Subsection 97(2) of the Code set out in the Schedule
Omit "or to the effect of".
232 Subsection 97(7) of the Code set out in the Schedule
Omit "section 131 or 132", substitute "an investigation warrant".
233 Subsection 97(7) of the Code set out in the Schedule
Omit "paragraph 131(1)(c) or 132(1)(d)", substitute "section 131A or 132A".
234 Subsection 98(1) of the Code set out in the Schedule
Omit "or to the effect of".
235 Subsection 98(6) of the Code set out in the Schedule
Omit "section 131 or 132", substitute "an investigation warrant".
236 Subsection 98(6) of the Code set out in the Schedule
Omit "paragraph 131(1)(c) or 132(1)(d)", substitute "section 131A or 132A".
237 After subsection 99(3) of the Code set out in the Schedule
Insert:
(3A) This section also applies if a person has possession or custody of a substance or mixture of substances that is intended for supply as an active constituent, under a particular name, for a proposed or existing chemical product.
(3B) If an active constituent having that name is approved under Division 2 of Part 2 and the APVMA, on the advice of an inspector, reasonably suspects that:
(a) the constituents of the substance or mixture differ by more than the prescribed extent from the constituents stated in relation to the active constituent in the Record; or
(b) the concentration of the constituents of the substance or mixture differs by more than the prescribed extent from the concentration of the constituents stated in relation to the active constituent in the Record; or
(c) the composition or purity of a constituent of the substance or mixture differs by more than the prescribed extent from the composition or purity of that constituent stated in relation to the active constituent in the Record;
the APVMA may, by written notice given to the person, require the person to have the substance or mixture analysed to find out its constituents, their concentration and the composition and purity of each of them.
238 Subsection 99(4) of the Code set out in the Schedule
Omit " subsections ( 2) and (3), a notice given to a person under either", substitute " subsections ( 2), (3) and (3B), a notice given to a person under any".
239 Subsection 99(5) of the Code set out in the Schedule
Omit " subsection ( 2) or (3)", substitute " subsection ( 2), (3) or (3B)".
240 Subsection 99(5) of the Code set out in the Schedule (penalty)
Repeal the penalty.
241 After subsection 99(5) of the Code set out in the Schedule
Insert:
(5AA) A person commits an offence of strict liability if the person contravenes subsection ( 5).
Penalty: 120 penalty units.
Note: For strict liability, see section 6.1 of the Criminal Code .
242 Subsection 99(5 A ) of the Code set out in the Schedule
Omit " Subsection ( 5)", substitute " Subsection ( 5AA)".
243 Subsection 99(5B) of the Code set out in the Schedule
Repeal the subsection, substitute:
(5B) Subsection ( 5) is a civil penalty provision.
Note: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
244 Subsection 105(1) of the Code set out in the Schedule (penalty)
Repeal the penalty.
245 After subsection 105(1) of the Code set out in the Schedule
Insert:
(1A) A person commits an offence of strict liability if the person contravenes subsection ( 1).
Penalty: 120 penalty units.
Note: For strict liability, see section 6.1 of the Criminal Code .
246 Subsection 105(2) of the Code set out in the Schedule
Omit " Subsection ( 1)", substitute " Subsection ( 1A)".
247 Subsection 105(3) of the Code set out in the Schedule
Repeal the subsection, substitute:
(3) Subsection ( 1) is a civil penalty provision.
Note: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
248 Section 109 of the Code set out in the Schedule ( paragraph ( a) of the definition of permit )
Repeal the paragraph, substitute:
(a) an offence against section 74, 75, 76, 77, 78, 79, 79B, 80, 81, 84, 85, 86, 87 or 91 or subsection 121(4A) or (5A); or
249 At the end of section 109 of the Code set out in the Schedule
Add:
; or (c) a contravention of a civil penalty provision mentioned in section 74, 75, 76, 77, 78, 79, 79A, 79B, 80, 81 , 84, 85, 86, 87 or 91 or a contravention of the civil penalty provision set out in subsection 121(4) or (5).
250 Subsection 115(1) of the Code set out in the Schedule
After "section 119", insert ", 119A or 119B".
251 Section 116 of the Code set out in the Schedule (heading)
Repeal the heading, substitute:
116 Effect of permit and compliance with conditions of permit
252 After subsection 116(3) of the Code set out in the Schedule
Insert:
(3A) A person to whom a permit applies must not contravene a condition of the permit.
(3B) A person commits an offence if the person contravenes subsection ( 3A).
Penalty: 300 penalty units.
(3C) Subsection ( 3A) is a civil penalty provision.
Note: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions..
253 After section 117 of the Code set out in the Schedule
Insert:
117A Notice of proposed suspension or cancellation to be given to permit holder
(1) Subject to subsection ( 4), the APVMA must not suspend or cancel a permit unless it has given the permit holder a written notice that:
(a) states that the APVMA proposes to suspend or cancel the approval, or suspend or cancel the registration, as the case may be; and
(b) sets out the reasons for the proposed suspension or cancellation; and
(c) invites the permit holder to make, within a reasonable period specified in the notice, submissions to the APVMA in relation to the proposed suspension or cancellation.
(2) The APVMA must not make a decision relating to the proposed suspension or cancellation, as the case may be, until it has had regard to any submission made by the permit holder in response to an invitation under paragraph ( 1)(c).
(3) A written notice under subsection ( 1) must specify the period of the proposed suspension.
(4) Subsection ( 1) does not apply to a suspension or cancellation under section 119A.
254 Section 118 of the Code set out in the Schedule (heading)
Repeal the heading, substitute:
118 Suspension of permit--general grounds
255 Subsection 118(1) of the Code set out in the Schedule
Repeal the subsection, substitute:
(1) The APVMA may, by written notice given to the holder of a permit, suspend the permit if it appears to the APVMA:
(a) for an active constituent--that the constituent may not meet the safety criteria; or
(b) for a chemical product--that the product may not meet the safety criteria, the trade criteria or the efficacy criteria; or
(c) that the use of the active constituent or chemical product in accordance with the permit is inappropriate for any other reason; or
(d) that the holder has contravened a condition of the permit.
256 Subsection 118(7) of the Code set out in the Schedule
Omit "brief particulars of".
257 Section 119 of the Code set out in the Schedule (heading)
Repeal the heading, substitute:
119 Cancellation of permit--general grounds
258 Subsection 119(1) of the Code set out in the Schedule
Repeal the subsection, substitute:
(1) The APVMA, by written notice given to the holder of a permit, may cancel the permit if it appears to the APVMA:
(a) for an active constituent--that the constituent may not meet the safety criteria; or
(b) for a chemical product--that the product may not meet the safety criteria, the trade criteria or the efficacy criteria; or
(c) that the use of the active constituent or chemical product in accordance with the permit is inappropriate for any other reason.
259 Subsection 119(4) of the Code set out in the Schedule
Repeal the subsection, substitute:
(4) The APVMA may, by written notice given to the holder of a permit, cancel the permit if the APVMA is satisfied that:
(a) the holder has contravened a condition of the permit; or
(b) at least one of the following persons:
(i) the holder;
(ii) any other person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the holder's affairs;
(iii) if the holder is a body corporate--a major interest holder of the body corporate;
has, within the 10 years immediately before the notice is given:
(iv) been convicted of an offence against an agvet law of this or another jurisdiction; or
(v) been convicted of an offence against a law of this or another jurisdiction relating to chemical products; or
(vi) been convicted of an offence against a law of the Commonwealth or a law of a State or Territory involving fraud or dishonesty; or
(vii) been ordered to pay a pecuniary penalty for the contravention of an agvet penalty provision; or
(viii) been ordered to pay a pecuniary penalty for the contravention of another law of this or another jurisdiction relating to chemical products; or
(ix) been ordered to pay a pecuniary penalty for the contravention of a civil penalty provision of a law of the Commonwealth or a law of a State or Territory involving fraud or dishonesty; or
(x) held a permit that was cancelled under subsection 119(2) or section 119B of this Code or under a corresponding provision of the Agvet Code of another jurisdiction; or
(xi) been a manager, or a major interest holder, of a body corporate in respect of which subparagraph ( iv), (v), (vi), (vii), (viii), (ix) or (x) applies, if the conduct resulting in that subparagraph applying occurred when the person was a manager or major interest holder of the body corporate.
(4A) A reference in paragraph ( 4)(b) to a person convicted of an offence includes a reference to a person in respect of whom an order has been made relating to the offence under:
(a) section 19B of the Crimes Act 1914 ; or
(b) a corresponding provision of a law of a State or Territory.
Note: Section 19B of the Crimes Act 1914 empowers a court that has found a person to have committed an offence to take action without proceeding to record a conviction.
260 Subsection 119(7) of the Code set out in the Schedule
Omit "brief particulars of".
261 After section 119 of the Code set out in the Schedule
Insert:
(1) The APVMA may, by written notice to the holder of a permit, suspend or cancel the permit if the APVMA considers that doing so is necessary to prevent imminent risk to persons of death, serious injury or serious illness.
(2) The APVMA may suspend or cancel the permit whether or not the conditions of the permit have been, or are being, complied with.
(3) A notice under subsection ( 1) must specify the period of the suspension.
Note: Section 117A does not apply to a suspension or cancellation under this section.
119B Suspension or cancellation of permit--providing false or misleading information
The APVMA may suspend or cancel a permit if:
(a) the holder of the permit has given information:
(i) in or in connection with an application for the permit; or
(ii) in response to a notice under section 159; or
(iii) as required by section 160A or 161; and
(b) the information was false or misleading in a material particular.
262 Subsection 120(3) of the Code set out in the Schedule
Repeal the subsection, substitute:
(3) A licensee is required to comply with conditions imposed on a licence by the APVMA in relation to the manufacture of chemical products. A licence is also subject to various statutory conditions.
263 Subsections 121(1) and (2)
Repeal the subsections.
264 Subsection 121(3) of the Code set out in the Schedule (penalty)
Repeal the penalty.
265 After subsection 121(3) of the Code set out in the Schedule
Insert:
(3A) A person commits an offence of strict liability if the person contravenes subsection ( 3).
Penalty: 240 penalty units.
Note: For strict liability, see section 6.1 of the Criminal Code .
266 Paragraph 121(4)(c) of the Code set out in the Schedule
Repeal the paragraph, substitute:
(c) the person holds a permit that authorises the carrying out of that step in relation to the product at those premises.
267 Subsection 121(4) of the Code set out in the Schedule (penalty)
Repeal the penalty.
268 After subsection 121(4) of the Code set out in the Schedule
Insert:
(4A) A person commits an offence of strict liability if the person contravenes subsection ( 4).
Penalty: 240 penalty units.
Note: For strict liability, see section 6.1 of the Criminal Code .
269 At the end of subsection 121(5) of the Code set out in the Schedule
Add "unless the person holds a permit that authorises the conduct that would contravene the condition of the licence".
270 Subsection 121(5) of the Code set out in the Schedule (penalty)
Repeal the penalty.
271 After subsection 121(5) of the Code set out in the Schedule
Insert:
(5A) A person commits an offence of strict liability if the person contravenes subsection ( 5).
Penalty: 120 penalty units.
Note: For strict liability, see section 6.1 of the Criminal Code .
272 Subsection 121(6) of the Code set out in the Schedule
Omit " Subsections ( 3), (4) and (5)", substitute " Subsections ( 3A), (4A) and (5A)".
273 Subsection 121(7) of the Code set out in the Schedule
Repeal the subsection, substitute:
(7) Subsections ( 3), (4) and (5) are civil penalty provisions.
Note: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
274 After paragraph 126(4)(a) of the Code set out in the Schedule
Insert:
(aa) allow an inspector to enter premises at which the chemical products are manufactured and to exercise the monitoring powers under section 131A in relation to premises; and
275 Paragraphs 127(1)(a), (b) and (c) of the Code set out in the Schedule
Repeal the paragraphs, substitute:
(a) the APVMA is satisfied that at least one of the following persons:
(i) the holder of the licence;
(ii) any other person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the holder's affairs;
(iii) if the holder is a body corporate--a major interest holder of the body corporate;
has, within the 10 years immediately before the notice is given:
(iv) given information to the APVMA in connection with an application for a licence, in response to a notice under section 159, or as required by section 160A or 161, and the information was false or misleading in a material particular; or
(v) been convicted of an offence against an agvet law; or
(vi) been convicted of an offence against a law of this or another jurisdiction relating to chemical products; or
(vii) been convicted of an offence against a law of the Commonwealth or a law of a State or Territory involving fraud or dishonesty; or
(viii) been ordered to pay a pecuniary penalty for the contravention of an agvet penalty provision; or
(ix) been ordered to pay a pecuniary penalty for the contravention of another law of this or another jurisdiction relating to chemical products; or
(x) been ordered to pay a pecuniary penalty for the contravention of a civil penalty provision of a law of the Commonwealth or a law of a State or Territory involving fraud or dishonesty; or
(xi) contravened a condition of a manufacturing licence issued under an agvet law; or
(b) the APVMA is satisfied that the holder failed, within the 5 years immediately before the notice was given, to comply with a manufacturing principle in connection with the manufacture of chemical products; or
(c) any other circumstances prescribed by the regulations for the purposes of this paragraph exist; or
276 Subsection 127(2) of the Code set out in the Schedule
Omit "it thinks that failure to suspend or cancel the licence immediately would create an imminent risk to public health or occupational health or safety, or an imminent risk of impact on trade or commerce between Australia and places outside Australia", substitute " subsection ( 2A) applies".
277 After subsection 127(2) of the Code set out in the Schedule
Insert:
(2A) This subsection applies if the APVMA thinks that a failure to suspend or cancel the licence immediately would result in:
(a) imminent risk to persons of death, serious injury or serious illness; or
(b) imminent risk of unintended harm to animals, plants or things, or to the environment; or
(c) imminent risk of impact on trade or commerce between Australia and places outside Australia.
278 Subsection 127(3) of the Code set out in the Schedule
Omit "is not to", substitute "must not".
279 Subsection 127(5) of the Code set out in the Schedule
Omit "brief particulars of".
280 Subsection 127(8) of the Code set out in the Schedule
Omit "must cause particulars of the suspension, cancellation or revocation to be published", substitute "must publish particulars of the suspension, cancellation or revocation".
281 Part 9 of the Code set out in the Schedule (heading)
Repeal the heading, substitute:
Part 9 -- Investigative powers
282 Section 129 of the Code set out in the Schedule
Repeal the section, substitute:
(1) This Part contains powers:
(a) to gather information; and
(b) to search premises with or, in some cases, without a warrant to find out whether either or both of the following apply:
(i) an offence against an agvet law has been committed;
(ii) an agvet penalty provision has been contravened.
(2) It also contains various ancillary provisions.
283 Division 2 of Part 9 of the Code set out in the Schedule
Repeal the Division, substitute:
Division 2 -- Requiring people to attend, give information and produce documents or things
Subdivision A -- Notices by the APVMA
130 Notice to produce or attend
(1) The APVMA may give a notice to a person under subsection ( 2) if the APVMA has reason to believe that the person has information, a document or thing that is relevant to the administration or enforcement of this Code.
(2) The APVMA may, by notice in writing, given to the person, require the person to do one or more of the following:
(a) give any such information as is specified in the notice to a specified inspector;
(b) produce any such document or thing as is specified in the notice to a specified inspector;
(c) appear before a specified inspector to answer questions.
(3) The APVMA may require that information to be provided under paragraph ( 2)(a) is to be provided in writing or verified on oath or affirmation.
(4) The inspector may require that answers under paragraph ( 2)(c) be given on oath or affirmation, and for that purpose the inspector may administer an oath or affirmation.
(5) The notice must:
(a) be served on the person; and
(b) be signed by the Chief Executive Officer; and
(c) if paragraph ( 2)(a) or (b) applies--specify the period within which the person must comply with the notice; and
(d) if paragraph ( 2)(c) applies--both:
(i) specify the time and place at which the person must appear; and
(ii) state that the person may be accompanied by a lawyer; and
(e) set out the effect of sections 130B and 130C.
(6) The period specified under paragraph ( 5)(c) must be at least 14 days after the notice is served on the person.
(7) The person must comply with the notice within the time specified in the notice, or within such further time as the APVMA allows.
Note: Failure to comply with a notice is an offence, see section 130B.
130A APVMA may retain documents and things
(1) If a document or thing is produced to the APVMA in accordance with a notice served under section 130, the APVMA:
(a) may take possession of, and may make copies of, the document or thing, or take extracts from the document; and
(b) may retain possession of the document or thing for such period as is necessary:
(i) for the purposes of this Code; or
(ii) for the purposes of an investigation to which the document or thing relates; or
(iii) to enable evidence to be secured for the purposes of a prosecution or proceedings for a civil penalty order.
(2) While the APVMA retains the document or thing, it must allow a person who would otherwise be entitled to inspect the document or view the thing to do so at the times that the person would ordinarily be able to do so.
Subdivision B -- Offence and related provisions
130B Failure to comply with notice etc.
(1) A person commits an offence if:
(a) the person is served with a notice under section 130; and
(b) the notice requires the person to:
(i) give information; or
(ii) produce documents or things;
specified in the notice; and
(c) the person fails to comply with the notice:
(i) within the period specified in the notice; or
(ii) if the APVMA has allowed the person further time under subsection 130(7)--within such further time.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
(2) A person commits an offence if:
(a) the person is served with a notice under section 130; and
(b) the notice requires the person to appear before an inspector to answer questions put by the inspector; and
(c) the person fails to comply with the notice.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
(3) A person commits an offence if:
(a) the person is required to take an oath; and
(b) the person refuses or fails to comply with the requirement.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
(4) A person commits an offence if:
(a) the person is served with a notice under section 130; and
(b) the notice requires the person to appear before an inspector to answer questions put by the inspector; and
(c) the person refuses or fails to answer a question put by the inspector.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
130C Self - incrimination etc.
(1) A person is not excused from:
(a) giving information; or
(b) producing a document or thing; or
(c) answering a question;
in relation to a notice under section 130 on the ground that doing so might tend to incriminate the person or expose the person to a penalty.
(2) However, in the case of an individual, none of the following:
(a) the information or answer given;
(b) the document or thing produced;
(c) the giving of the information or the answer, or the producing of the document or thing;
(d) any information, document or thing obtained as a direct or indirect consequence of giving the information or answer, or producing the document or thing;
is admissible in evidence against the individual in:
(e) criminal proceedings, other than:
(i) proceedings for an offence against section 130B or 146; or
(ii) proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (which deal with false or misleading information or documents) that relates to this Code; or
(iii) proceedings for an offence against section 149.1 of the Criminal Code (which deals with obstruction of Commonwealth public officials) that relates to this Code; or
(f) civil proceedings for a contravention of a civil penalty provision.
284 Division 3 of Part 9 of the Code set out in the Schedule (heading)
Repeal the heading, substitute:
Subdivision A -- Monitoring powers etc.
285 Sections 131 to 133 of the Code set out in the Schedule
Repeal the sections, substitute:
131 Powers available to inspectors for monitoring compliance
(1) Subject to subsections ( 2) and (3), for the purpose of finding out whether an agvet law has been, or is being, complied with or of assessing the correctness of information provided under an agvet law, an inspector may do both of the following:
(a) enter any premises;
(b) exercise the monitoring powers.
(2) If premises mentioned in subsection ( 1) are a residence, an inspector may only enter the premises if:
(a) the premises are used for commercial purposes in relation to active constituents or chemical products, in addition to residential purposes; and
(b) paragraph ( 3)(a), (b) or (c) is satisfied.
(3) An inspector is not authorised to enter premises under subsection ( 1) unless:
(a) the occupier of the premises has consented to the entry and the inspector has shown his or her identity card if required by the occupier; or
(b) if the premises are covered by a licence under section 123--both the following apply:
(i) it is a condition of the licence under subsection 126(4) that the holder of the licence will allow an inspector to enter the premises and exercise monitoring powers under section 131A in relation to the premises;
(ii) the inspector has shown his or her identity card if required by the occupier; or
(c) the entry is made under a monitoring warrant.
Note: If entry to the premises is with the occupier's consent, the inspector must leave the premises if the consent ceases to have effect, see section 133.
(1) Subject to subsection ( 3), this section applies if an inspector has reasonable grounds for suspecting that it is necessary to exercise monitoring powers under section 131A in relation to premises to prevent imminent risk to persons of death, serious injury or serious illness.
(2) The inspector may, to the extent that it is reasonably necessary for the purpose of preventing imminent risk to persons of death, serious injury or serious illness, enter the premises and exercise monitoring powers under section 131A.
(3) An inspector is not entitled to exercise monitoring powers in accordance with subsection ( 2) in relation to premises if:
(a) the occupier of the premises has required the inspector to produce his or her identity card for inspection by the occupier; and
(b) the inspector fails to comply with the requirement.
(4) An inspector is not entitled to exercise monitoring powers in accordance with subsection ( 2) unless the inspector has been authorised in writing by the APVMA for the purposes of this section.
131A Monitoring powers--with consent or with warrant
(1) The following are the monitoring powers that an inspector may exercise in relation to premises:
(a) the power to search the premises and any thing on the premises;
(b) the power to examine or observe any activity conducted on the premises;
(c) the power to inspect, examine, take measurements of or conduct tests on any thing on the premises;
(d) the power to make any still or moving image or any recording of the premises or any thing on the premises;
(e) the power to inspect any document on the premises;
(f) the power to take extracts from, or make copies of, any such document;
(g) the power to take and keep samples of any thing on the premises;
(h) the power to open any container at the premises for the purpose of inspecting, or taking a sample of, its contents provided that the container is resealed after the inspection is made or the sample is taken;
(i) the power to give directions for dealing with a container, or a label on a container, that has been opened or sampled in accordance with paragraph ( h);
(j) the power to destroy or make harmless, or give directions for the destruction or making harmless of, a chemical product at the premises;
(k) the power to take onto the premises such equipment and materials as the inspector requires for the purpose of exercising powers in relation to the premises;
(l) the powers set out in subsections 131B(1) and (3) and 131C(1).
(2) A person who is given a direction under subsection ( 1) must comply with the direction.
(3) A person commits an offence of strict liability if the person contravenes subsection ( 2).
Penalty: 30 penalty units.
Note: For strict liability, see section 6.1 of the Criminal Code .
(4) Subsection ( 2) is a civil penalty provision.
Note: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
131B Operating electronic equipment
(1) The monitoring powers include the power to:
(a) operate electronic equipment on the premises; and
(b) use a disk, tape or other storage device that:
(i) is on the premises; and
(ii) can be used with the equipment or is associated with it.
(2) The monitoring powers include the powers mentioned in subsection ( 3) if relevant data is found in the exercise of the power under subsection ( 1).
(3) The powers are as follows:
(a) the power to operate electronic equipment on the premises to put the relevant data in documentary form and remove the documents so produced from the premises;
(b) the power to operate electronic equipment on the premises to transfer the relevant data to a disk, tape or other storage device that:
(i) is brought to the premises for the exercise of the power; or
(ii) is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises;
and remove the disk, tape or other storage device from the premises.
(4) An inspector may operate electronic equipment as mentioned in subsection ( 1) or (3) only if the inspector believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
Note: For compensation for damage to electronic equipment, see section 138.
131C Securing evidence of the contravention of a related provision
(1) T he monitoring powers include the power to secure a thing for a period not exceeding 7 days if:
(a) the thing is found during the exercise of monitoring powers on the premises; and
(b) an inspector believes on reasonable grounds that the thing affords evidence of:
(i) the commission of an offence against an agvet law or the contravention of an agvet penalty provision or both; or
(ii) an offence against the Crimes Act 1914 or the Criminal Code that relates to an agvet law; and
(c) the inspector believes on reasonable grounds that:
(i) it is necessary to secure the thing in order to prevent it from being concealed, lost or destroyed before a warrant to seize the thing is obtained; and
(ii) it is necessary to secure the thing without a warrant because the circumstances are serious and urgent.
The thing may be secured by locking it up, placing a guard or any other means.
(2) If an inspector believes on reasonable grounds that the thing needs to be secured for more than 7 days, the inspector may apply to a magistrate for an extension of that period.
(3) The inspector must give notice to the occupier of the premises , or another person who apparently represents the occupier, of his or her intention to apply for an extension. The occupier or other person is entitled to be heard in relation to that application.
(4) The provisions of this Part relating to the issue of monitoring warrants apply, with such modifications as are necessary, to the issue of an extension.
(5) The 7 day period may be extended more than once.
131D Persons assisting inspectors
Inspectors may be assisted by other persons
(1) When exercising monitoring powers, an inspector may be assisted by other persons in exercising powers or performing functions or duties under this Part, if that assistance is necessary and reasonable. A person giving such assistance is a person assisting the inspector.
Powers, functions and duties of a person assisting the inspector
(2) A person assisting the inspector:
(a) may enter premises; and
(b) may exercise powers and perform functions and duties under this Part for the purposes of assisting the inspector to determine whether:
(i) an agvet law has been, or is being, c omplied with; or
(ii) information provided under an agvet law is correct; and
(c) must do so in accordance with a direction given to the person assisting by the inspector.
(3) A power exercised by a person assisting the inspector as mentioned in subsection ( 2) is taken for all purposes to have been exercised by the inspector.
(4) A function or duty performed by a person assisting the inspector as mentioned in subsection ( 2) is taken for all purposes to have been performed by the inspector.
(5) If a direction is given under paragraph ( 2)(c) in writing, the direction is not a legislative instrument.
131E Use of force in executing a monitoring warrant
In executing a monitoring warrant, an inspector and a person assisting the inspector may use such force against things as is necessary and reasonable in the circumstances.
Subdivision B -- Powers of inspectors to ask questions and seek production of documents
131F Inspector may ask questions and seek production of documents
(1) This section applies if an inspector enters premises for the purposes of determining whether:
(a) an agvet law has been, or is being, complied with; or
(b) information provided under an agvet law is correct.
(2) If the entry is authorised because the occupier of the premises consented to the entry, the inspector may ask the occupier to answer any questions, and produce any document, relating to:
(a) the operation of an agvet law; or
(b) the information.
(3) If the entry is authorised by a monitoring warrant, the inspector may require any person on the premises to answer any questions, and produce any document, relating to:
(a) the operation of an agvet law; or
(b) the information.
Offence
(4) A person commits an offence if:
(a) the person is subject to a requirement under subsection ( 3); and
(b) the person fails to comply with the requirement.
Penalty for contravention of this subsection: 50 penalty units.
If a person produces a document to an inspector in accordance with a requirement under section 131G, the inspector may make copies of, or take extracts from, the document.
Subdivision A -- Investigation powers
132 Powers available to inspectors to investigate potential breaches of an agvet law
(1) Subject to subsections ( 2) and (3), if an inspector has reasonable grounds for suspecting that there may be evidential material on any premises, the inspector may:
(a) enter the premises; and
(b) exercise the investigation powers; and
(c) do one or more of the things mentioned in subsection 132D(2).
(2) If the premises are a residence, an inspector may only enter the premises if:
(a) the premises are used for commercial purposes in relation to active constituents or chemical products, in addition to residential purposes; and
(b) paragraph ( 3)(a) or (b) is satisfied.
(3) An inspector is not authorised to enter the premises unless:
(a) the occupier of the premises has consented to the entry and the inspector has shown his or her identity card if required by the occupier; or
(b) the entry is made under an investigation warrant.
Note: If entry to the premises is with the occupier's consent, the inspector must leave the premises if the consent ceases to have effect, see section 133.
(1) T he following are the investigation powers that an inspector may exercise in relation to premises under section 132:
(a) if entry to the premises is with the occupier's consent--the power to search the premises and any thing on the premises for the evidential material the inspector has reasonable grounds for suspecting may be on the premises;
(b) if entry to the premises is under an investigation warrant:
(i) the power to search the premises and any thing on the premises for the kind of evidential material specified in the warrant; and
(ii) the power to seize evidential material of that kind if the inspector finds it on the premises;
(c) the power to inspect, examine, take measurements of, and conduct tests on evidential material referred to in paragraph ( a) or (b);
(d) the power to make any still or moving image or any recording of the premises or evidential material referred to in paragraph ( a) or (b) ;
(e) the power to inspect any document on the premises;
(f) the power to take extracts from, or make copies of, any such document;
(g) the power to take and keep samples of any thing on the premises;
(h) the power to open any container at the premises for the purpose of inspecting, or taking a sample of, its contents provided that the container is resealed after the inspection is made or the sample is taken;
(i) the power to give directions for dealing with a container, or a label on a container, that has been opened or sampled in accordance with paragraph ( h);
(j) the power to destroy or make harmless, or give directions for the destruction or making harmless of, a chemical product at the premises;
(k) the power to take onto the premises such equipment and materials as the inspector requires for the purpose of exercising powers in relation to the premises;
(l) the powers set out in subsections 132B(1) and (2) and section 132C.
(2) A person who is given a direction under subsection ( 1) must comply with the direction.
(3) A person commits an offence of strict liability if the person contravenes subsection ( 2).
Penalty: 30 penalty units.
Note: For strict liability, see section 6.1 of the Criminal Code .
(4) Subsection ( 2) is a civil penalty provision.
Note: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
132B Operating electronic equipment
(1) The investigation powers include the power to:
(a) operate electronic equipment on the premises; and
(b) use a disk, tape or other storage device that:
(i) is on the premises; and
(ii) can be used with the equipment or is associated with it;
if an inspector has reasonable grounds for suspecting that the electronic equipment, disk, tape or other storage device is or contains evidential material.
(2) The investigation powers include the following powers in relation to evidential material found in the exercise of the power under subsection ( 1):
(a) if entry to the premises is under an investigation warrant--the power to seize the equipment and the disk, tape or other storage device referred to in that subsection;
(b) the power to operate electronic equipment on the premises to put the evidential material in documentary form and remove the documents so produced from the premises;
(c) the power to operate electronic equipment on the premises to transfer the evidential material to a disk, tape or other storage device that:
(i) is brought to the premises for the exercise of the power; or
(ii) is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises;
and remove the disk, tape or other storage device from the premises.
(3) An inspector may operate electronic equipment as mentioned in subsection ( 1) or (2) only if the inspector believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
Note: For compensation for damage to electronic equipment, see section 138.
(4) An inspector may seize equipment or a disk, tape or other storage device as mentioned in paragraph ( 2)(a) only if:
(a) it is not practicable to put the evidential material in documentary form as mentioned in paragraph ( 2)(b) or to transfer the evidential material as mentioned in paragraph ( 2)(c); or
(b) possession of the equipment or the disk, tape or other storage device by the occupier could constitute an offence against a law of this jurisdiction.
132C Seizing evidence of related offences and civil penalty provisions
(1) This section applies if an inspector enters premises under an investigation warrant to search for evidential material.
(2) The investigation powers include seizing a thing that is not evidential material of the kind specified in the warrant if:
(a) in the course of searching for the kind of evidential material specified in the warrant, the inspector finds the thing; and
(b) the inspector believes on reasonable grounds that the thing affords evidence of:
(i) the commission of an offence against an agvet law or the contravention of an agvet penalty provision or both; or
(ii) an offence against the Crimes Act 1914 or the Criminal Code that relates to an agvet law; and
(c) the inspector believes on reasonable grounds that it is necessary to seize the thing in order to prevent its concealment, loss or destruction or to protect the health of the public or of any person.
(3) If an inspector seizes a thing as mentioned in subsection ( 2), the investigation powers include :
(a) the power to direct the occupier of the premises or the owner of the thing to keep it at the premises, or at other premises under the control of the occupier or owner that will, in the opinion of the inspector, cause least danger to the health of the public or of any person; and
(b) the power to give any other directions for, or with respect to, the detention of the thing.
(4) A person who is given a direction under subsection ( 3) must comply with the direction.
(5) A person commits an offence of strict liability if the person contravenes subsection ( 4).
Penalty: 30 penalty units.
Note: For strict liability, see section 6.1 of the Criminal Code .
(6) Subsection ( 4) is a civil penalty provision.
Note: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
132D Supervisory powers of seized things
(1) If:
(a) an inspector seizes a thing under section 132A or 132C; and
(b) the inspector is authorised by the APVMA to exercise powers under this section;
the inspector may do one or more of the things mentioned in subsection ( 2).
(2) The things are:
(a) if the seizure related to a substance and the inspector suspects that this Code has not been complied with in respect of any of its constituents, or in respect of the concentration, composition or purity of any of its active constituents--supervise the reformulation of the substance so as to ensure compliance with this Code; and
(b) if the seizure related to a substance and its container and the inspector suspects that this Code has not been complied with in respect of the container--supervise the placing of the substance in a container so that there is compliance with this Code; and
(c) if the seizure related to a substance and its container and the inspector suspects that this Code has not been complied with in respect of the label attached to the container--supervise the attaching to the container of a label so that there is compliance with this Code.
132E Persons assisting inspectors
Inspectors may be assisted by other persons
(1) When exercising investigation powers, an inspector may be assisted by other persons in exercising powers or performing functions or duties under this Part, if that assistance is necessary and reasonable. A person giving such assistance is a person assisting the inspector.
Powers, functions and duties of a person assisting the inspector
(2) A person assisting the inspector:
(a) may enter premises; and
(b) may exercise powers and perform functions and duties under this Part in relation to evidential material; and
(c) must do so in accordance with a direction given to the person assisting by the inspector.
(3) A power exercised by a person assisting the inspector as mentioned in subsection ( 2) is taken for all purposes to have been exercised by the inspector.
(4) A function or duty performed by a person assisting the inspector as mentioned in subsection ( 2) is taken for all purposes to have been performed by the inspector.
(5) If a direction is given under paragraph ( 2)(c) in writing, the direction is not a legislative instrument.
132F Use of force in executing an investigation warrant
In executing an investigation warrant, an inspector and a person assisting the inspector may use such force against things as is necessary and reasonable in the circumstances.
Subdivision B -- Powers of inspectors to ask questions and seek production of documents
132G Inspector may ask questions and seek production of documents
(1) This section applies if an inspector enters premises to search for evidential material.
(2) If the entry is authorised because the occupier of the premises consented to the entry, the inspector may ask the occupier to answer any questions, and produce any document, relating to evidential material.
(3) If the entry is authorised by an investigation warrant, the inspector may require any person on the premises to answer any questions, and produce any document, relating to evidential material of the kind specified in the warrant.
(4) A person commits an offence if:
(a) the person is subject to a requirement under subsection ( 3); and
(b) the person fails to comply with the requirement.
Penalty for contravention of this subsection: 50 penalty units.
If a person produces a document to an inspector in accordance with a requirement under section 132G, the inspector may make copies of, or take extracts from, the document.
Division 5 -- Obligations and incidental powers of inspectors
(1) Before obtaining the consent of an occupier of premises for the purposes of paragraph 131(3)(a) or 132(3)(a), an inspector must inform the occupier that the occupier may refuse consent.
(2) A consent has no effect unless the consent is voluntary.
(3) A consent may be expressed to be limited to entry during a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.
(4) A consent that is not limited as mentioned in subsection ( 3) has effect until the consent is withdrawn.
(5) If an inspector entered premises because of the consent of the occupier of the premises, the inspector, and any person assisting the inspector, must leave the premises if the consent ceases to have effect.
286 Subsection 134(1) of the Code set out in the Schedule
Repeal the subsection, substitute:
(1) Before entering premises under a warrant, an inspector must:
(a) announce that:
(i) he or she is authorised to enter the premises; and
(ii) any person assisting the inspector is authorised to enter the premises; and
(b) show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises; and
(c) give any person at the premises an opportunity to allow entry to the premises.
287 Subsection 134(2) of the Code set out in the Schedule
Omit "or a person helping the inspector".
288 Paragraph 134(2)(a) of the Code set out in the Schedule
Omit "person helping the inspector", substitute "person assisting".
289 At the end of section 134 of the Code set out in the Schedule
Add:
(3) If:
(a) an inspector does not comply with subsection ( 1) because of subsection ( 2); and
(b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;
the inspector must show his or her identity card to the occupier or other person as soon as practicable after entering the premises .
290 Sections 135 to 138 of the Code set out in the Schedule
Repeal the sections, substitute:
135 Inspector to be in possession of warrant
An inspector executing a warrant must be in possession of:
(a) the warrant issued by the magistrate under section 143 or 143A or a copy of the warrant as so issued; or
(b) the form of warrant completed under subsection 143B(6) or a copy of the form as so completed.
136 Details of warrant etc. to be given to occupier
(1) An inspector must comply with subsection ( 2) if:
(a) a warrant is being executed in relation to premises; and
(b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises.
(2) The inspector must, as soon as practicable:
(a) do one of the following:
(i) if the warrant was issued under section 143 or 143A--make a copy of the warrant available to the occupier or other person (which need not include the signature of the magistrate who issued it);
(ii) if the warrant was signed by a magistrate under section 143B--make a copy of the form of warrant completed under subsection 143B(6) available to the occupier or other person; and
(b) inform the occupier or other person of the rights and responsibilities of the occupier or other person under Division 7 of this Part.
137 Expert assistance to operate electronic equipment
(1) This section applies if an inspector enters premises under a warrant.
Securing equipment
(2) An inspector may do whatever is necessary to secure any electronic equipment that is on the premises if the inspector believes on reasonable grounds that:
(a) in the case of a monitoring warrant:
(i) there is relevant data on the premises; and
(ii) the relevant data may be accessible by operating the equipment; and
(iii) expert assistance is required to operate the equipment; and
(iv) the relevant data may be destroyed, altered or otherwise interfered with, if the inspector does not take action under this subsection; and
(b) in the case of an investigation warrant:
(i) there is evidential material of the kind specified in the warrant on the premises; and
(ii) the evidential material may be accessible by operating the electronic equipment; and
(iii) expert assistance is required to operate the equipment; and
(iv) the evidential material may be destroyed, altered or otherwise interfered with, if the inspector does not take action under this subsection.
The equipment may be secured by locking it up, placing a guard or any other means.
(3) The inspector must give notice to the occupier of the premises , or another person who apparently represents the occupier, of:
(a) the inspector's intention to secure the equipment; and
(b) the fact that the equipment may be secured for up to 72 hours.
Period equipment may be secured
(4) The equipment may be secured until the earlier of the following happens:
(a) the 72 - hour period ends;
(b) the equipment has been operated by the expert.
Note: For compensation for damage to electronic equipment, see section 138.
Extensions
(5) The inspector may apply to a magistrate for an extension of the 72 - hour period, if the inspector believes on reasonable grounds that the equipment needs to be secured for a longer period.
(6) Before making the application, the inspector must give notice to the occupier of the premises , or another person who apparently represents the occupier, of the inspector's intention to apply for an extension. The occupier or other person is entitled to be heard in relation to that application.
(7) The provisions of this Part relating to the issue of a warrant apply, with such modifications as are necessary, to the issue of an extension.
(8) The 72 - hour period may be extended more than once.
138 Compensation for damage to electronic equipment
(1) This section applies if:
(a) as a result of electronic equipment being operated as mentioned in this Part:
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
(2) The APVMA must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the APVMA and the owner or user agree on.
(3) However, if the owner or user and the APVMA fail to agree, the owner or user may institute proceedings in a court of competent jurisdiction for such reasonable amount of compensation as the court determines.
(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier's employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.
Division 6 -- Execution of an investigation warrant interrupted
138A Completing execution of an investigation warrant after temporary cessation
(1) This section applies if an inspector, and all persons assisting, who are executing an investigation warrant in relation to premises temporarily cease its execution and leave the premises.
(2) The inspector, and persons assisting, may complete the execution of the warrant if:
(a) the warrant is still in force; and
(b) the inspector and persons assisting are absent from the premises:
(i) for not more than 1 hour; or
(ii) if there is an emergency situation, for not more than 12 hours or such longer period as allowed by a magistrate under subsection ( 5); or
(iii) for a longer period if the occupier of the premises consents in writing.
Application for extension in emergency situation
(3) An inspector, or person assisting, may apply to a magistrate for an extension of the 12 - hour period mentioned in subparagraph ( 2)(b)(ii) if:
(a) there is an emergency situation; and
(b) the inspector or person assisting believes on reasonable grounds that the inspector and the persons assisting will not be able to return to the premises within that period.
(4) If it is practicable to do so, before making the application, the inspector or person assisting must give notice to the occupier of the premises of his or her intention to apply for an extension.
Extension in emergency situation
(5) A magistrate may extend the period during which the inspector and persons assisting may be away from the premises if:
(a) an application is made under subsection ( 3); and
(b) the magistrate is satisfied, by information on oath or affirmation, that there are exceptional circumstances that justify the extension; and
(c) the extension would not result in the period ending after the warrant ceases to be in force.
138B Completing execution of an investigation warrant stopped by court order
An inspector, and any persons assisting, may complete the execution of an investigation warrant that has been stopped by an order of a court if:
(a) the order is later revoked or reversed on appeal; and
(b) the warrant is still in force when the order is revoked or reversed.
Division 7 -- Occupier's rights and responsibilities
138C Occupier entitled to observe execution of warrant
( 1) The occupier of premises to which a warrant relates , or another person who apparently represents the occupier, is entitled to observe the execution of the warrant if the occupier or other person is present at the premises while the warrant is being executed.
(2) The right to observe the execution of the warrant ceases if the occupier or other person impedes that execution.
(3) This section does not prevent the execution of the warrant in 2 or more areas of the premises at the same time.
138D Occupier to provide inspector with facilities and assistance
(1) The occupier of premises to which a warrant relates , or another person who apparently represents the occupier, must provide:
(a) an inspector executing the warrant; and
(b) any person assisting;
with all reasonable facilities and assistance for the effective exercise of their powers.
(2) A person commits an offence if:
(a) the person is subject to subsection ( 1); and
(b) the person fails to comply with that subsection.
Penalty for contravention of this subsection: 30 penalty units.
Division 8 -- General provisions relating to seizure
291 Subsection 139(1) of the Code set out in the Schedule
Omit "section 131 or 132", substitute "an investigation warrant".
292 Subsection 139(2) of the Code set out in the Schedule
Repeal the subsection, substitute:
(2) However, the inspector is not required to comply with the request if possession of the document, film, computer file, thing or information by the occupier or other person could constitute an offence against a law of this jurisdiction.
293 After section 139 of the Code set out in the Schedule
Insert:
139A Receipts for seized things
(1) An inspector must provide a receipt for a thing that is seized under an investigation warrant.
(2) One receipt may cover 2 or more things seized.
294 Subsection 140(1) of the Code set out in the Schedule
Repeal the subsection, substitute:
(1) An inspector must take reasonable steps to return a thing seized under an investigation warrant when the earliest of the following happens:
(a) the reason for the thing's seizure no longer exists;
(b) it is decided that the thing is not to be used in evidence;
(c) the period of 60 days after the thing's seizure ends.
Exception
(1A) Subsection ( 1):
(a) is subject to any contrary order of a court; and
(b) does not apply if the thing:
(i) is forfeited or forfeitable to the Commonwealth (see section 150); or
(ii) is the subject of a dispute as to ownership.
295 Subsection 140(2) of the Code set out in the Schedule
Omit all the words before paragraph ( a), substitute "The inspector is not required to take reasonable steps to return a thing because of paragraph ( 1)(c) if".
296 Subsections 140(4) and (5) of the Code set out in the Schedule
Repeal the subsections.
297 Section 141 of the Code set out in the Schedule (heading)
Repeal the heading, substitute:
141 Magistrate may permit a thing to be kept
298 Paragraph 141(1)(a) of the Code set out in the Schedule
Omit "section 131 or 132", substitute "an investigation warrant".
299 Paragraph 141(1)(b) of the Code set out in the Schedule
Omit "of a court".
300 Subsection 141(1) of the Code set out in the Schedule
Omit "court of summary jurisdiction", substitute "magistrate".
301 Subsections 141(2) and (3) of the Code set out in the Schedule
Repeal the subsections, substitute:
(2) Before making the application, the inspector must:
(a) take reasonable steps to discover who has an interest in the retention of the thing; and
(b) if it is practicable to do so, notify each person who the inspector believes has such an interest of the proposed application.
Order to retain thing
(3) A magistrate may order that the thing may continue to be retained for a period specified in the order if the magistrate is satisfied that it is necessary for the thing to continue to be retained:
(a) for the purposes of an investigation as to whether an offence against an agvet law has been committed or an agvet penalty provision has been contravened; or
(b) for the purposes of an investigation as to whether an offence against the Crimes Act 1914 or the Criminal Code that relates to an agvet law has been committed; or
(c) to enable evidence of:
(i) an offence mentioned in paragraph ( a) or (b) to be secured for the purposes of a prosecution; or
(ii) a contravention mentioned in paragraph ( a) to be secured for the purposes of proceedings for a civil penalty order.
(4) The period specified must not exceed 3 years.
302 After section 141 of the Code set out in the Schedule
Insert:
(1) The APVMA may dispose of a thing seized under an investigation warrant if:
(a) an inspector has taken reasonable steps to return the thing to a person; and
(b) either:
(i) the inspector has been unable to locate the person; or
(ii) the person has refused to take possession of the thing.
(2) The APVMA may dispose of the thing in such manner as it considers appropriate.
303 Subsection 142(1) of the Code set out in the Schedule
Omit "paragraph 131(1)(i)", substitute "paragraph 131A(1)(j) or 132A(1)(j)".
304 Subsection 142(2) of the Code set out in the Schedule
Omit "subsection 132(3)", substitute "subsection 132D(2)".
305 After subsection 142(4) of the Code set out in the Schedule
Insert:
(4A) Any expense incurred by the APVMA under section 141A in disposing of a thing is a debt due to the APVMA by the owner of the thing.
306 Sections 143 to 145 of the Code set out in the Schedule
Repeal the sections, substitute:
Division 9 -- Applying for warrants etc.
Application for warrant
( 1) An inspector may apply to a magistrate for a monitoring warrant under this section in relation to premises.
Issue of warrant
(2) The magistrate may issue the warrant if the magistrate is satisfied, by information on oath or affirmation, that it is reasonably necessary that one or more inspectors should have access to the premises for the purpose of determining whether :
(a) an agvet law has been, or is being, complied with; or
(b) information provided under an agvet law is correct.
(3) However, the magistrate must not issue the warrant unless the inspector or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the monitoring warrant is being sought.
Content of warrant
(4) The monitoring warrant must:
(a) describe the premises to which the warrant relates; and
(b) state that the warrant is issued under this section; and
(c) state the purpose for which the warrant is issued ; and
(d) authorise one or more inspectors (whether or not named in the warrant) from time to time while the warrant remains in force:
(i) to enter the premises; and
(ii) to exercise the powers set out in Divisions 3 and 5 of this Part in relation to the premises; and
(e) state whether entry is authorised to be made at any time of the day or during specified hours of the day; and
(f) specify the day (not more than 6 months after the issue of the warrant) the warrant ceases to be in force.
(5) If the application for the warrant is made under section 143B, this section applies as if paragraph ( 4)(f) required the warrant to specify the period for which the warrant is to remain in force, which must not be more than 48 hours.
Application for warrant
( 1) An inspector may apply to a magistrate for an investigation warrant under this section in relation to premises.
Issue of warrant
(2) The magistrate may issue the investigation warrant if the magistrate is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there may be within the next 72 hours, evidential material on the premises.
(3) However, the magistrate must not issue the investigation warrant unless the inspector or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought.
Content of warrant
(4) The investigation warrant must:
(a) state the offence or offences, or civil penalty provision or civil penalty provisions, to which the warrant relates; and
(b) describe the premises to which the warrant relates; and
(c) state that the warrant is issued under this section; and
(d) specify the kinds of evidential material that are to be searched for under the warrant; and
(e) state that the evidential material specified may be seized under the warrant; and
(f) state that any thing found in the course of executing the warrant that the person executing the warrant believes on reasonable grounds to be evidence of:
(i) the commission of an offence against an agvet law or the contravention of an agvet penalty provision or both; or
(ii) an offence against the Crimes Act 1914 or the Criminal Code that relates to an agvet law;
may be seized under the warrant; and
(g) name one or more inspectors; and
(h) authorise the inspectors named in the warrant:
(i) to enter the premises; and
(ii) to exercise the powers set out in Divisions 4, 5 and 6 of this Part in relation to the premises; and
(i) state whether entry is authorised to be made at any time of the day or during specified hours of the day; and
(j) specify the day ( not more than 1 week after the issue of the warrant) the warrant ceases to be in force.
(5) If the application for the warrant is made under section 143B, this section applies as if:
(a) subsection ( 2) referred to 48 hours rather than 72 hours; and
(b) paragraph ( 4)(j) required the warrant to specify the period for which the warrant is to remain in force, which must not be more than 48 hours.
143B Warrants by telephone, fax etc.
Application for warrant
(1) An inspector may apply to a magistrate by telephone, fax or other electronic means for a warrant in relation to premises:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
(2) The magistrate may require communication by voice to the extent that it is practicable in the circumstances.
(3) Before applying for a warrant, the inspector must:
(a) in the case of a monitoring warrant-- prepare an information of the kind mentioned in subsection 143(2); and
(b) in the case of an investigation warrant-- prepare an information of the kind mentioned in subsection 143A(2);
in relation to the premises that sets out the grounds on which the warrant is sought. If it is necessary to do so, the inspector may apply for the warrant before the information is sworn or affirmed.
Magistrate may complete and sign warrant
(4) The magistrate may complete and sign the same warrant that would have been issued under section 143 or 143A if the magistrate is satisfied that there are reasonable grounds for doing so:
(a) after considering the terms of the information; and
(b) after receiving such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought.
(5) After completing and signing the warrant, the magistrate must inform the inspector, by telephone, fax or other electronic means, of :
(a) the terms of the warrant; and
(b) the day and time the warrant was signed.
Obligations on inspector
(6) The inspector must then do the following:
(a) complete and sign a form of warrant in the same terms as the warrant completed and signed by the magistrate;
(b) state on the form the following:
(i) the name of the magistrate;
(ii) the day and time the warrant was signed by the magistrate;
(c) send the following to the magistrate:
(i) the form of warrant completed by the inspector;
(ii) the information referred to in subsection ( 3), which must have been duly sworn or affirmed.
(7) The inspector must comply with paragraph ( 6)(c) by the end of the day after the earlier of the following:
(a) the day the warrant ceases to be in force;
(b) the day the warrant is executed.
Magistrate to attach documents together
(8) The magistrate must attach the documents provided under paragraph ( 6)(c) to the warrant signed by the magistrate.
(1) A form of warrant duly completed under subsection 143B(6) is authority for the same powers as are authorised by the warrant signed by the magistrate under subsection 143B(4).
(2) In any proceedings, a court is to assume (unless the contrary is proved) that an exercise of power was not authorised by a warrant under section 143B if:
(a) it is material, in those proceedings, for the court to be satisfied that the exercise of power was authorised by that section; and
(b) the warrant signed by the inspector authorising the exercise of the power is not produced in evidence.
143D Offence relating to warrants by telephone, fax etc.
An inspector must not:
(a) state in a document that purports to be a form of warrant under section 143B the name of a magistrate unless that magistrate signed the warrant; or
(b) state on a form of warrant under that section a matter that, to the inspector's knowledge, departs in a material particular from the terms of the warrant signed by the magistrate under that section; or
(c) purport to execute, or present to another person, a document that purports to be a form of warrant under that section that the inspector knows departs in a material particular from the terms of a warrant signed by a magistrate under that section; or
(d) purport to execute, or present to another person, a document that purports to be a form of warrant under that section where the inspector knows that no warrant in the terms of the form of warrant has been completed and signed by a magistrate; or
(e) give to a magistrate a form of warrant under that section that is not the form of warrant that the inspector purported to execute.
Penalty: Imprisonment for 2 years.
If a warrant is issued under the Agvet Code of a jurisdiction other than this jurisdiction, the warrant has effect and may be executed in this jurisdiction as if the warrant had been issued under this Code.
Division 10 -- Powers of magistrates
Powers conferred personally
(1) A power conferred on a magistrate by this Part is conferred on the magistrate:
(a) in a personal capacity; and
(b) not as a court or a member of a court.
Powers need not be accepted
(2) The magistrate need not accept the power conferred.
Protection and immunity
(3) A magistrate exercising a power conferred by this Part has the same protection and immunity as if the magistrate were exercising the power:
(a) as the court of which the magistrate is a member; or
(b) as a member of the court of which the magistrate is a member.
307 Division 4 of Part 9 of the Code set out in the Schedule (heading)
Repeal the heading.
308 Before section 146 of the Code set out in the Schedule
Insert:
This Part contains provisions for the enforcement of this Code, including provisions relating to the following:
(a) the use of civil penalties to enforce civil penalty provisions;
(b) the use of infringement notices to enforce certain civil penalty provisions;
(c) the acceptance and enforcement of undertakings to comply with provisions;
(d) the use of injunctions in the enforcement of provisions;
(e) the issue of substantiation notices in relation to certain claims and representations;
(f) the giving of enforceable directions in relation to suspected contraventions;
(g) the issue of formal warnings in relation to suspected contraventions;
(h) other ancillary matters.
Division 2 -- Civil penalty orders
Subdivision A -- Obtaining a civil penalty order
Application for order
(1) The APVMA may, on behalf of the Commonwealth, apply to a court of competent jurisdiction for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty.
(2) The APVMA must make the application within 6 years of the alleged contravention.
Court may order person to pay pecuniary penalty
(3) If the court is satisfied that the person has contravened the civil penalty provision, the court may order the person to pay to the Commonwealth such pecuniary penalty for the contravention as the court determines to be appropriate.
Note: Section 145AA sets out the maximum penalty that the court may order the person to pay.
(4) An order under subsection ( 3) is a civil penalty order .
Determining pecuniary penalty
(5) In determining the pecuniary penalty, the court may take into account all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered because of the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the person has previously been found by a court to have engaged in any similar conduct; and
(e) the extent to which the person has cooperated with the authorities; and
(f) if the person is a body corporate:
(i) the level of the employees, officers or agents of the body corporate involved in the contravention; and
(ii) whether the body corporate exercised due diligence to avoid the contravention; and
(iii) whether the body corporate had a corporate culture conducive to compliance.
145AA Maximum penalties for contravention of civil penalty provisions
Penalty for body corporate
(1) The pecuniary penalty for a contravention of a civil penalty provision by a body corporate must not exceed 5 times the amount of the maximum monetary penalty that could be imposed by a court if the body corporate were convicted of an offence constituted by conduct that is the same as the conduct constituting the contravention.
Penalty for individuals
(2) The pecuniary penalty for a contravention of a civil penalty provision by an individual must not exceed 3 times the amount of the maximum monetary penalty that could be imposed by a court if the person were convicted of an offence constituted by conduct that is the same as the conduct constituting the contravention.
Penalty for contravention of subsection 145CF(1)
(3) The pecuniary penalty for a contravention, by an executive officer of a body corporate, of subsection 145CF(1) in relation to the contravention by the body corporate of a civil penalty provision must not exceed 12% of the amount of the maximum monetary penalty that could be imposed on the body corporate for the contravention.
145AB Civil enforcement of penalty
(1) A pecuniary penalty is a debt payable to the Commonwealth.
(2) The Commonwealth may enforce a civil penalty order as if it were an order made in civil proceedings against a person to recover a debt due by the person. The debt arising from the order is taken to be a judgement debt.
145AC Conduct contravening more than one civil penalty provision
(1) If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Division against a person in relation to the contravention of any one or more of those provisions.
(2) However, the person is not liable to more than one pecuniary penalty under this Division in relation to the same conduct.
(1) A court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character.
Note: For continuing contraventions of civil penalty provisions, see section 145C.
(2) However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions.
145AE Proceedings may be heard together
A court may direct that 2 or more proceedings for civil penalty orders be heard together.
145AF Civil evidence and procedure rules for civil penalty orders
A court must apply the rules of evidence and procedure for civil matters when hearing and determining an application for a civil penalty order.
145AG Contravening a civil penalty provision is not an offence
A contravention of a civil penalty provision is not an offence.
Subdivision B -- Civil proceedings and criminal proceedings
145B Civil proceedings after criminal proceedings
A court may not make a civil penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention.
145BA Criminal proceedings during civil proceedings
(1) Proceedings for a civil penalty order against a person for a contravention of a civil penalty provision are stayed if:
(a) criminal proceedings are commenced or have already been commenced against the person for an offence; and
(b) the offence is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention.
(2) The proceedings for the order (the civil proceedings ) may be resumed if the person is not convicted of the offence. Otherwise, the civil proceedings are dismissed.
145BB Criminal proceedings after civil proceedings
Criminal proceedings may be commenced against a person for conduct that is the same, or substantially the same, as conduct that would constitute a contravention of a civil penalty provision regardless of whether a civil penalty order has been made against the person in relation to the contravention.
145BC Evidence given in civil proceedings not admissible in criminal proceedings
(1) Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual for an offence if:
(a) the individual previously gave the evidence or produced the documents in proceedings for a civil penalty order against the individual for an alleged contravention of a civil penalty provision (whether or not the order was made); and
(b) the conduct alleged to constitute the offence is the same, or substantially the same, as the conduct alleged to constitute the contravention.
(2) However, subsection ( 1) does not apply to criminal proceedings in relation to the falsity of the evidence given by the individual in the proceedings for the civil penalty order.
Subdivision C -- Miscellaneous
145C Continuing contraventions of civil penalty provisions
(1) If an act or thing is required under a civil penalty provision to be done:
(a) within a particular period; or
(b) before a particular time;
then the obligation to do that act or thing continues until the act or thing is done (even if the period has expired or the time has passed).
(2) A person who contravenes a civil penalty provision that requires an act or thing to be done:
(a) within a particular period; or
(b) before a particular time;
commits a separate contravention of that provision in respect of each day during which the contravention occurs (including the day the relevant civil penalty order is made or any later day).
145CA Ancillary contravention of civil penalty provisions
(1) A person must not:
(a) attempt to contravene a civil penalty provision; or
(b) aid, abet, counsel or procure a contravention of a civil penalty provision; or
(c) induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or
(d) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil penalty provision; or
(e) conspire with others to effect a contravention of a civil penalty provision.
Civil penalty
(2) A person who contravenes subsection ( 1) in relation to a civil penalty provision is taken to have contravened the provision.
Note: Section 145CC (which provides that a person's state of mind does not need to be proven in relation to a civil penalty provision) does not apply to the extent that proceedings relate to the contravention of subsection ( 1).
(1) A person is not liable to have a civil penalty order made against the person for a contravention of a civil penalty provision if:
(a) at or before the time of the conduct constituting the contravention, the person:
(i) considered whether or not facts existed; and
(ii) was under a mistaken but reasonable belief about those facts; and
(b) had those facts existed, the conduct would not have constituted a contravention of the civil penalty provision.
(2) For the purposes of subsection ( 1), a person may be regarded as having considered whether or not facts existed if:
(a) the person had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
(b) the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
(3) A person who wishes to rely on subsection ( 1) or (2) in proceedings for a civil penalty order bears an evidential burden in relation to that matter.
(1) In proceedings for a civil penalty order against a person for a contravention of a civil penalty provision (other than subsection 145CA(1)), it is not necessary to prove:
(a) the person's intention; or
(b) the person's knowledge; or
(c) the person's recklessness; or
(d) the person's negligence; or
(e) any other state of mind of the person.
(2) Subsection ( 1) does not apply to the extent that the proceedings relate to a contravention of subsection 145CA(1) (which is about ancillary contraventions of civil penalty provisions).
(3) Subsection ( 1) does not affect the operation of section 145CB (which is about mistake of fact).
(4) Subsection ( 1) does not apply to the extent that the civil penalty provision, or a provision that relates to the civil penalty provision, expressly provides otherwise.
145CD Evidential burden for exceptions
In proceedings for a civil penalty order, a person who wishes to rely on any exception, excuse, qualification or justification in relation to a civil penalty provision bears an evidential burden in relation to that matter.
145CE Liability of body corporate for actions by employees, agents or officers
If an element of a civil penalty provision is done by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, the element must also be attributed to the body corporate.
145CF Liability of executive officers
(1) An executive officer of a body corporate contravenes this subsection if:
(a) the body corporate contravenes a civil penalty provision; and
(b) the officer knew that the contravention would occur; and
(c) the officer was in a position to influence the conduct of the body in relation to the contravention; and
(d) the officer failed to take all reasonable steps to prevent the contravention.
(2) Subsection ( 1) is a civil penalty provision.
Note: Subdivision A of this Division provides for pecuniary penalties for contraventions of civil penalty provisions.
(1) For the purposes of section 145CF, in determining whether an executive officer of a body corporate failed to take all reasonable steps to prevent the contravention of a civil penalty provision, a court is to have regard to:
(a) what action (if any) the officer took towards ensuring that the body's employees, agents and contractors have a reasonable knowledge and understanding of the requirements to comply with this Code, in so far as those requirements affect the employees, agents or contractors concerned; and
(b) what action (if any) the officer took when he or she became aware that the body was contravening this Code.
(2) This section does not, by implication, limit the generality of section 145CF.
Division 3 -- Infringement notices
145DA When an infringement notice may be given
(1) If an inspector has reasonable grounds to believe that a person has contravened a prescribed civil penalty provision, the inspector may give the person an infringement notice for the alleged contravention .
(2) The infringement notice must be given within 12 months after the day the contravention is alleged to have taken place.
(3) A single infringement notice must relate only to a single contravention of a single prescribed civil penalty provision.
145DB Matters to be included in an infringement notice
(1) An infringement notice must:
(a) be identified by a unique number; and
(b) state the day it is given; and
(c) state the name of the person to whom the notice is given; and
(d) state the name of the person who gave the notice; and
(e) give brief details of the alleged contravention, including:
(i) the provision that was allegedly contravened; and
(ii) the maximum penalty that a court could impose for the contravention; and
(iii) the time (if known) and day of, and the place of, the alleged contravention; and
(f) state the amount that is payable under the notice , and that the amount is payable to the Commonwealth ; and
(g) give an explanation of how payment of the amount is to be made; and
(h) state that, if the person to whom the notice is given pays the amount within 28 days after the day the notice is given, then (unless the notice is withdrawn) proceedings seeking a civil penalty order will not be brought in relation to the alleged contravention; and
(i) state that payment of the amount is not an admission of liability; and
(j) state that the person may apply to the APVMA to have the period in which to pay the amount extended; and
(k) state that the person may choose not to pay the amount and, if the person does so, proceedings seeking a civil penalty order may be brought in relation to the alleged contravention; and
(l) set out how the notice can be withdrawn; and
(m) state that if the notice is withdrawn proceedings seeking a civil penalty order may be brought in relation to the alleged contravention; and
(n) state that the person may make written representations to the APVMA seeking the withdrawal of the notice.
(2) For the purposes of paragraph ( 1)(f), the amount to be stated in the notice for the alleged contravention of the provision must not exceed one - fifth of the maximum penalty that a court could impose on the person for that contravention.
(3) The regulations may, subject to subsection ( 2), provide for a scale of amounts that may apply for an alleged contravention.
145DC Extension of time to pay amount
(1) A person to whom an infringement notice has been given may apply to the APVMA for an extension of the period referred to in paragraph 145DB(1)(h).
(2) If the application is made before the end of that period, the APVMA may, in writing, extend that period. The APVMA may do so before or after the end of that period.
(3) If the APVMA extends that period, a reference in this Division to the period referred to in paragraph 145DB(1)(h) is taken to be a reference to that period so extended.
(4) If the APVMA does not extend that period, a reference in this Division to the period referred to in paragraph 145DB(1)(h) is taken to be a reference to the period that ends on the later of the following days:
(a) the day that is the last day of the period referred to in paragraph 145DB(1)(h);
(b) the day that is 7 days after the day the person was given notice of the APVMA's decision not to extend.
(5) The APVMA may extend the period more than once under subsection ( 2).
145DD Withdrawal of an infringement notice
Representations seeking withdrawal of notice
(1) A person to whom an infringement notice has been given may make written representations to the APVMA seeking the withdrawal of the notice.
Withdrawal of notice
(2) The APVMA may withdraw an infringement notice given to a person (whether or not the person has made written representations seeking the withdrawal).
(3) When deciding whether or not to withdraw an infringement notice (the relevant infringement notice ), the APVMA:
(a) must take into account any written representations seeking the withdrawal that were given by the person to the APVMA; and
(b) may take into account the following:
(i) whether a court has previously imposed a penalty on the person for a contravention of a prescribed civil penalty provision if the contravention is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention in the relevant infringement notice;
(ii) the circumstances of the alleged contravention;
(iii) whether the person has paid an amount, stated in an earlier infringement notice, for a contravention of a prescribed civil penalty provision if the contravention is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention in the relevant infringement notice;
(iv) any other matter the APVMA considers relevant.
Notice of withdrawal
(4) Notice of the withdrawal of the infringement notice must be given to the person. The withdrawal notice must state:
(a) the person's name and address; and
(b) the day the infringement notice was given; and
(c) the identifying number of the infringement notice; and
(d) that the infringement notice is withdrawn; and
(e) that proceedings seeking a civil penalty order may be brought in relation to the alleged contravention.
Refund of amount if infringement notice withdrawn
(5) If:
(a) the APVMA withdraws the infringement notice; and
(b) the person has already paid the amount stated in the notice;
the Commonwealth must refund to the person an amount equal to the amount paid.
145DE Effect of payment of amount
(1) If the person to whom an infringement notice for an alleged contravention of a provision is given pays the amount stated in the notice before the end of the period referred to in paragraph 145DB(1)(h):
(a) any liability of the person for the alleged contravention is discharged; and
(b) proceedings seeking a civil penalty order may not be brought against the person in relation to the alleged contravention; and
(c) the person is not regarded as having admitted liability for the alleged contravention.
(2) Subsection ( 1) does not apply if the notice has been withdrawn.
This Division does not:
(a) require an infringement notice to be given to a person for an alleged contravention of a prescribed civil penalty provision; or
(b) affect the liability of a person for an alleged contravention of a prescribed civil penalty provision if:
(i) the person does not comply with an infringement notice given to the person for the contravention; or
(ii) an infringement notice is not given to the person for the contravention; or
(iii) an infringement notice is given to the person for the contravention and is subsequently withdrawn; or
(c) prevent the giving of 2 or more infringement notices to a person for an alleged contravention of a prescribed civil penalty provision; or
(d) limit a court's discretion to determine the amount of a penalty to be imposed on a person who is found to have contravened a prescribed civil penalty provision.
Division 4 -- Enforceable undertakings
145E Acceptance of undertakings
(1) The APVMA may accept any of the following undertakings:
(a) a written undertaking given by a person that the person will, in order to comply with a provision of this Code, take specified action;
(b) a written undertaking given by a person that the person will, in order to comply with a provision of this Code, refrain from taking specified action;
(c) a written undertaking given by a person that the person will take specified action directed towards ensuring that the person does not commit an offence against this Code or contravene a civil penalty provision, or is unlikely to do so, in the future.
(2) The undertaking must be expressed to be an undertaking under this section.
(3) The person may withdraw or vary the undertaking at any time, but only with the written consent of the APVMA.
(4) The APVMA's consent is not a legislative instrument.
(5) The APVMA may, by written notice given to the person, cancel the undertaking.
(6) The APVMA must publish the undertaking on the APVMA's website.
(7) However, the APVMA is not required to publish so much of the undertaking that the APVMA is satisfied:
(a) is confidential commercial information; or
(b) is personal information (within the meaning of the Privacy Act 1988 ); or
(c) should not be disclosed because it would be against the public interest to do so.
145EA Enforcement of undertakings
(1) If:
(a) a person has given an undertaking under section 145E; and
(b) the undertaking has not been withdrawn or cancelled; and
(c) the APVMA considers that the person has breached the undertaking;
the APVMA may, on behalf of the Commonwealth, apply to a court of competent jurisdiction for an order under subsection ( 2).
(2) If the court is satisfied that the person has breached the undertaking, the court may make any or all of the following orders:
(a) an order directing the person to comply with the undertaking;
(b) an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;
(c) any order that the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;
(d) any other order that the court considers appropriate.
Restraining injunctions
(1) If a person has engaged, is engaging or is proposing to engage, in conduct that constitutes an offence against this Code or a contravention of a civil penalty provision, a court of competent jurisdiction may, on application by any person, grant an injunction:
(a) restraining the first - mentioned person from engaging in the conduct; and
(b) if, in the court's opinion, it is desirable to do so--requiring the first - mentioned person to do a thing.
Performance injunctions
(2) If:
(a) a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do a thing; and
(b) the refusal or failure was, is or would be, an offence against this Code or a contravention of a civil penalty provision;
the court may, on application by any person, grant an injunction requiring the first - mentioned person to do that thing.
Grant of interim injunctions
(3) Before deciding an application for an injunction under this section, the court may grant an interim injunction:
(a) restraining a person from engaging in conduct; or
(b) requiring a person to do a thing.
145FA Discharging or varying injunctions
A court may discharge or vary an injunction granted by that court under this Division.
145FB Certain limits on granting injunctions not to apply
Restraining injunctions
(1) The power of a court under this Division to grant an injunction restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the person has previously engaged in conduct of that kind; and
(c) whether or not the conduct involves a serious and immediate risk of:
(i) an effect that is harmful to human beings; or
(ii) an unintended effect that is harmful to animals, plants or things, or to the environment.
Performance injunctions
(2) The power of a court under this Division to grant an injunction requiring a person to do a thing may be exercised:
(a) whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that thing; and
(b) whether or not the person has previously refused or failed to do that thing; and
(c) whether or not the conduct involves a serious and immediate risk of:
(i) an effect that is harmful to human beings; or
(ii) an unintended effect that is harmful to animals, plants or things, or to the environment.
145FC Other powers of a court unaffected
The powers conferred on a court under this Division are in addition to, and not instead of, any other powers of the court, whether conferred by this Code or otherwise.
Division 6 -- Substantiation notices
145G APVMA may require claims to be substantiated etc.
(1) This section applies if a person has made a claim or representation in relation to:
(a) a supply, or possible supply, of a chemical product by the person or another person; or
(b) the manufacture of a chemical product by the person or another person; or
(c) the safety or efficacy of a chemical product.
(2) The APVMA may give the person who made the claim or representation a written notice that requires the person to do one or more of the following:
(a) give information or produce documents to the APVMA that could be capable of substantiating or supporting the claim or representation;
(b) if the claim or representation relates to a supply, or possible supply, of chemical products by the person or another person--give information or produce documents to the APVMA that could be capable of substantiating:
(i) the quantities in which; and
(ii) the place in which; and
(iii) the period for which;
the person or other person is or will be able to make such a supply (whether or not the claim or representation relates to those quantities, that place or that period);
(c) give infor m ation or produce documents to the APVMA that are of a kind specified in the notice;
within 21 days after the notice is given to the person who made the claim or representation.
(3) Any kind of information or documents that the APVMA specifies under paragraph ( 2)(c) must be a kind that the APVMA is satisfied is relevant to:
(a) substantiating or supporting the claim or representation; or
(b) if the claim or representation relates to a supply, or possible supply, of chemical products by the person or another person--substantiating the quantities in which, the place in which, or the period for which, the person or other person is or will be able to make such a supply.
(4) The notice must:
(a) name the person to whom it is given; and
(b) specify the claim or representation to which it relates; and
(c) explain the effect of sections 145GA and 145GB.
(5) The notice may relate to more than one claim or representation that the person has made.
(6) This section does not apply to a person who made the claim or representation if the person:
(a) made the claim or representation by publishing it on behalf of another person in the course of carrying on a business of providing information; and
(b) does not have a commercial relationship with the other person other than for the purpose of:
(i) publishing claims or representations promoting, or apparently intended to promote, the other person's business or other activities; or
(ii) the other person supplying goods or services.
145GA Compliance with substantiation notices
(1) A person given a substantiation notice under section 145G must comply with the notice:
(a) within the period specified in the notice; or
(b) within such further time as the APVMA allows under subsection ( 3).
(2) A person given a substantiation notice under section 145G may apply to the APVMA for further time to comply with the notice. An application must be in writing and made within 21 days after the notice is given to the person.
(3) The APVMA may, by written notice given to the person, extend the period within which the person must comply with the notice.
(4) Despite subsection ( 1), an individual may refuse or fail to give particular information or produce a particular document in compliance with a substantiation notice on the ground that the information, or production of the document, might tend to incriminate the individual or to expose the individual to a penalty.
145GB Failure to comply with substantiation notice
(1) A person contravenes this subsection if:
(a) the person is given a notice under section 145G; and
(b) the person fails to comply with the notice:
(i) within the period specified in the notice; or
(ii) if the APVMA has allowed the person further time under subsection 145GA(3)--within such further time.
(2) Subsection ( 1) does not apply if:
(a) the person is an individual; and
(b) the person refuses or fails to give particular information or produce a particular document in compliance with a substantiation notice; and
(c) the information, or production of the document, might tend to incriminate the individual or to expose the individual to a penalty.
(3) A person commits an offence if the person contravenes subsection ( 1).
Penalty: 50 penalty units.
Note: A defendant bears an evidential burden in relation to the matter in subsection ( 2). See subsection 13.3(3) of the Criminal Code .
(4) Subsection ( 1) is a civil penalty provision.
Note 1 : Division 2 provides for pecuniary penalties for contraventions of civil penalty provisions.
Note 2: For the evidential burden in civil penalty proceedings in relation to the matter in subsection ( 2), see section 145CD.
Division 7 -- Enforceable directions
145H APVMA may give directions
(1) This section applies if the APVMA believes, on reasonable grounds, that:
(a) a person is not complying with this Code; and
(b) it is necessary to exercise powers under this section:
(i) to protect the health and safety of human beings; or
(ii) to protect animals, plants or things, or the environment; or
(iii) to prevent significant prejudice to trade or commerce between Australia and places outside Australia.
(2) The APVMA may, by written notice, give directions to the person requiring the person to take such steps, within the time specified in the notice, as are reasonable in the circumstances for the person to comply with this Code.
(3) A time specified in a notice must be reasonable having regard to the circumstances.
(4) A person contravenes this subsection if:
(a) the person is given a notice under this section; and
(b) the person fails to comply with the notice within the time specified in the notice.
(5) A person commits an offence if the person contravenes subsection ( 4).
Penalty:
(a) in the case of an aggravated offence--120 penalty units; and
(b) in any other case--30 penalty units.
(6) Subsection ( 4) is a civil penalty provision.
Note: Division 2 provides for pecuniary penalties for contraventions of civil penalty provisions.
(7) Section 4K of the Crimes Act 1914 applies to an offence against subsection ( 5).
(8) If the person does not take the steps specified in the notice within the time specified in the notice, the APVMA may arrange for those steps to be taken.
(9) If the APVMA incurs costs because of arrangements made by the APVMA under subsection ( 8):
(a) the person is liable to pay to the APVMA, on behalf of the Commonwealth, an amount equal to the costs incurred; and
(b) the amount may be recovered by the APVMA, on behalf of the Commonwealth, as a debt due to the Commonwealth in a court of competent jurisdiction.
(10) To prove an aggravated offence, the prosecution must prove that the person who committed the offence:
(a) intended his or her conduct:
(i) to cause significant damage to the health and safety of human beings; or
(ii) to cause significant damage to animals, plants or things, or the environment; or
(iii) to significantly prejudice trade or commerce between Australia and places outside Australia; or
(b) was reckless as to whether that conduct:
(i) would cause significant damage to the health and safety of human beings; or
(ii) would cause significant damage to animals, plants or things, or the environment; or
(iii) would significantly prejudice trade or commerce between Australia and places outside Australia.
(11) In this section:
"aggravated offence" means an offence the commission of which:
(a) causes significant damage, or is likely to cause significant damage:
(i) to the health and safety of human beings; or
(ii) to animals, plants or things, or the environment; or
(b) would significantly prejudice trade or commerce between Australia and places outside Australia.
145J APVMA may issue a formal warning
(1) The APVMA may, by written notice, issue a formal warning to a person if the APVMA has reasonable grounds to suspect that the person may have contravened the Agvet Code of this jurisdiction.
(2) A formal warning under subsection ( 1) is not a legislative instrument.
309 Sections 146, 147 and 148 of the Code set out in the Schedule
Repeal the sections, substitute:
146 False or misleading information or document
(1) A person commits an offence if, for the purposes of, or in connection with, the consideration by the APVMA, in the course of the performance of any of its functions or the exercise of any of its powers under this Code, of any matters referred to in section 5A, 5B, 5C or 5D or subsection 123(1), the person:
(a) gives information (whether orally or in writing) that the person knows to be false or misleading in a material particular; or
(b) produces a document that the person knows to be false or misleading in a material particular without:
(i) indicating to the person to whom the document is produced that it is false or misleading and the respect in which it is false or misleading; and
(ii) providing correct information to that person if the person producing the document is in possession of, or can reasonably acquire, the correct information.
Penalty: 300 penalty units.
(2) A person commits an offence if, for the purposes of, or in connection with, the consideration by the APVMA, in the course of the performance of any of its functions or the exercise of any of its powers under this Code, of any matters other than matters referred to in subsection ( 1), the person:
(a) gives information (whether orally or in writing) that the person knows to be false or misleading in a material particular; or
(b) produces a document that the person knows to be false or misleading in a material particular without:
(i) indicating to the person to whom the document is produced that it is false or misleading and the respect in which it is false or misleading; and
(ii) providing correct information to that person if the person producing the document is in possession of, or can reasonably acquire, the correct information.
Penalty: 60 penalty units.
147 Time for bringing proceedings
(1) Proceedings for an offence against this Code may be brought:
(a) within 3 years after the date the offence is alleged to have been committed; or
(b) within 2 years after the date evidence of the offence first came to the attention of the APVMA, a member of the staff of the APVMA or an inspector.
(2) If paragraph ( 1)(b) is relied on to begin proceedings for an offence, the court attendance notice, summons or application must contain particulars of the date that evidence of the offence first came to the attention of the APVMA, a member of the staff of the APVMA or an inspector, as the case may be. It need not contain particulars of the date on which the offence was committed.
(3) The date on which evidence of the offence first came to the attention of the APVMA, a member of the staff of the APVMA or an inspector, as the case may be, is the date specified in the court attendance notice, summons or application, unless the contrary is established.
(4) In this section:
"evidence" , in relation to an offence, means evidence of any act or omission constituting the offence.
310 After section 149 of the Code set out in the Schedule
Insert:
149A Recovery of costs of investigations
(1) This section applies if:
(a) a person is convicted of an offence against an agvet law or is found to have contravened an agvet penalty provision; and
(b) the court convicting the person finds that the APVMA has reasonably incurred costs and expenses in taking a sample, or conducting an inspection, test or analysis during the investigation of the offence or agvet penalty provision; and
(c) the APVMA applies for an order against the person for the payment of the costs and expenses.
(2) The court may order the person to pay to the APVMA, on behalf of the Commonwealth, the reasonable costs and expenses that it considers just and equitable in the circumstances.
Note: The APVMA may recover certain other expenses . Se e section 142.
311 Subsection 160A(2) of the Code set out in the Schedule (penalty)
Repeal the penalty.
312 After subsection 160A(2) of the Code set out in the Schedule
Insert:
(2A) A person commits an offence if the person contravenes subsection ( 2).
Penalty: 300 penalty units.
(2B) Subsection ( 2) is a civil penalty provision.
Note: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
313 Subsection 161(1) of the Code set out in the Schedule (penalty)
Repeal the penalty.
314 After subsection 161(1) of the Code set out in the Schedule
Insert:
(1A) A person commits an offence if the person contravenes subsection ( 1).
Penalty: 300 penalty units.
(1B) Subsection ( 1) is a civil penalty provision.
Note: Division 2 of Part 9A provides for pecuniary penalties for contraventions of civil penalty provisions.
315 Subsection 162(11) of the Code set out in the Schedule
Omit "section 52, 53, 54 or 55", substitute "section 8H or 8J, paragraph 45A(1)(b) or section 47C".
316 Subsection 170A(1) of the Code set out in the Schedule (penalty)
Repeal the penalty, substitute:
Penalty: 50 penalty units.