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BIOSECURITY ACT 2015 - SECT 186

Contravening conditions applying to conditionally non-prohibited goods brought or imported into Australian territory

             (1)  A person contravenes this subsection if:

                     (a)  the person brings or imports goods into Australian territory; and

                     (b)  the goods are conditionally non-prohibited goods; and

                     (c)  a condition in relation to the goods specified in a determination in force under subsection 174(1) has not been complied with.

Note 1:       The physical elements of an offence against subsection (2) are set out in this subsection (see section 534).

Note 2:       Subsection (7) provides an exception to an offence against this section and liability to a civil penalty under subsection (3).

Basic fault-based offence

             (2)  A person commits an offence if the person contravenes subsection (1).

Penalty:  Imprisonment for 5 years or 300 penalty units, or both.

Civil penalty provision

             (3)  A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:          120 penalty units.

Fault-based offence involving obtaining commercial advantage

             (4)  A person commits an offence if:

                     (a)  the person brings or imports goods into Australian territory; and

                     (b)  the goods are conditionally non-prohibited goods; and

                     (c)  a condition in relation to the goods specified in a determination in force under subsection 174(1) has not been complied with; and

                     (d)  as a result, the person obtains, or may obtain, a commercial advantage over the person's competitors or potential competitors.

Note:          The following are examples of a commercial advantage as referred to in paragraph (d):

(a)    avoiding business costs associated with obtaining an import permit or meeting other requirements under this Act;

(b)    avoiding delays necessarily involved in complying with applicable biosecurity measures.

Penalty:  Imprisonment for 10 years or 2,000 penalty units, or both.

Fault-based offence involving harm to the environment or economic consequences

             (5)  A person commits an offence if:

                     (a)  the person brings or imports goods into Australian territory; and

                     (b)  the goods are conditionally non-prohibited goods; and

                     (c)  a condition in relation to the goods specified in a determination in force under subsection 174(1) has not been complied with; and

                     (d)  the bringing or importation of the goods into Australian territory:

                              (i)  has caused, or has the potential to cause, harm to the environment; or

                             (ii)  has had, or has the potential to have, economic consequences.

Penalty:  Imprisonment for 10 years or 600 penalty units, or both.

Alternative verdict

             (6)  In a trial for an offence against subsection (4) or (5), the trier of fact may find the defendant not guilty of that offence but guilty of an offence against subsection (2) if:

                     (a)  the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (4) or (5); and

                     (b)  the trier of fact is satisfied that the defendant is guilty of the offence against subsection (2); and

                     (c)  the defendant has been accorded procedural fairness in relation to that finding of guilt.

Exception

             (7)  Subsection (1), (4) or (5) does not apply if the person:

                     (a)  did not do the act, or omit to do the act, that constituted the failure to comply with the condition referred to in paragraph (1)(c), (4)(c) or (5)(c); and

                     (b)  did not aid, abet, counsel or procure that act or omission; and

                     (c)  was not in any way knowingly concerned in, or party to, that act or omission (whether directly or indirectly and whether by any act or omission of the person).

Note:          A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act).



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