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Invasive Species Control Bill 2014
Introduction Print
EXPLANATORY MEMORANDUM
General
The Bill aims to provide a framework for more effective monitoring and
surveillance of invasive species and management or mitigation of the risks
posed by invasive species to Victoria's economy, community and
environment including Victoria's land and waters. The Bill provides the
legislative means to monitor and control the entry, establishment, spread and
impact of invasive species, including aquatic invasive species that may infest
marine environments. The Bill will enable Victoria to meet its obligations
under the National Environment Biosecurity Response Agreement and
provide a comprehensive framework for action to be taken in response to the
threat of invasive species.
The former Department of Primary Industries (DPI), now the Department of
Environment and Primary Industries, undertook an internal strategic review
of the legislative framework for the management of invasive plants and
animals in 2011. The review was undertaken because the incremental
changes made to the noxious weeds and pest animals provisions of the
Catchment and Land Protection Act 1994 (CaLP Act) over the years did
not keep pace with Victoria's evolving invasive plant and animal policy and
approach to biosecurity management. This review recommended major
reform to modernise the legislative framework for the management of
invasive species.
DPI also completed a comprehensive assessment of legislation (see Table 1)
relating to management of biosecurity incidents under the National
Environmental Biosecurity Response Agreement (NEBRA). This agreement
is the first deliverable of the Intergovernmental Agreement on Biosecurity
(Table 2).The review demonstrated that Victoria is well placed to implement
the NEBRA in response to certain types of incidents, such as incursions of
animal and plant diseases, but that there are gaps in Victoria's legislative
powers to respond to other types of incidents, such as incursions of new
571332 1 BILL LA INTRODUCTION 20/8/2014
terrestrial and aquatic invasive plants or animals. The report concluded that
there was a strong case for the development of stand-alone legislation for the
management of invasive species, given the range and extent of amendments
to existing legislation that would otherwise be required.
Table 1 Summary of legislation providing for management of biosecurity
incidents
Act Purpose
Livestock The Livestock Disease Control Act 1994 (the LDC Act)
Disease provides the legislative framework for the prevention,
Control Act monitoring and control of livestock diseases to protect
1994 domestic and export markets and public health.
Plant The purpose of the Plant Biosecurity Act 2010 (PB Act)
Biosecurity is to prevent, monitor, control and eradicate plant pests
Act 2010 and diseases in Victoria.
Catchment The Catchment and Land Protection Act 1994
and Land (the CaLP Act) is the main legislation covering noxious
Protection weed and pest animal management in Victoria and
Act 1994 provides the power to declare species of plants and
animals as noxious. One of the main objectives is to
protect primary production, Crown land, the environment
and community health from the threats posed by noxious
weeds and pest animals.
Fisheries Act The Fisheries Act 1995 provides the legislative
1995 framework for the regulation, management and
conservation of Victorian fisheries and includes limited
provisions to declare noxious aquatic species which may
impact on fisheries resources. It includes powers to
prevent the taking, possession, trade or movement of
aquatic species declared noxious under the Act. The Act
also contains a provision regulating the stocking of fish.
This has been used to develop translocation guidelines
and protocols to manage biosecurity risks associated with
the movement and stocking of live aquatic organisms.
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Table 2 Description of national agreements
Agreement description
Intergovernmental The Intergovernmental Agreement on
Agreement on Biosecurity is designed to strengthen the
Biosecurity working partnership between the
Commonwealth, state and territory
governments. It identifies the roles and
responsibilities of governments and outlines
priority areas for collaboration to minimise the
impacts of pests and diseases on Australia's
economy, environment and the community.
For more information visit www.coag.gov.au
National NEBRA sets out arrangements for responding to
Environmental biosecurity incidents that primarily affect the
Biosecurity Response environment and / or social amenity and where
Agreement the response is for the public good. For more
information visit www.coag.gov.au
Victoria's Biosecurity Standing Committee (BSC) which included
representatives of DPI, the former Department of Sustainability and
Environment (DSE) and Parks Victoria (PV) was supportive of legislative
reform to address existing legislative deficiencies and to modernise and
strengthen Victoria's biosecurity legislation. The Minister for Agriculture
and Food Security was also supportive of the proposal to develop new
legislation.
Current legislation
There are multiple pieces of legislation that play a role in preventing or
responding to terrestrial and aquatic biosecurity threats in Victoria. There are
three Acts that provide the primary powers to prepare for, or respond to, a
biosecurity incident in Victoria--the CaLP Act, the LDC Act and the PB Act.
These Acts address biosecurity incidents related to invasive plants and
animals, animal health and disease, and plant health and disease respectively.
The CaLP Act is the main legislation covering noxious weed and pest animal
management in Victoria. It provides the power to declare species of plants as
"noxious" and species of animals as "pests". It also regulates the control,
importation into the State, keeping, movement, trade and release of noxious
weeds and pest animals in Victoria. The objective of those provisions is to
protect primary production, Crown land, the environment and community
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health, from the threats posed by noxious weeds and pest animals. The CaLP
Act only applies to noxious weeds and pest animals and specifically excludes
fish and invertebrates from its scope. Its applicability to invasive marine
species and to micro-organisms is unclear.
The LDC Act provides the legislative framework for the prevention,
monitoring and control of livestock diseases to protect domestic and export
markets and public health and the key purpose of the PB Act is to prevent,
monitor, control and eradicate plant pests and diseases in Victoria.
In addition to the Acts outlined above, there are numerous other Victorian
Acts that may play a role in supporting or constraining biosecurity
preparedness and responses, including--
· Aboriginal Heritage Act 2006
· Agricultural and Veterinary Chemicals (Control of Use)
Act 1992 and the Drugs, Poison and Controlled Substances
Act 1981
· Biological Control Act 1986
· Environment Protection Act 1970
· Firearms Act 1996
· Flora and Fauna Guarantee Act 1988
· Impounding of Livestock Act 1994
· Land Act 1958
· Local Government Act 1989
· Marine Act 1988
· National Parks Act 1975
· Occupational Health and Safety Act 2004
· Parks Victoria Act 1988
· Planning and Environment Act 1987
· Port Management Act 1995
· Prevention of Cruelty to Animals Act 1986
· Road Management Act 2004
· Road Safety Act 1986
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· Sale of Land Act 1962
· Wildlife Act 1975.
Reasons for change
Since the CaLP Act's inception in 1994, there have been many changes to the
biosecurity environment that impact on the way this Act operates. Like other
state and national agencies, Victoria has adopted a biosecurity approach to
manage these changes over the past 18 years. A number of amendments have
been made to both the CaLP Act and its accompanying regulations.
However these did not keep up with the breadth of change in the biosecurity
environment and the evolving invasive plant and animal policy and approach
to biosecurity.
Some of the most significant changes in the operating environment include--
· Globalisation and the expansion of overseas travel and trade.
These have increased Victoria's exposure to biosecurity risks
and increased the rate of new incursions. The movement of
people and goods is becoming faster and easier as technology
improves, personal wealth increases, consumer preferences
change and new economies emerge. The increased volume of
these movements and the diversity of countries involved leads
to a higher risk of both deliberate and accidental introductions
of new invasive plants and animals. Expanded opportunities
for information exchange and trade via the internet (especially
illegal trade and introduction) has also resulted in increased
risks to Victoria's natural and productive resources from new
species.
· Changing land use and demography in rural and regional
Victoria. These changes have significant implications for the
incursion and management of invasive species. For example,
urban environmental preferences and 'tree-change' migration
are increasing the price of land in amenable and accessible
parts of the rural landscape. Farm sizes in these areas are
decreasing and enterprises are intensifying. This trend has led
to an increased density of smaller properties whose owners'
knowledge, skills, attitudes and aspirations for land
management vary tremendously. This poses new biosecurity
risks.
· Climate change. Climate change may favour the establishment
of many new incursions and alter (i.e. increase or decrease) the
geographic range of invasive species already established.
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· Changing consumer and public preferences and expectations.
Changes in the preferences and expectations about the variety
and availability of food, pets and garden species have led to
potential new pathways for the emergence and spread of
invasive plants and animals. Changing levels of knowledge,
aspirations, skills and attitudes are affecting the methods that
can be used in invasive species management activities.
In addition, changes in the preferences and expectations about
the acceptability of control techniques have impacted, or may
impact, on the availability and development of control
techniques.
In addition to these changes in the operating environment, the former
Department Of Primary Industries identified issues with the existing
legislative frameworks for the management of invasive species and Victoria's
ability to implement the National Environmental Biosecurity Response
Agreement. Some of the key issues include--
· Inadequate legislative provisions to enable prevention and
early intervention. Prevention and early intervention to
manage risk generally provide the most cost-effective means
for achieving positive biosecurity outcomes while invasive
species that are more widespread are best managed through
approaches that emphasise containment and protection of our
most valuable assets.
· Overeliance on a complex system of declaration categories to
determine the responsibilities for managing specific invasive
species. For example, the CaLP Act relies on four declaration
categories to regulate noxious weeds and four categories to
regulate pest animals. Although the principles for managing
these weeds and pest animals are similar, the categories are not,
making it difficult for people to comply with, understand and
work with this Act.
· The limitation of legislation to a narrow range of invasive
animals. For example, under the CaLP Act, the Minister
cannot recommend invasive fish or invertebrates for
declaration. These groups of invasive species are only partially
covered by other biosecurity and fisheries legislation,
effectively resulting in gaps in our legislative framework for
the management of invasive species in Victoria.
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Clause Notes
PART 1--PRELIMINARY
Clause 1 provides that the purpose of the Bill is to provide for the
monitoring, surveillance and control of invasive species in
Victoria.
Clause 2 provides for the Bill to come into operation on a day or days to
be proclaimed or 1 March 2016, whichever happens first.
The forced commencement date of 1 March is more than the
usual 12 months from introduction to allow sufficient time for
public consultation and making of regulations and declarations
of species and carriers and for training of authorised officers.
Clause 3 sets out definitions for the purposes of the Bill.
Clause 4 subclause (1) provides that the Bill is binding on the Crown.
Subclause (2) provides that the Bill does not render the Crown
liable for prosecution for an offence.
Clause 5 provides that the Bill is in addition to and does not take away
from any other Act or any instrument made under another Act.
PART 2--DECLARED INVASIVE SPECIES OF PLANTS AND
ANIMALS AND CARRIERS OF INVASIVE SPECIES
Division 1--Declared invasive species of plants and animals
Clause 6 provides for the declaration of invasive species of plants and
animals for the purposes of the Bill.
Subclause (1) provides that the Governor in Council may make
an order declaring a species of plant or animal to be an invasive
species.
Subclause (2) requires an order to be published in the
Government Gazette.
Subclause (3) provides that an order may apply to the whole or
any part of the State and must specify whether the species is
designated as category 1 or category 2. The expressions
category 1 species and category 2 species are defined in
clause 3(1).
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Subclause (4) provides that the Minister may only recommend
that a species be declared to be a category 1 species if he or she
is satisfied that the species is invasive in nature and, if it is
present in the State, that it can reasonably be expected to be
eradicated from the State. In addition, the Minister must be
satisfied that it is likely to have a significant adverse effect on
the economy, social amenity or the environment in Victoria or
another State or Territory or that it is not known whether it has
potential to adversely affect the economy, social amenity or the
environment in Victoria or another State or Territory.
Subclause (5) provides that the Minister may only recommend
that a species be declared to be a category 2 species if he or she
is satisfied that the species is invasive in nature and present in
the State, that it is not reasonable to expect that it can be
eradicated and that it has had or may have a significant adverse
effect on the economy, social amenity or the environment in
Victoria or another State or Territory.
Clause 7 provides for an emergency declaration of an invasive species.
Subclause (1) enables the Minister to make an order declaring a
species to be an invasive species for the purposes of the Bill.
Subclause (2) requires an order to be published in the
Government Gazette
Subclause (3) provides that an order may apply to the whole or
any part of the State and must specify whether the species is a
category 1 or category 2 species.
Subclause (4) provides that the Minister may only make an
order declaring a category 1 species if he or she is satisfied that
the species is or is likely to become invasive in nature and, if
present in the State, that it can reasonably be expected to be
eradicated from the State. In addition, the Minister must be
satisfied that it is likely to have a significant adverse effect on
the economy, social amenity or the environment in Victoria or
another State or Territory or that it is not known whether it has
potential to adversely affect the economy, social amenity or the
environment in Victoria or another State or Territory.
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Subclauses (5) provides that the Minister may only make an
order declaring a category 2 species if he or she is satisfied that
the species is invasive in nature, that it is not reasonable to
expect that the species can be eradicated and that it may have an
adverse effect on the economy, environment or social amenity
in Victoria or another State or Territory.
Subclause (6) provides that the Minister must not make an order
declaring a species of plant or animal unless he or she is
satisfied that urgent action is required to protect Victoria from
an adverse economic, environmental or social impact caused or
likely to be caused by the species.
Subclause (7) provides that an order remains in force for
180 days from its date of publication, unless sooner revoked.
Subclause (8) provides that an expired order may be remade
once.
Clause 8 sets out species of plants and animals which cannot be declared
to be an invasive species.
Subclause (1) provides that the Minister must not recommend
for declaration as an invasive species flora listed as "threatened"
(that is, in a demonstrable state of decline likely to result in
extinction) in an Order under section 10(1) of the Flora and
Fauna Guarantee Act 1988.
Subclause (2) provides that the Minister must not recommend a
species of animal for declaration as an invasive species fauna
listed as "threatened" in an Order under section 10(1) of the
Flora and Fauna Guarantee Act 1988 or wildlife under the
Wildlife Act 1975.
Subclause (3) provides that the Minister must not recommend a
species of animal to be declared an invasive species if the
Minister is satisfied that it is widely kept in Victoria as a
domestic animal, pet or farm animal and there is no public
interest requiring control of it.
Subclause (4) provides that subclause (3) does not prevent the
Minister from recommending declaration of a feral or wild
population of an animal.
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Division 2--Declared carriers of invasive species of plants and
animals
Clause 9 provides for the declaration of a declared carrier of an invasive
species. The expression carrier is defined in clause 3(1).
Subclause (1) provides for the Secretary by order published in
the Government Gazette to declare any thing to be a carrier of a
category 1 or category 2 species.
Subclause (2) provides that an order may apply to the whole or
any part of the State.
Subsection (3) provides that an order remains in force for the
period specified in the notice.
PART 3--OBLIGATIONS REGARDING DECLARED
INVASIVE PLANT AND ANIMAL SPECIES
Clause 10 provides for prohibited activities in relation to declared invasive
plant and animal species.
Subclause (1) provides an offence with a maximum penalty of
480 penalty units for a person who knowingly engages in a
prohibited activity in relation to a category 1 species unless the
person has a permit from the Secretary and complies with any
conditions of the permit or is otherwise authorised under the
Bill.
Subclause (2) provides an offence with a maximum penalty of
240 penalty units for a person who knowingly engages in a
prohibited activity in relation to a category 2 species unless the
person has a permit from the Secretary and complies with any
conditions of the permit or is otherwise authorised under the
Bill.
Subclause (3) provides an offence with a maximum penalty of
60 penalty units for a person who engages in a prohibited
activity in relation to a category 1 species unless the person has
a permit from the Secretary and complies with any conditions of
the permit keeps or is otherwise authorised under the Bill.
Subclause (4) provides an offence with a maximum penalty of
30 penalty units for a person who engages in a prohibited
activity in relation to a category 2 species unless the person has
a permit from the Secretary or is otherwise authorised under the
Bill.
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Subclause (5) defines prohibited activity for the purpose of this
clause as keeping, breeding, cultivating, releasing or threatening
to release, displaying, selling or giving away a category 1 or
category 2 species.
Clause 11 subclause (1) provides for the Secretary to specify a declared
species as one to which this clause applies.
Subclause (2) provides an offence with a maximum penalty of
60 penalty units for a person who abandons a plant or animal or
fails to take reasonable precautions to prevent a plant or animal
from being at large in circumstances where, by being at large,
the plant or animal would become part of or form a new
population of a declared invasive species.
Clause 12 subclause (1) enables the Secretary by notice in the Government
Gazette to declare a category 1 species as a notifiable species
for the purposes of this clause.
Subclause (2) requires the notice under subclause (1) to specify
the time within which the Secretary must be notified.
Subclause (3) provides an offence with a maximum penalty of
120 penalty units for a person having the management or
control of any land, water, thing or place who fails to notify the
Secretary if a category 1 species is present or is reasonably
suspected to be present.
Clause 13 subclause (1) provides an offence with a maximum penalty of
480 penalty units for a person who knowingly brings a
category 1 species into Victoria or moves a category 1 species
within Victoria except in accordance with the regulations or a
permit issued by the Secretary.
Subclause (2) provides an offence with a maximum penalty of
60 penalty units for a person who brings a category 1 species
into Victoria or moves a category 1 species within Victoria
except in accordance with a permit issued by the Secretary.
Clause 14 provides for eradicating category 1 species.
Subclause (1) enables the Secretary, for the purposes of
eradicating a category 1 species, to either give directions to a
person to take or refrain from taking measures or take steps to
eradicate the species himself or herself, if satisfied as to any of
the matters in subclause (3).
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Subclause (2) provides that a direction to a person under
subclause (1) requires the person to comply with the direction in
relation to any land, water, thing or place under the person's
management or control.
Subclause (3) provides that the Secretary may take steps himself
or herself under subclause (1) if he or she is satisfied that the
benefits of intervention will exceed the cost or that urgent
action is needed or that expertise is required for eradication to
be effective or that it likely to become difficult or costly for the
private sector to take effective measures.
Subclause (4) provides an offence with a maximum penalty of
240 penalty units for a person who fails to comply with a
direction by the Secretary.
Clause 15 subclause (1) provides an offence with a maximum penalty of
10 penalty units for a person who has been served with a
compliance notice under clause 14 and fails to notify the
Secretary of the prescribed particulars of the measures taken by
the person or the reason why he or she has not taken any
measures.
Subclause (2) requires that notice be given to the Secretary no
later than 7 days after the time for compliance with the
compliance notice.
Clause 16 subclause (1) provides an offence with a maximum penalty of
120 penalty units for a person who fails to take all reasonable
steps to prevent the increase or spread of a category 2 species
present in, on or under any land or water or in or on any thing or
at any place under the person's management or control except
where the person is acting in accordance with an instrument
under the Bill that specifies reasonable steps to prevent the
increase and spread of the category 2 species.
Subclause (2) enables the Governor in Council by notice in the
Government Gazette to specify a category 2 species as one to
which the offence in subclause (1) does not apply.
Clause 17 provides an offence with a maximum penalty of 60 penalty
units for a person who moves a category 2 species within
Victoria except in accordance with an instrument under the Bill
or a permit issued by the Secretary.
12
Clause 18 provides an offence with a maximum penalty of 240 penalty
units in the case of a category 1 species or 120 penalty units in
the case of a category 2 species for a person who brings a
declared carrier into Victoria or moves a declared carrier within
Victoria except in accordance with a permit issued by the
Secretary and who complies with any conditions in the permit.
PART 4--CONTROL AREAS AND CONTROL ORDERS
Division 1--Control areas
Clause 19 provides for the declaration of control areas.
Subclause (1) enables the Governor in Council by order to
declare any place within Victoria to be a control area and to
specify any prohibitions, restrictions or requirements to apply
for the purpose of preventing the spread or increase of declared
invasive species within or from the control area.
Subclause (2) provides that an order may prohibit or restrict
subject to conditions the removal from, entry to or movement
within the control area of a declared species or declared carrier,
require a person having the control or management of any thing,
place, land or water in the control area to destroy or treat any
declared carrier or take any other action to control a declared
species or declared carrier or require a person in a part of the
control area to take more stringent measures than other people
in the control area.
Clause 20 provides for restrictions on movement of declared invasive
species or carriers into or from a control area.
Subclause (1) provides an offence with a maximum penalty of
60 penalty units for a person who causes or permits the removal
from, entry to or movement within the control area of a declared
species or declared carrier contrary to any prohibition or
restriction in the order declaring the control area unless the
person is authorised under a permit issued by the Secretary and
complies with any conditions in the permit.
Subclause (2) provides an offence with a maximum penalty of
10 penalty units for a person who transports, moves any
declared invasive species or declared carrier into, out of or
within a control area contrary to any prohibition or restriction
except in accordance with a permit issued by the Secretary.
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Clause 21 provides an offence with a maximum penalty of 10 penalty
units for a person who transports, moves or takes any declared
invasive species or declared carrier past a road sign contrary to
a prohibition in an order declaring a control area if the sign
indicates that the movement is prohibited under the order.
Division 2--Control measures
Clause 22 provides for the destruction or disposal of plants etc. at the
direction of the Minister.
Subclause (1) provides that if a declared invasive species or
declared carrier is introduced into Victoria or introduced into or
allowed to remain in a control area, infested place or restricted
area contrary to the Act or an order under the Act, it may be
treated or destroyed by written direction of the Minister.
Subclause (2) provides that the Minister must cause a copy of a
direction under subclause (1) to be given to the owner or person
in charge of the invasive species or carrier before the direction
is carried out unless the owner or person cannot be found after
reasonable inquiry and the Minister considers that, in the
circumstances, the direction should be carried out without prior
notice to the owner or person.
Clause 23 provides for the treatment or disposal of plants etc. at the
direction of an authorised officer.
Subclause (1) provides that this section applies if an invasive
species or declared carrier is introduced into Victoria, a control
area, infested place or restricted area or sent from an infested
place or restricted area contrary to the Act or an order under the
Act.
Subclause (2) provides that an authorised officer may give a
written direction to the owner or person apparently in charge of
an invasive species or declared carrier to treat or dispose of
invasive species or carrier or return it to the consignor.
Subclause (3) provides an offence with a maximum penalty of
60 penalty units for a person who has been given a direction
under subclause (2) and fails to comply with it.
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Clause 24 provides for treatment or disposal of declared carriers.
Subclause (1) enables an authorised officer who knows or
reasonably suspects that a declared carrier is affected by a
declared invasive species to apply a prescribed treatment to or
dispose of the declared carrier or order those things to be done.
Subclause (1) enables an authorised officer to process a
declared carrier or allow the declared carrier to be used for
stock food or dispose of the declared carrier by burning, burial
etc. or order those things to be done.
Subclause (2) requires the authorised officer to notify the owner
or person apparently in charge of the declared carrier of his or
her intention to take action under subclause (1).
Subclause (3) enables an authorised officer, with the approval
of the Secretary, to destroy or dispose of a declared carrier that
he or she knows or reasonably suspects is affected by an
invasive species if the owner cannot be located after reasonable
inquiry and there is no person apparently in charge of them.
Clause 25 provides for infested land notices.
Subclause (1) enables the Secretary to give the owner or
occupier of land a notice prohibiting or restricting the removal
of any declared invasive species or declared carrier from the
land or requiring the owner or occupier destroy or cause the
destruction of the declared invasive species or requiring the
owner or occupier to control or eradicate or cause the control
and eradication of the declared invasive species, if the Secretary
knows or reasonably suspects that a declared invasive species is
on the land.
Subclause (2) provides an offence with a maximum penalty of
60 penalty units for a person who has been given a notice under
subclause (1) who removes or causes the removal of any
declared invasive species or declared carrier contrary to the
notice.
Subclause (3) provides an offence with a maximum penalty of
60 penalty units for a person who has been given a notice under
subclause (1) who fails to destroy or cause the destruction of a
declared invasive species or declared carrier contrary to the
notice.
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Subclause (4) provides that a copy of a notice must be given to
the prescribed owner of the land unless notice was given to that
person under subclause (1).
Clause 26 provides for control notices.
Subclause (1) provides that this clause applies if an authorised
officer knows or reasonably suspects that a declared carrier is
present on land or that a declared carrier is or might become
affected by a declared invasive species.
Subclause (2) enables an authorised officer to give a notice to
the owner or occupier of land or the owner or person in
possession of a declared carrier giving any orders or directions
the authorised officer considers reasonably necessary to prevent
the spread or increase of the declared invasive species.
Subclause (3) sets out the various orders and directions for the
keeping, treatment, examination, sale or supply, destruction or
disposal of a declared invasive species or for the treatment or
examination of land that may be included in a notice under
subclause (2) in relation to any land or declared carrier that is or
might become affected by a declared invasive species.
Subclause (4) provides an offence with a maximum penalty of
10 penalty units for a person who fails to comply with a notice
under subclause (2).
Clause 27 provides for the disposal of declared carrier etc.
Subclause (1) enables the Secretary to cause a notice to be
served on the owner or person apparently in charge of a
declared carrier for the disposal or treatment and disposal of the
declared carrier if the Secretary is satisfied that it is affected by
a declared invasive species.
Subclause (2) provides an offence with a maximum penalty of
60 penalty units for a person who fails to comply with a notice
under subclause (1).
Clause 28 provides for a person to notify the Secretary of measures taken
or not taken.
Subclause (1) provides an offence with a maximum penalty of
10 penalty units for a person who has been served with a notice
or direction who fails to notify the Secretary of the prescribed
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particulars of the measures taken by the person or the reason
why he or she has not taken any measures.
Subclause (2) requires that notice be given to the Secretary no
later than 7 days after the time for compliance with the notice.
PART 5--CATEGORY 1 SPECIES
Division 1--Preliminary
Clause 29 provides for the application of Part 5 to land.
Subclause (1) provides that any provision of the Act that
operates in relation to a category 1 species to the extent that it
confers any function or power that may be exercised in relation
to land, applies to all land whatever its status.
Subclause (2) provides that any provision of the Act in relation
to a category 1 species applies to places that are the property of
the Crown or dedicated or reserved for any purpose, or
protected or dealt with under any other Act or places under the
care, control or supervision of any statutory authority or other
person.
Subclause (3) provides that it is not necessary to obtain the
consent of any person or body or comply with other
requirements in the Bill in order for any place to be declared an
infested place or restricted area under Part 5 or for the validity
of any order or the exercise of any power to enter a place or of
any other power conferred by the Act and exercised in relation
to a category 1 species.
Subclause (4) provides that if land is owned by 2 or more
persons an order, notice or other document relating to a
category 1 species which, under the Act, is served on one of
them is taken to have been served on them all.
Clause 30 provides for the application of the Bill to plants and animals.
Subclause (1) provides that any provision of the Act that
operates in relation to a category 1 species to the extent that it
confers powers or functions that may be exercised in relation to
a category 1 species of plant or animal applies to all plants or
animals whatever their status and whether they are the property
of the Crown or another person.
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Subclause (2) provides that any provision of the Act that
operates in relation to a category 1 species applies to any plant
or animal (a) that is protected under any Act or (b) the care,
control, management or supervision of which is conferred on
the Crown or any statutory authority or other person.
Subclause (3) provides that it is not necessary for the validity of
any order under Part 5 for the destruction, confinement or other
control or treatment of or affecting any category 1 species of
plant or animal or for the exercise of any power conferred by
the Act in relation to a category 1 species to obtain the consent
of any person or body or to meet any other requirements other
than the requirements in the Bill.
Division 2--Declared areas
Clause 31 provides for the declaration of an infested place.
Subclause (1) provides for the Secretary to declare a place
within Victoria to be an infested place and to specify any
prohibitions, restrictions or requirements that are to operate in
the infested place if the Secretary reasonably suspects that a
category 1 species is present in the place.
Subclause (2) requires the order to identify the classes or
descriptions of any declared carrier affected by it.
Subclause (3) provides for an order to remain in force for
21 days after the date of publication unless sooner revoked.
Subclause (4) provides an offence with a maximum penalty of
60 penalty units for a person who contravenes an order made
under this clause.
Clause 32 Subclause (1) requires the Secretary to ensure that notice of an
order declaring an infested place is published in a newspaper
circulating generally within the vicinity of the place.
Subclause (2) requires the Secretary to ensure that written
notice of an order declaring an infested place is given to the
owner or person in charge or apparent control of the place.
Subclause (3) requires the Secretary to display a notice of an
order declaring an infested place at any point of entry to the
place.
18
Clause 33 provides for the declaration of an infested area.
Subclause (1) provides that the Minister may by order published
in the Government Gazette declare an area to be a restricted
area and specify any prohibitions, restrictions or requirements to
operate in the area if the Minister reasonably believes or
suspects that there is a possibility that a category 1 species is
present in or may be introduced into that area of Victoria.
Subclause (2) requires the order to identify the classes or
descriptions of any declared carrier affected by it.
Subclause (3) requires the Minister to ensure that notice of an
order declaring a restricted area is published in a newspaper
circulating generally in the vicinity of the area.
Subclause (4) provides for an order to remain in force for up to
12 months unless sooner revoked.
Subclause (5) permits the Minister to extend the duration of an
order from time to time for periods up to 12 months.
Clause 34 provides for movement within a restricted area.
Subclause (1) provides an offence with a maximum penalty of
60 penalty units for a person who knowingly causes or permits
the movement of a category 1 species or declared carrier to
which a declaration of a restricted area applies into, within or
from that area or who contravenes any prohibition, restriction or
requirement specified in the order which declared the restricted
area.
Subclause (2) provides that the offence in subsection (1) does
not apply if the person is authorised under a permit issued by an
authorised officer and complies the permit conditions.
Subclause (3) provides an offence with a maximum penalty of
10 penalty units for a person who contravenes a prohibition,
restriction or requirement in an order declaring a restricted area.
Subclause (4) provides that the offence in subsection (3) does
not apply if the person is authorised under a permit issued by an
authorised officer and complies the permit conditions.
19
Clause 35 provides for permits for activity in the restricted area.
Subclause (1) provides for an authorised officer to issue a
permit for the purposes of clause 34 subject to any conditions
specified by the authorised officer in the permit.
Subclause (2) provides for a permit to have effect for the period
specified in the permit.
Subclause (3) enables an authorised officer to issue a permit
subject to conditions relating to the control or eradication of a
category 1 species.
Subclause (4) enables an authorised officer to revoke or vary a
permit at any time by notice in writing to the holder.
Subclause (5) requires the holder of a revoked permit to deliver
the permit to authorised officer if requested to do so by the
authorised officer.
Clause 36 provides further powers under orders made under clauses 31
and 33.
Subclause (1) provides that without limiting the powers of the
Secretary under clause 31 or the Minister under clause 33 an
order declaring an infested place or restricted area may--
· prohibit removal from the declared area of any
category 1 species or declared carrier;
· require owners or occupiers of any place within the area
to take measures that are, in the opinion of the Secretary
or Minister, necessary for the containment, eradication
or control of a category 1 species;
· require owners or occupiers in some portions of the area
to take more stringent measures than owners or
occupiers of other places within the area;
· prohibit the planting and propagation of any plant or
plant product during the period specified in the order;
· restrict the purposes for which a category 1 species or
declared carrier may be used;
· require a declared carrier to be treated for the purpose of
controlling or eradicating a category 1 species;
20
· require any category 1 species or declared carrier to be
destroyed or disposed of;
· require any declared carrier to be cleansed;
· require any prescribed declared carrier to be identified;
· control or prohibit the movement of any declared carrier
in the area;
· require a declared carrier suspected to be affected by a
category 1 species to be kept separately from unaffected
carriers;
· control or prohibit the removal of a category 1 species
or declared carrier from the area;
· specify tests or treatments for any category 1 species or
declared carrier;
· specify tests or treatments to be applied to a place; and
· apply to the whole or any part of a declared area.
Subclause (2) enables an order to authorise an authorised officer
to issue directions to any person to do any of the things
specified in subclause (1).
Subclause (3) provides that a direction issued by an authorised
officer under subsection (2) must be in writing, be given to the
person to whom it applies and fix a reasonable time for
compliance.
Subclause (4) provides an offence with a maximum penalty of
60 penalty units for a person who contravenes a direction of an
authorised officer under subclause (2).
Subclause (5) provides that an authorised officer must cause a
copy of a direction given by the authorised officer that requires
an owner or occupier to do anything in relation to the land to
be given to the prescribed owner of land (as defined in
clause 3(1)).
Clause 37 provides for a person to notify the Secretary of measures taken
or not taken.
Subclause (1) provides an offence with a maximum penalty of
10 penalty units for a person who has been issued a direction
under clause 36 who fails to notify the Secretary of the
21
prescribed particulars of the measures taken by the person or the
reason why he or she has not taken any measures.
Subclause (2) requires that notice be given to the Secretary no
later than 7 days after the time for compliance with the notice.
PART 6--CODES OF PRACTICE AND MANAGEMENT
PLANS
Division 1--Codes of Practice
Clause 38 provides for making Codes of Practice.
Subclause (1) provides for the Minister to make Codes of
Practice in accordance with Division 1 of Part 6 which specify
standards and procedures for carrying out obligations under the
Act.
Subclause (2) provides that Codes of Practice may apply, adopt
or incorporate any matter contained in any document, standard,
rule, specification or method, formulated, issued, prescribed or
published by any person whether wholly or partially amended
by the Code of Practice or a formulated, issued, prescribed or
published at the time the Code of Practice is made or before that
time.
Clause 39 provides for the Minister to vary or revoke a Code of Practice at
any time in accordance with Division 1 of Part 6.
Clause 40 provides for the advertisement of a draft Code of Practice,
variation or revocation.
Subclause (1) provides that the Minister must give notice of any
Code of Practice, any variation of a Code of Practice or any
revocation of a Code of Practice which the Minister proposes to
make.
Subclause (2) provides that a notice must be published in the
Government Gazette and in a newspaper circulating generally
throughout the State.
Subclause (3) provides that a notice must state where a copy of
the draft Code, variation or revocation may be obtained and that
submissions must be made to the Minister within a period being
a minimum of 28 days of publication of the notice.
22
Subclause (4) provides that despite clauses 40 or 41, the
Minister may make a Code of Practice without seeking or
considering submissions if the Minister reasonably believes that
it is in the public interest that the Code of Practice be made as
soon as practicable.
Clause 41 requires the Minister to consider any submissions if they are
made within the time specified in clause 40(3).
Clause 42 provides that a person is not liable for any civil or criminal
proceedings by reason only of a failure to observe a provision of
a Code of Practice.
Clause 43 provides for Codes of Practice in proceedings.
Subclause (1) provides that if an approved Code of Practice is in
effect at the time a person is alleged to have contravened the
Act or the regulations, the Code is admissible in evidence in
proceedings for that contravention and, further, that, if the court
is satisfied that a provision of the Code is relevant to a matter
required to be proved and that the person failed to observe the
provision, the matter is taken to be proved, unless the court is
satisfied that the person complied with the provision of the Act
or the regulations otherwise than by observing the relevant
provision of the Code.
Subclause (2) provides that it is a defence to a prosecution for
an offence in relation to an activity if the person was carrying
out the activity in accordance with a Code of Practice made
under clause 38 that regulates that activity.
Division 2--Roadside category 2 species management plans
Clause 44 Subclause (1) provides that the Minister may declare a
municipal district to be a municipal district for which a roadside
category 2 species management plan must be prepared.
Subclause (2) provides that the declaration must be published
in the Government Gazette and state that the roadside
category 2 species management plan relates to category 2
species on roadsides of municipal roads in the declared
municipal district. The declaration must also state the term for
which the plan is to operate, being between 2 and 4 years, and
the Minister's reasons for making the declaration.
23
Subclause (3) provides that in making a declaration the Minister
must take into account the nature and extent of municipal roads
in the municipal district and the extent to which the roadsides of
those municipal roads are infested with category 2 species.
Subclause (4) provides that the Minister must give a copy of the
declaration to the municipal council of the declared municipal
district.
Subclause (5) provides that the declaration takes effect on the
day it is published in the Government Gazette or on any later
day after the date that any earlier declaration ceases to have
effect as is specified in the notice.
Subclause (6) provides that the declaration ceases to have effect
at the earliest of the end of the term of operation of any
approved roadside category 2 species management plan for the
declared municipal district or, if the approval or the roadside
category 2 species management plan is revoked for the declared
municipal district under section 59, at the time the revocation
takes effect.
Clause 45 provides that a municipal council of a declared municipal
district must prepare, submit for approval and publish a
roadside category 2 species management plan in accordance
with Division 2.
Clause 46 provides for the contents of roadside category 2 species
management plans.
Subclause (1) provides that a roadside a roadside category 2
species management plan must--
· specify the category 2 species to which the plan applies;
· specify the municipal council's current knowledge of the
extent and abundance in the municipal district of the
specified category 2 species;
· set out a program of reasonable measures to be taken by
the municipal council to reduce the adverse impact on
surrounding land arising from the specified category 2
species on the roadsides of municipal roads in the
declared municipal district;
24
· specify the municipal roads to which the plan applies
and (e) specify the anticipated outcome of each measure
to be taken by the municipal council;
· state the period of operation of the roadside category 2
species management plan.
Subclause (2) provides that the program of measures set out in a
roadside category 2 species management plan must support any
category 2 species management programs being undertaken by
land owners in the municipal area and protect the infrastructure
and environmental values of roadsides.
Subclause (3) provides that a roadside category 2 species
management plan prepared by a municipal council may include
any additional information that the municipal council considers
appropriate.
Clause 47 provides for the procedure for making a roadside category 2
species management plan.
Subclause (1) provides that a municipal council must comply
with the procedure set out in subclauses (2), (3) and (4) before it
prepares a roadside category 2 species management plan.
Subclause (2) provides that the municipal council must give a
notice stating the purpose and scope of the proposed roadside
category 2 species management plan, where a copy of the
proposed plan may be obtained or inspected and that any person
may make a submission to the municipal council on any aspect
of the proposed plan that relates to category 2 species.
Subclause (2) also provides that the notice must state that
submissions must be made to the municipal council within the
period specified in the notice.
Subclause (3) provides that the municipal council must allow at
least 28 days after the day on which notice is given under
subsection (2) for the making of submissions.
Subclause (4) provides that a notice under this clause must be
published in the Government Gazette and in a newspaper
circulating generally in the municipal district of the municipal
council.
25
Clause 48 provides that in preparing a roadside category 2 species
management plan a municipal council must have regard to any
information provided by the Minister, any regional catchment
strategy applying to the municipal district and any submissions
received by the municipal council under clause 47.
Clause 49 provides for the time for preparing a roadside category 2 species
management plan.
Subclause (1) provides that, subject to subsection (2), a
municipal council must submit a roadside category 2 species
management plan to the Minister within 60 days after the day
on which the Minister's declaration under clause 44 takes effect.
Subclause (2) provides that the Minister may extend the period
of time within which a municipal council must submit a
roadside category 2 species management plan if the council
makes an application in writing to the Minister which states the
grounds on which the extension is sought and the period of
extension required.
Clause 50 provides for the Minister to approve a roadside category 2
species management plan.
Subclause (1) provides that the Minister may approve a roadside
category 2 species management plan if the Minister is satisfied
that the plan meets the requirements set out in clause 46.
Subclause (2) provides that before approving a roadside
category 2 species management plan the Minister may request
that the municipal council submit a revised plan.
Subclause (3) provides that a request for a revised roadside
category 2 species management plan must be in writing and
state the particular matters in the plan that are required to be
revised.
Clause 51 provides for the operation of a roadside category 2 species
management plan.
Subclause (1) provides that on approval of a roadside category 2
species management plan the Minister must notify the
municipal council in writing and publish the notice of approval
in the Government Gazette.
26
Subclause (2) provides that the approved roadside category 2
species management plan comes into operation on the date that
notification is received by the municipal council.
Clause 52 provides for the publication of a roadside category 2 species
management plan.
Subclause (1) provides that the municipal council must publish
the approved category 2 species management plan on the
Internet as soon as practicable after the plan is approved.
Subclause (2) provides that the municipal council must ensure
that copies of the approved category 2 species management plan
are available for inspection during normal office hours from the
council's office.
Clause 53 provides that the municipal council must implement the
measures set out in its approved roadside category 2 species
management plan in accordance with the plan.
Clause 54 provides that the provisions of Parts 3 and 4 of the Bill do not
apply to a municipal council in relation to the management of
roadsides if there is an approved category 2 species roadside
management plan in operation for that municipality.
Clause 55 provides for variation of an approved roadside category 2
species management plan.
Subclause (1) provides that subject to subclause (2) a municipal
council may request in writing that the Minister approve a
variation of its approved roadside category 2 species
management plan.
Subclause (2) provides that if an approved roadside category 2
species management plan has less than six months to operate,
the municipal council may only request a variation in the case
of an emergency that is affecting its municipal district.
Subclause (3) provides that a municipal council's request for
approval of a variation of an approved plan under subclause (1)
must include a description of the proposed variation and the
reasons for the requested variation.
Subclause (4) provides that within 28 days after receiving a
request from a municipal council under subclause (1) the
Minister must notify the municipal council in writing of his or
27
her decision to approve or refuse to approve the request for
variation.
Subclause (5) provides that if the Minister refuses to approve a
request for variation he or she must set out reasons for the
refusal in the notification to the municipal council.
Subclause (6) provides that a variation of an approved roadside
category 2 species management plan takes effect when the
municipal council receives notification of the approval under
subclause (4).
Clause 56 provides that the Minister may request that a plan be varied.
Subclause (1) provides that, subject to subclause (3), the
Minister may request in writing that a municipal council prepare
a variation to an approved roadside category 2 species
management plan if there has been a significant and unforseen
change in the environmental circumstances in the municipal
council's municipal district since the plan was approved and the
changed circumstances have substantially diminished or are
likely to substantially diminish the effectiveness of the plan.
Subclause (2) provides that if the Minister requests that a
municipal council prepare a variation to an approved roadside
category 2 species management plan, the request must include a
description of the variation that has been requested and the
reasons for the request.
Subclause (3) provides that if an approved roadside category 2
species management plan has less than six months to operate
the Minister may only request a variation in the case of an
emergency that is affecting the municipal district.
Clause 57 requires publication of a varied plan.
Subclause (1) provides that a municipal council must publish a
consolidated version of its approved roadside category 2 species
management plan on its website as soon as practicable after a
variation is approved under clause 55 or 56.
Subclause (2) provides that a municipal council must ensure
that copies of the consolidated version of its approved roadside
category 2 species management plan are available for inspection
during normal office hours at the municipal council's office.
28
Clause 58 provides for suspension of approval of a roadside category 2
species management plan.
Subclause (1) provides that the Minister may suspend the
approval of a roadside category 2 species management plan if
he or she is satisfied that the municipal council--
· is not implementing the measures set out in accordance
with the plan; or
· has failed to provide the Minister with information or
documents requested by the Minister under clause 60; or
· has failed to submit a variation to the plan requested by
the Minister under clause 57; or
· has failed to submit to the Minister, within the time
frame specified by the Minister, reasons why the plan
should not be suspended.
Subclause (2) provides that before suspending the approval of a
plan under subclause (1) the Minister must notify the municipal
council in writing of his or her intention to suspend the approval
and must set out the reasons for the proposed suspension and
invite the municipal council to submit within the specified time
reasons why the approval of the plan should not be suspended.
Subclause (3) provides that after considering any submission
received from the municipal council under subclause (2), or if
the municipal council fails to submit reasons within the
specified time, the Minister must in writing notify the municipal
council of his or her decision to suspend or not to suspend the
approval of the plan.
Subclause (4) provides that the suspension of the approved
roadside weed and pest animal management plan under
subclause (1) takes effect when the municipal council receives
notification of the suspension under subclause (3).
Subclause (5) provides that the Minister must not suspend the
approval of a plan under subclause (1) for a period of more than
six months.
Subclause (6) provides that the Minister may revoke the
suspension of the approval of a roadside category 2 species
management plan if he or she is satisfied that the reasons for the
suspension no longer apply.
29
Clause 59 provides for revocation of the approval of a roadside category 2
species management plan.
Subclause (1) provides that the Minister may revoke his or her
approval of a roadside category 2 species management plan if
the reason for suspending the approval of the plan under clause
58 continues to apply at the end of the period for which the
approval was suspended or if, due to changed circumstances
affecting the municipal district to which the plan applies, a
substantial part of the plan is no longer relevant.
Subclause (2) provides that before the Minister revokes his or
her approval of a plan under subsection (1) the Minister must
notify the municipal council responsible for implementing the
plan in writing of his or her intention to revoke approval of the
plan and must set out the reasons for the proposed revocation
and invite the municipal council to submit, within the specified
time, reasons why the approval of the plan should not be
revoked.
Subclause (3) provides that after considering any submission
received from the municipal council under subclause (2), or if
the municipal council fails to submit reasons within the
specified time, the Minister must in writing notify the municipal
council of his or her decision to revoke or not to revoke the
approval of the plan.
Subclause (4) provides that the revocation of the approval of
a roadside category 2 species management plan under
subclause (1) takes effect when the municipal council receives
notification of the revocation under subclause (3).
Clause 60 provides for a municipal council to provide information and
documents to the Minister.
Subclause (1) provides that for the purposes of monitoring a
municipal council's progress in implementing its approved
roadside category 2 species management plan or in order to
evaluate a municipal council's report on its approved plan under
clause 61 the Minister may request in writing to the municipal
council that it provide specified information and documents
relating to the approved plan.
Subclause (2) provides that a municipal council must provide
the information or documents requested under subclause (1) to
the Minister.
30
Clause 61 provides that within 30 days after an approved roadside
category 2 species management plan ceases to operate the
municipal council responsible for implementing the plan must
provide to the Minister a written report setting out the outcomes
of the measures set out in the plan to be taken by the municipal
council relating to the category 2 species covered by the plan.
Division 3--Voluntary category 2 species management plans
Clause 62 provides that any person may prepare and submit for approval a
voluntary category 2 species management plan in accordance
with Division 2 of Part 6.
Clause 63 provides for the contents of voluntary category 2 species
management plans.
Subclause (1) provides that a voluntary category 2 species
management plan must specify the category 2 species to which
the plan applies, the land under the control or management of
the person to which the plan applies and the person's current
knowledge of the extent and abundance on the land under his or
her management or control of category 2 species to which the
plan applies. A voluntary category 2 species management plan
must also set out a program of measures to be taken, specify the
anticipated outcome of each of those measures and state the
period of operation (between 2 and 5 years) of the plan.
Subclause (2) provides that a voluntary category 2 species
management plan prepared may include any additional
information that the person preparing the plan considers
appropriate.
Clause 64 subclause (1) provides that in preparing a voluntary category 2
species management plan a person must have regard to any
information provided by the Secretary and any Victorian or
regional strategies for control of invasive species.
Subclause (2) provides that a person preparing a voluntary
category 2 species management plan may include additional
information they wish and may treat as a plan a document
prepared for an unrelated purpose, such as a business plan.
Clause 65 provides that a person preparing a voluntary species 2
management plan must consult with landowners in the area to
ensure the plan is not inconsistent with other land management
31
programs before submitting the plan to the Secretary for
approval.
Clause 66 provides for the Secretary to approve voluntary category 2
species management plans.
Subclause (1) provides for the Secretary to approve a voluntary
category 2 species management plan if the Secretary is satisfied
that the plan meets the requirements set out in clause 63, the
person who prepared the plan has undertaken consultation in
accordance with clause 65, it is likely that the measures set out
in the plan can be achieved and the term specified for the period
of operation of the plan is appropriate.
Subclause (2) enables the Secretary to request a person to
submit a revised plan before approving a voluntary species 2
management plan.
Subclause (3) requires a request for a revised plan to be in
writing and to state the matters in the plan to be revised.
Clause 67 Subclause (1) requires the Secretary, on approval of a voluntary
category 2 species management plan to notify the person who
submitted plan in writing.
Subclause (2) provides for an approved a voluntary category 2
species management plan to come into operation on the date
that notification is received by the person who submitted the
plan.
Subclause (3) provides that a person who has an approved
voluntary category 2 species management in operation is not
required to comply with a notice issued under clause 25 or 26.
Clause 68 provides for variation of an approved voluntary category 2
species management.
Subclause (1) provides that, subject to subclause (2), a person
may request a variation to an approved voluntary category 2
species management plan.
Subclause (2) provides that the person may only request a
variation to an approved voluntary category 2 species
management plan in an emergency if the plan has less than
6 months to operate.
32
Subclause (3) provides that a request for approval of a variation
to an approved voluntary category 2 species management plan
must include a description of the proposed variation and the
reasons for the variation.
Subclause (4) requires the Secretary to notify the person in
writing of his or her decision to approve or refuse to approve
the proposed variation within 90 days of receiving it.
Subclause (5) provides that if the Secretary refuses to approve a
request, the notification to the person must set out the reasons
for refusal.
Subclause (6) provides that a variation of an approved voluntary
category 2 species management plan takes effect when the
person receives notification of the approval of the variation by
the Secretary.
Clause 69 provides for the Secretary to request that a plan be varied.
Subclause (1) provides that, subject to subclause (3), the
Secretary may request in writing that a person prepare a
variation to his or her approved voluntary category 2 species
management plan if there have been significant and unforeseen
changes in the environmental circumstances since the plan was
approved and those circumstances have substantially
diminished or are likely to substantially diminish the
effectiveness of the plan.
Subclause (2) provides that a request by the Secretary's for a
variation to an approved voluntary category 2 species
management plan must include a description of the proposed
variation and the reasons for the proposed variation.
Subclause (3) provides that the Secretary may only request a
variation to an approved voluntary category 2 species
management plan in an emergency if the plan has less than
6 months to operate.
Clause 70 provides for suspension of approval of an approved voluntary
category 2 species management plan.
Subclause (1) enables the Secretary to suspend an approved
voluntary category 2 species management plan if he or she is
satisfied that the person is not implementing the plan, has failed
to provide information requested by the Secretary, has failed to
33
submit a variation to plan requested by the Secretary or has
failed to submit reason why the plan should not be suspended.
Subclause (2) requires the Secretary to notify the person in
writing of his or her intention to suspend the approval of a plan
setting out the reasons for the proposed suspension and inviting
the person to submit reasons why the approval should not be
suspended.
Subclause (3) requires the Secretary to consider any submission
received from the person within the specified time and to notify
the person in writing of his or her decision to suspend or not to
suspend the approval of the plan.
Subclause (4) provides that the suspension of the approval of
the plan takes effect when the person receives notification of the
Secretary's decision.
Subclause (5) prohibits the Secretary from suspending the
approval of a plan for more than 6 months.
Subclause (6) requires the Secretary to revoke the suspension of
the approval of a plan if the reasons for suspension no longer
apply.
Clause 71 provides for revocation of approval of a voluntary category 2
species management plan.
Subclause (1) enables the Secretary to revoke approval of an
approved voluntary category 2 species management plan if the
reasons for suspending the approval still apply at the end of the
suspension period or if changed circumstances make a
substantial part of the plan irrelevant or if the Secretary receives
a notice of cancellation from the person responsible for
implementing the plan.
Subclause (2) requires the Secretary to notify the person in
writing of his or her intention to revoke the approval of a plan
setting out the reasons for the proposed revocation and inviting
the person to submit reasons why the approval should not be
revoked but notification is not required if the Secretary has
received a notice of cancellation from the person.
Subclause (3) requires the Secretary to consider any submission
received from the person within the specified time and to notify
the person in writing of his or her decision to revoke or not to
revoke the approval of the plan.
34
Subclause (4) provides that the revocation of the approval of the
plan takes effect when the person receives notification of the
Secretary's decision.
Clause 72 provides for monitoring implementation of an approved
voluntary category 2 species management plan.
Subclause (1) enables the Secretary, in order to monitor a
person's progress in implementing a plan or to evaluate a
person's report on a plan, to request in writing that the person to
provide information or documents about the plan.
Subclause (2) requires a person to provide the information or
documents requested by the Secretary.
Clause 73 requires the person responsible for implementing a plan to
submit a written report to the Secretary within 90 days of the
plan ceasing to operate. The report must set out the outcomes
of the measures set out in the plan.
PART 7--COMPLIANCE AGREEMENTS AND
ACCREDITATION
Clause 74 enables the Secretary to enter into compliance agreements.
Subclause (1) enables the Secretary to enter into a compliance
agreement with a person for the application of procedures to
plants, animals or declared carriers for the monitoring,
surveillance or control of a declared invasive species in
accordance with the agreement.
Subclause (2) provides that the terms and conditions of an
agreement must accord with this clause.
Subclause (3) provides that a compliance agreement may
provide that in stated circumstances the Secretary may by notice
in writing to a party to the agreement that is not the Crown
cancel the agreement or suspend it for a period or until an event
stated in the notice.
Subclause (4) enables an authorised officer to release from
seizure or detention any plant, animal or declared carrier to
which a compliance agreement applies on the certificate or
assurance of a person authorised under the agreement that all
procedures under the Act covered by the agreement have been
complied with in respect of the plant, animal or declared carrier.
35
Subclause (5) provides an offence with a maximum penalty of
120 penalty units for a party to a compliance agreement who
fails to take reasonable steps to ensure that any requirements
imposed on that party under the agreement are complied with.
Subclause (6) provides that a party to a compliance agreement,
other than the Crown, must pay the charges in the agreement for
preparation of the agreement and for ensuring that it complies
with the agreement.
Clause 75 provides for the Secretary to grant accreditation to a person to
issue assurance certificates.
Subclause (1) provides that the Secretary may grant
accreditation to a person to issue assurance certificates about
any plant, animal or declared carrier that is grown, produced,
packed, treated or tested in Victoria or is to be imported or
brought into Victoria.
Subclause (2) provides that a person may apply to the Secretary
for accreditation.
Subclause (3) provides that the Secretary may grant the
accreditation applied for or another accreditation, refuse
accreditation or grant accreditation subject to limitations,
restrictions or conditions.
Subclause (4) provides that if the Secretary is considering
refusing to grant accreditation, the Secretary must give the
applicant written notice stating the proposed refusal, the reasons
for the proposed refusal and that the applicant may make a
submission in support of their application.
Subclause (5) provides that if, after sending a notice under
subclause (4) and considering any further submission made by
the applicant, the Secretary decides to refuse the application, the
Secretary must give the applicant written notice stating the
decision and the reasons for the decision.
A decision to refuse to grant accreditation may be reviewed by
VCAT.
Clause 76 provides for a register of accredited persons.
Subclause (1) requires the Secretary to keep a register of
accredited persons.
36
Subclause (2) provides that the register must show particulars of
any accreditations and amendments or suspensions of
accreditations.
Subclause (3) provides that only a person employed in the
administration of the Act who is authorised in writing by the
Secretary may access the register.
Clause 77 provides for the amendment and cancellation of accreditation.
Subclause (1) requires the Secretary to give written notice to an
accredited person of his or her intention to amend or cancel an
accreditation, setting out the reasons and grounds for the
proposed action and inviting the person to show cause within
not less than 28 days why the action should not be taken.
Subclause (2) enables the Secretary to amend or cancel an
accreditation if he or she considers that a ground still exists after
considering all submissions made with the time stated in the
notice.
Subclause (3) requires the Secretary to give the person written
notice of the decision, stating reasons for amending or
cancelling the accreditation and informing the person that they
may apply to the Secretary for reconsideration.
Clause 78 provides for suspension of accreditation.
Subclause (1) provides that, if the Secretary considers that a
ground for suspension exists, the Secretary must suspend the
accreditation and notify the accredited person in writing of the
suspension, stating the reasons and grounds for suspension and
informing the person that they may appeal against the
suspension within 7 days.
Subclause (2) enables the Secretary, after considering any
appeal by the accredited person, to suspend accreditation for a
determined period if the Secretary considers that a ground for
suspension still exists or, in any other case, cancel the
suspension.
Subclause (3) requires the Secretary to make a decision on an
appeal by an accredited person with 21 days of the appeal.
37
Clause 79 provides that for the purposes of clauses 77 and 78, the grounds
for cancellation, suspension or amendment of the accreditation
of a person are a substantial failure or a series of minor failures
to comply with any conditions on accreditation granted under
clause 75.
PART 8--ADMINISTRATION
Division 1--General
Clause 80 provides for the Minister to delegate his or her powers under the
Bill.
Subclause (1) provides that the Minister may delegate to a
person employed in the administration of the Bill (other than an
inspection agent) except the power of delegation and the powers
to recommend to the Governor in Council make a declaration of
an invasive species under clause 6, to make an emergency
declaration of an invasive species under clause 7, to declare a
restricted area under clause 33 or set fees and charges under
clause 82.
Subclause (2) provides that the Minister may delegate to the
Secretary his or her power under clause 6 to make an
emergency declaration of an invasive species.
Clause 81 provides for the Secretary to delegate his or her powers under
the Bill to any person employed in the administration of the Bill
(other than an inspection agent) any power of the Secretary
under the Bill except the power of delegation.
Clause 82 enables the Minister to set fees and charges for things done
under the Bill and the rate of interest for those fees and charges.
Subclause (1) provides that the Minister may by notice
published in the Government Gazette, fix fees and charges for
anything done under the Bill other than inspection fees payable
to an approved inspection service.
Subclause (2) provides that a fee or charge fixed under
subclause (1) must be fixed as one or more fee units or as part
of a fee unit.
Subclause (3) provides that a fee or charge must be expressed as
at least a tenth of a fee unit, that the amount of the fee or charge
must be calculated by multiplying the number of fee units by
38
the value of a fee unit fixed from time to time under section 5 of
the Monetary Units Act 2004 rounded down to the nearest
multiple of 5 cents.
Subclause (4) provides that a fee or charge bears interest at the
rate fixed under subclause (1) from the date it becomes due to
the date that it is paid.
Clause 83 provides when and how the Minister's power to fix fees and
charges under clause 82 may be exercised.
Clause 84 provides for requirements for orders, directions or notices under
Part 4 of the Act.
Subclause (1) provides that an order, direction or notice issued
or given by the Secretary or an authorised officer must be in
writing, be given to or served on the person to whom it applies
and provide a minimum of 7 days for it to be come into effect or
must be carried out or be complied with.
Subclause (2) provides that the Secretary or authorised officer
may fix a time of not less than 2 days in which an order,
direction or notice comes into effect or must be carried out or
complied with, if the authorised officer or Secretary is satisfied
that it is necessary to do so.
Clause 85 provides for non-compliance under an order.
Subclause (1) provides that an authorised officer may cause an
order, direction, notice or requirement to be carried out if a
person fails for any reason to comply with it.
Subclause (2) provides that the Minister may determine that the
reasonable costs incurred by the authorised officer be recovered
from the person.
Subclause (3) provides that the Minister must send a copy of the
determination under subclause (2) to the person from whom the
costs are to be recovered.
Subclause (4) provides that the Minister must send a copy of a
determination under subclause (2) to the prescribed owner of
land if the determination relates to a failure by the owner or
occupier of the land to comply with an infested land notice in
relation to the land or a direction by an authorised officer
requiring the owner or occupier to do something in relation to
the land.
39
Subclause (5) provides that subclause (4) does not apply if a
copy of the determination has been given to the prescribed
owner under subclause (3).
Clause 86 provides for a review of the Minister's determination on costs
under clause 85.
Subclause (1) provides that a person affected by the
determination may apply to the Victorian Civil and
Administrative Tribunal for review of the determination.
Subclause (2) provides that an application for review must be
made within 28 days of the later of the day on which the
determination is made or, if the person has requested a
statement of reasons under the Victorian Civil and
Administrative Tribunal Act 1998, the day on which a
statement of reasons is given to the person or the person is
informed that a statement of reasons will not be given.
Subclause (3) provides that the costs and expenses determined
by the Minister under clause 85 may be recovered as a debt in a
court of competent jurisdiction.
Clause 87 provides for a notice of debt to be served on a prescribed owner
of land.
Subclauses (1) and (2) provide for a notice to be given to the
prescribed owner of land, in the circumstance where there is a
determination of the Minister under clause 85 of the Bill that
arises from a failure by the owner or occupier of the land to
comply with a notice under clause 25 of the Bill or a direction
by an authorised officer under clause 36 of the Bill in relation to
the land. The notice under subclause (2) may be served if the
debt the subject of the determination under clause 85 remains
unpaid after 7 days from the expiry of the time for appeal or the
confirmation of the determination by VCAT.
Subclause (3) prescribes the matters to be included in a notice
under subsection (2). The notice must contain the address of
the land and other specified details identifying the land,
information as to any notices or directions which have not been
complied with by the owner or occupier of the land, the amount
of the debt, and the due date for payment which must not be less
than 30 days after the date of the notice. The notice must
specify that a charge on the land, or notice of the charge, will be
40
recorded under clause 89 if the amount owing is not paid by the
due date.
Subclause (4) provides for deemed service of the notice
required under subclause (2) where service under clause 159 of
the Bill is not practicable.
Subclause (5) provides for a copy of the notice required under
subclause (2) to be sent to the person to whom the relevant
determination applied if that person is other than the person to
whom the notice was given.
Clause 88 provides for the establishment of a first charge on the land in
respect of which a notice has been served under clause 89 where
the amount owing has not been paid by the due date.
Subclause (1) provides for any amount in a notice served under
clause 87 and unpaid by the due date to become a first charge
on the land the subject of the notice.
Subclause (2) provides that a charge takes effect when it is
recorded by the Registrar under clause 89.
Clause 89 provides for the process for the recording in the Register of land
of the charge on land under clause 88, or notice of the charge,
and the removal of the charge when the debt is paid.
Subclause (1) requires the Secretary to apply to the Registrar of
Titles to record a charge or a notice of a charge.
Subclause (2) requires the Secretary's application to be in the
form approved by the Registrar, describe the land charged and
state that there is an unpaid amount in respect of the land.
Subclause (3) requires the Register to make a record in the
Register.
Subclause (4) requires the Secretary to apply to the Registrar to
remove and make a record of the removal of the charge in the
Register when the debt is paid.
Subclause (5) requires the Registrar to take the action requested
by the Secretary.
41
Clause 90 provides for certificates setting the amount due under clause 85.
Subclause (1) enables an owner, purchaser or mortgagee to
apply for a certificate in relation to land.
Subclause (2) requires payment of any application fee
prescribed by the Regulations.
Subclause (3) requires the Secretary to issue a certificate to an
applicant showing the amount due under clause 85 in relation to
the land in the application.
Subclause (4) enables the Secretary to include additional
information in the certificate.
Subclause (5) provides that, in relation to a bona fide person
with a certificate from the Secretary, the amount secured by the
charge under clause 88 is no more than the amount stated in the
certificate.
Division 2--Review of decisions
Clause 91 provides a process for review by the Secretary of decisions of
an authorised officer and for review by the Minister of decisions
of the Secretary.
Subclause (1) provides that a person aggrieved by a decision of
an authorised officer to issue an order or notice under clause 23,
24 or 26 may apply to the Secretary for a review of the decision
within the period within which the order or notice takes effect
or must be carried out or complied with.
Subclause (2) provides that a person aggrieved by a decision of
the Secretary under clause 25 or 27 to issue or give a notice may
apply to the Minister for a review of the decision within the
period within which the notice takes effect or must be carried
out or complied with.
Subclause (3) provides that a person aggrieved by a decision of
the Secretary to give a direction under clause 132 may apply
within 7 days after receipt of the direction to the Minister for a
review of the decision.
Subclause (4) provides that Minister or Secretary may conduct
a review in any manner that the Minister or Secretary thinks fit.
42
Subclause (5) provides that the Secretary must ensure that a
notice of any decision following a review by the Minister or the
Secretary is given to the person who made the application.
PART 9--ENFORCEMENT
Division 1--Authorised Officers
Clause 92 provides for the Secretary to appoint authorised officers.
Subclause (1) provides for the Secretary to appoint a person
employed under Part 3 of the Public Administration Act 2004
and other appropriately qualified persons as an authorised
officer for the purposes of all or any of the provisions of the Bill
and in respect of any declared invasive species or declared
carrier.
Subclause (2) provides that the Secretary must not appoint a
person as an authorised officer unless he or she is satisfied that
the person has completed appropriate training or is suitably
qualified.
Clause 93 provides for the Secretary to authorise other persons to be
authorised officers.
Subclause (1) provides that clause 92 applies if the Secretary
makes an order under clause 31 declaring an infested place or
the Minister makes an order under clause 33 declaring a
restricted area.
Subclause (2) provides that the Secretary may authorise
members of the police force or persons employed or engaged by
emergency services agencies within the meaning of the
Emergency Management Act 1986 to be authorised officers
for the purposes of any all or any of the provisions of the Bill
and in respect of any declared invasive species or declared
carrier for the period the order remains in force.
Subclause (3) provides that a person appointed under
subclause (2) may exercise all the powers and functions of an
authorised officer under Part 9 of the Bill.
Subclause (4) provides that the Secretary may determine the
terms and conditions of authorisation of authorised officers.
Subclause (5) provides that the Secretary may in writing revoke
the authorisation of an authorised officer at any time.
43
Subclause (6) provides that the terms and conditions of
authorisation may contain general directions as to how the
authorised officer's powers may be exercised.
Clause 94 provides for authorised officer's identification certificates.
Subclause (1) provides that the Secretary must issue an
identification certificate to each authorised officer appointed
under clause 92 setting out the provisions of the Bill and the
declared invasive species, declared carriers and other items for
which the authorised officer is authorised to be an authorised
officer.
Subclause (2) provides an offence with a maximum of
10 penalty units for an authorised officer appointed under
clause 92 who fails in the course of performing the authorised
officer's functions to produce the certificate to any person
before exercising a power under the Bill or at any later time on
request.
Subclause (3) provides that an authorised officer authorised
under clause 93 must in the course of performing the authorised
officer's functions produce to any person on request the
authorised officer's identification as a member of the police
force or, in the case of a person engaged or employed by an
emergency services agency, a copy of the instrument of
appointment under clause 93.
Clause 95 provides that an authorised officer may have assistance.
Subclause (1) enables an authorised officer who enters land or a
vehicle with any assistance required.
Subclause (2) enables an authorised officer to authorise a person
to enter land to provide assistance to the authorised officer
without the authorised officer being present.
Subclause (3) provides that a person assisting an authorised
officer must not enter or remain on land without the authorised
officer unless gives a signed authorisation to the person and
gives a copy to the owner or occupier of the land before the
initial entry.
Subclause (4) sets out the particulars of the entry to be set out in
the authorisation including the contact details of the authorised
officer and advice that the person may re-enter the land.
44
Subclause (5) provides that a person authorised to assist an
authorised officer must carry the authorisation while on the
land, must be accompanied by the authorised officer at the time
of initial entry, may re-enter the land at reasonable times and
may not enter the land after the date specified in the
authorisation.
Division 2--Approved inspection services
Clause 96 provides for the Secretary to approve a person or body to be an
approved inspection service.
Subclause (1) provides that the Secretary may by instrument
approve a person or body to be an approved inspection service
to provide a range services including monitoring, controlling
and eradicating declared invasive species, verifying documents
relating to declared invasive species or declared carriers and
monitoring compliance agreements.
Subclause (2) provides that the Secretary must not give
approval unless the Secretary has entered an agreement under
clause 98 with the person or body and is satisfied that the
person or body can provide an appropriate inspection service
and that the service will be provided by qualified persons.
Clause 97 provides that an approval of an inspection service under clause
96 may authorise the exercise of all or any of the powers,
functions and duties in clauses 96 and 102, apply to all or any
part of Victoria and be made subject to any conditions or
restrictions that the Secretary thinks fit.
Clause 98 provides for agreements relating to approved inspection
services.
Subclause (1) enables the Secretary, on behalf of the Crown, to
enter an agreement for the provision of inspection services.
Subclause (2) provides that an agreement must include specific
minimum requirements, such as the fees to be charged and the
provision of periodic reports to the Secretary.
Subclause (3) provides that the Secretary and an approved
inspection service may by agreement vary or terminate an
agreement for inspection services.
45
Clause 99 provides the various matters that an agreement for inspection
services may cover, including the consideration payable to the
Secretary, the delegation of Secretary powers and matters to be
determined by the Secretary.
Clause 100 provides that the Secretary may by instrument withdraw
approval of the service if satisfied that the service is in breach
of a condition or restriction of the approval or of the agreement
under Part 9.
Clause 101 provides that clauses 96, 97 and 98 and any agreement for
inspection services entered into under those clauses do not
prevent the exercise of powers by an authorised officer
appointed or authorised by the Secretary under Part 9 or a
person having the functions, duties and powers of an authorised
officer (other than an inspection agent).
Clause 102 provides for the powers of inspection agents.
Subclause (1) provides that an inspection agent carrying out any
of the functions set out in clause 96(1) has all the powers of an
authorised officer under Division 3 that are reasonably required
for carrying out those functions.
Subclause (2) provides that, in addition to the powers and duties
set out in subclause (1), an inspection agent may carry out any
other powers and duties conferred on the inspection agent under
the Bill.
Subclause (3) provides that if an inspection agent is carrying out
any functions under clause 96(1)(a) to (d), the provisions of
clause 165(1)(a), (f) and (g) apply as if the inspection agent
were an authorised officer.
Subclause (4) provides that if an inspection agent is monitoring
compliance agreements in accordance with clause 96(1)(e), all
the provisions of clause 165 apply as if the inspection agent
were an authorised officer.
Clause 103 provides for identification of inspection agents of approved
inspection services.
Subclause (1) requires the Secretary to issue an identification
certificate to each inspection agent.
Subclause (2) specifies the information, such as the inspection
agent's name, that must appear on the certificate.
46
Subclause (3) provides that an inspection agent acting in the
course of his or her duties is required to produce his or her
identification certificate before exercising a power under the
Bill and at any later time on request.
Clause 104 provides for an approved inspection service to enter into
agreements for the provision of inspection services and for the
payment of fees for those services.
Subclause (1) provides that an approved inspection service may
enter into an agreement to provide inspection services that the
service is authorised to provide under a section 98 agreement
with the Secretary.
Subclause (2) provides that an agreement for the provision of
services may require payment of fees.
Subclause (3) provides that any unpaid fee is recoverable as a
debt due to the inspection service.
Clause 105 provides for the application of the Freedom of Information
Act 1982 to an approved inspection service.
Subclause (1) provides that the Freedom of Information Act
1982 applies to an approved inspection service as if it were an
agency within the meaning of that Act.
Subclause (2) provides that nothing in the Freedom of
Information Act 1982 applies to an approved inspection
service in any other capacity or with respect to any period
during which services are not being provided in accordance
with a section 98 agreement.
Division 3--General powers of authorised officers
Clause 106 provides that an authorised officer may exercise a power under
Division 3 of Part 9 for the purposes of determining whether the
Bill is being or has been complied with other than under
Division 3.
Clause 107 provides power for an authorised officer to enter and inspect
premises.
Subclause (1) provides that an authorised officer who
reasonably believes or has reasonable grounds to believe that it
is necessary, at any reasonable time to enter and inspect any
premises, other than any building or place occupied as a
47
residence, to search for any declared invasive species or
declared carrier, to search for and inspect any record necessary
to determine whether the Bill is being complied with or to
determine whether any instrument or direction made under the
Bill is being complied with.
Subclause (2) provides that if the owner or other person is
present when an authorised officer exercises a power of entry
under clause 107, the authorised officer must before entering
the premises inform the owner or person that he or she is
authorised to enter the premises and give the owner or person an
opportunity to allow entry to the premises.
Subclause (3) provides that if the occupier is not present
when an authorised officer exercises a power of entry under
clause 107, the authorised officer must on leaving the premises
leave a notice setting out the time of entry, the purpose of entry,
a description of things done while on the premises, the time of
departure and the procedure for contacting the authorised
officer for further details of the entry.
Subclause (4) provides that in exercising any powers under
clause 107 the authorised officer must cause as little
convenience as possible and not remain any longer than is
reasonable necessary.
Subclause (5) provides that an authorised officer to enter
premises other than residential premises in order to gain access
to a place where entry is reasonably necessary to monitor for
declared invasive species.
Clause 108 subclause (1) provides that for the purposes of monitoring a
municipal council's implementation of its approved roadside
category 2 species management plan, or in order to evaluate a
municipal council's report on its approved plan under clause 61,
an authorised officer may enter the roadside of any municipal
road to which the plan applies and may search and examine the
roadside, take photographs (including video recordings) of a
thing or things of a particular kind on the roadside or without
payment take samples from the roadside of any plants or parts
of plants, an animal or part of an animal or soil, sand, gravel or
stone.
Subclause (2) provides that clause 136 does not apply in respect
of a sample taken by an authorised officer under subclause (1).
48
Clause 109 provides an authorised officer with power to stop and inspect a
vehicle.
Subclause (1) provides an authorised officer with power, at any
reasonable time, to stop and inspect a vehicle the authorised
officer reasonably believes or suspects is being used to transport
a declared invasive species or declared carrier and examine any
declared invasive species or declared carrier in the vehicle.
Subclause (2) provides that if an authorised officer stops a
vehicle under subclause (1), but considers that it is not safe or
practical to inspect or enter the vehicle, the authorised officer
may require the driver or person in charge of the vehicle to
present the vehicle at some other reasonable time and place for
inspection by an authorised officer.
Clause 110 subclause (1) provides that an authorised officer may at any
reasonable time require a person to answer a question to the best
of that person's knowledge, information and belief or take
reasonable steps to provide information.
Subclause (2) provides that before exercising the power in
subclause (1) an authorised officer must inform the person of
their right to refuse to answer a question or produce a document
under clause 165(2).
Clause 111 subclause (1) provides that an authorised officer may at any
reasonable time require a person to produce a document that is
required by or under the Bill and to examine and copy the
document or remove it for copying.
Subclause (2) provides that during the period that an authorised
officer retains a document, the authorised officer must permit
the person to inspect, make copies and take extracts from it.
Subclause (3) provides that before exercising the power in
subclause (1) an authorised officer must inform the person of
their right to refuse to answer a question or produce a document
under clause 165(2) of the Bill.
Clause 112 provides that an authorised officer may at any reasonable time
inspect and examine etc. any thing in connection with a
declared or suspected invasive species or declared carrier or
require a person apparently in charge of an animal, plant or
declared carrier to produce it and permit the authorised officer
49
to inspect it and take a sample from it in accordance with the
Bill.
Clause 113 provides that an authorised officer may take samples.
Subclause (1) provides that an authorised officer may at any
reasonable time take and remove for examination samples or
specimens of any thing which the authorised officer reasonably
suspects to be an invasive species or to be affected by a
declared invasive species.
Subclause (2) provides that an authorised officer may submit a
sample or specimen for examination at a laboratory or place
approved by the Secretary for examination
Clause 114 provides that an authorised officer may at any reasonable time
take photographs, measurements, sketches or recordings.
Clause 115 provides that an authorised officer may at any reasonable time
attach a warning to any thing, such as an animal, plant or
carrier, seized under the Bill indicating that it does not comply
with the Bill.
Division 4--Further powers of authorised officers
Clause 116 provides that an authorised officer must reseal any packages
opened by the authorised officer at the completion of an
inspection.
Clause 117 provides for the use of electronic equipment at premises.
Subclause (1) provides that this clause applies if, while acting
under clause 107, an authorised officer finds a storage device
and there is equipment at the premises that may be used with
the storage device and the authorised officer believes on
reasonable grounds that information on the storage device may
be relevant to determine whether the Bill has been complied
with.
Subclause (2) provides that an authorised officer may operate or
require an occupier of premises to operate equipment, such as a
computer, to determine whether the Bill has been complied
with.
50
Clause 118 provides that if an authorised officer finds that a storage device
at premises contains information that the authorised officer
believes on reasonable grounds stores information that is
relevant to determine whether the Bill has been complied with,
the authorised officer may put the information in a documentary
form and seize the documents so produced or copy the
information to another storage device and remove it from the
premises.
Clause 119 provides that an authorised officer must not operate equipment,
such as a computer, to access, copy or produce a document
unless the authorised officer believes on reasonable grounds
that the operation can be carried out without damage to the
equipment.
Clause 120 provides for an application for a search warrant.
Subclause (1) provides that an authorised officer may, with the
written approval of the Secretary, apply for a search warrant if
the authorised officer believes on reasonable grounds that there
is documentary or other evidence on premises that a person has
contravened the Bill.
Subclause (2) provides that a search warrant issued by a
magistrate may authorise an authorised officer to enter named
premises and to search for, seize, secure, examine and inspect
and make copies of evidence named or described in the warrant.
Clause 121 provides for an application for warrants for access to residential
premises.
Subclause (1) provides that an authorised officer may with the
written approval of the Secretary apply to a magistrate for the
issue of a warrant in relation to particular residential premises if
the authorised officer cannot reasonably gain access by other
means to a place where entry is reasonably necessary to monitor
for declared invasive species except through that premises.
Subclause (2) provides that if a magistrate is satisfied that there
are reasonable grounds to believe that there is no other means
by which to reasonably gain access to a place where entry is
reasonably necessary to monitor for declared invasive species
except that residential premises, the magistrate may issue a
warrant in accordance with the Magistrates' Court Act 1989
authorising an authorised officer to enter premises named in the
warrant and use the premises to gain access to a place where
51
entry is reasonably necessary to monitor for a declared invasive
species.
Clause 122 sets out the information that must be included in a search
warrant.
Subclause (1) provides that a search warrant must state the
purpose of the search, any conditions, when entry is authorised
and when the warrant ceases to have effect.
Subclause (2) provides that the rules that apply to search
warrants under the Magistrates' Court Act 1989 apply to
warrants issued under Part 7.
Subclause (3) provides that a search warrant must not authorise
an authorised officer to arrest a person
Subclause (4) provides that the rules in respect of search
warrants in the Magistrates' Court Act 1989 are to be
observed subject to any provision to the contrary in the Bill.
Clause 123 provides for an announcement before entry.
Subclause (1) provides that an authorised officer executing a
search warrant must announce that the authorised officer is
authorised under the warrant and, in the event that the
authorised officer is unable to obtain unforced entry, give any
person at the premises the opportunity to allow entry.
Subclause (2) provides that an authorised officer is able to make
an immediate entry if necessary to ensure the safety of a person
or that the effective execution of the warrant is not frustrated.
Clause 124 provides for details of a warrant to be given to the occupier.
Subclause (2) provides that if an occupier is present at a place
where a search warrant is being executed, an authorised officer
must identify himself or herself to the occupier and give the
occupier a copy of the warrant.
Subclause (2) provides that if the occupier is not present, the
authorised officer must identify himself or herself to any person
present and give the person a copy of the warrant.
52
Clause 125 enables an authorised officer executing a search warrant under
clause 120 to seize any evidence not described in the warrant if
the authorised officer believes on reasonable grounds that the
evidence is of a kind that could have been included in a search
warrant issued under the Bill and it is necessary to seize the
evidence to prevent its concealment, loss or destruction.
Clause 126 provides for copies of seized documents.
Subclause (1) provides that if an authorised officer retains
possession of a seized document, the authorised officer must
give the person a certified copy of the document within 21 days
of the seizure.
Subclause (2) provides that a certified copy is equal to the
original for court purposes.
Clause 127 provides that an authorised officer may detain or seize any
declared invasive species or declared carrier if the authorised
officer is satisfied that the importation of that declared invasive
species or declared carrier into Victoria is prohibited.
Clause 128 provides that if an authorised officer detains or seizes any
declared invasive species or declared carrier (whether contained
in a package or not), the authorised officer must immediately
give a notice to the owner or consignor of the declared invasive
species or declared carrier or the person in possession of the
declared species or declared carrier when it was found giving
reasons for seizing or detaining the declared species or declared
carrier. The authorised officer must also immediately take or
send the declared species or declared carrier or a sample to a
laboratory for examination.
Clause 129 provides an offence for a person who removes any detained
or seized items without the permission of an authorised officer
or the Secretary. The maximum penalty for this offence is
60 penalty units.
Clause 130 provides that an authorised officer must return a seized or
detained declared invasive species or declared carrier if the
examination under clause 128(b) shows that the declared
invasive species or declared carrier is not a declared invasive
species or declared carrier or is not affected by a declared
invasive species or declared carrier.
53
Clause 131 provides for retention of detained or seized items after
examination.
Subclause (1) provides that if an examination indicates that a
declared invasive species or declared carrier is a declared
invasive species or declared carrier or is affected by a an
authorised officer must in writing inform the owner, consignor
or person in whose possession the declared invasive species or
declared carrier were found of the results, detain or seize the
declared invasive species or declared carrier and, after
consultation with the owner, consignor or person, submit a
report to the Secretary recommending the action that should be
taken.
Subclause (2) provides that the declared invasive species or
declared carrier must not be released from detention or seizure
until the Secretary receives statutory declaration under
clause 133(d) that any direction under clause 132 has been
complied with.
Clause 132 provides for the Secretary to give a direction to the owner,
consignor or person in charge of seized or detained declared
invasive species or declared carrier to take action to prevent
further contravention of the Bill.
Clause 133 requires a person to comply with a direction under clause 132
and provide the Secretary with a statutory declaration to that
effect unless the person has lodged an application with the
Minister under clause 91 for a review of the Secretary's
direction and has not received notice of the Minister's decision.
Clause 134 provides that nothing in Part 9 of the Bill limits an authorised
officer's power to take legal proceedings in respect of a declared
invasive species or declared carrier found not to comply with
the Bill.
Clause 135 subclause (1) provides that an authorised officer must not take a
sample from or seize a thing from a person apparently in
possession of it without making out a receipt for the sample or
thing.
Subclause (2) provides that the authorised officer must leave
with or post to the person in charge of the thing seized or
sampled if unable to identify the owner or custodian of the
thing.
54
Clause 136 provides procedures for taking samples by an authorised officer.
These requirements include making payment for the sample if it
is kept for retail sale, giving notice to the owner of the sample
and providing the owner with a part of the sample.
Clause 137 provides for retention notices.
Subclause (1) provides that an authorised officer with
reasonable grounds to believe that a thing has been taken or is
being held by a person in contravention of clause 10 may give
the person a notice requiring the person to keep the thing in
their possession.
Subclause (2) provides that a retention notice must be in
writing, must specify the period it remains in effect (which
cannot be more than 90 days) and any conditions and
conditions. It also provides that the authorised officer may
cancel the notice.
Subclause (3) enables the Secretary to extend the period of a
notice if he or she thinks it reasonably necessary.
Subclause (4) provides that the Secretary must notify the person
to whom a notice is issued before it expires that the notice has
been extended and specify the extended period.
Subclause (5) provides an offence with a maximum penalty of
120 penalty units for a person who fails to comply with a
notice.
Clause 138 enables the Magistrates' Court to extend the retention period for
a seized document or thing.
Subclause (1) enables an authorised officer to apply to the
Magistrates' Court for an extension of the time for which the
authorised officer may retain a document or thing seized under
Part 9 provided the total of the original retention period and any
extended retention period does not exceed 12 months.
Subclause (2) sets out the matters about which the Magistrates'
Court must be satisfied before ordering an extension of the
retention period including that it is in the interests of justice,
that the total period will not exceed 12 months and that
retention is necessary either for an investigation or to obtain
evidence in relation to a contravention of the Bill.
55
Subclause (3) provides that notice of an application must be
sent to the owner of the document or thing at least 7 days before
the application is heard.
Clause 139 provides for entry onto private property to lay baits etc.
Subclause (1) provides for an authorised officer, with the
consent of the occupier or after giving the occupier 24 hours
notice, to enter land in a control area, restricted area or infested
place to apply a bait or to install, inspect or retrieve a bait or
equipment required to monitor, conduct surveillance or control
an invasive species.
Subclause (2) provides that an authorised officer cannot enter a
residence under this clause without the consent of the occupier.
Subclause (3) requires an authorised officer to enter under this
clause at a reasonable time.
Subclause (4) requires an authorised officer exercising powers
under this clause to cause as little inconvenience as possible and
not remain on the land longer than necessary.
Clause 140 provides for road barriers.
Subclause (1) provides that to better enable the powers of an
authorised officer to stop, detain and enter a vehicle the
Minister may put in place road barriers and signs to warn of
road barriers and of inspectors exercising their powers of
stopping and entering vehicles.
Subclause (2) provides that despite any Act or law to the
contrary, the operation of a road barrier and the placing of signs
on a public highway is not an unlawful obstruction with the
highway or use of the highway.
Subclause (3) provides that Act in subclause (2) does not
include the Charter of Human Rights and Responsibilities.
Clause 141 provides for signs warning of road barriers or authorised
officers.
Subclause (1) provides that a notice or sign warning of a road
barrier is to be treated as an order by the authorised officer to
any driver of a vehicle approaching the barrier to stop and keep
their vehicle stationary until permitted to proceed.
56
Subclause (2) provides that any notice or sign warning of the
presence on the highway of an authorised officer is to be treated
as an order by the authorised officer to a vehicle approaching
the authorised officer to stop the vehicle and keep their vehicle
stationary until permitted to proceed.
Clause 142 provides for an authorised officer to stop vehicles at road
barriers.
Subclause (1) provides that an authorised officer may at a
barrier or elsewhere order the driver of a vehicle to stop by
spoken word, hand signal or prescribed signal.
Subclause (2) provides an offence with a maximum penalty of
60 penalty units for a driver of a vehicle who fails to stop their
vehicle and keep stationary until permitted to proceed.
Clause 143 provides for authorised officers to have access to ratepayer
records.
Subclause (1) provides that for the purpose of exercising a
power under the Bill an authorised officer may require access to
the name, address and contact details of a ratepayer and the
description of any land for which the ratepayer is liable to pay
rates and charges under the Local Government Act 1989.
Subclause (2) enables an authorised officer to make a record of
information provided under subclause (1).
Subclause (3) provides that an authorised must not be charged a
fee for the provision of information under subclause (1).
Division 5--Additional powers of authorised officers for
category 1 species
Clause 144 provides an authorised officer with additional search and entry
powers for category 1 species.
Subclause (1) provides that for the purposes of exercising the
powers of an authorised officer in relation to category 1 species
an authorised officer may at any reasonable time enter and
search a place other than a residence, break open and search a
container, inspect, treat or take samples from any declared
invasive species or declared carrier or any item or receptacle
and inspect, examine or take samples from a place or vehicle.
57
Subclause (2) provides that if the owner or other person is
present when an authorised officer exercises a power of entry
under clause 144, the authorised officer must before entering
the premises inform the owner or person that he or she is
authorised to enter the premises and give the owner or person an
opportunity to allow entry to the premises.
Subclause (3) provides that if the occupier is not present when
an authorised officer exercises a power of entry, the authorised
officer must on leaving the premises leave a notice setting out
the time of entry, the purpose of entry, a description of things
done while on the premises, the time of departure and the
procedure for contacting the authorised officer for further
details of the entry.
Subclause (4) provides that in exercising any powers under this
clause the authorised officer must cause as little convenience as
possible and not remain any longer than is reasonably
necessary.
Clause 145 provides for an authorised officer to stop, board, enter, search or
detain any vehicle for the purposes of exercising the powers of
an authorised officer in relation to category 1 species.
Clause 146 provides for an authorised officer to stop the movement or order
the movement of any declared invasive species or declared
carrier for the purposes of exercising the powers of an
authorised officer in relation to category 1 species, including
inspection, examination, treatment or the taking of samples.
Clause 147 provides for an authorised officer to remove to another place
any declared invasive species or declared carrier or vehicle or
any item for the purposes of exercising the powers of an
authorised officer in relation to category 1 species.
Clause 148 provides that an authorised officer may destroy or remove any
category 1 species or take any other action for the purpose of
preventing, controlling or eradicating a category 1 species.
Clause 149 provides for an authorised officer to obtain information.
Subclause (1) enables an authorised officer to require a person
to answer any question and produce any record for the purpose
of preventing, controlling or eradicating a category 1 species.
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Subclause (2) provides that an authorised officer must not make
a requirement under subclause (1) unless the authorised officer
has informed the person that failure to comply constitutes an
offence and of the effect of clause 150.
Clause 150 provides that there is no privilege against self-incrimination.
Subclause (1) provides that a person is not excused from
answering a question or producing a document on the grounds
of self-incrimination.
Subclause (2), however, provides that if, before answering a
question or producing a document, a person claims that the
answer or document might tend to incriminate the person, then
neither the question nor the answer nor any document produced
is admissible in proceedings against the person other than in
relation to proceedings for refusal or failure to answer a
question or produce a document or for furnishing any answer or
document that is false or misleading.
Division 6--Infringement notices
Clause 151 provides for an authorised officer to serve an infringement
notice.
Subclause (1) provides that an authorised officer may serve a
person with an infringement notice for an offence specified in
the regulations as an offence for which an infringement notice
may be issued.
Subclause (2) provides that an offence referred to in
subclause (1) for which an infringement may be served is an
infringement offence within the meaning of the Infringements
Act 2006.
Clause 152 provides that the penalty for an offence for which an
infringement notice may be issued must not exceed 10 penalty
units for a natural person and 40 penalty units for a corporation
and must not exceed the penalty fixed by the Bill for that
offence.
Clause 153 subclause (1) provides an offence with a maximum penalty of
60 penalty units for an authorised officer who gives another
person information acquired by the authorised officer in
carrying out his or her functions except to the extent necessary
to carry out the authorised officer's functions.
59
Subclause (2) sets out the various circumstances in which an
authorised officer may give information without committing the
offence in subclause (1), including in the course of legal
proceedings, if necessary to enable enforcement of a law, with
the written consent of the Secretary or the person to whom the
information relates.
Division 7--Power to accept undertakings relating to
contraventions
Clause 154 provides that the Secretary may accept undertakings.
Subclause (1) provides that the Secretary may accept an
undertaking given by a person in connection with a
contravention of the Bill or the regulations by the person.
Subclause (2) provides that the person may withdraw or vary
the undertaking but only with the approval of the Secretary.
Subclause (3) provides that neither the Secretary nor an
authorised officer may bring a proceeding for an offence against
the Bill or the regulations constituted by the contravention or
alleged contravention to which the undertaking relates.
Clause 155 provides for the enforcement of undertakings.
Subclause (1) provides that the Secretary may apply to a
Magistrates' Court for an order enforcing an undertaking if the
Secretary considers that the undertaking has been contravened.
Subclause (2) provides that if the Magistrates' Court is satisfied
that the person has contravened the undertaking it may make an
order that the person comply or take specified action to comply
with the undertaking.
Subclause (3) provides an offence for a person who fails to
comply with an order under subclause (2). The maximum
penalty for this offence is 120 penalty units for a natural person
and 600 penalty units for a body corporate.
Clause 156 provides that the Secretary must give a copy of an undertaking
to the person who made the undertaking.
60
Division 8--Provisions related to court proceedings
Clause 157 provides that a charge for an offence under the Bill may only be
filed by an authorised officer authorised under clause 92(1)(a)
of the Bill or a member of the police force.
Clause 158 provides that proceedings for certain offences under the Bill
may be commenced within 3 years after the commission of an
alleged offence instead of the usual 1 year.
Clause 159 provides that a document under the Bill can be served on a
person personally or at the person's last known address or by
post.
Clause 160 provides for criminal liability of officers of bodies corporate.
Subclause (1) provides that if a body corporate commits a
specified offence under the Bill an officer of the body corporate
commits the offence if he or she permitted or was knowingly
concerned in the commission of the offence.
Subclause (2) specifies the offences under the Bill for the
purposes of subclause (1).
Subclause (3) provides that the officer of the corporation may
rely on a defence available to the corporation and bears the
same burden of proof.
Subclause (4) provides that an officer of a corporation may
commit an offence whether or not the body corporate has been
prosecuted for that offence.
Subclause (5) defines body corporate and officer for the
purposes of this clause.
Subclause (6) provides that nothing in this clause affects the
operation of sections 323 or 324 of the Crimes Act 1958 or
section 52 of the Magistrates' Court Act 1989.
Clause 161 provides for conduct by officers, employees or agents of bodies
corporate.
Subclause (1) provides that if, in proceedings under the Bill, it
is necessary to establish the state of mind of a body corporate, it
is sufficient to show that (i) the conduct was engaged in by an
officer of the body corporate within the scope of the officer's
actual or apparent scope of authority and the officer had that
state of mind or (ii) that the conduct was engaged in by an agent
61
of the body corporate and the agent acted at the specific
direction or with the specific consent or agreement of the body
corporate and the agent had that state of mind and the body
corporate was aware of the agent's state of mind when the
conduct was engaged in.
Subclause (2) provides that, for the purpose of proceedings
under the Bill, any conduct engaged in on behalf of a body
corporate is deemed to also have been engaged in by the body
corporate if the conduct was engaged in (i) by an officer of the
body corporate within the scope of the officer's actual or
apparent scope of authority or (ii) by any other person at the
specific direction or with the specific consent or agreement of
an officer of the body corporate if the giving of the direction,
consent or agreement is within the scope of the actual or
apparent authority of the officer.
Clause 162 provides that if a contravention of the Bill is proven in relation
to a sample, it is also deemed to have been proven with regard
to the lot from which the sample was taken.
Clause 163 provides for adverse publicity orders.
Subclause (1) provides that a court may, on convicting a person
or finding a person guilty of an offence against the Bill or the
regulations, make an adverse publicity order requiring the
offender to publicise the order or notify specified persons of the
order and to give the Secretary evidence that the action had
been taken in accordance with the order.
Subclause (2) provides that the court may make an adverse
publicity order on its own initiative or on the application of the
prosecutor.
Subclause (3) provides that if the offender fails to give evidence
to the Secretary in accordance with subclause (1)(b), the
Secretary may take any action specified in the order.
Subclause (4) provides that, if the offender provides the
evidence in accordance with subclause (1)(b) but the Secretary
is not satisfied that offender has taken an action specified in the
order, the Secretary may apply to the court for an order
authorising the Secretary to take the action.
62
Subclause (5) provides that if the Secretary or other person
takes action under subclause (3) or an order under subclause (4),
the Secretary is entitled to recover in court from the offender the
reasonable costs and expenses of taking the action.
Subclause (6) provides that the court must not make an adverse
publicity order unless it is satisfied that the costs of complying
with the order do not exceed the maximum penalty that the
court may impose for the offence.
Subclause (7) provides that the court may make an adverse
publicity order in addition to or instead of imposing a penalty or
making any other order.
Division 9--General
Clause 164 provides for evidence of certain matters.
Subclause (1) provides that a document appearing to be
document issued, granted or made under the Bill, if
accompanied by a certificate appearing to be signed by the
Secretary to the effect that it is a copy, is evidence and, in the
absence of evidence to the contrary, proof of the existence and
contents of the original.
Subclause (2) provides that a certificate appearing to be signed
by the Secretary to the effect that, on a date specified in the
certificate, a person held or did not hold an authority under the
Bill specified in the certificate, is evidence and, in the absence
of evidence to the contrary, proof of the matters stated in the
certificate.
Clause 165 provides for offences relating to enforcement.
Subclause (1) provides a number of offences in relation to
enforcement of the Bill, including hindering or obstructing an
authorised officer and interfering with anything done by an
authorised officer. The maximum penalty for these offences is
60 penalty units.
Subclause (2) provides that, despite anything to the contrary in
subclause (1), a person may refuse to answer an authorised
officer's question or to produce a document to an authorised
officer if the person reasonably believes that the answer or
information in the document would tend to incriminate the
person.
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Subclause (3) provides that for the purposes of the offence of
obstructing or hindering an authorised officer, a reasonable
excuse includes that the authorised officer failed to inform the
person of the offence before attempting to exercise the power.
Clause 166 provides an offence for a person who is not an accredited person
and who issues or uses an assurance certificate. The maximum
penalty for this offence is 60 penalty units in the case of a
natural person and 300 penalty units in the case of a body
corporate.
Clause 167 provides an offence for a person who knowingly includes a
false statement in any assurance certificate. The maximum
penalty for this offence is 60 penalty units in the case of a
natural person and 300 penalty units in the case of a body
corporate.
Clause 168 provides an offence for a person who alters any information or
statement in an assurance certificate unless the alteration is
authorised in writing by the accredited person who issued the
assurance certificate and the alteration relates to the splitting of
a consignment to which the certificate relates and is made by a
person authorised by the Secretary or by an officer or authority
of a State or Territory administering a corresponding law to
split consignments. The maximum penalty for this offence is
60 penalty units in the case of a natural person and 300 penalty
units in the case of a body corporate.
Clause 169 provides that a person employed under Part 3 of the Public
Administration Act 2004 who is authorised by the Secretary to
communicate information obtained under the Bill relating to the
movement of material to which the Bill applies to an interstate
or Commonwealth officer or authority.
PART 10--GENERAL
Clause 170 provides the Secretary may issue permits for the purpose of
specified provisions in the Bill.
A permit may impose conditions and may be revoked or varied
by the Secretary.
Clause 171 provides the Secretary with power to approve forms.
Subclause (1) provides that the Secretary may approve forms
for the purposes of the Bill or the regulations.
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Subclause (2) provides that the Secretary must ensure that forms
approved under subclause (1) are available at the office of the
Department of Environment and Primary Industries or
published at the Internet site of the Department of Environment
and Primary Industries.
Clause 172 provides for regulations under the Bill.
Subclause (1) sets out the various matters which may be
prescribed in regulations can be made under the Bill.
Subclause (2) provides that regulations may be of general or
limited application, may differ according to differences in time,
place or circumstances, may leave any matter to be determined
or approved by an authorised officer or the Secretary, may
confer powers or impose duties on person, may apply,
incorporate or adopt a document by reference, may require a
return or other document required by the Bill to be verified by
statutory declaration and may impose penalties not exceeding
20 penalty units for any contravention of the regulations.
Clause 173 provides that the transitional and savings provisions in
Schedule 1 have effect.
PART 11--AMENDMENT OF THE CATCHMENT AND LAND
PROTECTION ACT 1994
Clause 174 repeals paragraph (c) of section 1 of the Catchment and Land
Protection Act 1994 (CaLP Act). Paragraph (c) provides that it
is a purpose of the CaLP Act to set up a system of controls on
noxious weeds and pest animals.
Clause 175 amends or repeals various definitions in section 3(1) of the
CaLP Act. The amendment or repeal of these definitions is
consequential to the amendments in clauses 174 and 176 to
remove control of noxious weeds and pest animals from the
purposes and objectives of the CaLP Act.
Clause 176 repeals paragraph (e) of section 4 of the CaLP Act.
Paragraph (e) provides that it is an objective of the CaLP Act
to provide for the control of noxious weeds and pest animals.
65
Clause 177 up to here repeals paragraphs (e), (f) and (g) of section 20(1) of
the CaLP Act.
These provisions impose certain duties on a land owner in
relation to regionally prohibited weeds, regionally controlled
weeds and established pest animals. The repeal of sections
20(1)(e), (f) and (g) is consequential to the amendments in
clauses 174 and 176 to remove the control of noxious weeds
and pest animals from the purposes and objectives of the CaLP
Act.
Clause 178 repeals section 21 of the CaLP Act. These provisions currently
impose certain duties on the Secretary in relation to state
prohibited weeds, restricted pest animals and regionally
prohibited weeds. The repeal of section 21 is consequential to
the amendments in clauses 174 and 176 to remove the control of
noxious weeds and pest animals from the purposes and
objectives of the CaLP Act.
Clause 179 repeals section 22(5)(e) of the CaLP Act.
Section 22 of the CaLP Act provides for an agreement for the
transfer of management responsibility from a land owner to a
lessee in relation to, amongst other things, the provisions of
Division 2 of Part 8 of that Act. The repeal of section 22(5)(e)
is consequential to both the amendments in clause 187 to repeal
Part 8 of the CaLP Act and the amendments in clauses 174
and 176 to remove control of noxious weeds and pest animals
from the purposes and objectives of that Act.
Clause 180 repeals Part 3A of the CaLP Act.
Part 3A relates to roadside weed and pest animal management
plans. The repeal of this Part is consequential to the
amendments contained in Division 2 of Part 6.
Clause 181 repeals section 37(1)(b) and section 37(3) of the CaLP Act.
Those sections apply to land management notices in relation to
noxious weeds and pest animals. The repeal of sections
37(1)(b) and 37(3) is consequential to the amendments in
clauses 174 and 176 to remove control of noxious weeds and
pest animals from the purposes and objectives of the CaLP Act.
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Clause 182 repeals sections 38(4) and 38(5) of the CaLP Act.
Sections 38(4) and 38(5) apply to land management notices
in relation to noxious weeds and pest animals. The repeal of
sections 38(4) and 38(5) is consequential to the amendments in
clauses 174 and 176 to remove control of noxious weeds and
pest animals from the purposes and objectives of the CaLP Act.
Clause 183 repeals section 42(3) of the CaLP Act. Section 42(3) applies to
land management notices in relation to noxious weeds and pest
animals. The repeal of section 42(3) is consequential to the
amendments in clauses 174 and 176 to remove control of
noxious weeds and pest animals from the purposes and
objectives of the CaLP Act.
Clause 184 repeals Part 5A of the CaLP Act. Part 5A provides for priority
area notices in relation to noxious weeds and pest animals.
The repeal of Part 5A is consequential to the amendments in
clauses 174 and 176 to remove control of noxious weeds and
pest animals from the purposes and objectives of the CaLP Act.
Clause 185 repeals Part 8 of the CaLP Act. Part 8 deals with noxious
weeds and pest animals. The repeal of Part 8 is consequential to
the amendments in clauses 174 and 176 to remove control of
noxious weeds and pest animals from the purposes and
objectives of the CaLP Act.
Clause 186 repeals sections 80(2)(c)(i) and 80(2)(c)(ii) of the CaLP Act.
They permit authorised officers who have entered land under
section 80 to take samples of plants and animals in certain
circumstances. The repeal of sections 80(2)(c)(i) and
80(2)(c)(ii) is consequential to the amendments in clauses 174
and 176 to remove control of noxious weeds and pest animals
from the purposes and objectives of the CaLP Act.
Clause 187 repeals sections 81(1)(ab), 81(3)(c)(i) and 81(3)(c)(ii) of the
CaLP Act. These provisions are concerned with entry onto land
in relation to noxious weeds and pest animals. The repeal of
sections 81(1)(ab), 81(3)(c)(i) and 81(3)(c)(ii) is consequential
to the amendments in clauses 174 and 176 to remove control of
noxious weeds and pest animals from the purposes and
objectives of the CaLP Act.
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Clause 188 subclause (1) repeals sections 82(1)(a) and 82(1)(ab) of the
CaLP Act. They are concerned with emergency entry onto land
in relation to noxious weeds and pest animals. The repeal of
sections 82(1)(a) and 82(1)(ab) is consequential to the
amendments in clauses 174 and 176 to remove control of
noxious weeds and pest animals from the purposes and
objectives of the CaLP Act.
Subclause (2) repeals paragraphs (c)(i), (c)(ii), (c)(iv), and
paragraph (d) of section 82(4) of the CaLP Act. They are
concerned with emergency entry onto land in relation to
noxious weeds and pest animals. The repeal of paragraphs
(c)(i), (c)(ii), (c)(iv), and paragraph (d) of section 82(4) is
consequential to the amendments in clauses 174 and 176 to
remove control of noxious weeds and pest animals from the
purposes and objectives of the CaLP Act.
Clause 189 repeals sections 83 to 83C of the CaLP Act.
Section 83 provides for search warrants in connection with
offences relating to noxious weeds and pest animals.
Sections 83A, 83B and 83C are all related to the warrant
provisions in section 83. Section 83A provides for further
seizure powers. Section 83B requires an announcement before
entry and section 83C requires that details of a warrant be
provided to an occupier. The repeal of section 83, 83A, 83B
and 83C is consequential to the amendments in clauses 174
and 176 to remove control of noxious weeds and pest animals
from the purposes and objectives of the CaLP Act.
Clause 190 repeals sections 87, 88 and 89 of the CaLP Act.
Sections 87 and 88 are evidentiary provisions relating to the
taking and keeping, respectively, of pest animals. Section 89 is
an evidentiary provision relating to the identity of plants and
animals. The repeal of section 87, 88 and 89 is consequential to
the amendments in clauses 174 and 176 to remove control of
noxious weeds and pest animals from the purposes and
objectives of the CaLP Act.
Clause 191 repeals sections 95(1)(b), 95(1)(ba) and 95(1)(c) of the CaLP
Act. Those sections provide heads of power for making
regulations in relation to noxious weeds and pest animals.
The repeal of sections 95(1)(b), 95(1)(ba) and 95(1)(c) is
consequential to the amendments in clauses 174 and 176 to
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remove control of noxious weeds and pest animals from the
purposes and objectives of the CaLP Act.
Clause 192 provides for the automatic repeal of Part 11 on 1 March 2017.
The repeal of the Part 11 does not affect in any way the
operation of the amendments made by it (see section 15(1) of
the Interpretation of Legislation Act 1984).
SCHEDULE
Clause 1 provides for a definition of commencement day to be used in
the Schedule.
Clause 2 continues the operation of a roadside weed and pest animal
management plan approved under section 22G the Catchment
and Land Protection Act 1994 (CaLP Act). These plans will
remain in force as if they were approved roadside category 2
species management plans under the Bill.
Clause 3 continues the operation of permits granted under provisions of
the CaLP Act in relation to noxious weeds (within the meaning
of that Act) that were in force immediately before the repeal of
those provisions by Part 11 of the Bill.
Clause 4 continues operation of permits granted under provisions of the
CaLP Act in relation to pest animals (within the meaning of that
Act), that were in force immediately before the repeal of those
provisions by Part 11 of the Bill.
Clause 5 provides that a code of practice made under the Conservation,
Forests and Lands Act 1989 in relation to noxious weeds and
pest animals that was in force immediately before
commencement day is taken to be a code of practice made
under the Bill.
Clause 6 clause 6 enables the Governor in Council to make regulations of
a saving or transitional nature as a consequence of the Bill or
amendments to the CaLP Act.
The clause gives effect to such regulations despite any other
Act, with the exception of the Charter of Human Rights and
Responsibilities Act 2006.
This clause expires on 1 March 2017.
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