Agriculture, Fisheries and Forestry Legislation Amendment Act (No. 1) 1999
Contents
1 Short title...........................................................................................1 2 Commencement.................................................................................2 3 Schedule(s)........................................................................................2
No. 4, 1999
[Assented to 31 March 1999]
This Act may be cited as the Agriculture, Fisheries and Forestry Legislation Amendment Act (No. 1) 1999.
This Act commences on the day on which it receives the Royal Assent.
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1
Insert:
(1) In this Part:
current application has the meaning given by section 69EX.
information includes, but is not limited to, information obtained from trials or laboratory experiments.
previous application has the meaning given by section 69EX.
relevant information has the meaning given by section 69EX.
(2) Expressions used in this Part that are defined or otherwise used in the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 have the same meanings as in that Code.
(1) This Part modifies the Agvet Codes for the purpose of giving effect to Australia’s obligations under paragraph 3 of Article 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights set out in Annex 1C to the Marrakesh Agreement establishing the World Trade Organization, done at Marrakesh on 15 April 1994.
Note: The English text of the Marrakesh Agreement establishing the World Trade Organization is set out in Australian Treaty Series 1995 No. 8.
(2) The Agvet Codes have effect subject to this Part.
This Part applies to an application (the current application) made to the NRA after the commencement of this Part for approval of an active constituent for a proposed or existing chemical product where:
The NRA must not grant the current application unless:
(a) the person who made that application:
Schedule 1
(b) at least 5 years have elapsed since the previous application was determined by the NRA or was withdrawn, as the case may be.
(1) If:
approval; the approval is not invalid.
(2) However, the NRA must cancel the approval when it finds out that the giving of the approval was prohibited by section 69EY.
The power of the NRA under subsection 16(1) of the Agvet Codes to approve the same active constituent for a proposed or existing chemical product on applications made by different persons is subject to section 69EY.
Except as provided by section 69EY, the power of the NRA under subsection 58(1) of the Agvet Codes to use information obtained by it from any source for the purpose of performing any of its functions or exercising any of its powers under those Codes is not affected.
Omit “section 108E”, substitute “sections 108E and 108EA”.
Omit “section 108F”, substitute “sections 108EB and 108F”.
Insert:
After “108E”, insert “, 108EA, 108EB”.
Insert:
enter, in relation to an aircraft, vehicle or ship, includes go on board.
Repeal the definition, substitute:
establishment includes premises.
Insert:
evidential material means any of the following things, including such a thing in electronic form:
Insert:
executing officer, for a warrant, means the person named in the warrant as being responsible for executing the warrant.
5 Section 3
Insert:
magistrate means a magistrate who is remunerated by salary or otherwise.
Insert:
occupier of premises means the person apparently in charge of the premises.
Repeal the paragraph.
Omit “or the regulations”.
9 Section 3
Insert:
officer assisting, in relation to a warrant, means:
10 Section 3 (definition of premises)
Repeal the definition, substitute:
premises includes the following:
11 Section 3
Insert:
preparation, in relation to prescribed goods, includes the
following:
12 Section 3
Insert:
this Act includes the regulations.
13 After subsection 7(3)
Insert:
(3A) Without limiting the generality of subsection (2), regulations made for the purposes of subsection (1):
(iii) the variation, suspension or revocation of any or all of the conditions or restrictions to which an approval of an arrangement is subject, or the imposition of further conditions or restrictions; or
(iv) persons (including persons approved by the Secretary under the regulations and authorized officers) who may exercise powers and perform functions under, or for the purposes of, an approved arrangement.
14 Subsection 7(4)
Omit “subparagraph (3)(b)(ii)”, substitute “subparagraphs (3)(b)(ii) and (3A)(b)(i)”.
Repeal the heading, substitute:
Repeal the sections, substitute:
The powers an authorized officer may exercise under paragraphs 10A(1)(b) and 10D(1)(b) in relation to particular premises are as follows:
(a) authorize an authorized officer named in the warrant, with such assistance and by such force as is necessary and reasonable, from time to time, while the warrant remains in force, to enter the premises and exercise powers of the kind set out in section 10 in relation to the premises; and
the authorized officer may seize the evidential material if he or she finds it there.
16 Agriculture, Fisheries and Forestry Legislation Amendment Act (No. 1) 1999 No. 4, 1999
Act; if the executing officer or an officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence against this Act.
(1) A warrant under this Division that is in force in relation to premises authorizes the executing officer or an officer assisting:
this Act; if the executing officer or an officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence against this Act.
that there are reasonable grounds for issuing the warrant, the magistrate may complete and sign the same form of warrant that would be issued under section 10B or 10E, as the case requires.
the court must assume, unless the contrary is proved, that the exercise of power was not authorized by such a warrant.
When an authorized officer exercises a power under section 10H in relation to an aircraft, vehicle or ship, he or she:
In executing a warrant:
the things may be moved to another place so that the examination or processing can be carried out.
processing of a thing found at the premises for the purposes of exercising a power conferred on the person under this Part, if the person believes on reasonable grounds that:
operate the equipment or other facilities to copy the material to the storage device and take the storage device from the premises.
he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.
(1) If:
compensation for the damage is payable to the owner of the equipment.
(1) Subject to subsection (2), if a person who enters premises under this Part seizes:
copied; the person must, if asked to do so by the occupier of the premises or another person who apparently represents the occupier and is present when the seizure takes place, give a copy of the thing or the information to that person as soon as practicable after the seizure.
(2) Subsection (1) does not apply if:
(1) Subject to any contrary order of a court, if a person seizes a thing under this Part, the person must return it if:
whichever first occurs, unless the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
(2) At the end of the 60 days specified in subsection (1), the person must take reasonable steps to return the thing to the person from whom it was seized (or to the owner if that person is not entitled to possess it) unless:
(1) If a person seizes a thing under this Part; and:
magistrate under this section; proceedings in which the thing may be used in evidence have not been brought, the officer may apply to a magistrate for an order that he or she may keep the thing for a further period.
(2) If the magistrate is satisfied that it is necessary for the authorized officer to continue to keep the thing:
purposes of a prosecution; the magistrate may order that the officer may keep the thing for a period stated in the order.
The Secretary may authorize any evidential material seized under this Part to be released to the owner, or to the person from whose possession it was seized, either unconditionally or on any conditions that the Secretary thinks fit.
An authorized officer may not exercise any powers under this Part in relation to premises (other than premises entered under a warrant) if:
Penalty: 30 penalty units.
Penalty: Imprisonment for 12 months.
Note: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount that is not greater than 5 times the maximum fine that could be imposed by the court on an individual convicted of the same offence.
After “powers”, insert “, or in the performance of the authorized officer’s functions,”.
Repeal the subsection (but not the penalty), substitute:
(1) Subject to subsection (2), the owner or occupier of premises entered by an authorized officer under this Part must, if requested by an authorized officer to do so, provide reasonable assistance to the authorized officer for the purpose of the exercise of the authorized officer’s powers under this Part in relation to the premises.
After “powers”, insert “or functions”.
After “power”, insert “or function”.
After “power”, insert “, or the performance of a function,”.
Omit all the words from and including “the purpose of” to and including “in the instrument”, substitute:
the purpose of:
After “authority”, insert “, or in the performance or purported performance of any function,”.
Omit “or the regulations”.
Omit “or the regulations”.
Omit “or the regulations”.
Omit “of:”, substitute “of premises;”.
Repeal the subparagraphs.
Omit “or the regulations”.
Omit “$1,000”, substitute “50 penalty units”.
Insert: (ab) any matter contained in any instrument or writing that:
as in force at a particular time or as in force from time to time; or
(a) a person had been approved, or was included in a class of persons that had been approved, under an order to exercise a power or perform a function that was otherwise required under the order to be performed or exercised by an authorized officer; and
(b) the approval had not been revoked; the approval is taken to have been validly made for all purposes and
continues to have effect according to its terms on and after that commencement.
Insert:
imported as a trade sample, in relation to food, has the meaning given by subsection 7(3).
Add: ; or (d) food that is imported as a trade sample.
After “consumption”, insert “if it has not been imported as a trade sample and”.
Add:
(3) Food of a particular kind is imported as a trade sample if:
Insert:
(1A) A person (other than an officer of Customs, or an authorised officer, acting in the course of his or her duties) must not deal in any manner with examinable food that the person knows:
been issued; unless the owner of the food obtains the approval of an authorised officer to deal with the food in that manner.
Penalty: Imprisonment for 10 years.
After “(1)”, insert “, (1A)”.
After “(1)(a) and (b)”, insert “, (1A)(a), (b) and (c)”.
Omit “to:”, substitute “under subsection (1A)”.
9 Paragraphs 19(1)(a) and (b)
Repeal the paragraphs.
10 After subsection 19(1)
Insert:
(1A) The Secretary may:
11 Subsection 19(2)
Omit “(1)”, substitute “(1A)”.
12 After subparagraph 35(c)(i)
Insert: (ia) has been identified in an imported food inspection advice as failing food; or
13 At the end of section 35
Add:
(2) Without limiting subsection (1), the Secretary may publish:
14 After subsection 39(1)
Insert:
(1A) The Secretary may approve the payment of compensation in respect of food if:
15 Subsection 39(3)
Omit “this section”, substitute “subsection (1)”.
16 After subsection 39(3)
Insert:
(3A) The compensation payable under subsection (1A) in respect of food is the amount agreed between the Secretary and the owner or owners of the food as being the difference between the market value of the food immediately before it became unsuitable for the purpose for which it was imported and the amount (if any) for which the food is sold by the owner or owners.
17 Subsection 39(4)
Omit “at the time of its destruction”, substitute “at the time referred to in subsection (3) or (3A), as the case requires,”.
18 Subsection 39(6) (definition of owner)
Omit “that is permitted to be treated or required to be destroyed or re-exported”.
Omit “(4)”, substitute “(5)”.
Insert:
plant class, for the purpose of variety denomination, means a class consisting of all plants:
that is specified from time to time as a plant class in the Registrar’s List of Plant Classes maintained under subsection 61(1A)
Insert:
Union means the Union for the Protection of New Varieties of
Plants as defined in Article 1 of the Convention.
After “another plant variety”, insert “of the same plant class”.
Repeal the subparagraphs, substitute:
Insert:
(1A) The Registrar must maintain, for the purposes of this Act, a list of all plant classes to be known as the Registrar’s List of Plant Classes.
(1B) In maintaining that list the Registrar must, for so long as the Union maintains the document presently known as the List of Classes for Variety Denomination Purposes, have regard to that list and to any variations to that list as so maintained.
(1C) The list maintained by the Registrar must be kept as a part of the Register.
Add:
(3) For the purposes of subsection (2), a reference to an entry in the Register does not include a reference to the Registrar’s List of Plant Classes or to any part of that list.
[Minister’s second reading speech made in— House of Representatives on 3December 1998 Senate on 8 March 1999]
(230/98)