Biological Control Act 1986 (Tas)

Biological Control Act 1986 An Act to make provision for the biological control of pests in Tasmania and for related purposes [Royal Assent 9 May 1986] Whereas it is generally acknowledged that in the interests of the Australian economy and for the general protection of the Australian environment it is necessary to implement a Scheme for biological control of pests in the States and Territories of Australia: And whereas the implementation of such a Scheme requires uniform legislation throughout Australia and for that legislation to be administered on a uniform basis: And whereas the Commonwealth, the other States, and the Northern Territory have enacted, or are taking action to provide for the introduction of, the necessary legislation: Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART I - Preliminary 1. Short title This Act may be cited as the Biological Control Act 1986 . 2. Commencement (1) This section and section 1 shall commence on the day on which this Act receives the Royal Assent. (2) Except as provided by subsection (1) , this Act shall commence on such day as may be fixed by proclamation. 3. Interpretation (1) In this Act, unless the contrary intention appears – agent application means an application under section 20 ; agent organisms means organisms in respect of which there is in force a declaration by the Authority, under section 27 , 28 , 29 , or 32 , that the organisms are agent organisms for the purposes of this Act; agent recommendation means a recommendation to the Authority by the Council that organisms of a particular kind should be declared to be agent organisms for the purposes of this Act; Australia includes the external Territories (if any) in respect of which a declaration under section 4 (1) of the Commonwealth Act is in force; Authority means the Tasmanian Biological Control Authority established by section 8 ; Commonwealth Act means the Biological Control Act 1984 of the Commonwealth; control, in relation to organisms, includes – (a) reduce the number of those organisms; (b) prevent an increase in the number of those organisms; (c) reduce the activity or appetite of some or all of those organisms; and (d) modify the behaviour or characteristics of some or all of those organisms; Council means the body known as the Agriculture and Resource Management Council of Australia and New Zealand, whether known by that name or any other name; kind, in relation to live organisms, or viruses or sub-viral agents, means species, subspecies or variety; organism means – (a) an organism (whether alive or dead and whether or not indigenous to Australia) other than a human; or (b) a part of, or matter discharged from, an organism within the meaning of paragraph (a) ; or (c) a virus or sub-viral agent; organization includes – (a) a body corporate; (b) an association or other body of persons; and (c) an association that consists of 2 or more organizations referred to in paragraphs (a) and (b) ; person includes an organization; prescribed organisms means organisms that are – (a) live organisms; or (b) viruses or sub-viral agents; relevant law means a law declared by the Authority under section 5 to be a relevant law for the purposes of this Act; State means – (a) a State of the Commonwealth; or (b) the Northern Territory of Australia; target application means an application under section 11 ; target organisms means organisms in respect of which there is in force a declaration by the Authority, under section 18 , 28 , 29 , or 32 , that the organisms are target organisms for the purposes of this Act; target recommendation means a recommendation to the Authority by the Council that organisms of a particular kind should be declared to be target organisms for the purposes of this Act; Territory means a Territory referred to in section 122 of the Constitution of the Commonwealth but does not include the Northern Territory of Australia. (2) For the purposes of this Act, organisms of a particular kind shall be taken to cause harm if the control of those organisms would be for the public benefit. (3) For the purposes of this Act, organisms of a particular kind shall be taken to cause harm in the State if they cause harm in a part or parts only of the State. (4) For the purposes of this Act – (a) a recommendation or decision of, or an approval by, the Council has effect whether or not it was made or given while the Council is in session; (b) a recommendation of the Council shall be taken to be unanimous if, and only if, the recommendation is a recommendation of all the members of the Council; (c) an approval by the Council shall be taken to be unanimous if, and only if, the approval is an approval by all the members of the Council; and (d) where a person is authorized to act as a member of the Council in place of another person, then, while the first-mentioned person is so acting, the first-mentioned person is to be taken to be a member of the Council and the other person is not to be taken to be a member of the Council. (5) A reference in this Act to a recommendation by the Council that organisms of a particular kind should be declared to be agent organisms for the purposes of this Act includes a reference to a recommendation that organisms of a particular kind should be so declared if organisms to which a target recommendation applies are declared to be target organisms for the purposes of this Act. (6) In this Act, a reference to – (a) a function includes a reference to a power, authority and duty; and (b) the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. 4. Biological control For the purposes of this Act, organisms of a particular kind shall be taken to be controllable by biological means if, and only if, those organisms can be controlled by the release of prescribed organisms of another kind. 5. Relevant laws (1) Where a law of the Commonwealth or of a State other than Tasmania – (a) provides for the control by biological means of organisms causing harm; and (b) establishes an authority having similar functions to those of the Authority – the Authority may, by notice published in the Gazette, declare that law to be a relevant law for the purposes of this Act. (2) A declaration shall not be made under subsection (1) in respect of a law unless the Minister administering that law consents in writing to the declaration being made. (3) A declaration made under subsection (1) shall cease to have effect in respect of a law if that law ceases to be a law described in subsection (1) (a) and (b) . 6. Act to bind Crown This Act binds the Crown not only in right of this State but also, so far as the legislative power of Parliament permits, binds the Crown in all of its other capacities. 7. Act not limited to agricultural pests The fact that certain functions of the Authority under this Act cannot be exercised except on the recommendation of the Council does not imply that the only kinds of organisms that may for the purposes of this Act be regarded as causing harm are kinds that are harmful by reason of their effect on agriculture. 8. Tasmanian Biological Control Authority (1) For the purposes of this Act, a Tasmanian Biological Control Authority is established by this section. (2) The Authority shall be the Minister of the Crown of the State of Tasmania who is for the time being a member of the Council. 9. Delegation (1) The Authority may, be instrument in writing, delegate to an officer of the Department the exercise of any of the functions of the Authority under this Act, other than – (a) the exercise of the functions of the Authority under section 17 , 18 , 26 , 27 , 28 , 29 , 31 , 32 , 36 , or 51 ; or (b) this power of delegation. (2) A function the exercise of which has been delegated under this section may, while the delegation remains unrevoked, be exercised from time to time by the delegate in accordance with the terms of the delegation. (3) Notwithstanding any delegation under this section, the Authority may continue to exercise any function delegated. (4) A delegation under this section may be made subject to such conditions or limitations as to the exercise of any of the functions delegated, or as to time or circumstance, as are specified in the instrument of delegation. (5) Any act or thing done or suffered by a delegate acting in the exercise of a delegation under this section has the same force or effect as it would have if it had been done or suffered by the Authority and shall be deemed to have been done or suffered by the Authority. (6) The Authority may, by instrument in writing, revoke wholly or in part any delegation under this section. (7) An instrument purporting to have been signed by a person in the capacity of delegate of the Authority shall in all courts and before all persons acting judicially be received in evidence as if it were an instrument duly executed by the Authority and shall, unless the contrary be proved, be deemed to be an instrument signed by a delegate of the Authority. PART II - Target Organisms 10. Target organisms (1) Subject to and in accordance with this Part, organisms of a particular kind may be declared to be target organisms for the purposes of this Act. (2) Action for the declaration of target organisms in accordance with this Part may be commenced by – (a) a unanimous recommendation being made to the Authority by the Council; or (b) an application being made under section 11 . 11. Target application (1) Where a person considers that organisms of a particular kind are causing harm in the State and are, or are likely to be, controllable by biological means, the person may make an application to the Authority for a declaration that organisms of that kind are target organisms for the purposes of this Act. (2) A target application shall be in writing signed – (a) in the case of an application by a natural person – by the applicant; or (b) in any other case – by a natural person authorized by the applicant to do so. (3) A target application in relation to organisms of a particular kind shall set out – (a) particulars identifying the organisms; (b) particulars of the reasons why the organisms are considered to be causing harm in the State; (c) particulars of the reasons why the applicant considers that the organisms are, or are likely to be, controllable by biological means; and (d) such other particulars (if any) as are prescribed. 12. Withdrawal of target application (1) A person who has made a target application may withdraw that application at any time before the application is referred to the Council under section 13 (1) . (2) The withdrawal of a target application shall be effected by the making of a request for withdrawal to the Authority in writing signed – (a) in the case of an application by a natural person – by the person who signed the application or by the legal personal representative of that person; or (b) in any other case – by the person who signed the application or by a person authorized by the applicant to sign the request. 13. Referral of target application to Council (1) Subject to subsection (2) , where a target application is received by the Authority, the Authority shall refer the application to the Council for its consideration. (2) The Authority is not required to refer to the Council a target application in respect of organisms of a particular kind if – (a) other action to have them declared to be target organisms is being, or has been, taken under this Act; or (b) action to have them declared to be organisms that may be controlled by biological means is being, or has been, taken under a relevant law. 14. Notice of rejection of target application (1) If the Council, after considering a target application referred to it by the Authority, informs the Authority that it does not recommend that the organisms to which the application relates should be target organisms, the Authority shall cause to be given, in such manner as the Authority considers appropriate, to the person who made the target application and to the persons (if any) who made a later target application in respect of those organisms notice in writing stating that the Council does not recommend that those organisms should be target organisms. (2) A notice under subsection (1) shall – (a) if reasons have been given by the Council for not recommending that organisms to which the notice relates should be target organisms – set out those reasons; and (b) if there are circumstances in which, in the opinion of the Authority, a target application in relation to those organisms might result in a recommendation by the Council that those organisms should be target organisms – specify those circumstances. 15. Notice of proposed target organisms (1) Where the Council has unanimously recommended to the Authority that organisms of a particular kind should be target organisms, the Authority shall publish in the Gazette (and, if the Council has so recommended, in the Commonwealth Gazette) and in such newspapers or journals as the Authority considers appropriate a notice that the Authority is contemplating declaring those organisms to be target organisms. (2) Without limiting the generality of subsection (1) , a notice under that subsection shall be published in at least one newspaper circulating generally in Tasmania and in each other State and the Australian Capital Territory. (3) A notice under subsection (1) in relation to organisms of a particular kind shall – (a) set out particulars identifying the organisms; (b) set out brief particulars of the reasons why the organisms are believed to be causing harm in the State; (c) set out brief particulars of the benefits (if any) resulting from the absence of biological control of the population of the organisms; (d) state that the Council has unanimously recommended that the organisms should be declared to be target organisms; (e) where the recommendation of the Council followed a target application in relation to the organisms – inform the public that copies of the target application can be perused at a place specified in the notice; and (f) invite any persons who object to, or support, the organisms being declared to be target organisms to submit written particulars of the grounds for that objection or support, as the case may be, to the Authority within the period of 6 weeks after the date of the publication of the notice in the Gazette, or within such further period as the Authority (either before or after the expiration of that period) allows. (4) Where the Authority publishes a notice under subsection (1) in relation to a target application, the Authority shall cause copies of the application to be available for perusal at a place specified in the notice in accordance with subsection (3) (e) . 16. Consideration of submissions relating to target organisms The Authority shall consider any submissions in response to an invitation referred to in section 15 (3) (f) . 17. Inquiries relating to target organisms (1) Where the Authority, after – (a) complying with sections 15 and 16 in respect of a target recommendation; (b) consulting the Council regarding the appropriateness of action under this section in respect of that recommendation; (c) considering the nature of, the proceedings in and the findings of, any inquiry that the Authority considers relevant to the recommendation (which may be an inquiry conducted on behalf of another State or the Commonwealth); and (d) considering any reports relating to the recommendation made by any person or authority competent to do so that the Authority considers relevant – considers that there is evidence that a person or the environment would be adversely affected by the control of organisms of the kind to which the recommendation relates but an adequate investigation or inquiry into the effect of such control has not been held, the Authority may – (e) direct that an inquiry under Part VII be conducted in respect of the recommendation; (f) request the Minister administering the Commonwealth Act to arrange for the Minister who administers the Industries Assistance Commission Act 1973 of the Commonwealth to refer the recommendation to the Industries Assistance Commission for inquiry and report; (g) arrange for a Minister who administers any Tasmanian legislation relating to the protection of the environment to cause an inquiry to be conducted under that legislation in respect of the recommendation; or (h) request the Biological Control Authority for another State or a Territory to arrange for a Minister who administers any legislation of that State or Territory relating to the protection of the environment to cause an inquiry to be conducted under that legislation in respect of the recommendation. (2) Action shall not be taken under subsection (1) (e) , (f) , (g) , or (h) in respect of a target recommendation unless the Council, upon being consulted in accordance with subsection (1) (b) , has unanimously recommended that the action be taken. (3) Where the Authority takes action under subsection (1) (e) , (f) , (g) , or (h) for an inquiry in relation to a target recommendation, the Authority shall not take any further action under this Act in relation to that recommendation unless and until the Authority has considered the report made as the result of that inquiry. 18. Declaration of target organisms (1) Where the Authority, after – (a) complying with the preceding provisions of this Part in relation to a target recommendation; (b) considering all reports and other matters relating to that recommendation that the Authority considers it appropriate to consider; and (c) consulting the Council regarding the appropriateness of action under this section in respect of that recommendation – is satisfied – (d) that organisms of the kind to which the recommendation relates are causing harm in Tasmania; (e) that organisms of that kind are, or that there is a probability that organisms of that kind are likely to be, controllable by biological means; and (f) that – (i) the control throughout Australia of organisms of that kind would not cause any significant harm to any person or to the environment; or (ii) any harm caused to persons or to the environment by the control throughout Australia of organisms of that kind would be significantly less than the harm caused, or likely to be caused, by failure to control organisms of that kind thoughout Australia – the Authority, subject to subsection (2) , shall, by notice published in the Gazette (and, if the Council has so recommended, in the Commonwealth Gazette), declare organisms of that kind to be target organisms for the purposes of this Act. (2) The Authority shall not make a declaration under subsection (1) in respect of a target recommendation unless the Council, upon being consulted in accordance with subsection (1) (c) , has unanimously recommended that the declaration be made. PART III - Agent Organisms 19. Agent organisms (1) Subject to and in accordance with this Part, prescribed organisms of a particular kind may be declared to be agent organisms for the purposes of this Act. (2) Action for the declaration of agent organisms in accordance with this Part may be commenced by – (a) a unanimous recommendation being made to the Authority by the Council; or (b) an application being made under section 20 . 20. Agent application (1) Where a person considers that the release of prescribed organisms of a particular kind would result in the control of– (a) target organisms of a particular kind or kinds; or (b) organisms to which a target recommendation applies or target recommendations apply– (whether or not the organisms referred to in paragraph (a) or (b) can be controlled by existing agent organisms) the person may make an application to the Authority for a declaration that the first-mentioned organisms are agent organisms for the purposes of this Act. (2) An agent application shall be in writing signed – (a) in the case of an application by a natural person – by the applicant; or (b) in any other case – by a natural person authorized by the applicant to do so. (3) An agent application in relation to organisms of a particular kind shall set out – (a) particulars identifying the organisms; (b) particulars of the possible ways in which the applicant considers that the release of the organisms could control the relevant population of target organisms; and (c) such other particulars (if any) as are prescribed. 21. Withdrawal of agent application (1) A person who has made an agent application may withdraw that application at any time before the application is referred to the Council under section 22 (1) . (2) The withdrawal of an agent application shall be effected by the making of a request for withdrawal to the Authority in writing signed – (a) in the case of an application by a natural person – by the person who signed the application or by the legal personal representative of that person; or (b) in any other case – by the person who signed the application or by a person authorized by the applicant to sign the request. 22. Referral of agent application to Council (1) Subject to subsection (2) , where an agent application is received by the Authority, the Authority shall refer the application to the Council for its consideration. (2) The Authority is not required to refer to the Council an agent application in respect of organisms of a particular kind if – (a) other action to have them declared to be agent organisms is being, or has been, taken under this Act; or (b) action to have them declared to be organisms that may be released to control the population of other organisms is being, or has been, taken under a relevant law. 23. Notice of rejection of agent application (1) If the Council, after considering an agent application referred to it by the Authority, informs the Authority that it does not recommend that the organisms to which the application relates should be agent organisms, the Authority shall cause to be given, in such manner as the Authority considers appropriate, to the person who made the agent application and to the persons (if any) who made a later agent application in respect of those organisms notice in writing that the Council does not recommend that those organisms should be agent organisms. (2) A notice under subsection (1) shall – (a) if reasons have been given by the Council for not recommending that organisms to which the notice relates should be agent organisms – set out those reasons; and (b) if there are circumstances in which, in the opinion of the Authority, an agent application in relation to those organisms might result in a recommendation by the Council that those organisms should be agent organisms – specify those circumstances. 24. Notice of proposed agent organisms (1) Where the Council has unanimously recommended to the Authority that prescribed organisms of a particular kind should be agent organisms, the Authority shall publish in the Gazette (and, if the Council has so recommended, in the Commonwealth Gazette), and may publish in such newspapers or journals as the Authority thinks appropriate, a notice that the Authority is contemplating declaring those organisms to be agent organisms. (2) A notice under subsection (1) in relation to organisms of a particular kind (in this subsection referred to as the "relevant organisms") shall – (a) set out particulars identifying the relevant organisms; (b) specify the organisms which it is intended to control by the release of the relevant organisms; (c) set out brief particulars of the manner in which the relevant organisms would control the organisms specified in the notice in accordance with paragraph (b) ; (d) state that the Council has unanimously recommended that the relevant organisms should be declared to be agent organisms; (e) where the recommendation of the Council followed an agent application in relation to the organisms – inform the public that copies of the agent application can be perused at a place specified in the notice; and (f) invite any persons who object to, or support, the relevant organisms being declared to be agent organisms to submit written particulars of the grounds for that objection or support, as the case may be, to the Authority within the period of 6 weeks after the date of the publication of the notice in the Gazette, or within such further period as the Authority (either before or after the expiration of that period) allows. (3) Where the Authority publishes a notice under subsection (1) in relation to an agent application, the Authority shall cause copies of the application to be available for perusal at the place specified in the notice in accordance with subsection (2) (e) . (4) Where the Council has recommended to the Authority that 2 or more kinds of organisms should be agent organisms for the purpose of the control of the same population of particular organisms, a notice under subsection (1) relating to one of those kinds may be combined with a notice under that subsection relating to the other kind or kinds. 25. Consideration of submissions relating to agent organisms The Authority shall consider any submissions in response to an invitation referred to in section 24 (2) (f) . 26. Inquiries relating to agent organisms (1) Where the Authority, after – (a) complying with sections 24 and 25 in respect of an agent recommendation; (b) consulting the Council regarding the appropriateness of action under this section in respect of that recommendation; (c) considering the nature of, the proceedings in, and the findings of, any inquiry that the Authority considers relevant to the recommendation (which may be an inquiry under Part VII in respect of a target recommendation or an inquiry conducted on behalf of another State or the Commonwealth); and (d) considering any reports relating to the recommendation made by any person or authority competent to do so that the Authority considers relevant – considers that there is evidence that a person or the environment would be adversely affected by the release of organisms of the kind to which the recommendation relates but an adequate investigation or inquiry into the effect of such a release has not been held, the Authority may – (e) direct that an inquiry under Part VII be conducted in respect of the recommendation; (f) request the Minister administering the Commonwealth Act to arrange for the Minister who administers the Industry Commission Act 1989 of the Commonwealth to refer the recommendation to the Industry Commission for inquiry and report; (g) arrange for a Minister who administers any Tasmanian legislation relating to the protection of the environment to cause an inquiry to be conducted under that legislation in respect of the recommendation; or (h) request the Biological Control Authority for another State or a Territory to arrange for a Minister who administers any legislation of that State or Territory relating to the protection of the environment to cause an inquiry to be conducted under that legislation in respect of the recommendation. (2) Action shall not be taken under subsection (1) (e) , (f) , (g) , or (h) in respect of an agent recommendation unless the Council, upon being consulted in accordance with subsection (1) (b) , has unanimously recommended that the action be taken. (3) An inquiry by virtue of subsection (1) in respect of an agent recommendation that recommends that organisms of a particular kind should be declared to be agent organisms if organisms to which a target recommendation applies are declared to be target organisms and an inquiry by virtue of section 17 (1) in respect of the target recommendation may be conducted as if they were one inquiry. (4) Where the Authority takes action under subsection (1) (e) , (f) , (g) , or (h) for an inquiry in relation to an agent recommendation, the Authority shall not take any further action under this Act in relation to that recommendation unless and until the Authority has considered the report made as the result of that inquiry. 27. Declaration of agent organisms (1) Where the Authority, after – (a) complying with the preceding provisions of this Part in relation to an agent recommendation; (b) considering all reports and other matters relating to that recommendation that the Authority considers it appropriate to consider; and (c) consulting the Council regarding the appropriateness of action under this section in respect of that recommendation – is satisfied – (d) that the release of organisms of the kind to which the recommendation relates (in this subsection referred to as the "relevant organisms") could result in the control of target organisms of a particular kind or kinds in the State; (e) that – (i) the release of the relevant organisms would not cause any significant harm to any person or to the environment, other than the harm (if any) resulting from the control throughout Australia of target organisms of that kind or those kinds; or (ii) any harm caused to persons or to the environment by the release of the relevant organisms, other than the harm (if any) resulting from the control throughout Australia of target organisms of that kind or those kinds, would be significantly less than – (A) the harm caused, or likely to be caused, by failure to control target organisms of that kind or those kinds throughout Australia; and (B) where target organisms of that kind or those kinds can be controlled by the release of other organisms or otherwise than by biological means – the harm (if any) caused, or likely to be caused, by controlling target organisms of that kind or those kinds throughout Australia by the release of those other organisms or by those other means – the Authority, subject to subsection (2) , shall, by notice published in the Gazette (and, if the Council has so recommended, in the Commonwealth Gazette), declare the relevant organisms to be agent organisms for the purposes of this Act. (2) The Authority shall not make a declaration under subsection (1) in respect of an agent recomm