New South Wales: Biosecurity Act 2015 (NSW)

Biosecurity Act 2015 No 24 An Act to provide for the prevention, elimination, minimisation and management of biosecurity risks; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Biosecurity Act 2015. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act (1) The primary object of this Act is to provide a framework for the prevention, elimination and minimisation of biosecurity risks posed by biosecurity matter, dealing with biosecurity matter, carriers and potential carriers, and other activities that involve biosecurity matter, carriers or potential carriers. (2) The other objects of this Act are as follows— (a) to promote biosecurity as a shared responsibility between government, industry and communities, (b) to provide a framework for the timely and effective management of the following— (i) pests, diseases, contaminants and other biosecurity matter that are economically significant for primary production industries, (ii) threats to terrestrial and aquatic environments arising from pests, diseases, contaminants and other biosecurity matter, (iii) public health and safety risks arising from contaminants, non-indigenous animals, bees, weeds and other biosecurity matter known to contribute to human health problems, (iv) pests, diseases, contaminants and other biosecurity matter that may have an adverse effect on community activities and infrastructure, (c) to provide a framework for risk-based decision-making in relation to biosecurity, (d) to give effect to intergovernmental biosecurity agreements to which the State is a party, (e) to provide the means by which biosecurity requirements in other jurisdictions can be met, so as to maintain market access for industry. 4 Act to bind Crown This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities. 5 Extraterritorial application (1) It is the intention of the Parliament that this Act apply within the State and outside the State to the full extent of the extraterritorial legislative capacity of the Parliament. (2) Without limiting subsection (1), it is the intention of the Parliament that the operation of this Act is, as far as possible, to include operation in relation to the following— (a) things situated in or outside the territorial limits of this State, (b) acts, transactions and matters done, entered into or occurring in or outside the territorial limits of this State, (c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of another jurisdiction. 6 Act does not give rise to or affect civil cause of action (1) A provision of this Act does not confer a right of action in civil proceedings based on a contravention of the provision. (2) Except as otherwise expressly provided by this Act, this Act does not affect or limit a civil right or remedy that exists apart from this Act, whether at common law or otherwise. (3) Without limiting subsection (2), compliance with this Act does not necessarily show that a civil obligation that exists apart from this Act has been satisfied or has not been breached. Part 2 Interpretation, key concepts and principles Division 1 Interpretation 7 General definitions In this Act— accreditation audit—see section 218. accreditation authority—see section 260. approved form means a form approved by the Secretary. approved manner means a manner approved by the Secretary. assess includes investigate. authorised analyst means a person appointed as an authorised analyst under section 378. authorised officer means a person who is appointed as an authorised officer under this Act and authorised by that appointment to exercise the function in relation to which the expression is used. bee means a managed bee of the species Apis mellifera or any other species of managed bee prescribed in the regulations for the purposes of this definition. biosecurity audit means an accreditation audit or a compliance audit. biosecurity auditor means a person who has been appointed as a biosecurity auditor under Part 16 and whose appointment is in force. biosecurity certificate—see section 184. biosecurity certifier means a person who has been accredited by an accreditation authority as a biosecurity certifier under Part 14 and whose accreditation is in force. biosecurity direction means a general biosecurity direction or an individual biosecurity direction under Part 9. biosecurity duty means a biosecurity duty imposed by this Act. Note— See Parts 3 and 4 for biosecurity duties. biosecurity emergency means an emergency arising because of a biosecurity risk or biosecurity impact. biosecurity event—see section 39. biosecurity impact—see section 13. biosecurity matter—see section 10. biosecurity participant means a person who is, or formerly was— (a) a registered entity, or (b) a biosecurity certifier, or (c) a biosecurity auditor, or (d) the holder of an individual permit, or (e) an applicant for a group permit that was granted, or (f) a person who has given a biosecurity undertaking, or (g) an accreditation authority. biosecurity registration means biosecurity registration granted under Part 12. biosecurity risk—see section 14. biosecurity undertaking means a biosecurity undertaking under Part 10 that is in effect. biosecurity zone regulation means a regulation made under Part 7. carrier—see section 11. category 1 offence—see section 279 for the maximum penalty. category 2 offence—see section 280 for the maximum penalty. Chief Plant Protection Officer means the person appointed under this Act to be the Chief Plant Protection Officer. Chief Veterinary Officer means the person appointed under this Act to be the Chief Veterinary Officer. compliance audit—see section 224. conduct includes an omission. contaminant means any non-living thing— (a) occurring in or on biosecurity matter or a carrier, or (b) that may be ingested or absorbed by biosecurity matter or a carrier. contravene includes cause or permit a contravention to occur. control order means an order under Part 6. corresponding law means a law of another State or a Territory, or the Commonwealth, that corresponds to the provisions of this Act, and includes any law declared by the regulations to be a corresponding law. cost recovery order means an order under section 322. critical non-compliance means anything prescribed by the regulations as critical non-compliance. deal—see section 12. Department means the Department of Primary Industries and Regional Development. director has the same meaning it has in the Corporations Act 2001 of the Commonwealth. disease means any infection of an organism having the potential to result in or resulting in an abnormal, pathological or unhealthy condition that is caused by a known or unknown disease agent. disease agent includes a prion, a microorganism, an infectious agent and a parasite. emergency biosecurity matter means biosecurity matter that is the subject of an emergency order. emergency order means an order under Part 5. emergency permit—see section 337. engage in a dealing—see section 12. executive liability offence—see section 306. external treatment measure means a treatment measure (such as cleaning or disinfection) that is limited to the external parts of the subject's body and, accordingly, that does not require— (a) the penetration of the subject's skin, or (b) the subject to take any substance. fertiliser means— (a) a substance that consists of or contains nitrogen, phosphorus or potassium (or any combination of nitrogen, phosphorus or potassium) and is manufactured, represented, sold or used as a means for directly or indirectly supplying nutriment for the purpose of enhancing the development, productivity, quality or reproductive capacity of vegetation, other than a substance excluded from this definition by the regulations, or (b) any other substance prescribed by the regulations to be a fertiliser. fitting means any thing that is commonly used for production, management, growing, housing, cultivation, harvesting, storage, transport, handling, processing or sale of animals, animal products or plants. fodder means any water, meal, meat, plant, vegetable, grain, algal products or other material (including a mixture of materials) used for the food, supplementation or litter of animals. function includes a power, authority or duty, and exercise a function includes perform a duty. general biosecurity direction—see section 124. government agency means— (a) a Public Service agency within the meaning of the Government Sector Employment Act 2013, or (b) a NSW Government agency, or (c) a State owned corporation within the meaning of the State Owned Corporations Act 1989, or (d) a council, county council or joint organisation within the meaning of the Local Government Act 1993, or (e) any other public or local authority constituted by or under an Act, or (f) (Repealed) (g) any person or body declared by the regulations to be a government agency. group permit—see section 335. identified individual, with respect to a function of a biosecurity certifier or a biosecurity auditor, means an individual who is notified to the responsible accreditation authority as an individual who is to carry out that function for the biosecurity certifier or biosecurity auditor. Independent Biosecurity Commissioner means the Commissioner under section 360B(1). individual biosecurity direction—see section 124. individual permit—see section 335. intentionally includes knowingly. interstate biosecurity certificate—see section 186. land includes— (a) the sea or an arm of the sea, and (b) a bay, inlet, lagoon, lake or body of water, whether inland or not and whether tidal or non-tidal, and (c) a river, stream or watercourse, whether tidal or non-tidal. liming material means a substance that— (a) consists of or contains dolomite (an artificially prepared or naturally occurring mixture of carbonates, oxides or hydroxides of calcium and magnesium), gypsum (the sulphate of calcium in either hydrated or anhydrous form), lime (an oxide, hydroxide or carbonate compound of calcium) or magnesite (an oxide, hydroxide or carbonate compound of magnesium), and (b) is manufactured, represented, sold or used as a means for directly or indirectly affecting the nature or composition of soil or any other matter in which vegetation is grown. local control authority—see section 370. mandatory measures—see section 24. move includes transport or distribute. negligent—see section 281. non-indigenous animal means an animal not native to Australia before European settlement. obstruction offence means an offence of— (a) furnishing false or misleading information, or (b) resisting or obstructing an authorised officer, or (c) assaulting, abusing or threatening an authorised officer. occupier, in relation to land, includes any person having the care, control or management of the land. permit means a permit granted by the Secretary or an authorised officer under Part 21. pest—see section 15. plant includes any member of the Plantae, Fungi and Protista kingdoms, whether whole or in part, and whether alive or dead. premises includes any land, building, structure or vehicle and any place, whether built on or not. prohibited dealing means a dealing described in Schedule 3. prohibited matter means biosecurity matter that is prohibited matter throughout the State or in a part of the State under section 27. prohibited matter event—see section 31. prohibited matter permit—see section 338. property, in Part 19, means any building, structure, animal products, fodder, fittings and vehicles. reasonably practicable—see section 16. recoverable amount—see section 320. registered entity—see section 157. registrable dealing means a dealing described in Schedule 4. responsible accreditation authority—see sections 194 and 242. Secretary means the Secretary of the Department. sell includes— (a) sell by wholesale, retail, auction or tender, or (b) barter or exchange, or (c) supply for profit, or (d) offer for sale, receive for sale or expose for sale, or (e) consign or deliver for sale, or (f) have in possession for sale, or (g) cause or allow any of the above to be done. special executive liability offence—see section 305. stock food means a stockfood within the meaning of the Agvet Regulations of New South Wales and also includes any block, lick, premix or stockfood supplement (within the meaning of those Regulations) and any substance prescribed by the regulations under this Act as stock food, (whether or not any such stock food is mixed or treated with a stock medicine (within the meaning of the Stock Medicines Act 1989)), but does not include— (a) a stock medicine (within the meaning of the Stock Medicines Act 1989), or (b) a substance declared by the regulations not to be a stock food, or (c) subject to the regulations, a substance that is intended to be fed to animals other than horses or animals belonging to a food-producing species. Note— Section 6 of the Agricultural and Veterinary Chemicals (New South Wales) Act 1994 gives effect to the Agvet Regulations of New South Wales. thing includes any biosecurity matter. trace element product means a substance that— (a) consists of or contains a trace element (that is, boron, cobalt, copper, iron, magnesium, manganese, molybdenum, selenium or zinc or any other element prescribed by the regulations), or any compound of a trace element, and (b) is manufactured, represented, sold or used as a means for directly or indirectly— (i) supplying nutriment for the purpose of enhancing the development, productivity, quality or reproductive capacity of vegetation, or (ii) affecting the nature or composition of soil or any other matter in which vegetation is grown. treatment measure means a treatment or process for the prevention, elimination, minimisation or management of biosecurity matter (including cleaning, fumigation, disinfection, medication and vaccination). vehicle includes a conveyance of any kind, whether or not self-propelled, and whether or not (at any material time) capable of being moved or operated, and includes— (a) any caravan, trailer, truck, train or other land vehicle, and (b) any ship, hovercraft, boat, ferry, raft and pontoon or other water craft, and (c) any aeroplane, helicopter, hot air balloon, drone or other aircraft. weed means a plant that is a pest. Western Division means that part of the State that is the Western Division within the meaning of the Crown Land Management Act 2016. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. 8 Identification of biosecurity matter (1) If biosecurity matter referred to in this Act or the regulations is referred to by both a common name and a scientific name, the common name is for information purposes only and does not limit the description of the biosecurity matter. (2) If biosecurity matter referred to in this Act or the regulations has a life cycle, a reference to the biosecurity matter includes a reference to that biosecurity matter at any stage of its life cycle. 9 Notes Notes included in this Act do not form part of this Act. Division 2 Key concepts 10 Biosecurity matter Biosecurity matter means— (a) any living thing, other than a human, or (b) any part of an animal, plant or living thing, other than a human, or (c) a product of a living thing, other than a human, or (d) a disease, or (e) a prion, or (f) a contaminant, or (g) a disease agent that can cause disease in a living thing (other than a human) or that can cause disease in a human via transmission from a non-human host to a human, or (h) any thing declared by the regulations to be biosecurity matter. 11 Carriers A carrier means any thing (whether alive, dead or inanimate, and including a human) that has, or is capable of having, any biosecurity matter on it, attached to it or contained in it. 12 Dealings (1) Deal with biosecurity matter or a carrier, or engage in a dealing with biosecurity matter or a carrier, includes any of the following— (a) keep biosecurity matter or a carrier, (b) have possession, care, custody or control of biosecurity matter or a carrier, (c) produce, manufacture or supply biosecurity matter or a carrier, (d) import biosecurity matter or a carrier into the State, (e) acquire biosecurity matter or a carrier, (f) buy, sell or dispose of biosecurity matter or a carrier, (g) move biosecurity matter or a carrier, (h) release biosecurity matter or a carrier from captivity, (i) use or treat biosecurity matter or a carrier for any purpose, (j) breed, propagate, grow, raise, feed or culture biosecurity matter or a carrier, (k) experiment with biosecurity matter or a carrier, (l) display biosecurity matter or a carrier, (m) enter into an agreement or other arrangement under which another person deals with biosecurity matter or a carrier, (n) agree to deal with biosecurity matter or a carrier, (o) cause or permit a dealing in biosecurity matter or a carrier to occur, (p) anything prescribed by the regulations as a dealing with, or engaging in a dealing with, biosecurity matter or a carrier. (2) An occupier of land is taken to have possession of any biosecurity matter or carrier on that land unless the occupier establishes that the biosecurity matter or carrier was in the possession, care, custody or control of another person. (3) The regulations may specify circumstances in which a person is taken not to be dealing with or engaging in a dealing with biosecurity matter or a carrier for the purposes of this Act or any provision of this Act. 13 Biosecurity impact (1) A biosecurity impact means an adverse effect on the economy, the environment or the community that arises, or has the potential to arise, from biosecurity matter, a carrier or dealing with biosecurity matter or a carrier, being an adverse effect that is related to— (a) the introduction, presence, spread or increase of a disease or disease agent into or within the State or any part of the State, or (b) the introduction, presence, spread or increase of a pest into or within the State or any part of the State, or (c) stock food or fertilisers, or (d) animals, plants or animal products becoming chemically affected, or (e) public nuisance caused by bees, or (f) a risk to public safety caused by bees or non-indigenous animals, or (g) any thing declared by the regulations to be a biosecurity impact. (2) An animal or plant, or a product of an animal or plant, is chemically affected if it contains a contaminant and, as a result— (a) it is or is likely to become unfit for sale or export for human consumption, or (b) it is or is likely to pose a danger to human health or to the environment, or (c) it is or is likely to be detrimental to export or other trade. Note— Plant is defined to include parts of plants (whether alive or dead). 14 Biosecurity risk Biosecurity risk means the risk of a biosecurity impact occurring. 15 Pests (1) A pest means a plant or animal (other than a human) that has an adverse effect on, or is suspected of having an adverse effect on, the environment, the economy or the community because it has the potential to— (a) out-compete other organisms for resources, including food, water, nutrients, habitat and sunlight, or (b) prey or feed on other organisms, or (c) transmit disease to other organisms, or (d) cause harm to other organisms through its toxicity, or (e) otherwise reduce the productivity of agricultural systems or the value of agricultural products, or (f) damage infrastructure, or (g) reduce the amenity or aesthetic value of premises, or (h) harm or reduce biodiversity, or (i) do any other thing, or have any other effect, prescribed by the regulations. (2) A pest includes any thing declared by the regulations to be a pest for the purposes of this Act. 16 Reasonably practicable Reasonably practicable, in relation to the prevention, elimination or minimisation of a biosecurity risk, means that which is, or was at a particular time, reasonably able to be done, taking into account and weighing up all relevant matters including— (a) the biosecurity risk concerned, and (b) the degree of biosecurity impact that arises, or might arise, from the biosecurity risk, and (c) what the person concerned knows, or ought reasonably to know, about the biosecurity risk and the ways of preventing, eliminating or minimising the risk, and (d) the availability and suitability of ways to prevent, eliminate or minimise the biosecurity risk, and (e) the cost associated with available ways of preventing, eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. Division 3 Principles that apply to biosecurity duties 17 Principles that apply to duties This Division sets out the principles that apply to all biosecurity duties that persons have under this Act. 18 Duties not transferable A biosecurity duty cannot be transferred to another person. 19 Person can have more than one duty A person can have more than one biosecurity duty. 20 More than one person can have a duty (1) More than one person can concurrently have the same biosecurity duty. (2) Each person who has a biosecurity duty must discharge that duty to the standard required by this Act even if another person has the same duty. (3) If more than one person has a biosecurity duty in relation to the same thing, each person— (a) retains responsibility for the person's duty in relation to the thing, and (b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the thing or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity. 21 Duty to prevent, eliminate or minimise biosecurity risk A duty imposed on a person to prevent, eliminate or minimise a biosecurity risk so far as is reasonably practicable is a duty— (a) to prevent or eliminate a biosecurity risk so far as is reasonably practicable, and (b) if it is not reasonably practicable to prevent or eliminate the biosecurity risk, to minimise the biosecurity risk so far as is reasonably practicable. Part 3 General biosecurity duty 22 Biosecurity duty—dealings with biosecurity matter and carriers Any person who deals with biosecurity matter or a carrier and who knows, or ought reasonably to know, the biosecurity risk posed or likely to be posed by the biosecurity matter, carrier or dealing has a biosecurity duty to ensure that, so far as is reasonably practicable, the biosecurity risk is prevented, eliminated or minimised. 23 Offence of failing to discharge biosecurity duty (1) A person who fails to discharge the person's biosecurity duty under this Part is guilty of an offence. (2) An offence against this section is a category 1 offence if— (a) the failure is intentional or reckless, and (b) the failure caused, or was likely to cause, a significant biosecurity impact. (3) In any other case, the offence is a category 2 offence. (4) An offence against this section is an executive liability offence. (5) A person who is guilty of a category 1 offence or category 2 offence against this section because the person fails to discharge the person's biosecurity duty under this Part— (a) continues, until the duty is discharged, to be required to discharge that duty, and (b) is guilty of a continuing offence (of the same category) for each day the failure continues. 24 Mandatory measures (1) The regulations may require persons who deal with biosecurity matter or carriers to take specified actions to prevent, eliminate or minimise a biosecurity risk posed or likely to be posed by the biosecurity matter, carrier or dealing. Those requirements are mandatory measures. (2) The mandatory measures may apply in relation to all or any specified class of persons, dealings, biosecurity matter or carriers. (3) A person who deals with biosecurity matter or a carrier and who contravenes any mandatory measures that are applicable to the biosecurity matter, carrier or dealing is taken to have failed to ensure that, so far as is reasonably practicable, the biosecurity risk posed or likely to be posed by the biosecurity matter, carrier or dealing is prevented, eliminated or minimised. Note— Accordingly, the person could be charged with an offence under section 23 in respect of that failure. (4) The mandatory measures may be specified to be minimum mandatory measures, in which case compliance with those measures does not, of itself, demonstrate that a person ensured that, so far as is reasonably practicable, the biosecurity risk posed or likely to be posed by the biosecurity matter, carrier or dealing was prevented, eliminated or minimised. (5) In this section, actions include— (a) refraining from doing a thing, and (b) adopting any procedures or programs. 25 Offence of failure to comply with mandatory measures (1) A person who deals with biosecurity matter or a carrier in contravention of any mandatory measures that apply to that biosecurity matter, carrier or dealing is guilty of an offence. (2) An offence against this section is a category 2 offence. (3) An offence against this section is an executive liability offence. (4) A person who is guilty of an offence against this section because of a contravention of any mandatory measures— (a) continues, until the mandatory measures are complied with and despite the fact that any specified period or time for compliance has expired or passed, to be required to comply with the mandatory measures, and (b) is guilty of a continuing offence for each day the contravention continues. (5) A person cannot be found guilty of both an offence against section 23 and an offence against this section in respect of the same conduct. (6) In proceedings for an offence against section 23 in which it is alleged the person charged with the offence contravened any mandatory measures, if the court is not satisfied that the offence is proven, but is satisfied that the person committed an offence against this section, the court may find the person guilty of an offence against this section. The person is liable to punishment accordingly. 26 Special provisions relating to weeds Schedule 1 contains further provisions relating to the requirements imposed by this Part. Those provisions relate specifically to weeds. Part 4 Prohibited matter and related biosecurity duties Division 1 Preliminary 27 What is prohibited matter (1) The biosecurity matter described in Schedule 2 is prohibited matter. (2) Biosecurity matter described in Part 1 of Schedule 2 is prohibited matter throughout the State. (3) Biosecurity matter described in Columns 1 and 2 of Part 2 of Schedule 2 is prohibited matter in that part of the State described opposite the biosecurity matter in Column 3. (4) The regulations may amend Schedule 2 by inserting, altering or omitting any items or descriptions in that Schedule. (5) The regulations may provide for transitional arrangements for the lawful disposal or destruction of biosecurity matter that becomes prohibited matter (including by providing for exceptions to offences under this Part). Division 2 Offence of dealing with prohibited matter 28 Dealings with prohibited matter (1) A person who deals with any biosecurity matter that is prohibited matter throughout the State is guilty of an offence. (2) A person who deals with biosecurity matter is guilty of an offence if— (a) the biosecurity matter is located in a part of the State in which it is prohibited matter, or (b) as a result of the dealing, the biosecurity matter enters or is likely to enter a part of the State in which it is prohibited matter. (3) An offence against subsection (1) or (2) is a category 1 offence if the offence is committed intentionally or recklessly. (4) In any other case, the offence is a category 2 offence. (5) A category 1 offence or category 2 offence against subsection (1) or (2) is an executive liability offence. (6) A person who is guilty of a category 1 offence or category 2 offence against subsection (1) or (2) because the person deals with biosecurity matter in contravention of that subsection— (a) continues, until that contravention ceases, to be liable for a contravention of subsection (1), and (b) is guilty of a continuing offence (of the same category) for each day that contravention continues. 29 Defence for unknowing possession In proceedings for a category 2 offence under this Division, it is a defence to the prosecution of an offence constituted by a person having prohibited matter in the person's possession, care, custody or control if the person charged with the offence proves that the person did not know, and could not reasonably be expected to have known, that the person had the prohibited matter in the person's possession, care, custody or control. Note— A due diligence defence applies to category 1 offences. See Part 18. Division 3 Duty to notify presence of prohibited matter 30 Biosecurity duty (1) A person who becomes aware of, or suspects, that a prohibited matter event has occurred, is occurring or is about to occur has a biosecurity duty to immediately notify the prohibited matter event in accordance with the requirements specified in the regulations. (2) A biosecurity duty arises under this Division only if the person— (a) is the owner, occupier or person in charge of, or has the care, custody or control of, premises, a carrier or other thing in relation to which the prohibited matter is present or suspected of being present, or (b) becomes aware of, or suspects, the occurrence of the prohibited matter event as a result of any consultation or other work carried out in relation to premises, a carrier or other thing in the person's professional capacity, or (c) is a person of a class prescribed by the regulations. 31 Prohibited matter event—meaning A prohibited matter event means— (a) the presence of biosecurity matter in a part of the State in which it is prohibited matter, or (b) the introduction of biosecurity matter into a part of the State in which it is prohibited matter. 32 Offence of failing to discharge biosecurity duty to notify presence of prohibited matter (1) A person who fails to discharge the person's biosecurity duty under this Division is guilty of an offence. (2) An offence against this section is a category 1 offence if the failure is intentional or reckless. (3) In any other case, the offence is a category 2 offence. (4) A category 1 offence against this section is a special executive liability offence. (5) A category 2 offence against this section is an executive liability offence. (6) A person who is guilty of a category 1 offence or category 2 offence against this section because the person fails to discharge the person's biosecurity duty under this Division— (a) continues, until the duty is discharged, to be required to discharge that duty, and (b) is guilty of a continuing offence (of the same category) for each day the failure continues. 33 Defence for failure to notify prohibited matter event that is well-known It is a defence to the prosecution of an offence under this Division if the person charged with the offence proves that the person did not notify the prohibited matter event because the person had good reason to believe that the particular circumstances that the person became aware of, or suspected, were widely and publicly known (including to the Department). 34 Protection against self-incrimination (1) Information furnished or an answer given by a natural person that the person was required to furnish or give to comply with a requirement under this Division is not admissible in evidence against the person in criminal proceedings, except proceedings for an obstruction offence. (2) Further information obtained as a result of information furnished or an answer given in compliance with a requirement under this Division is not inadmissible on the ground— (a) that the information had to be furnished or the answer had to be given, or (b) that the information furnished or answer given might incriminate the person. 35 Regulations relating to notifications The regulations may make further provision for notifications under this Division, including the following— (a) the person or persons to whom notification is to be given, (b) the form and manner in which notification is to be given, (c) the information required to be given, (d) requirements in relation to notifications (such as a requirement to provide further information or answer questions). Division 4 Duty to prevent, eliminate or minimise risk posed by prohibited matter 36 Biosecurity duty (1) A person who becomes aware of, or suspects, the presence of biosecurity matter in a part of the State in which it is prohibited matter has a biosecurity duty to ensure that, so far as is reasonably practicable, the biosecurity risk posed or likely to be posed by the prohibited matter is prevented, eliminated or minimised. (2) A biosecurity duty arises under this Division only if the person— (a) is the owner, occupier or person in charge of, or has the care, custody or control of, premises, a carrier or other thing in relation to which the prohibited matter is present or suspected of being present, or (b) becomes aware of, or suspects, the presence of prohibited matter as a result of any consultation or other work carried out in relation to premises, a carrier or other thing in the person's professional capacity, or (c) is a person of a class prescribed by the regulations. 37 Offence of failing to discharge biosecurity duty (1) A person who fails to discharge the person's biosecurity duty under this Division is guilty of an offence. (2) An offence against this section is a category 1 offence if the failure is intentional or reckless. (3) In any other case, the offence is a category 2 offence. (4) A category 1 offence or category 2 offence against this section is an executive liability offence. (5) A person who is guilty of a category 1 offence or category 2 offence against this section because the person fails to discharge the person's biosecurity duty under this Division— (a) continues, until the duty is discharged, to be required to discharge that duty, and (b) is guilty of a continuing offence (of the same category) for each day the failure continues. Division 5 Duty to notify biosecurity events 38 Biosecurity duty (1) A person who becomes aware of, or suspects, the existence of a biosecurity event has a biosecurity duty to immediately notify the biosecurity event in accordance with the requirements specified in the regulations. (2) A biosecurity duty arises under this Division only if the person— (a) is the owner, occupier or person in charge of, or has the care, custody or control of, premises, a carrier or other thing in relation to which the biosecurity event has occurred, is occurring or is likely to occur, or (b) becomes aware of, or suspects, the biosecurity event as a result of any consultation or other work carried out in relation to premises, a carrier or other thing in the person's professional capacity, or (c) is a person of a class prescribed by the regulations. 39 Biosecurity event—meaning (1) A biosecurity event means something that has occurred, is occurring or is likely to occur and that has had, is having, or is likely to have, a significant biosecurity impact, other than a prohibited matter event. (2) A biosecurity event includes anything declared by the regulations to be a biosecurity event. 40 Offence of failing to discharge biosecurity duty to notify event (1) A person who fails to discharge the person's biosecurity duty under this Division is guilty of an offence. (2) An offence against this section is a category 1 offence if the failure is intentional or reckless. (3) In any other case, the offence is a category 2 offence. (4) A category 1 offence or category 2 offence against this section is an executive liability offence. (5) A person who is guilty of a category 1 offence or category 2 offence against this section because the person fails to discharge the person's biosecurity duty under this Division— (a) continues, until the duty is discharged, to be required to discharge that duty, and (b) is guilty of a continuing offence (of the same category) for each day the failure continues. 41 Defence for failure to notify event that is well-known It is a defence to the prosecution of an offence under this Division if the person charged with the offence proves that the person did not notify the biosecurity event because the person had good reason to believe that the particular circumstances that the person became aware of, or suspected, were widely and publicly known (including to the Department). 42 Protection against self-incrimination (1) Information furnished or an answer given by a natural person that the person was required to furnish or give to comply with a requirement under this Division is not admissible in evidence against the person in criminal proceedings, except proceedings for an obstruction offence. (2) Further information obtained as a result of information furnished or an answer given in compliance with a requirement under this Division is not inadmissible on the ground— (a) that the information had to be furnished or the answer had to be given, or (b) that the information furnished or answer given might incriminate the person. 43 Regulations relating to notifications The regulations may make further provision for notifications under this Division, including the following— (a) the person or persons to whom notification is to be given, (b) the form and manner in which notification is to be given, (c) the information required to be given, (d) requirements in relation to notifications (such as a requirement to provide further information or answer questions). Part 5 Emergency orders Division 1 Emergency orders 44 Emergency order (1) The Secretary may, by order in writing (an emergency order)— (a) declare a biosecurity emergency, and (b) establish measures to respond to that biosecurity emergency. (2) The Secretary may make an emergency order only if the Secretary is satisfied, or reasonably suspects, that there is a current or imminent biosecurity risk that may have a significant biosecurity impact. (3) The principal objects of an emergency order are— (a) to isolate an emergency zone or biosecurity matter, and (b) to prevent the spread of the biosecurity matter, and (c) to eradicate the biosecurity matter (if practicable). (4) However, the principal objects of an emergency order do not limit the matters that may be provided for by an emergency order. 45 Content of emergency order An emergency order is to specify the following— (a) the biosecurity matter, biosecurity risk or biosecurity impact that is the subject of the emergency, (b) the emergency zone or zones, (c) the emergency measures, (d) the persons or class of persons to whom the emergency measures apply, (e) the duration of the emergency order. 46 Notice of emergency order (1) The Secretary is to give notice of an emergency order by causing a copy of the order to be published on a NSW Government website used by the Department or in the Gazette (or both). (2) The Secretary is to take reasonable steps to ensure that persons who are likely to be directly affected by the order are made aware of the order. 47 Notice of property specific order (1) The Secretary may, if the Secretary considers it appropriate in the circumstances, give notice of an emergency order that is property specific by causing a copy of the order to be served on the owner, occupier or person apparently in charge of the affected property (instead of by publishing the order on a NSW Government website used by the Department or in the Gazette). (2) An emergency order is property specific if it relates to specified premises, specified biosecurity matter or any other specified thing (each of which is affected property). 48 Duration of emergency order (1) An emergency order remains in force for the period specified in the order, not exceeding 6 months from the date the order is made. (2) The Secretary may, by making an order that amends an emergency order, extend the period during which an emergency order remains in force for a further period (not exceeding 6 months). (3) The period during which an emergency order remains in force may be extended any number of times. Division 2 Matters for which emergency order may provide 49 Emergency zone (1) An emergency zone is the principal area or areas in relation to which, in the opinion of the Secretary, measures are required to be implemented under the emergency order. (2) An emergency zone may be— (a) any specified premises or specified part of premises, or (b) any specified area, or (c) the whole or any specified part of the State. (3) An emergency order may provide for more than one emergency zone and for different classes of emergency zone. 50 Emergency measures (1) The emergency measures are the measures that the Secretary establishes under an emergency order to respond to a biosecurity emergency. (2) The Secretary may specify, as emergency measures, any measures that the Secretary decides are reasonably necessary to respond to the biosecurity emergency concerned. (3) The emergency measures are to be no more onerous than the Secretary considers necessary having regard to the nature of the biosecurity emergency. (4) In deciding on the emergency measures, the Secretary is to have regard to the principal objects of an emergency order and any other matters the Secretary considers are relevant. (5) The emergency measures may apply— (a) within an emergency zone, and (b) outside an emergency zone, but only if the Secretary considers that reasonably necessary having regard to the nature of the biosecurity emergency. (6) The emergency measures may— (a) prohibit, regulate or control the doing of any thing, or (b) require or authorise the doing of any thing. (7) A power to require the doing of a thing includes a power to require a person to arrange for that thing to be done. 51 Examples of emergency measures Without limiting the powers conferred on the Secretary by this Part, emergency measures may include provisions that prohibit, regulate or control, or that require or authorise, any of the following— (a) activities that involve biosecurity matter, a carrier or a potential carrier, (b) the use of premises for an activity that involves biosecurity matter, a carrier or a potential carrier, (c) the movement of any biosecurity matter, carrier, potential carrier or other thing, (d) the isolation, confinement or detention of any biosecurity matter or other thing, (e) treatment measures to be carried out in relation to biosecurity matter, a carrier, a potential carrier, premises or other thing, (f) the erection or repair of fencing, gates or any other method of enclosure, or the taking of any other specified security or containment measures in relation to any premises, biosecurity matter or other thing, (g) the erection of signs, (h) the provision of samples of any biosecurity matter or other thing, (i) the testing of any biosecurity matter or other thing, (j) the obtaining of a biosecurity certificate in relation to any biosecurity matter or other thing, (k) the installation or use of a device at any premises, for the purpose of detecting or monitoring the presence of any biosecurity matter or other thing or capturing any biosecurity matter or other thing, (l) the destruction, disposal or eradication of any thing (including by specifying the manner of destruction, disposal or eradication), (m) any other matters expressly authorised by the regulations. 52 Special powers (1) In addition, the emergency measures may do any of the following— (a) prohibit, regulate or control entry to or exit from any specified premises or area, (b) prohibit, regulate or control the use of any road within or going into or out of a specified premises or area (including by closing roads), (c) require persons entering or leaving any specified premises or area in a vehicle to stop and, if required by an authorised officer— (i) permit the vehicle to be inspected, and (ii) permit treatment measures to be carried out in relation to the vehicle, (d) require persons entering or leaving any specified premises or area to stop and, if required by an authorised officer— (i) permit themselves and any thing in their care, custody or control to be inspected, and (ii) carry out or permit external treatment measures to be carried out in relation to themselves and any thing in their care, custody or control, (e) prohibit a person from entering or leaving any specified premises or area unless the person has done either or both of the following— (i) carried out, in relation to himself or herself, any specified external treatment measure, (ii) carried out, in relation to any thing in the person's care, custody or control, any specified treatment measure. (2) An emergency order cannot prohibit, regulate or control the movement of a person, except as expressly provided for by this section. (3) Subsection (2) does not prevent emergency measures being imposed in relation to any biosecurity matter, premises, activity or thing that have an impact on the movement of a person but that are not imposed for the purpose of restricting the movement of a person. Note— For example, emergency measures could prohibit persons from taking a particular animal or plant out of premises. This measure may have an impact on the movement of a person but is not imposed for that purpose. Division 3 Limitations that apply to emergency order 53 Treatment of persons (1) An emergency order cannot require any treatment measure to be carried out on a person, other than an external treatment measure. (2) An emergency order cannot require a person to provide samples of the person's blood, hair, saliva or any other body part or body fluid. 54 Inspection of persons A requirement in an emergency order that persons permit themselves to be inspected by an authorised officer authorises the authorised officer to require a person to do any of the following— (a) to submit to a visual inspection (including of the exterior of the person's clothing and shoes), (b) to shake, or otherwise move, the person's hair. 55 Destruction requirements (1) An emergency order cannot require or authorise the destruction of biosecurity matter or any other thing unless— (a) the Secretary is of the opinion that the destruction is reasonably necessary to prevent, eliminate or minimise a significant biosecurity impact, or (b) the biosecurity matter to be destroyed is an animal and the Secretary is of the opinion that the destruction is necessary to ensure that the other emergency measures provided for by the emergency order do not have or continue to have an adverse effect on animal welfare. (2) To avoid doubt, distress or likely distress to an animal is an adverse effect on animal welfare. (3) Part 2B of the Prevention of Cruelty to Animals Act 1979 does not apply to the destruction of an animal as required or authorised by an emergency order. 56 Persons directly affected by destruction requirement to be advised of requirement If an emergency order requires or authorises the destruction of any biosecurity matter or other thing, the Secretary must ensure that a copy of the order is given to the owner or person in charge of the biosecurity matter or thing, unless— (a) there appears to be no one immediately in control of it, and the owner or person in charge cannot, after such search and inquiry as is reasonable in the circumstances, be located, and (b) the Secretary considers that, in the circumstances, the order must be carried out without prior notice to the owner or person in charge. Division 4 Effect of order 57 Order prevails over other instruments An emergency order prevails, to the extent of any inconsistency, over the following— (a) the regulations, (b) any biosecurity registration, permit (other than an emergency permit) or exemption granted under this Act, (c) any control order, (d) any other instrument made or issued under this Act. 58 Offence of contravening emergency order (1) A person who contravenes an emergency order is guilty of an offence. (2) An offence against this section is a category 1 offence if the contravention is intentional or reckless. (3) In any other case, the offence is a category 2 offence. (4) A category 1 offence against this section is a special executive liability offence. (5) A category 2 offence against this section is an executive liability offence. (6) A person who is guilty of a category 1 offence or category 2 offence against this section because the person contravenes a requirement of an emergency order— (a) continues, until the requirement is complied with and despite the fact that any specified period or time for compliance has expired or passed, to be liable to comply with the requirement, and (b) is guilty of a continuing offence (of the same category) for each day the contravention continues. (7) Subsection (6) does not apply to the extent that a requirement of an emergency order is revoked. (8) A person does not commit an offence against this section of contravening an emergency order unless— (a) the order was published on a NSW Government website used by the Department or in the Gazette, or (b) the person was served with a copy of the order. 59 Secretary may authorise required actions and recover costs (1) If a person (the liable person) fails to comply with an emergency order, the Secretary may authorise any person to enter premises and take any actions in relation to those premises, or any thing on those premises, that the liable person is required to take by the order or that are otherwise necessary to remedy that failure. (2) The Secretary may charge the liable person a fee for action taken under this section. (3) The fee is to be no more than is reasonable to cover the costs and expenses incurred in connection with the action. (4) Costs and expenses incurred include costs and expenses incurred by or on behalf of any government agency. (5) The fee is— (a) a recoverable amount that is payable to the Secretary, and (b) recoverable from the liable person. Note— See Part 20, which provides for the recovery of recoverable amounts. (6) The Secretary must give an occupier of premises used for residential purposes written notice of an intention to enter any part of the premises used only for residential purposes under this section. (7) The notice must specify the day on which the premises are intended to be entered and must be given before that day. (8) Notice is not required to be given if— (a) entry is made with the consent of the occupier of the premises, or (b) entry is made under the authority of a search warrant. (9) This section does not prevent the taking of proceedings for an offence of contravening an emergency order. Division 5 General 60 Amendment or revocation of emergency order (1) The Secretary may, by order in writing, amend or revoke an emergency order. (2) An amendment to an emergency order may make provision for any matter for which an emergency order may make provision. (3) An amendment to, or revocation of, an emergency order takes effect, and is to be notified, in the same way as an emergency order. 61 Protection of emergency actions (1) A court or tribunal must not issue an interim injunction, make any other interim order or give any other interim relief having the effect of preventing, restricting or deferring any emergency order or anything authorised or required to be done pursuant to an emergency order during the period in which the order has effect. (2) This section does not prevent a court from making a permanent injunction or other final order in any proceedings at any time. Part 6 Control orders Division 1 Control orders 62 Control order (1) The Minister may, by order in writing (a control order)— (a) establish one or more control zones, and (b) establish measures, in connection with a control zone, to prevent, eliminate, minimise or manage a biosecurity risk or biosecurity impact. (2) The Minister may make a control order if the Minister reasonably believes that the order is necessary to prevent, eliminate, minimise or manage a biosecurity risk or biosecurity impact. (3) The principal object of a control order is to prevent the introduction of, or eradicate, biosecurity matter that poses or is likely to pose a biosecurity risk. (4) A control order may also serve as a measure for the management of a biosecurity risk or biosecurity impact. In that case, an additional or alternative object of the control order is to provide for the management of a biosecurity risk or biosecurity impact. (5) Subsections (3) and (4) do not limit the matters that may be provided for by a control order. 63 Content of control order A control order is to specify the following— (a) the biosecurity matter, biosecurity risk or biosecurity impact to which the control order relates, (b) the control zone or zones, (c) the control measures, (d) the persons or class of persons to whom the control measures apply, (e) the duration of the control order. 64 Notice of control order (1) The Minister is to give notice of a control order by causing a copy of the order to be published on a NSW Government website used by the Department or in the Gazette (or both). (2) The Minister is to take reasonable steps to ensure that persons who are likely to be directly affected by the order are made aware of the order. 65 Notice of property specific order (1) The Minister may, if the Minister considers it appropriate in the circumstances, give notice of a control order that is property specific by causing a copy of the order to be served on the owner, occupier or person apparently in charge of the affected property (instead of by publishing the order on a NSW Government website used by the Department or in the Gazette). (2) A control order is property specific if it relates to specified premises, specified biosecurity matter or any other specified thing (each of which is affected property). 66 Duration of control order (1) A control order has effect for the period specified by the Minister in the order, not exceeding 5 years from the date the order is made. (2) The Minister may, by making an order that amends a control order, extend the period during which a control order has effect for a further period (not exceeding 5 years). (3) The period during which a control order has effect may be extended any number of times. Division 2 Matters for which control order may provide 67 Control zone (1) A control zone is the principal area or areas in relation to which, in the opinion of the Minister, measures are required to be implemented under the control order. (2) A control zone may be— (a) any specified premises or specified part of premises, or (b) any specified area, or (c) the whole or any specified part of the State. (3) A control order may provide for more than one control zone and for different classes of control zone. 68 Control measures (1) The control measures are the measures that the Minister establishes under a control order to prevent, eliminate, minimise or manage the biosecurity risk or biosecurity impact to which the order relates. (2) The Minister may specify, as control measures under a control order, any measures that the Minister decides are reasonably necessary to prevent, eliminate, minimise or manage the biosecurity risk or biosecurity impact to which the order relates. (3) The control measures are to be no more onerous than the Minister considers necessary having regard to the nature of the biosecurity risk or biosecurity impact to which the order relates. (4) In deciding on the control measures, the Minister is to have regard to the principal objects of a control order and any other matters the Minister considers relevant. (5) The control measures may apply— (a) within a control zone, and (b) outside a control zone, but only if the Minister considers that reasonably necessary having regard to the nature of the biosecurity risk or biosecurity impact. (6) The control measures may— (a) prohibit, regulate or control the doing of any thing, or (b) require or authorise the doing of any thing. (7) A power to require the doing of a thing includes a power to require a person to arrange for that thing to be done. 69 Examples of control measures Without limiting the powers conferred on the Minister by this Part, control measures may include provisions that prohibit, regulate or control, or that require or authorise, any of the following— (a) activities that involve biosecurity matter, a carrier or a potential carrier, (b) the use of premises for an activity that involves biosecurity matter, a carrier or a potential carrier, (c) the movement of any biosecurity matter or other thing, (d) the isolation, confinement or detention of any biosecurity matter or other thing, (e) treatment measures to be carried out in relation to biosecurity matter, premises or any other thing, (f) the erection or repair of fencing, gates or any other method of enclosure, or the taking of any other specified security or containment measures in relation to any premises, biosecurity matter or other thing, (g) the erection of signs, (h) the provision of samples of any biosecurity matter or other thing, (i) the testing of any biosecurity matter or other thing, (j) the obtaining of a biosecurity certificate in relation to biosecurity matter or any other thing, (k) the installation or use of a device at any premises, for the purpose of detecting or monitoring the presence of any biosecurity matter or other thing or capturing any biosecurity matter or other thing, (l) the destruction, disposal or eradication of any thing (including by specifying the manner of destruction, disposal or eradication), (m) any other matters expressly authorised by the regulations. Division 3 Limitations that apply to control order 70 Consultation required for control order affecting game animals (1) A control order in relation to or affecting a game animal (being a game animal within the meaning of the Game and Feral Animal Control Act 2002 that is specified in Part 1 or 1A of Schedule 3 to that Act) may only be made after consultation with the Chairperson of the Game and Pest Management Advisory Board constituted under that Act. (2) A failure to comply with this section does not affect the validity of a control order. 71 Consultation required for control order affecting native flora or fauna (1) A control order in relation to or affecting native flora or fauna may only be made after consultation with the Minister for the Environment. (2) A failure to comply with this section does not affect the validity of a control order. 72 Detention or treatment of persons (1) A control order cannot— (a) prohibit, regulate or control the movement of a person, or (b) require any treatment measure to be carried out on a person. (2) A control order cannot require a person to provide samples of the person's blood, hair, saliva or any other body part or body fluid. (3) Subsection (1)(a) does not prevent a control measure being imposed in relation to any biosecurity matter, premises, area, activity or thing that has an impact on the movement of a person but is not imposed for the purpose of restricting the movement of a person. Note— For example, a control measure cannot prohibit a person from leaving premises but could prohibit a person from taking a particular animal out of premises. This measure may have an impact on the movement of a person but is not imposed for that purpose. 73 Destruction requirements (1) A control order cannot require or authorise the destruction of a thing unless— (a) the thing is, or is reasonably suspected of being, prohibited matter, or (b) the thing is a carrier of, or reasonably suspected of being a carrier of, prohibited matter, or (c) the thing is a pest to which the control order relates, or (d) the thing is, or is reasonably suspected of being, infected or infested with, or harbouring, the biosecurity matter to which the control order relates and there are no other reasonably practicable treatment measures that could eliminate or minimise the biosecurity risk posed by the biosecurity matter, or