Subdivision AEstablishment and functions of the Board

An Act to establish an authority for the registration of agricultural and veterinary chemicals, and for related purposes ## Part 1—Preliminary #### 1 Short title This Act may be cited as the Agricultural and Veterinary Chemicals (Administration) Act 1992. #### 2 Commencement (1) Subject to subsection (2), this Act commences on a day to be fixed by Proclamation. (2) If this Act does not commence under subsection (1) within the period of 6 months beginning on the day on which it receives the Royal Assent, it commences on the first day after the end of that period. #### 3 Object The object of this Act is to establish a national registration authority to administer such laws of the Commonwealth or of the States and Territories relating to agricultural and veterinary chemical products as confer functions and powers on the Authority. #### 4 Interpretation In this Act, unless the contrary intention appears: > appointed Board member means a Board member other than the Chief Executive Officer. > APVMA means the Australian Pesticides and Veterinary Medicines Authority continued in existence by section 6. > Board means the Board of the APVMA established by section 14. > Board member means a member of the Board. > Chair means the Chair of the Board. > chemical product has the same meaning as in the Agvet Code of the participating Territories. > Chief Executive Officer means the Chief Executive Officer appointed in accordance with section 33. > civil penalty order has the meaning given by subsection 69EJ(4). > civil penalty provision means a provision declared by this Act or the Collection Act to be a civil penalty provision. > Collection Act means the Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994. > committee means a committee established under section 28. > confidential commercial information has the same meaning as in the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994. > copy, in relation to a warrant issued under section 69EH or 69EHA (or a form of warrant completed under subsection 69EHB(6)), includes: (a) a copy sent by fax or other electronic means; or (b) a copy of a copy so sent. > damage has the same meaning as in the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994. > data has the same meaning as in the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994. > evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. > evidential material means any of the following: (a) a thing with respect to which an offence against this Act or the Collection Act has been committed or is suspected, on reasonable grounds, to have been committed; (b) a thing with respect to which a civil penalty provision has been contravened or is suspected, on reasonable grounds, to have been contravened; (c) a thing that there are reasonable grounds for suspecting will afford evidence as to the commission of such an offence or contravention of such a civil penalty provision; (d) a thing that there are reasonable grounds for suspecting is intended to be used for the purpose of committing such an offence or contravening such a civil penalty provision. > executive officer of a body corporate means a person, by whatever name called and whether or not a director of the body, who is concerned in, or takes part in, the management of the body. > Finance Minister means the Minister who administers the Public Governance, Performance and Accountability Act 2013. > Gene Technology Regulator has the same meaning as in the Gene Technology Act 2000. > GM product has the same meaning as in the Gene Technology Act 2000. > industry means the agricultural and veterinary chemicals industry. > inspector means: (a) a person appointed as an inspector for the purposes of this Act under subsection 69F(1); or (b) a person to whom an authorisation referred to in subsection 69F(2) applies for the purposes of this Act. > investigation powers has the meaning given by sections 69EBA, 69EBB and 69EBC. > investigation warrant means: (a) a warrant issued under section 69EHA; or (b) a warrant signed by a magistrate under section 69EHB, being a warrant of the same kind as would have been issued under section 69EHA. > member of the staff, in relation to the APVMA, means: (a) a person referred to in subsection 45(1); or (b) a person whose services are made available to the APVMA under paragraph 46(1)(a) or under arrangements made under subsection 46(2). > monitoring powers has the meaning given by sections 69EAC, 69EAD and 69EAE. > monitoring warrant means: (a) a warrant issued under section 69EH; or (b) a warrant signed by a magistrate under section 69EHB, being a warrant of the same kind as would have been issued under section 69EH. > occupier has the same meaning as in the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994. > paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise). > participating Territory has the same meaning as in the Agricultural and Veterinary Chemicals Act 1994. > person assisting an inspector: (a) in relation to the exercise of monitoring powers—has the meaning given by section 69EAF; and (b) in relation to the exercise of investigation powers—has the meaning given by section 69EBD. > premises has the same meaning as in the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994. > prescribed civil penalty provision means a civil penalty provision that is prescribed by the regulations. > relevant data means information relevant to determining whether: (a) this Act, or the Collection Act, has been, or is being, complied with; or (b) information provided under this Act, or the Collection Act, is correct; or (c) levy is payable under the Collection Act. > State includes the Northern Territory. > Territory does not include the Northern Territory. > warrant means a monitoring warrant or an investigation warrant. #### 5 Extension to external Territories This Act extends to every external Territory that is a participating Territory. #### 5A Application of the Criminal Code Chapter 2 (other than Part 2.5) of the Criminal Code applies to all offences against this Act. > Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. ## Part 2—Establishment, functions and powers of APVMA #### 6 Australian Pesticides and Veterinary Medicines Authority The body known immediately before the commencement of this section as the National Registration Authority for Agricultural and Veterinary Chemicals is continued in existence with the new name, Australian Pesticides and Veterinary Medicines Authority. #### 7 Functions and powers (1) The APVMA has any functions and powers that are conferred on it by or under this Act or the Agvet Code, or the Agvet Regulations, of the participating Territories. (1A) The functions of the APVMA include the following: (a) to assess the suitability for supply in Australia of active constituents for proposed or existing chemical products, chemical products and labels for containers for chemical products; (b) to provide information to the Governments and authorities of the Commonwealth, the States and the participating Territories about approved active constituents for proposed or existing chemical products, registered chemical products, reserved chemical products and approved labels for containers for chemical products and to co‑operate with those Governments and authorities on matters relating to the management and control of chemical products; (c) to keep records and statistics of approvals and registrations granted, and permits and licences issued, by it under the Agvet Codes; (d) to evaluate the effects of the use of chemical products in the States and participating Territories; (e) to co‑operate with Governments and authorities of the Commonwealth, the States and the participating Territories for the purpose of facilitating a consistent approach to the assessment and control of chemicals; (f) in co‑operation with Governments and authorities of the Commonwealth, the States and the participating Territories, to develop codes of practice, standards and guidelines for, and to recommend precautions to be taken in connection with, the manufacture, export, import, sale, handling, possession, storage, disposal and use of chemical products in the States and participating Territories; (g) to collect, interpret, disseminate and publish information relating to chemical products and their use; (h) to encourage and facilitate the application and use of results of evaluation and testing of chemical products; (i) to exchange information relating to chemical products and their use with overseas and international bodies having functions similar to the APVMA’s functions; (j) when requested by the Minister, or on its own initiative, to report to or advise the Minister on any matter relating to chemical products or arising in the course of the performance of its functions; (k) to encourage and facilitate the introduction of uniform national procedures for control of the use of chemical products; (l) to fund, and co‑operate in, a program designed to ensure that active constituents for proposed or existing chemical products, chemical products, and labels for containers for chemical products, comply with the Agvet Codes and the Agvet Regulations. (1B) Expressions used in subsection (1A) have the same meanings as in the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994. (1C) The APVMA has any functions and powers that are conferred on it by Division 2A of Part 3 of the Food Standards Australia New Zealand Act 1991. (2) The APVMA has any functions and powers that are expressed to be conferred on it by a law of a State. (3) The APVMA has power to do all things necessary or convenient to be done in connection with the performance of its functions and, in particular, may: (a) enter into contracts; and (b) acquire, hold and dispose of real and personal property; and (c) occupy, use and control any land or building owned or held under lease by the Commonwealth, a State or a Territory and made available for the purposes of the APVMA; and (d) appoint agents and attorneys, and act as agent for other persons; and (da) make available to the public, either without charge or upon payment of a fee to the APVMA, manuals, reports, lists of requirements and other documents; and (e) do anything incidental to any of its powers. (4) In the performance of its functions and the exercise of its powers, the APVMA is to have regard to the Commonwealth Government’s policy in relation to the principle of ecologically sustainable development and, in particular, to the need to use, conserve and enhance the community’s resources so that ecological processes, on which life depends, are maintained, and the total quality of life, now and in the future, can be increased. #### 7A Approval of standards for certain residues of chemical products (1) The APVMA must, by legislative instrument, approve standards for residues of chemical products in protected commodities. (2) In this section: > protected commodity has the same meaning as in the Agvet Code. #### 8 Consultation (1) The APVMA, for the purpose of considering any matter, or obtaining information or advice, relating to the performance of its functions, may consult with persons or bodies, including: (a) persons or bodies involved in the industry; and (b) the Commonwealth Government or State Governments or Commonwealth or State authorities having functions relating to agricultural or veterinary chemicals; and (ba) a national regulatory authority of a foreign country that has national responsibility relating to the evaluation, registration or control of agricultural or veterinary chemical products; and (c) persons (including members of the scientific community) having a particular interest in matters associated with the industry; and (d) persons or bodies having a particular interest in the protection of the interests of consumers or in the protection of the environment. (1A) If the matter that is being considered by the APVMA, or in respect of which the APVMA is seeking information or advice, relates to an active constituent for a proposed or existing chemical product, a chemical product, or a label for containers for a chemical product, the APVMA may make available to the person or body concerned: (a) information obtained by it with respect to the constituent, product or label; and (b) samples of the constituent, of any of the active constituents of the product, or of the product, or samples or copies of the label, as the case may be. (2) The APVMA may: (a) pay travel expenses reasonably incurred by a person in connection with consultations by the APVMA; and (b) subject to written guidelines given to the APVMA by the Minister, pay expenses (other than travel expenses) reasonably incurred by a body or person in connection with consultations by the APVMA. #### 8A Consultation with Gene Technology Regulator (1) This section applies to the following: (a) an active constituent for a proposed or existing chemical product, being an active constituent that is or contains a GM product; (b) a proposed or existing chemical product that is or contains a GM product. (2) The APVMA must consult the Gene Technology Regulator in accordance with this section for the purposes of the following: (a) deciding an application under the Code in relation to any of the following: (i) approval of the active constituent; (ii) registration of the chemical product; (iii) approval of a label for containers for the chemical product; (b) deciding an application under the Code in relation to a variation of any of the following: (i) the approval of the active constituent; (ii) the registration of the chemical product; (iii) the approval of a label for containers for the chemical product; if the variation may affect the GM product; (c) reconsidering any of the following: (i) the approval of the active constituent; (ii) the registration of the chemical product; (iii) the approval of a label for containers for the chemical product; (d) deciding whether to issue a permit in respect of: (i) the active constituent; or (ii) the chemical product. (3) If the APVMA is required to consult the Gene Technology Regulator under subsection (2), the APVMA must give written notice to the Gene Technology Regulator: (a) stating that the application has been made, the reconsideration is to be undertaken, or the issue of the permit is being considered; and (b) requesting the Gene Technology Regulator to give advice about the application, reconsideration, or issue. (4) If the APVMA gives the Gene Technology Regulator a notice under subsection (3), the Gene Technology Regulator may give written advice to the APVMA about the application, reconsideration, or issue. (5) The advice is to be given within the period specified in the notice. (6) If the APVMA receives advice from the Gene Technology Regulator in response to a notice under this section within the period specified in the notice, the APVMA must: (a) ensure that the advice is taken into account in making a decision on the application, reconsideration, or issue to which the notice relates; and (b) inform the Gene Technology Regulator of the decision. (7) Unless the contrary intention appears, expressions used in this section have the same meanings as in the Agricultural and Veterinary Chemicals Code Act 1994. #### 9 Agreements and arrangements (1) The Minister, or a person authorised in writing by the Minister, may enter into an agreement or arrangement with a Minister of a State for the performance of functions or the exercise of powers by the APVMA as an agent of the State. (2) The APVMA has such functions and powers as are referred to in such an agreement or arrangement. #### 9A APVMA to comply with policies of Governments of Commonwealth, States and participating Territories If there is an agreement in force between the Government of the Commonwealth and the Governments of all or any of the States and participating Territories for the purposes of this Act and the Agvet Codes, the APVMA must, in the performance of its functions and the exercise of its powers, comply with any policies of those Governments determined under the agreement. #### 10 Minister may give directions (1) Subject to subsection (2), the Minister may give written directions to the APVMA concerning the performance of its functions or the exercise of its powers, and the APVMA must comply with any such direction. (2) The Minister must not give a direction to the APVMA unless: (a) the Minister is satisfied that it is necessary to give the direction to the APVMA in order to ensure that, in performing its functions, or exercising its powers, the APVMA complies with policies referred to in section 9A; and (b) the Minister has given to the APVMA a written notice stating that the Minister is considering giving the direction; and (c) the Minister has given to the Board an adequate opportunity to discuss with the Minister the need for the proposed direction. (3) Subject to subsection (4), if the Minister gives a direction to the APVMA, the Minister must: (a) cause a notice setting out particulars of the direction to be published in the Gazette as soon as practicable after giving the direction; and (b) cause a copy of that notice to be laid before each House of the Parliament within 15 sitting days of that House after the publication of the notice in the Gazette. (4) Subsection (3) does not apply in relation to a particular direction if the Minister determines, in writing, that compliance with the subsection is undesirable because it would, or would be likely to, be prejudicial to the national interest of Australia. (5) A direction under subsection (1) is not a legislative instrument. #### 11 Delegation by APVMA (1) The APVMA may, by writing under its common seal, delegate to: (b) a committee; or (c) a member of the staff of the APVMA; or (d) an authority of the Commonwealth; or (e) a person appointed or engaged under the Public Service Act 1999; all or any of the APVMA’s powers and functions. (1A) The APVMA may only delegate its powers under section 130 or section 131AA of the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 to a member of staff who is an SES, or acting SES, employee. (2) A delegate of the APVMA is, in the exercise of the delegate’s delegated powers and functions, subject to the APVMA’s directions. ## Part 3—Constitution of APVMA, the Board and committees ### Division 1—Constitution of APVMA #### 12 APVMA is body corporate etc. (1) The APVMA: (a) is a body corporate with perpetual succession; and (b) is to have a common seal; and (c) may sue and be sued in its corporate name. (2) The common seal of the APVMA must be kept in such custody as the APVMA directs and must not be used except as authorised by the APVMA. (3) All courts, judges and persons acting judicially must take judicial notice of the imprint of the common seal of the APVMA appearing on a document and must presume that it was duly affixed. ### Division 2—Board of the APVMA #### Subdivision A—Establishment and functions of the Board #### 14 Establishment of the Board The Board of the APVMA is established by this section. #### 15 Functions and powers of the Board (1) The functions of the Board are: (a) to ensure the proper, efficient and effective performance of the APVMA’s functions; and (b) to determine objectives, strategies and policies to be followed by the APVMA; and (c) to do anything incidental to or conducive to the performance of the functions referred to in paragraph (a) or (b). (2) In determining objectives, strategies and policies to be followed by the APVMA, the Board must have regard to section 1A of the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994. (3) The Board has power to do all things necessary or convenient to be done for or in connection with the performance of its functions. #### 16 Limitation on functions and powers of the Board To avoid doubt, the functions and powers of the Board do not include making decisions under any of the following: (a) Part 7A, 7AA, 7AB or 8 of this Act; (b) the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994; (c) regulations made under the Agricultural and Veterinary Chemicals Code Act 1994; (d) the Agricultural and Veterinary Chemicals Act 1994; (e) the Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994. #### Subdivision B—Board members #### 17 Membership of the Board The Board consists of the following members: (a) the Chair; (b) the Chief Executive Officer; (c) 3 other members. #### 18 Appointment of appointed Board members (1) The appointed Board members are to be appointed by the Minister by written instrument, on a part‑time basis. > Note: An appointed Board member may be reappointed: see section 33AA of the Acts Interpretation Act 1901. (2) A person must not be appointed as an appointed Board member unless the Minister is satisfied that the person has appropriate qualifications, skills or experience in one or more of the following fields: (a) financial management; (b) law; (c) risk management; (d) public sector governance; (e) science (including agricultural science and veterinary science); (f) public health or occupational health and safety. (3) In appointing the appointed Board members, the Minister must ensure, to the extent practicable, that the appointed Board members are an appropriate mix of persons with the qualifications, skills or experience referred to in subsection (2). #### 19 Term of appointment (1) An appointed Board member holds office for the period specified in the instrument of appointment. The period must not exceed 4 years. (2) The appointed Board member is eligible to be reappointed on one occasion after the appointed Board member’s first appointment. #### 20 Acting Board members Acting as the Chair (1) The Minister may, by written instrument, appoint an appointed Board member to act as the Chair: (a) during a vacancy in the office of Chair, whether or not an appointment has previously been made to the office; or (b) during any period, or during all periods, when the Chair: (i) is absent from duty or from Australia; or (ii) is, for any reason, unable to perform the duties of the office. > Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901. Acting as an appointed Board member (except the Chair) (2) The Minister may, by written instrument, appoint a person to act as an appointed Board member (except the Chair): (a) during a vacancy in the office of an appointed Board member (except the Chair), whether or not an appointment has previously been made to the office; or (b) during any period, or during all periods, when an appointed Board member (except the Chair): (i) is absent from duty or from Australia; or (ii) is, for any reason, unable to perform the duties of the office. > Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901. (3) A person is not eligible for appointment under subsection (2) unless the Minister is satisfied that the person has appropriate qualifications, skills or experience in one or more of the fields referred to in subsection 18(2). #### 21 Remuneration (1) An appointed Board member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the regulations. (2) An appointed Board member is to be paid the allowances that are prescribed by the regulations. (3) This section has effect subject to the Remuneration Tribunal Act 1973. #### 22 Paid work An appointed Board member must not engage in any paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of the member’s duties. #### 23 Leave of absence (1) The Minister may grant leave of absence to the Chair on the terms and conditions that the Minister determines. (2) The Chair may grant leave of absence to any other appointed Board member on the terms and conditions that the Chair determines. #### 24 Resignation of appointment (1) An appointed Board member may resign the member’s appointment by giving the Minister a written resignation. (2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day. #### 25 Termination of appointment The Minister may terminate the appointment of an appointed Board member: (a) for misbehaviour; or (b) if the appointed Board member is unable to perform the duties of the member’s office because of physical or mental incapacity; or (c) if the appointed Board member: (i) becomes bankrupt; or (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or (iii) compounds with the member’s creditors; or (iv) makes an assignment of the member’s remuneration for the benefit of the member’s creditors; or (d) if the appointed Board member is absent, except on leave of absence, from 3 consecutive meetings of the Board; or (e) if the appointed Board member engages in paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of the member’s duties (see section 22); or (f) if the Minister is satisfied that the appointed Board member’s performance has been unsatisfactory. > Note: The appointment of an appointed Board member may also be terminated under section 30 of the Public Governance, Performance and Accountability Act 2013 (which deals with terminating the appointment of an accountable authority, or a member of an accountable authority, for contravening general duties of officials). #### 26 Other terms and conditions An appointed Board member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister. #### Subdivision C—Meetings of the Board #### 27 Convening meetings (1) The Board must hold such meetings as are necessary for the efficient performance of its functions. (2) The Chair: (a) may convene a meeting at any time; and (b) must convene at least 4 meetings each calendar year; and (c) must convene a meeting within 30 days after receiving a written request to do so from another Board member. #### 27A Presiding at meetings (1) The Chair must preside at all meetings at which the Chair is present. (2) If the Chair is not present at a meeting, the other Board members present must appoint one of themselves to preside. #### 27B Quorum (1) At a meeting of the Board, a quorum is constituted by a majority of Board members. (2) However, if: (a) a Board member is required by rules made for the purposes of section 29 of the Public Governance, Performance and Accountability Act 2013 not to be present during the deliberations, or to take part in any decision, of the Board with respect to a particular matter; and (b) when the Board member leaves the meeting concerned there is no longer a quorum present; the remaining Board members at the meeting constitute a quorum for the purpose of any deliberation or decision at that meeting with respect to that matter. #### 27C Voting at meetings (1) A question arising at a meeting of the Board is to be determined by a majority of the votes of the Board members present and voting. (2) The person presiding at the meeting of the Board has a deliberative vote and, if the votes are equal, a casting vote. #### 27D Conduct of meetings The Board may, subject to this Subdivision, regulate proceedings at its meetings as it considers appropriate. > Note: Section 33B of the Acts Interpretation Act 1901 contains further information about the ways in which Board members may participate in meetings. #### 27E Minutes (1) The Board must keep minutes of its meetings. (2) The Board must give the Secretary of the Department a copy of the minutes, and the Board papers, from each meeting within 20 business days of the meeting. #### 27F Decisions without meetings (1) The Board is taken to have made a decision at a meeting if: (a) without meeting, a majority of the Board members entitled to vote on the proposed decision indicate agreement with the decision; and (b) that agreement is indicated in accordance with the method determined by the Board under subsection (2); and (c) all the Board members were informed of the proposed decision, or reasonable efforts were made to inform all the Board members of the proposed decision. (2) Subsection (1) applies only if the Board: (a) has determined that it may make decisions of that kind without meeting; and (b) has determined the method by which Board members are to indicate agreement with proposed decisions. (3) For the purposes of paragraph (1)(a), a Board member is not entitled to vote on a proposed decision if the Board member would not have been entitled to vote on that proposal if the matter had been considered at a meeting of the Board. (4) The Board must keep a record of decisions made in accordance with this section. (5) The Board must give the Secretary of the Department details of each decision made in accordance with this section within 20 business days of the decision being made. #### Subdivision D—Minister may give directions to the Board #### 27G Minister may give directions to the Board (1) The Minister may give written directions to the Board about the performance of its functions or the exercise of its powers. (2) The Board must comply with a direction under subsection (1). (3) Subsection (2) does not apply to the extent that the direction relates to the Board’s performance of functions or exercise of powers under the Public Governance, Performance and Accountability Act 2013 in relation to the APVMA. (4) The Minister must not give a direction to the Board unless: (a) the Minister has given the Board a written notice stating that the Minister is considering giving the direction; and (b) the Minister has given the Board an adequate opportunity to discuss with the Minister the need for the proposed direction. (5) A direction under subsection (1) is a notifiable instrument. (6) The Minister must cause a copy of a direction under subsection (1) to be laid before each House of the Parliament within 15 sitting days of giving the direction. #### Subdivision E—Board to give documents to Secretary #### 27H Board to give documents to Secretary The Board must give the Secretary of the Department a copy of each document requested by the Secretary of the Department within 20 business days of the request being made. #### Subdivision F—Board committees #### 27J Board committees (1) The Board may establish committees to assist it in the performance of its functions or the exercise of its powers, and may abolish any such committee. (2) A committee is to consist of such persons (whether Board members or not) as the Board determines. (3) The Board may determine: (a) the committee’s terms of reference; and (b) the terms and conditions of appointment of the members of the committee; and (c) the procedures to be followed by the committee. (4) The members of the committee (other than Board members) are not officials for the purposes of the Public Governance, Performance and Accountability Act 2013. #### Subdivision G—Review of the Board #### 27K Review of the Board (1) The Minister must cause a review to be conducted of the functions and operation of the Board. (2) The review must be completed before the end of the period of 4 years beginning on the day this section commences. (3) At any time after the review referred to in subsection (1) is completed, the Minister may cause a review to be conducted of the functions and operation of the Board. (4) The person undertaking a review under this section must give the Minister a written report of the review. (5) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister. ### Division 5—APVMA committees #### 28 Establishment of committees (1) The APVMA may establish committees to assist it in the performance of its functions and the exercise of its powers, and may abolish any such committee. (2) A committee is to consist of such persons (whether Board members or not) as the APVMA determines. #### 29 Meetings of committees (1) The APVMA may determine: (a) the manner in which a committee is to perform its functions; and (b) the procedure to be followed at or in relation to the meetings of a committee, including matters with respect to: (i) the convening of meetings; and (ii) the number of members of the committee who are to form a quorum; and (iii) the selection of a member of the committee to be the Chairperson of the committee; and (iv) the manner in which questions arising at a meeting are to be decided. (2) If a member of a committee has a direct or indirect financial interest in a matter being considered, or about to be considered, by the committee, the member must, as soon as practicable after the member becomes aware of the relevant facts, disclose the nature of the interest at a meeting of the committee. (3) A disclosure under subsection (2) must be recorded in the minutes of the meeting and the member must not, unless the APVMA otherwise determines: (a) be present during any deliberation of the committee with respect to that matter; or (b) take part in any decision of the committee with respect to that matter. #### 29A Remuneration and allowances of committee members (1) A member of a committee (other than a Board member) is to be paid such remuneration as is determined by the Remuneration Tribunal but, if no determination is in operation, the member is to be paid such remuneration as is prescribed. (2) A member of a committee (other than a Board member) is to be paid such allowances as are prescribed. (3) If a person who is a member of a committee: (a) is a member of the Parliament of a State; or (b) is a candidate for election to the Parliament of a State and, under the law of the State, would not be eligible to be elected as a member of that Parliament if the person were entitled to remuneration or allowances under this Act; or (c) is in service or employment of a State, or of an authority of a State, on a full‑time basis; or (d) holds or performs the duties of an office or position established by or under a law of a State on a full‑time basis; the person must not be paid remuneration or allowances under this Act, but is to be reimbursed the expenses that the person reasonably incurs in performing duties under this Act. (4) This section has effect subject to the Remuneration Tribunal Act 1973. (5) In this section: > Parliament of a State: (a) in relation to the Australian Capital Territory—means the Legislative Assembly for the Australian Capital Territory; or (b) in relation to the Northern Territory—means the Legislative Assembly of the Northern Territory. > State includes the Australian Capital Territory and the Northern Territory. #### 30 Arrangements relating to staff etc. The Chairperson of a committee is to arrange with the Chief Executive Officer for the services of employees of, and consultants to, the APVMA, and for facilities of the APVMA, to be made available to the committee. ## Part 4—Chief Executive Officer #### 31 Chief Executive Officer There is to be a Chief Executive Officer of the APVMA. #### 32 Duties (1) The Chief Executive Officer is responsible for the day‑to‑day management and decision making of the APVMA and, in doing this, may exercise any of the powers and perform any of the functions of the APVMA. (3) All acts and things done in the name of, or on behalf of, the APVMA by the Chief Executive Officer are taken to have been done by the APVMA. (4) The Chief Executive Officer is to act in accordance with the objectives, strategies and policies determined by the Board under paragraph 15(1)(b). (5) The Board may give written directions to the Chief Executive Officer about the performance of the Chief Executive Officer’s duties. (6) The Chief Executive Officer must comply with a direction under subsection (5). (7) Subsection (6) does not apply to the extent that the direction relates to the Chief Executive Officer’s performance of functions or exercise of powers under the Public Service Act 1999 in relation to the APVMA. (8) The Board must not give a direction to the Chief Executive Officer unless: (a) the Board has given the Chief Executive Officer a written notice stating that the Board is considering giving the direction; and (b) the Board has given the Chief Executive Officer an adequate opportunity to discuss with the Board the need for the proposed direction. (9) A direction under subsection (5) is not a legislative instrument. #### 33 Appointment (1) The Chief Executive Officer is to be appointed by the Board by written instrument, on a full‑time basis. (1A) Before appointing the Chief Executive Officer, the Board must consult the Minister. (2) An appointed Board member is not eligible for appointment as the Chief Executive Officer. (3) The appointment of a person as Chief Executive Officer is not invalid because of a defect or irregularity in connection with the person’s appointment. #### 34 Term of appointment The Chief Executive Officer holds office for such period not exceeding 5 years as is agreed in writing between the Board and the Chief Executive Officer, but is eligible for re‑appointment. #### 35 Remuneration and allowances (1) The Chief Executive Officer is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Chief Executive Officer is to be paid the remuneration that is determined by the Board in writing. (2) The Chief Executive Officer is to be paid the allowances that are determined by the Board in writing. (3) Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973. #### 37 Terms and conditions of appointment The Chief Executive Officer holds office on such terms and conditions in relation to matters not provided for by this Act as are determined by the Board in writing. #### 38 Chief Executive Officer not to engage in other paid work The Chief Executive Officer must not engage in paid work outside the duties of his or her office except with the approval of the Board. #### 39 Leave of absence for recreation The Chief Executive Officer has such recreation leave entitlements as are determined by the Remuneration Tribunal. #### 40 Leave of absence for other purposes The Board may grant to the Chief Executive Officer leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Board determines in writing. #### 41 Resignation The Chief Executive Officer may resign by giving to the Board a signed notice of resignation. #### 41A Termination of appointment (1) The Board may terminate the appointment of the Chief Executive Officer: (a) for misbehaviour; or (aa) if the Chief Executive Officer is unable to perform the duties of the Chief Executive Officer’s office because of physical or mental incapacity; or (b) if the Chief Executive Officer: (i) becomes bankrupt; or (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or (iii) compounds with his or her creditors; or (iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or (c) if the Chief Executive Officer is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or (d) if the Chief Executive Officer engages, except with the Board’s approval, in paid work outside the duties of his or her office; or (e) if the Chief Executive Officer fails, without reasonable excuse, to comply with subsection 42(1); or (f) if the Board is satisfied that the Chief Executive Officer’s performance has been unsatisfactory. > Note: The appointment of the Chief Executive Officer may also be terminated under section 30 of the Public Governance, Performance and Accountability Act 2013 (which deals with terminating the appointment of an accountable authority, or a member of an accountable authority, for contravening general duties of officials). (2) Before terminating the appointment of the Chief Executive Officer, the Board must consult the Minister. #### 42 Disclosure of interests (1) The Chief Executive Officer must give written notice to the Board of all direct or indirect financial interests that the Chief Executive Officer has or acquires in any business or in any body corporate carrying on any business. (2) Subsection (1) applies in addition to section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests). #### 43 Acting Chief Executive Officer (1) The Board may appoint a person to act as Chief Executive Officer: (a) during a vacancy in the office of Chief Executive Officer, whether or not an appointment has previously been made to that office; or (b) during any period, or during all periods, when the Chief Executive Officer is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office of Chief Executive Officer. > Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. (2) Before appointing a person to act as Chief Executive Officer, the Board must consult the Minister. (4) Unless the contrary intention appears, a reference in this Act other than this section, to the Chief Executive Officer is taken, if a person is acting as Chief Executive Officer, to be a reference to the person so acting. #### 44 Delegation by the Chief Executive Officer The Chief Executive Officer may, by signed writing, delegate to a member of the staff of the APVMA all or any of the powers and functions of the Chief Executive Officer under this Act including, to avoid doubt, any powers and functions of the Chief Executive Officer under subsection 32(1). ## Part 5—Staff and consultants #### 45 Staff (1) The staff of the APVMA are to be persons engaged under the Public Service Act 1999. (2) For the purposes of the Public Service Act 1999: (a) the Chief Executive Officer and the staff of the APVMA together constitute a Statutory Agency; and (b) the Chief Executive Officer is the Head of that Statutory Agency. #### 46 Staff to be made available to the APVMA (1) The APVMA is to be assisted by: (a) officers and employees of Agencies (within the meaning of the Public Service Act 1999), and of authorities of the Commonwealth, whose services are made available to the APVMA in connection with the performance or exercise of any of its functions or powers; and (b) persons whose services are so made available under arrangements made under subsection (2). (2) The APVMA may make an arrangement with: (a) the appropriate authority or officer of: (i) the Government of a State or Territory or of a foreign country; or (ii) an authority of such a Government; or (iii) an organisation; or (b) another person; under which the Government, authority, organisation or person may make officers or employees available to the APVMA to perform services in connection with the performance or exercise of any of its functions or powers. (3) In the performance of services for the APVMA under this section, a person is subject to the directions of the Chief Executive Officer. #### 47 Consultants (1) The APVMA may engage persons having suitable qualifications and experience as consultants to the APVMA. (2) The terms and conditions of engagement are to be determined by the APVMA. ## Part 6—Corporate plan #### 51 Approval of corporate plan (1) The Board must give a corporate plan, prepared under section 35 of the Public Governance, Performance and Accountability Act 2013, to the Minister for approval on or before: (a) 1 June in each calendar year; or (b) a later day in a particular calendar year, as allowed by the Minister; unless the Minister determines otherwise. (2) The plan comes into force on the later of: (a) if approval is required under subsection (1)—the day it is approved by the Minister; and (b) the first day of the period to which it relates. (3) Subsection 35(3) of the Public Governance, Performance and Accountability Act 2013 (which deals with the Australian Government’s key priorities and objectives) does not apply to a corporate plan prepared by the Board. #### 52 Variation of corporate plan (1) The Board may, at any time, review a corporate plan and consider whether a variation to the plan is necessary. (2) The Board must, if requested by the Minister, vary a corporate plan and give the variation to the Minister for approval. (3) The Board may, with the approval of the Minister, vary a corporate plan. (4) A variation of a plan already in force takes effect on the day the variation is approved. (5) Despite subsection (3), the Minister’s approval is not required for a minor variation of the plan. A minor variation of a plan already in force takes effect on the day the variation is made. ## Part 7—Finance and reporting requirements ### Division 1—Finance #### 58 Money payable to the APVMA (1) The Commonwealth must pay to the APVMA amounts equal to: (a) such money as is appropriated by the Parliament for the purposes of the APVMA; and (b) fees received by the Commonwealth under this Act, the Agvet Codes or the Agvet Regulations; and (c) any amounts of levy, late payment penalty or understatement penalty paid to the Commonwealth under any Act providing for the collection of a levy imposed in respect of the disposal of chemical products; and (d) any amounts paid by a State or a participating Territory to the Commonwealth for the purposes of the APVMA. (2) The Finance Minister may give directions about the amounts in which, and the times at which, money payable under paragraph (1)(a) is to be paid to the APVMA. (3) If a direction under subsection (2) is given in writing, the direction is not a legislative instrument. (4) If an amount referred to in any of paragraphs (1)(b) to (d) is refunded by the Commonwealth, the APVMA must pay to the Commonwealth an amount equal to the refund. (5) The Minister may, on behalf of the Commonwealth, set off an amount payable by the APVMA under subsection (4) against an amount that is payable to the APVMA under subsection (1). (6) Amounts payable under paragraphs (1)(b) to (d) are to be paid out of the Consolidated Revenue Fund, which is appropriated accordingly. #### 59 Application of money by the APVMA (1) The money of the APVMA is to be applied only: (a) in payment or discharge of the costs, expenses and other obligations incurred by the APVMA in the performance of its functions and the exercise of its powers; and (b) in payment of any remuneration or allowances payable under this Act; and (c) in making any other payments that the APVMA is authorised or required to make by or under any law of the Commonwealth, a State or a Territory that confers functions or powers on the APVMA. (2) Subsection (1) does not prevent investment, under section 59 of the Public Governance, Performance and Accountability Act 2013, of money that is not immediately required for the purposes of the APVMA. ### Division 2—Reporting requirements #### 61 Annual report The annual report prepared by the Board and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include particulars of: (b) an evaluation of the APVMA’s overall performance during that period against the performance indicators (if any) prescribed by the regulations for the purposes of this paragraph; and (c) any exercise of powers under section 131AA of the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 during that period; and (e) significant purchases and disposals of real property by the APVMA during that period; and (f) any directions given to the APVMA by the Minister during that period to which subsection 10(3) applies and the impact of the directions on the operations of the APVMA; and (g) any directions given to the Board by the Minister during that period and the impact of the directions on the operations of the APVMA. ### Division 3—Exemption from taxation #### 62 Exemption from taxation The APVMA is not subject to taxation under the laws of the Commonwealth or of a State or Territory. > Note: Despite this section, the APVMA may be subject to taxation under certain laws. See, for example, section 177‑5 of the A New Tax System (Goods and Services Tax) Act 1999. ## Part 7A—Importation, manufacture and exportation of chemicals ### Division 1—Interpretation #### 69A Interpretation Unless the contrary intention appears, expressions used in this Part have the same meanings as in the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994. ### Division 2—Importation, manufacture and exportation #### Subdivision A—Importation #### 69B Importation offence (1) A person must not: (a) import into Australia: (i) an active constituent for a proposed or existing chemical product that is neither an approved active constituent nor an exempt active constituent; or (ii) a chemical product that is not a registered chemical product, a reserved chemical product or an exempt chemical product; or (b) arrange for the importation into Australia, on behalf of another person who, at the time of the arrangements, is neither a resident of, nor carrying on business in, Australia, of such an active constituent or chemical product. (1AA) A person commits an offence if the person contravenes subsection (1). Penalty: 300 penalty units. (1A) Subsection (1AA) does not apply if the person has a reasonable excuse. > Note: The defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3) of the Criminal Code. (1B) Subsection (1AA) does not apply if the person has the APVMA’s written consent. > Note: The defendant bears an evidential burden in relation to the matter in subsection (1B). See subsection 13.3(3) of the Criminal Code. (1C) For the purposes of subsection (1AA), strict liability applies to the physical element of circumstance in subparagraph (1)(a)(i), that the active constituent is neither an approved active constituent nor an exempt active constituent. > Note: For strict liability, see section 6.1 of the Criminal Code. (1D) For the purposes of subsection (1AA), strict liability applies to the physical element of circumstance in subparagraph (1)(a)(ii), that the chemical product is neither a registered chemical product nor an exempt chemical product. > Note: For strict liability, see section 6.1 of the Criminal Code. (1E) Subsection (1) is a civil penalty provision. > Note 1: Part 7AB provides for pecuniary penalties for contraventions of civil penalty provisions. > Note 2: For the evidential burden in civil penalty proceedings in relation to the matters in subsection (1B), see section 69EJP. (2) In subsection (1): > exempt active constituent means an active constituent that is exempted by the APVMA from the operation of that subsection. > exempt chemical product means a chemical product that is exempted by the APVMA from the operation of that subsection. (3) The APVMA may, by writing, exempt an active constituent for a proposed or existing chemical product, or exempt a chemical product, from the operation of subsection (1). (3A) A consent given under subsection (1B) may be subject to any conditions that the APVMA thinks appropriate. (3B) The APVMA may impose a condition, by writing, on a consent at any time while the consent is in force. (4) If: (a) the importation of an active constituent for a proposed or existing chemical product, or of a chemical product, is prohibited under subsection (1); and (b) the APVMA notifies the Comptroller‑General of Customs (within the meaning of the Customs Act 1901) in writing that the APVMA wishes the Customs Act 1901 to apply to that importation; the Customs Act 1901 has effect as if the constituent or product included in that importation were goods described as forfeited to the Crown under section 229 of that Act because they were prohibited imports within the meaning of that Act. #### Subdivision B—Provision of information #### 69CA Providing information about certain chemical products etc. to comply with international agreements Regulations may prescribe international agreements (1) The regulations may prescribe an international agreement or arrangement for the purposes of this section. Regulations may prescribe information about import etc. of certain chemicals (2) For the purposes of complying with a prescribed agreement or arrangement, the regulations may prescribe the following information in respect of a prescribed active constituent for a proposed or existing chemical product, or a prescribed chemical product: (a) information about the import of the constituent or product into Australia; (b) information about the manufacture or use of the constituent or product in Australia; (c) information about other dealings with the constituent or product in Australia; (d) information about the export of the constituent or product from Australia. (3) For each constituent or product, the regulations must identify the relevant international agreement or arrangement. A person must provide prescribed information about prescribed constituents or products (4) A person must provide any relevant prescribed information in respect of a prescribed constituent or product if the person imports, manufactures, uses, deals with or exports the constituent or product. > Note 1: A person who fails to provide the information or who provides false or misleading information may commit an offence against section 69CD. > Note 2: Section 69C might prohibit or restrict the import, manufacture, use, dealing or export of a prescribed constituent or product. (5) The information must be provided to the relevant agency in an approved form within the period prescribed for the constituent or product in the regulations. Commencement of regulations (6) A regulation made for the purposes of this section in respect of a constituent or product may be expressed to come into force when the relevant international agreement or arrangement enters into force for Australia, but must not be expressed to come into force before that time. #### 69CB Providing information about certain chemical products etc. under international consideration Regulations may prescribe constituents and products (1) The regulations may prescribe the following active constituents for a proposed or existing chemical product, or the following chemical products, for the purposes of this section: (a) a constituent or product that is the subject of an international agreement or arrangement that has not entered into force for Australia; (b) a constituent or product that is the subject of consideration: (i) by an international organisation, or by an organ of or a body established by an international organisation, or by Australia together with any other country; and (ii) in relation to an international agreement or arrangement (including one that has not entered into force for Australia) or in relation to negotiations for an international agreement or arrangement. Regulations may prescribe information about import etc. of such constituents or products (2) The regulations may prescribe the following information in respect of a prescribed constituent or product: (a) information about the import of the constituent or product into Australia; (b) information about the manufacture or use of the constituent or product in Australia; (c) information about other dealings with the constituent or product in Australia; (d) information about the export of the constituent or product from Australia. Constitutional basis for this section (3) The reference in paragraphs (2)(b) and (c) to the manufacture or use of, or other dealings with, a constituent or product in Australia is confined to the following: (a) the manufacture or use of, or other dealings with, the constituent or product in Australia by trading corporations formed within the limits of the Commonwealth, or foreign corporations, within the meaning of paragraph 51(xx) of the Constitution; (b) the manufacture or use of, or other dealings with, the constituent or product in Australia for supply in the course of trade and commerce: (i) with other countries; or (ii) among the States; or (iii) within a Territory; or (iv) between a State and a Territory or between 2 Territories; (c) the manufacture or use of, or other dealings with, the constituent or product in Australia for supply to, or to an authority or instrumentality of, the Commonwealth or a Territory; (d) the manufacture or use of, or other dealings with, the constituent or product in a Territory. A person must provide prescribed information about prescribed constituents or products (4) A person must provide any relevant prescribed information in respect of a prescribed constituent or product if the person imports, manufactures, uses, deals with or exports the constituent or product in the circumstances mentioned in subsection (3). > Note: A person who fails to provide the information or who provides false or misleading information may commit an offence against section 69CD. (5) The information must be provided to the relevant agency in an approved form within the period prescribed for the constituent or product in the regulations. #### 69CC Relevant agency to provide information to other countries (1) A relevant agency may inform a country, the appropriate authority of a country or a relevant international organisation regarding the following: (a) the movements into or out of Australia of an active constituent or chemical product prescribed in regulations made under section 69CA or 69CB; (b) the manufacture or use of such a constituent or product in Australia; (c) any other dealing with such a constituent or product in Australia. (2) A relevant agency may provide the information in such terms and on such conditions as the agency thinks fit, having regard to: (a) the terms of any relevant international agreement or arrangement; and (b) the interest of any person in maintaining confidentiality in relation to movements, manufacture or use of, or other dealings with, the constituent or product. #### 69CD Contraventions relating to providing information under sections 69CA and 69CB Offence for failing to provide information (1) A person commits an offence if: (a) the person is required to provide information under section 69CA or 69CB; and (b) the person fails to provide the information under that section. Penalty: 50 penalty units. (2) In subsection (1), strict liability applies to the physical element of circumstance that the information is required to be provided under section 69CA or 69CB. > Note: For strict liability, see section 6.1 of the Criminal Code. Civil penalty provision (2A) A person contravenes this subsection if: (a) the person is required to provide information under section 69CA or 69CB; and (b) the person fails to provide the information under that section. (2B) Subsection (2A) is a civil penalty provision. > Note: Part 7AB provides for pecuniary penalties for contraventions of civil penalty provisions. Offence for false or misleading information (3) A person commits an offence if: (a) the person provides information (whether orally or in writing) to a relevant agency under section 69CA or 69CB; and (b) the person knows that the information is false or misleading in a material particular; and (c) the information is provided: (i) without the person indicating to the agency that it is false or misleading; and (ii) without the person indicating how it is false or misleading; and (iii) without the person providing to the agency correct information that the person possesses or can reasonably acquire. Penalty: 300 penalty units. (4) The fault element for paragraph (3)(c) is recklessness. > Note: For recklessness, see section 5.4 of the Criminal Code. (5) In subsection (3), strict liability applies to the physical element of circumstance that the information is provided under section 69CA or 69CB. > Note: For strict liability, see section 6.1 of the Criminal Code. #### Subdivision C—Chemical products etc. subject to international agreements #### 69C Prohibition on import, manufacture, use or export of certain chemical products etc. under international agreements Regulations may prohibit import etc. of certain chemical products under international agreements (1) If an active constituent for a proposed or existing chemical product, or a chemical product, is the subject of an international agreement or arrangement prescribed for the purposes of this section, the regulations may prohibit any one or more of the following: (a) the import of the constituent or product into Australia; (b) the manufacture or use of the constituent or product in Australia; (c) any other dealing with the constituent or product in Australia; (d) the export of the constituent or product from Australia. The prohibition may be either absolute or subject to such conditions or restrictions as are prescribed. Requirements for making regulations (2) A regulation prescribing conditions or restrictions for the purposes of subsection (1) must not be made unless: (a) a relevant agency has published in the Gazette, and in any other manner that it thinks appropriate, a notice: (i) identifying the agreement or arrangement; and (ii) listing the name or names by which the constituent or product is known to the public; and (b) a period of 30 days has elapsed since the notice was published. (2A) A regulation made for the purposes of subsection (1) in respect of a constituent or product may be expressed to come into force when the relevant international agreement or arrangement enters into force for Australia, but must not be expressed to come into force before that time. Offence for contravening conditions or restrictions (5) A person must not import, manufacture, use, deal with or export an active constituent for a proposed or existing chemical product, or a chemical product, in contravention of a condition or restriction prescribed by a regulation made for the purposes of subsection (1). Penalty: 300 penalty units. (5A) Subsection (5) does not apply if the person has a reasonable excuse. > Note: The defendant bears an evidential burden in relation to the matter in subsection (5A). See subsection 13.3(3) of the Criminal Code. (5B) In subsection (5), strict liability applies to the physical element of circumstance, that the condition or restriction that the conduct contravenes is a condition or restriction prescribed by a regulation made for the purposes of subsection (1). > Note: For strict liability, see section 6.1 of the Criminal Code. #### Subdivision D—Exportation #### 69D Export of chemical products (1) The APVMA may, upon the written application of a person wishing to export a chemical product to a foreign country and upon payment of the prescribed fee (if any) to the Commonwealth, give to the person or to the government of that country or to any authority of that country named by the person, a certificate setting out the findings (if any) of the APVMA in relation to any matters relating to the chemical product that are required to be established for the purposes of its export. (1A) If the APVMA refuses to give a certificate under subsection (1), it must: (a) give written notice of its refusal to the person who applied for the certificate; and (b) include in the notice the reasons for the refusal. (1AA) The APVMA may, on its own initiative, reconsider a decision of the APVMA to refuse to give a certificate under subsection (1). (1AB) If the APVMA reconsiders the decision, it must: (a) confirm the decision; or (b) set aside the decision and give the certificate. (1AC) The APVMA must give notice of a thing done under subsection (1AB) to the person who applied for the certificate. (1B) Application may be made to the Administrative Review Tribunal for review of a decision of the APVMA refusing to give a certificate under subsection (1). (1C) A notice given under subsection (1A) must include a statement to the effect that: (a) subject to the Administrative Review Tribunal Act 2024, application may be made by or on behalf of a person whose interests are affected by the decision to which the notice relates to the Administrative Review Tribunal for review of the decision; and (b) a person whose interests are affected by the decision may, under section 268 of that Act, request a statement of reasons for the decision. (1D) A failure to comply with subsection (1C) in relation to a decision does not affect the validity of the decision. (2) If the APVMA becomes aware that a chemical product: (a) in respect of which an application for registration has been refused; or (b) the registration of which has been suspended or cancelled; or (c) the registration of which is subject to conditions significantly limiting the use of the product; is proposed to be exported to a foreign country, the APVMA may, on its own initiative, tell a body established in that country and having functions similar to its own functions that the application has been so refused, that the registration has been so suspended or cancelled or that the registration of the product has been made subject to those conditions, as the case may be, and the reasons for that refusal, suspension, cancellation or imposition of conditions. #### Subdivision E—Miscellaneous #### 69EA Keeping of records Records relating to compliance with sections 69B and 69C (1) A person who imports into, manufactures in, or exports from, Australia an active constituent for a proposed or existing chemical product, or a chemical product, must: (a) keep any records relating to the importation, manufacture or exportation that are reasonably necessary to enable the APVMA to find out whether sections 69B and 69C have been complied with; and (b) retain those records for 6 years. (1AA) A person commits an offence of strict liability if the person contravenes subsection (1). Penalty: 50 penalty units. > Note: For strict liability, see section 6.1 of the Criminal Code. (1AB) Subsection (1) is a civil penalty provision. > Note: Part 7AB provides for pecuniary penalties for contraventions of civil penalty provisions. Records relating to import etc. of chemical products prescribed under section 69CA, 69CB or 69C (1A) A person who imports into Australia, manufactures, uses or deals with in Australia, or exports from Australia, an active constituent or chemical product prescribed in regulations made under section 69CA, 69CB or 69C must: (a) keep any records relating to the import, manufacture, use, dealing or export that are reasonably necessary to enable the Department to find out whether those sections have been complied with; and (b) retain those records for 6 years. (2) A person commits an offence of strict liability if the person contravenes subsection (1A). Penalty: 50 penalty units. > Note: For strict liability, see section 6.1 of the Criminal Code. (3) Subsection (1A) is a civil penalty provision. > Note: Part 7AB provides for pecuniary penalties for contraventions of civil penalty provisions. #### 69EAA Definitions In this Division: > approved form means a form approved by the Secretary. > deal with, in relation to an active constituent for a proposed or existing chemical product, or in relation to a chemical product, includes supply or otherwise dispose of the constituent or product. > relevant agency means the Department or the APVMA. ## Part 7AA—Investigative powers ### Division 1—Monitoring #### Subdivision A—Monitoring powers etc. #### 69EAB Powers available to inspectors for monitoring compliance (1) Subject to subsections (2) and (3), for the purpose of finding out whether this Act or the Collection Act has been, or is being, complied with, or of assessing the correctness of information provided under this Act or the Collection Act, or of finding out whether levy is payable under the Collection Act, an inspector may: (a) enter any premises; and (b) exercise the monitoring powers. (2) If premises mentioned in paragraph (1)(a) are a residence, an inspector may only enter the premises if: (a) the premises are used for commercial purposes in relation to active constituents or chemical products, in addition to residential purposes; and (b) paragraph (3)(a) or (b) is satisfied. (3) An inspector is not authorised to enter premises under subsection (1) unless: (a) the occupier of the premises has consented to the entry and the inspector has shown his or her identity card if required by the occupier; or (b) the entry is made under a monitoring warrant. > Note: If entry to the premises is with the occupier’s consent, the inspector must leave the premises if the consent ceases to have effect. See section 69ED. #### 69EAC Monitoring powers—with consent or with warrant (1) The following are the monitoring powers that an inspector may exercise in relation to premises: (a) the power to search the premises and any thing on the premises; (b) the power to examine or observe any activity conducted on the premises; (c) the power to inspect, examine, take measurements of or conduct tests on any thing on the premises; (d) the power to make any still or moving image or any recording of the premises or any thing on the premises; (e) the power to inspect any document on the premises; (f) the power to take extracts from, or make copies of, any such document; (g) the power to take and keep samples of any thing on the premises; (h) the power to open any container at the premises for the purpose of inspecting, or taking a sample of, its contents provided that the container is resealed after the inspection is made or the sample is taken; (i) the power to give directions for dealing with a container, or a label on a container, that has been opened or sampled in accordance with paragraph (h); (j) the power to destroy or make harmless, or give directions for the destruction or making harmless of, a chemical product at the premises; (k) the power to take onto the premises such equipment and materials as the inspector requires for the purpose of exercising powers in relation to the premises; (l) the powers set out in subsections 69EAD(1) and (3) and 69EAE(1). (2) A person who is given a direction under subsection (1) must comply with the direction. (3) A person commits an offence of strict liability if the person contravenes subsection (2). Penalty: 30 penalty units. > Note: For strict liability, see section 6.1 of the Criminal Code. (4) Subsection (2) is a civil penalty provision. > Note: Part 7AB provides for pecuniary penalties for contraventions of civil penalty provisions. #### 69EAD Operating electronic equipment (1) The monitoring powers include the power to: (a) operate electronic equipment on the premises; and (b) use a disk, tape or other storage device that: (i) is on the premises; and (ii) can be used with the equipment or is associated with it. (2) The monitoring powers include the powers mentioned in subsection (3) if relevant data is found in the exercise of the power under subsection (1). (3) The powers are as follows: (a) the power to operate electronic equipment on the premises to put the relevant data in documentary form and remove the documents so produced from the premises; (b) the power to operate electronic equipment on the premises to transfer the relevant data to a disk, tape or other storage device that: (i) is brought to the premises for the exercise of the power; or (ii) is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises; and remove the disk, tape or other storage device from the premises. (4) An inspector may operate electronic equipment as mentioned in subsection (1) or (3) only if the inspector believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment. > Note: For compensation for damage to electronic equipment, see section 69EDE. #### 69EAE Securing evidence of the contravention of a related provision (1) The monitoring powers include the power to secure a thing for a period not exceeding 7 days if: (a) the thing is found during the exercise of monitoring powers on the premises; and (b) an inspector believes on reasonable grounds that the thing affords evidence of one or more of the following: (i) the commission of an offence against this Act or the Collection Act; (ii) the contravention of a civil penalty provision; (iii) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act or the Collection Act; and (c) the inspector believes on reasonable grounds that: (i) it is necessary to secure the thing in order to prevent it from being concealed, lost or destroyed before a warrant to seize the thing is obtained; and (ii) it is necessary to secure the thing without a warrant because the circumstances are serious and urgent. The thing may be secured by locking it up, placing a guard or any other means. (2) If an inspector believes on reasonable grounds that the thing needs to be secured for more than 7 days, the inspector may apply to a magistrate for an extension of that period. (3) The inspector must give notice to the occupier of the premises, or another person who apparently represents the occupier, of his or her intention to apply for an extension. The occupier or other person is entitled to be heard in relation to that application. (4) The provisions of this Part relating to the issue of monitoring warrants apply, with such modifications as are necessary, to the issue of an extension. (5) The 7 day period may be extended more than once. #### 69EAF Persons assisting inspectors Inspectors may be assisted by other persons (1) When exercising monitoring powers, an inspector may be assisted by other persons in exercising powers or performing functions or duties under this Part, if that assistance is necessary and reasonable. A person giving such assistance is a person assisting the inspector. Powers, functions and duties of a person assisting the inspector (2) A person assisting the inspector: (a) may enter the premises; and (b) may exercise powers and perform functions and duties under this Part for the purposes of assisting the inspector to determine whether: (i) this Act, or the Collection Act, has been, or is being, complied with; or (ii) information provided under this Act, or the Collection Act, is correct; or (iii) levy is payable under the Collection Act; and (c) must do so in accordance with a direction given to the person assisting by the inspector. (3) A power exercised by a person assisting the inspector as mentioned in subsection (2) is taken for all purposes to have been exercised by the inspector. (4) A function or duty performed by a person assisting the inspector as mentioned in subsection (2) is taken for all purposes to have been performed by the inspector. (5) If a direction is given under paragraph (2)(c) in writing, the direction is not a legislative instrument. #### 69EAG Use of force in executing a monitoring warrant In executing a monitoring warrant, an inspector and a person assisting the inspector may use such force against things as is necessary and reasonable in the circumstances. #### Subdivision B—Powers of inspectors to ask questions and seek production of documents #### 69EAH Inspector may ask questions and seek production of documents (1) This section applies if an inspector enters premises for the purposes of determining whether: (a) this Act, or the Collection Act, has been, or is being, complied with; or (b) information provided under this Act, or the Collection Act, is correct; or (c) levy is payable under the Collection Act. (2) If the entry is authorised because the occupier of the premises consented to the entry, the inspector may ask the occupier to answer any questions, and produce any document, relating to: (a) the operation of this Act or the Collection Act; or (b) the information. (3) If the entry is authorised by a monitoring warrant, the inspector may require any person on the premises to answer any questions, and produce any document, relating to: (a) the operation of this Act or the Collection Act; or (b) the information. Offence (4) A person commits an offence if: (a) the person is subject to a requirement under subsection (3); and (b) the person fails to comply with the requirement. Penalty for contravention of this subsection: 50 penalty units. #### 69EAJ Copying of documents If a person produces a document to an inspector in accordance with a requirement under section 69EAH, the inspector may make copies of, or take extracts from, the document. ### Division 2—Investigation #### Subdivision A—Investigation powers #### 69EB Powers available to inspectors to investigate potential breaches of this Act and the Collection Act (1) Subject to subsections (2) and (3), if an inspector has reasonable grounds for suspecting that there may be evidential material on any premises, the inspector may: (a) enter the premises; and (b) exercise the investigation powers. (2) If premises mentioned in paragraph (1)(a) are a residence, an inspector may only enter the premises if: (a) the premises are used for commercial purposes in relation to active constituents or chemical products, in addition to residential purposes; and (b) paragraph (3)(a) or (b) is satisfied. (3) An inspector is not authorised to enter the premises unless: (a) the occupier of the premises has consented to the entry and the inspector has shown his or her identity card if required by the occupier; or (b) the entry is made under an investigation warrant. > Note: If entry to the premises is with the occupier’s consent, the inspector must leave the premises if the consent ceases to have effect. See section 69ED. #### 69EBA Investigation powers (1) The following are the investigation powers that an inspector may exercise in relation to premises under section 69EB: (a) if entry to the premises is with the occupier’s consent—the power to search the premises and any thing on the premises for the evidential material the inspector has reasonable grounds for suspecting may be on the premises; (b) if entry to the premises is under an investigation warrant: (i) the power to search the premises and any thing on the premises for the kind of evidential material specified in the warrant; and (ii) the power to seize evidential material of that kind if the inspector finds it on the premises; (c) the power to inspect, examine, take measurements of, and conduct tests on evidential material referred to in paragraph (a) or (b); (d) the power to make any still or moving image or any recording of the premises or evidential material referred to in paragraph (a) or (b); (e) the power to inspect any document on the premises; (f) the power to take extracts from, or make copies of, any such document; (g) the power to take and keep samples of any thing on the premises; (h) the power to open any container at the premises for the purpose of inspecting, or taking a sample of, its contents provided that the container is resealed after the inspection is made or the sample is taken; (i) the power to give directions for dealing with a container, or a label on a container, that has been opened or sampled in accordance with paragraph (h); (j) the power to destroy or make harmless, or give directions for the destruction or making harmless of, a chemical product at the premises; (k) the power to take onto the premises such equipment and materials as the inspector requires for the purpose of exercising powers in relation to the premises; (l) the powers set out in subsections 69EBB(1) and (2) and subsections 69EBC(2) and (3). (2) A person who is given a direction under subsection (1) must comply with the direction. (3) A person commits an offence of strict liability if the person contravenes subsection (2). Penalty: 30 penalty units. > Note: For strict liability, see section 6.1 of the Criminal Code. (4) Subsection (2) is a civil penalty provision. > Note: Part 7AB provides for pecuniary penalties for contraventions of civil penalty provisions. #### 69EBB Operating electronic equipment (1) The investigation powers include the power to: (a) operate electronic equipment on the premises; and (b) use a disk, tape or other storage device that: (i) is on the premises; and (ii) can be used with the equipment or is associated with it; if an inspector has reasonable grounds for suspecting that the electronic equipment, disk, tape or other storage device is or contains evidential material. (2) The investigation powers include the following powers in relation to evidential material found in the exercise of the power under subsection (1): (a) if entry to the premises is under an investigation warrant—the power to seize the equipment and the disk, tape or other storage device referred to in that subsection; (b) the power to operate electronic equipment on the premises to put the evidential material in documentary form and remove the documents so produced from the premises; (c) the power to operate electronic equipment on the premises to transfer the evidential material to a disk, tape or other storage device that: (i) is brought to the premises for the exercise of the power; or (ii) is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises; and remove the disk, tape or other storage device from the premises. (3) An inspector may operate electronic equipment as mentioned in subsection (1) or (2) only if the inspector believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment. > Note: For compensation for damage to electronic equipment, see section 69EDE. (4) An inspector may seize equipment or a disk, tape or other storage device as mentioned in paragraph (2)(a) only if: (a) it is not practicable to put the evidential material in documentary form as mentioned in paragraph (2)(b) or to transfer the evidential material as mentioned in paragraph (2)(c); or (b) possession of the equipment or the disk, tape or other storage device by the occupier could constitute an offence against a law of the Commonwealth. #### 69EBC Seizing evidence of related offences and civil penalty provisions (1) This section applies if an inspector enters premises under an investigation warrant to search for evidential material. (2) The investigation powers include seizing a thing that is not evidential material of the kind specified in the warrant if: (a) in the course of searching for the kind of evidential material specified in the warrant, the inspector finds the thing; and (b) the inspector believes on reasonable grounds that the thing affords evidence of one or more of the following: (i) the commission of an offence against this Act or the Collection Act; (ii) the contravention of a civil penalty provision; (iii) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act or the Collection Act; and (c) the inspector believes on reasonable grounds that it is necessary to seize the thing in order to prevent its concealment, loss or destruction or to protect the health of the public or of any person. (3) If an inspector seizes a thing as mentioned in subsection (2), the investigation powers include: (a) the power to direct the occupier of the premises or the owner of the thing to keep it at the premises, or at other premises under the control of the occupier or owner that will, in the opinion of the inspector, cause least danger to the health of the public or of any person; and (b) the power to give any other directions for, or with respect to, the detention of the thing. (4) A person who is given a direction under subsection (3) must comply with the direction. (5) A person commits an offence of strict liability if the person contravenes subsection (4). Penalty: 30 penalty units. > Note: For strict liability, see section 6.1 of the Criminal Code. (6) Subsection (4) is a civil penalty provision. > Note: Part 7AB provides for pecuniary penalties for contraventions of civil penalty provisions. #### 69EBD Persons assisting inspectors Inspectors may be assisted by other persons (1) When exercising investigation powers, an inspector may be assisted by other persons in exercising powers or performing functions or duties under this Part, if that assistance is necessary and reasonable. A person giving such assistance is a person assisting the inspector. Powers, functions and duties of a person assisting the inspector (2) A person assisting the inspector: (a) may enter premises; and (b) may exercise powers and perform functions and duties under this Part in relation to evidential material; and (c) must do so in accordance with a direction given to the person assisting by the inspector. (3) A power exercised by a person assisting the inspector as mentioned in subsection (2) is taken for all purposes to have been exercised by the inspector. (4) A function or duty performed by a person assisting the inspector as mentioned in subsection (2) is taken for all purposes to have been performed by the inspector. (5) If a direction is given under paragraph (2)(c) in writing, the direction is not a legislative instrument. #### 69EBE Use of force in executing an investigation warrant In executing an investigation warrant, an inspector and a person assisting the inspector may use such force against things as is necessary and reasonable in the circumstances. #### Subdivision B—Powers of inspectors to ask questions and seek production of documents #### 69EC Inspector may ask questions and seek production of documents (1) This section applies if an inspector enters premises to search for evidential material. (2) If the entry is authorised because the occupier of the premises consented to the entry, the inspector may ask the occupier to answer any questions, and produce any document, relating to evidential material. (3) If the entry is authorised by an investigation warrant, the inspector may require any person on the premises to answer any questions, and produce any document, relating to evidential material of the kind specified in the warrant. (4) A person commits an offence if: (a) the person is subject to a requirement under subsection (3); and (b) the person fails to comply with the requirement. Penalty for contravention of this subsection: 50 penalty units. #### 69ECA Copying of documents If a person produces a document to an inspector in accordance with a requirement under section 69EC, the inspector may make copies of, or take extracts from, the document. ### Division 3—Obligations and incidental powers of inspectors #### 69ED Consent (1) Before obtaining the consent of an occupier of premises for the purposes of paragraph 69EAB(3)(a) or 69EB(3)(a), an inspector must inform the occupier that the occupier may refuse consent. (2) A consent has no effect unless the consent is voluntary. (3) A consent may be expressed to be limited to entry during a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period. (4) A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn. (5) If an inspector entered premises because of the consent of the occupier of the premises, the inspector, and any person assisting the inspector, must leave the premises if the consent ceases to have effect. #### 69EDA Announcement before entry under warrant (1) Before entering premises under a warrant, an inspector must: (a) announce that: (i) he or she is authorised to enter the premises; and (ii) any person assisting the inspector is authorised to enter the premises; and (b) show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises; and (c) give any person at the premises an opportunity to allow entry to the premises. (2) However, an inspector is not required to comply with subsection (1) if the inspector believes on reasonable grounds that immediate entry to the premises is required: (a) to ensure the safety of a person; or (b) to ensure that the effective execution of the warrant is not frustrated. (3) If: (a) an inspector does not comply with subsection (1) because of subsection (2); and (b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises; the inspector must, as soon as practicable after entering the premises, show his or her identity card to the occupier or other person. #### 69EDB Inspector to be in possession of warrant An inspector executing a warrant must be in possession of: (a) the warrant issued by the magistrate under section 69EH or 69EHA, or a copy of the warrant as so issued; or (b) the form of warrant completed under subsection 69EHB(6), or a copy of the form as so completed. #### 69EDC Details of warrant etc. to be given to occupier (1) An inspector must comply with subsection (2) if: (a) a warrant is being executed in relation to premises; and (b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises. (2) The inspector executing the warrant must, as soon as practicable: (a) do one of the following: (i) if the warrant was issued under section 69EH or 69EHA—make a copy of the warrant available to the occupier or other person (which need not include the signature of the magistrate who issued it); (ii) if the warrant was signed by a magistrate under section 69EHB—make a copy of the form of warrant completed under subsection 69EHB(6) available to the occupier or other person; and (b) inform the occupier or other person of the rights and responsibilities of the occupier or other person under Division 5 of this Part. #### 69EDD Expert assistance to operate electronic equipment (1) This section applies if an inspector enters premises under a warrant. Securing equipment (2) An inspector may do whatever is necessary to secure any electronic equipment that is on the premises if the inspector believes on reasonable grounds that: (a) in the case of a monitoring warrant: (i) there is relevant data on the premises; and (ii) the relevant data may be accessible by operating the equipment; and (iii) expert assistance is required to operate the equipment; and (iv) the relevant data may be destroyed, altered or otherwise interfered with, if the inspector does not take action under this subsection; and (b) in the case of an investigation warrant: (i) there is evidential material of the kind specified in the warrant on the premises; and (ii) the evidential material may be accessible by operating the electronic equipment; and (iii) expert assistance is required to operate the equipment; and (iv) the evidential material may be destroyed, altered or otherwise interfered with, if the inspector does not take action under this subsection. The equipment may be secured by locking it up, placing a guard or any other means. (3) The inspector must give notice to the occupier of the premises, or another person who apparently represents the occupier, of: (a) the inspector’s intention to secure the equipment; and (b) the fact that the equipment may be secured for up to 72 hours. Period equipment may be secured (4) The equipment may be secured until the earlier of the following happens: (a) the 72‑hour period ends; (b) the equipment has been operated by the expert. > Note: For compensation for damage to electronic equipment, see section 69EDE. Extensions (5) The inspector may apply to a magistrate for an extension of the 72‑hour period, if the inspector believes on reasonable grounds that the equipment needs to be secured for a longer period. (6) Before making the application, the inspector must give notice to the occupier of the premises, or another person who apparently represents the occupier, of the inspector’s intention to apply for an extension. The occupier or other person is entitled to be heard in relation to that application. (7) The provisions of this Part relating to the issue of a warrant apply, with such modifications as are necessary, to the issue of an extension. (8) The 72‑hour period may be extended more than once. #### 69EDE Compensation for damage to electronic equipment (1) This section applies if: (a) as a result of equipment being operated as mentioned in this Part: (i) damage is caused to the equipment; or (ii) the data recorded on the equipment is damaged; or (iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and (b) the damage or corruption occurs because: (i) insufficient care was exercised in selecting the person who was to operate the equipment; or (ii) insufficient care was exercised by the person operating the equipment. (2) The APVMA must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the APVMA and the owner or user agree on. (3) However, if the owner or user and the APVMA fail to agree, the owner or user may institute proceedings in a court of competent jurisdiction for such reasonable amount of compensation as the court determines. (4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment. ### Division 4—Execution of an investigation warrant interrupted #### 69EE Completing execution of an investigation warrant after temporary cessation (1) This section applies if an inspector, and all persons assisting, who are executing an investigation warrant in relation to premises temporarily cease its execution and leave the premises. (2) The inspector, and persons assisting, may complete the execution of the warrant if: (a) the warrant is still in force; and (b) the inspector and persons assisting are absent from the premises: (i) for not more than 1 hour; or (ii) if there is an emergency situation, for not more than 12 hours or such longer period as allowed by a magistrate under subsection (5); or (iii) for a longer period if the occupier of the premises consents in writing. Application for extension in emergency situation (3) An inspector, or person assisting, may apply to a magistrate for an extension of the 12‑hour period mentioned in subparagraph (2)(b)(ii) if: (a) there is an emergency situation; and (b) the inspector or person assisting believes on reasonable grounds that the inspector and the persons assisting will not be able to return to the premises within that period. (4) If it is practicable to do so, before making the application, the inspector or person assisting must give notice to the occupier of the premises of his or her intention to apply for an extension. Extension in emergency situation (5) A magistrate may extend the period during which the inspector and persons assisting may be away from the premises if: (a) an application is made under subsection (3); and (b) the magistrate is satisfied, by information on oath or affirmation, that there are exceptional circumstances that justify the extension; and (c) the extension would not result in the period ending after the warrant ceases to be in force. #### 69EEA Completing execution of an investigation warrant stopped by court order An inspector, and any persons assisting, may complete the execution of an investigation warrant that has been stopped by an order of a court if: (a) the order is later revoked or reversed on appeal; and (b) the warrant is still in force when the order is revoked or reversed. ### Division 5—Occupier’s rights and responsibilities #### 69EF Occupier entitled to observe execution of warrant (1) The occupier of premises to which a warrant relates, or another person who apparently represents the occupier, is entitled to observe the execution of the warrant if the occupier or other person is present at the premises while the warrant is being executed. (2) The right to observe the execution of the warrant ceases if the occupier or other person impedes that execution. (3) This section does not prevent the execution of the warrant in 2 or more areas of the premises at the same time. #### 69EFA Occupier to provide inspector with facilities and assistance (1) The occupier of premises to which a warrant relates, or another person who apparently represents the occupier, must provide: (a) an inspector executing the warrant; and (b) any person assisting; with all reasonable facilities and assistance for the effective exercise of their powers. (2) A person commits an offence if: (a) the person is subject to subsection (1); and (b) the person fails to comply with that subsection. Penalty for contravention of this subsection: 30 penalty units. ### Division 6—General provisions relating to seizure #### 69EG Copies of seized things to be provided (1) Subject to subsection (2), if an inspector who has entered premises under an investigation warrant seizes: (a) a document, film, computer file or other thing that can be readily copied; or (b) a storage device the information in which can be readily copied; the inspector 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 the occupier or other person as soon as practicable after the seizure. (2) However, the inspector is not required to comply with the request if possession of the document, film, computer file, thing or information by the occupier or other person could constitute an offence against a law of the Commonwealth. #### 69EGA Receipts for seized things (1) An inspector must provide a receipt for a thing that is seized under an investigation warrant. (2) One receipt may cover 2 or more things seized. #### 69EGB Return of seized things (1) An inspector must take reasonable steps to return a thing seized under an investigation warrant when the earliest of the following happens: (a) the reason for the thing’s seizure no longer exists; (b) it is decided that the thing is not to be used in evidence; (c) the period of 60 days after the thing’s seizure ends. Exceptions (2) Subsection (1): (a) is subject to any contrary order of a court; and (b) does not apply if the thing: (i) is forfeited or forfeitable to the APVMA (see section 69ET); or (ii) is the subject of a dispute as to ownership. (3) The inspector is not required to take reasonable steps to return a thing because of paragraph (1)(c) if: (a) proceedings in which the thing may be used in evidence were begun before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or (b) the inspector may keep the thing because of an order under section 69EGC; or (c) the inspector is authorised by this Part or by an order of a court to keep, destroy or dispose of the thing. #### 69EGC Magistrate may permit a thing to be kept (1) If: (a) before the end of 60 days after an inspector seizes a thing under an investigation warrant; or (b) before the end of a period previously stated in an order under this section in respect of a thing seized by an inspector as mentioned in paragraph (a); proceedings in which the thing may be used in evidence have not been brought, the inspector may apply to a magistrate for an order that he or she may keep the thing for a further period. (2) Before making the application, the inspector must: (a) take reasonable steps to discover who has an interest in the retention of the thing; and (b) if it is practicable to do so, notify each person who the inspector believes has such an interest of the proposed application. Order to retain thing (3) A magistrate may order that the thing may continue to be retained for a period specified in the order if the magistrate is satisfied that it is necessary for the thing to continue to be retained: (a) for the purposes of an investigation as to whether: (i) an offence against this Act or the Collection Act has been committed; or (ii) a civil penalty provision has been contravened; or (b) for the purposes of an investigation as to whether an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act or the Collection Act has been committed; or (c) to enable evidence of: (i) an offence mentioned in paragraph (a) or (b) to be secured for the purposes of a prosecution; or (ii) a contravention mentioned in paragraph (a) to be secured for the purposes of proceedings for a civil penalty order. (4) The period specified must not exceed 3 years. #### 69EGD Disposal of things (1) The APVMA may dispose of a thing seized under an investigation warrant if: (a) an inspector has taken reasonable steps to return the thing to a person; and (b) either: (i) the inspector has been unable to locate the person; or (ii) the person has refused to take possession of the thing. (2) The APVMA may dispose of the thing in such manner as it considers appropriate. ### Division 7—Applying for warrants etc. #### 69EH Monitoring warrants Application for warrant (1) An inspector may apply to a magistrate for a monitoring warrant under this section in relation to premises. Issue of warrant (2) The magistrate may issue the warrant if the magistrate is satisfied, by information on oath or affirmation, that it is reasonably necessary that one or more inspectors should have access to the premises for the purpose of determining whether: (a) this Act, or the Collection Act, has been, or is being, complied with; or (b) information provided under this Act, or the Collection Act, is correct; or (c) levy is payable under the Collection Act. (3) However, the magistrate must not issue the warrant unless the inspector or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the monitoring warrant is being sought. Content of warrant (4) The monitoring warrant must: (a) describe the premises to which the warrant relates; and (b) state that the warrant is issued under this section; and (c) state the purpose for which the warrant is issued; and (d) authorise one or more inspectors (whether or not named in the warrant) from time to time while the warrant remains in force: (i) to enter the premises; and (ii) to exercise the monitoring powers in relation to the premises; and (e) state whether entry is authorised to be made at any time of the day or during specified hours of the day; and (f) specify the day (not more than 6 months after the issue of the warrant) the warrant ceases to be in force. (5) If the application for the warrant is made under section 69EHB, this section applies as if paragraph (4)(f) required the warrant to specify the period for which the warrant is to remain in force, which must not be more than 48 hours. #### 69EHA Investigation warrants Application for warrant (1) An inspector may apply to a magistrate for an investigation warrant under this section in relation to premises. Issue of warrant (2) The magistrate may issue the investigation warrant if the magistrate is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there may be within the next 72 hours, evidential material on the premises. (3) However, the magistrate must not issue the investigation warrant unless the inspector or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought. Content of warrant (4) The investigation warrant must: (a) state the offence or offences, or civil penalty provision or civil penalty provisions, to which the warrant relates; and (b) describe the premises to which the warrant relates; and (c) state that the warrant is issued under this section; and (d) specify the kinds of evidential material that are to be searched for under the warrant; and (e) state that the evidential material specified may be seized under the warrant; and (f) state that any thing found in the course of executing the warrant that the person executing the warrant believes on reasonable grounds to be evidence of one or more of the following: (i) the commission of an offence against this Act or the Collection Act; (ii) the contravention of a civil penalty provision; (iii) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act or the Collection Act; may be seized under the warrant; and (g) name one or more inspectors; and (h) authorise the inspectors named in the warrant: (i) to enter the premises; and (ii) to exercise the powers set out in Divisions 2, 3 and 4 of this Part in relation to the premises; and (i) state whether entry is authorised to be made at any time of the day or during specified hours of the day; and (j) specify the day (not more than 1 week after the issue of the warrant) the warrant ceases to be in force. (5) If the application for the warrant is made under section 69EHB, this section applies as if: (a) subsection (2) referred to 48 hours rather than 72 hours; and (b) paragraph (4)(j) required the warrant to specify the period for which the warrant is to remain in force, which must not be more than 48 hours. #### 69EHB Warrants by telephone, fax etc. Application for warrant (1) An inspector may apply to a magistrate by telephone, fax or other electronic means for a warrant in relation to premises: (a) in an urgent case; or (b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant. (2) The magistrate may require communication by voice to the extent that it is practicable in the circumstances. (3) Before applying for a warrant, the inspector must: (a) in the case of a monitoring warrant—prepare an information of the kind mentioned in subsection 69EH(2); and (b) in the case of an investigation warrant—prepare an information of the kind mentioned in subsection 69EHA(2); in relation to the premises that sets out the grounds on which the warrant is sought. If it is necessary to do so, the inspector may apply for the warrant before the information is sworn or affirmed. Magistrate may complete and sign warrant (4) The magistrate may complete and sign the same warrant that would have been issued under section 69EH or 69EHA if the magistrate is satisfied that there are reasonable grounds for doing so: (a) after considering the terms of the information; and (b) after receiving such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought. (5) After completing and signing the warrant, the magistrate must inform the inspector, by telephone, fax or other electronic means, of: (a) the terms of the warrant; and (b) the day and time the warrant was signed. Obligations on inspector (6) The inspector must then do the following: (a) complete and sign a form of warrant in the same terms as the warrant completed and signed by the magistrate; (b) state on the form the following: (i) the name of the magistrate; (ii) the day and time the warrant was signed by the magistrate; (c) send the following to the magistrate: (i) the form of warrant completed by the inspector; (ii) the information referred to in subsection (3), which must have been duly sworn or affirmed. (7) The inspector must comply with paragraph (6)(c) by the end of the day after the earlier of the following: (a) the day the warrant ceases to be in force; (b) the day the warrant is executed. Magistrate to attach documents together (8) The magistrate must attach the documents provided under paragraph (6)(c) to the warrant signed by the magistrate. #### 69EHC Authority of warrant (1) A form of warrant duly completed under subsection 69EHB(6) is authority for the same powers as are authorised by the warrant signed by the magistrate under subsection 69EHB(4). (2) In any proceedings, a court is to assume (unless the contrary is proved) that an exercise of power was not authorised by a warrant under section 69EHB if: (a) it is material, in those proceedings, for the court to be satisfied that the exercise of power was authorised by that section; and (b) the warrant signed by the inspector authorising the exercise of the power is not produced in evidence. #### 69EHD Offence relating to warrants by telephone, fax etc. An inspector must not: (a) state in a document that purports to be a form of warrant under section 69EHB the name of a magistrate unless that magistrate signed the warrant; or (b) state on a form of warrant under that section a matter that, to the inspector’s knowledge, departs in a material particular from the terms of the warrant signed by the magistrate under that section; or (c) purport to execute, or present to another person, a document that purports to be a form of warrant under that section that the inspector knows departs in a material particular from the terms of a warrant signed by a magistrate under that section; or (d) purport to execute, or present to another person, a document that purports to be a form of warrant under that section where the inspector knows that no warrant in the terms of the form of warrant has been completed and signed by a magistrate; or (e) give to a magistrate a form of warrant under that section that is not the form of warrant that the inspector purported to execute. Penalty: Imprisonment for 2 years. ### Division 8—Powers of magistrates #### 69EI Powers of issuing officers Powers conferred personally (1) A power conferred on a magistrate by this Part is conferred on the magistrate: (a) in a personal capacity; and (b) not as a court or a member of a court. Powers need not be accepted (2) The magistrate need not accept the power conferred. Protection and immunity (3) A magistrate exercising a power conferred by this Part has the same protection and immunity as if the magistrate were exercising the power: (a) as the court of which the magistrate is a member; or (b) as a member of the court of which the magistrate is a member. ## Part 7AB—Enforcement ### Division 1—Civil penalty orders #### Subdivision A—Obtaining a civil penalty order #### 69EJ Civil penalty orders Application for order (1) The APVMA may, on behalf of the Commonwealth, apply to a court of competent jurisdiction for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty. (2) The APVMA must make the application within 6 years of the alleged contravention. Court may order person to pay pecuniary penalty (3) If the court is satisfied that the person has contravened the civil penalty provision, the court may order the person to pay to the Commonwealth such pecuniary penalty for the contravention as the court determines to be appropriate. > Note: Section 69EJA sets out the maximum penalty that the court may order the person to pay. (4) An order under subsection (3) is a civil penalty order. Determining pecuniary penalty (5) In determining the pecuniary penalty, the court may take into account all relevant matters, including: (a) the nature and extent of the contravention; and (b) the nature and extent of any loss or damage suffered because of the contravention; and (c) the circumstances in which the contravention took place; and (d) whether the person has previously been found by a court to have engaged in any similar conduct; and (e) the extent to which the person has cooperated with the authorities; and (f) if the person is a body corporate: (i) the level of the employees, officers or agents of the body corporate involved in the contravention; and (ii) whether the body corporate exercised due diligence to avoid the contravention; and (iii) whether the body corporate had a corporate culture conducive to compliance. #### 69EJA Maximum penalties for contravention of civil penalty provisions Penalty for body corporate (1) The pecuniary penalty for a contravention of a civil penalty provision by a body corporate must not exceed 5 times the amount of the maximum monetary penalty that could be imposed by a court if the body corporate were convicted of an offence constituted by conduct that is the same as the conduct constituting the contravention. Penalty for individuals (2) The pecuniary penalty for a contravention of a civil penalty provision by an individual must not exceed 3 times the amount of the maximum monetary penalty that could be imposed by a court if the person were convicted of an offence constituted by conduct that is the same as the conduct constituting the contravention. Penalty for contravention of subsection 69EJR(1) (3) The pecuniary penalty for a contravention, by an executive officer of a body corporate, of subsection 69EJR(1) in relation to the contravention by the body corporate of a civil penalty provision must not exceed 12% of the amount of the maximum monetary penalty that could be imposed on the body corporate for the contravention. #### 69EJB Civil enforcement of penalty (1) A pecuniary penalty is a debt payable to the Commonwealth. (2) The Commonwealth may enforce a civil penalty order as if it were an order made in civil proceedings against a person to recover a debt due by the person. The debt arising from the order is taken to be a judgement debt. #### 69EJC Conduct contravening more than one civil penalty provision (1) If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Division against a person in relation to the contravention of any one or more of those provisions. (2) However, the person is not liable to more than one pecuniary penalty under this Division in relation to the same conduct. #### 69EJD Multiple contraventions (1) A court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character. > Note: For continuing contraventions of civil penalty provisions, see section 69EJL. (2) However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. #### 69EJE Proceedings may be heard together A court may direct that 2 or more proceedings for civil penalty orders be heard together. #### 69EJF Civil evidence and procedure rules for civil penalty orders A court must apply the rules of evidence and procedure for civil matters when hearing and determining an application for a civil penalty order. #### 69EJG Contravening a civil penalty provision is not an offence A contravention of a civil penalty provision is not an offence. #### Subdivision B—Civil proceedings and criminal proceedings #### 69EJH Civil proceedings after criminal proceedings A court may not make a civil penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention. #### 69EJI Criminal proceedings during civil proceedings (1) Proceedings for a civil penalty order against a person for a contravention of a civil penalty provision are stayed if: (a) criminal proceedings are commenced or have already been commenced against the person for an offence; and (b) the offence is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention. (2) The proceedings for the order (the civil proceedings) may be resumed if the person is not convicted of the offence. Otherwise, the civil proceedings are dismissed. #### 69EJJ Criminal proceedings after civil proceedings Criminal proceedings may be commenced against a person for conduct that is the same, or substantially the same, as conduct that would constitute a contravention of a civil penalty provision regardless of whether a civil penalty order has been made against the person in relation to the contravention. #### 69EJK Evidence given in civil proceedings not admissible in criminal proceedings (1) Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual for an offence if: (a) the individual previously gave the evidence or produced the documents in proceedings for a civil penalty order against the individual for an alleged contravention of a civil penalty provision (whether or not the order was made); and (b) the conduct alleged to constitute the offence is the same, or substantially the same, as the conduct alleged to constitute the contravention. (2) However, subsection (1) does not apply to criminal proceedings in relation to the falsity of the evidence given by the individual in the proceedings for the civil penalty order. #### Subdivision C—Miscellaneous #### 69EJL Continuing contraventions of civil penalty provisions (1) If an act or thing is required under a civil penalty provision to be done: (a) within a particular period; or (b) before a particular time; then the obligation to do that act or thing continues until the act or thing is done (even if the period has expired or the time has passed). (2) A person who contravenes a civil penalty provision that requires an act or thing to be done: (a) within a particular period; or (b) before a particular time; commits a separate contravention of that provision in respect of each day during which the contravention occurs (including the day the relevant civil penalty order is made or any later day). #### 69EJM Ancillary contravention of civil penalty provisions (1) A person must not: (a) attempt to contravene a civil penalty provision; or (b) aid, abet, counsel or procure a contravention of a civil penalty provision; or (c) induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or (d) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil penalty provision; or (e) conspire with others to effect a contravention of a civil penalty provision. Civil penalty (2) A person who contravenes subsection (1) in relation to a civil penalty provision is taken to have contravened the provision. > Note: Section 69EJO (which provides that a person’s state of mind does not need to be proven in relation to a civil penalty provision) does not apply to the extent that proceedings relate to the contravention of subsection (1). #### 69EJN Mistake of fact (1) A person is not liable to have a civil penalty order made against the person for a contravention of a civil penalty provision if: (a) at or before the time of the conduct constituting the contravention, the person: (i) considered whether or not facts existed; and (ii) was under a mistaken but reasonable belief about those facts; and (b) had those facts existed, the conduct would not have constituted a contravention of the civil penalty provision. (2) For the purposes of subsection (1), a person may be regarded as having considered whether or not facts existed if: (a) the person had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and (b) the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion. (3) A person who wishes to rely on subsection (1) or (2) in proceedings for a civil penalty order bears an evidential burden in relation to that matter. #### 69EJO State of mind (1) In proceedings for a civil penalty order against a person for a contravention of a civil penalty provision, it is not necessary to prove: (a) the person’s intention; or (b) the person’s knowledge; or (c) the person’s recklessness; or (d) the person’s negligence; or (e) any other state of mind of the person. (2) Subsection (1) does not apply to the extent that the proceedings relate to a contravention of subsection 69EJM(1) (which is about ancillary contraventions of civil penalty provisions). (3) Subsection (1) does not affect the operation of section 69EJN (which is about mistake of fact). (4) Subsection (1) does not apply to the extent that the civil penalty provision, or a provision that relates to the civil penalty provision, expressly provides otherwise. #### 69EJP Evidential burden for exceptions In proceedings for a civil penalty order, a person who wishes to rely on any exception, exemption, excuse, qualification or justification in relation to a civil penalty provision bears an evidential burden in relation to that matter. #### 69EJQ Liability of body corporate for actions by employees, agents or officers If an element of a civil penalty provision is done by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, the element must also be attributed to the body corporate. #### 69EJR Liability of executive officers (1) An executive officer of a body corporate contravenes this subsection if: (a) the body corporate contravenes a civil penalty provision; and (b) the officer knew that the contravention would occur; and (c) the officer was in a position to influence the conduct of the body in relation to the contravention; and (d) the officer failed to take all reasonable steps to prevent the contravention. (2) Subsection (1) is a civil penalty provision. > Note: Subdivision A of this Division provides for pecuniary penalties for contraventions of civil penalty provisions. #### 69EJS Establishing whether an executive officer took reasonable steps to prevent the contravention of a civil penalty provision (1) For the purposes of section 69EJR, in determining whether an executive officer of a body corporate failed to take all reasonable steps to prevent the contravention of a civil penalty provision, a court is to have regard to: (a) what action (if any) the officer took towards ensuring that the body’s employees, agents and contractors have a reasonable knowledge and understanding of the requirements to comply with this Act or the Collection Act, in so far as those requirements affect the employees, agents or contractors concerned; and (b) what action (if any) the officer took when he or she became aware that the body was contravening this Act or the Collection Act. (2) This section does not, by implication, limit the generality of section 69EJR. ### Division 2—Infringement notices #### 69EK When an infringement notice may be given (1) If an inspector has reasonable grounds to believe that a person has contravened a prescribed civil penalty provision, the inspector may give the person an infringement notice for the alleged contravention. (2) The infringement notice must be given within 12 months after the day the contravention is alleged to have taken place. (3) A single infringement notice must relate only to a single contravention of a single prescribed civil penalty provision. #### 69EKA Matters to be included in an infringement notice (1) An infringement notice must: (a) be identified by a unique number; and (b) state the day it is given; and (c) state the name of the person to whom the notice is given; and (d) state the name of the person who gave the notice; and (e) give brief details of the alleged contravention, including: (i) the provision that was allegedly contravened; and (ii) the maximum penalty that a court could impose for the contravention; and (iii) the time (if known) and day of, and the place of, the alleged contravention; and (f) state the amount that is payable under the notice; and (g) give an explanation of how payment of the amount is to be made; and (h) state that, if the person to whom the notice is given pays the amount within 28 days after the day the notice is given, then (unless the notice is withdrawn) proceedings seeking a civil penalty order will not be brought in relation to the alleged contravention; and (i) state that payment of the amount is not an admission of liability; and (j) state that the person may apply to the APVMA to have the period in which to pay the amount extended; and (k) state that the person may choose not to pay the amount and, if the person does so, proceedings seeking a civil penalty order may be brought in relation to the alleged contravention; and (l) set out how the notice can be withdrawn; and (m) state that if the notice is withdrawn proceedings seeking a civil penalty order may be brought in relation to the alleged contravention; and (n) state that the person may make written representations to the APVMA seeking the withdrawal of the notice. (2) For the purposes of paragraph (1)(f), the amount to be stated in the notice for the alleged contravention of the provision must not exceed one‑fifth of the maximum penalty that a court could impose on the person for that contravention. (3) The regulations may, subject to subsection (2), provide for a scale of amounts that may apply for an alleged contravention. #### 69EKB Extension of time to pay amount (1) A person to whom an infringement notice has been given may apply to the APVMA for an extension of the period referred to in paragraph 69EKA(1)(h). (2) If the application is made before the end of that period, the APVMA may, in writing, extend that period. The APVMA may do so before or after the end of that period. (3) If the APVMA extends that period, a reference in this Division to the period referred to in paragraph 69EKA(1)(h) is taken to be a reference to that period so extended. (4) If the APVMA does not extend that period, a reference in this Division to the period referred to in paragraph 69EKA(1)(h) is taken to be a reference to the period that ends on the later of the following days: (a) the day that is the last day of the period referred to in paragraph 69EKA(1)(h); (b) the day that is 7 days after the day the person was given notice of the APVMA’s decision not to extend. (5) The APVMA may extend the period more than once under subsection (2). #### 69EKC Withdrawal of an infringement notice Representations seeking withdrawal of notice (1) A person to whom an infringement notice has been given may make written representations to the APVMA seeking the withdrawal of the notice. Withdrawal of notice (2) The APVMA may withdraw an infringement notice given to a person (whether or not the person has made written representations seeking the withdrawal). (3) When deciding whether or not to withdraw an infringement notice (the relevant infringement notice), the APVMA: (a) must take into account any written representations seeking the withdrawal that were given by the person to the APVMA; and (b) may take into account the following: (i) whether a court has previously imposed a penalty on the person for a contravention of a prescribed civil penalty provision if the contravention is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention in the relevant infringement notice; (ii) the circumstances of the alleged contravention; (iii) whether the person has paid an amount, stated in an earlier infringement notice, for a contravention of a prescribed civil penalty provision if the contravention is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention in the relevant infringement notice; (iv) any other matter the APVMA considers relevant. Notice of withdrawal (4) Notice of the withdrawal of the infringement notice must be given to the person. The withdrawal notice must state: (a) the person’s name and address; and (b) the day the infringement notice was given; and (c) the identifying number of the infringement notice; and (d) that the infringement notice is withdrawn; and (e) that proceedings seeking a civil penalty order may be brought in relation to the alleged contravention. Refund of amount if infringement notice withdrawn (5) If: (a) the APVMA withdraws the infringement notice; and (b) the person has already paid the amount stated in the notice; the Commonwealth must refund to the person an amount equal to the amount paid. #### 69EKD Effect of payment of amount (1) If the person to whom an infringement notice for an alleged contravention of a provision is given pays the amount stated in the notice before the end of the period referred to in paragraph 69EKA(1)(h): (a) any liability of the person for the alleged contravention is discharged; and (b) proceedings seeking a civil penalty order may not be brought against the person in relation to the alleged contravention; and (c) the person is not regarded as having admitted liability for the alleged contravention. (2) Subsection (1) does not apply if the notice has been withdrawn. #### 69EKE Effect of this Division This Division does not: (a) require an infringement notice to be given to a person for an alleged contravention of a prescribed civil penalty provision; or (b) affect the liability of a person for an alleged contravention of a prescribed civil penalty provision if: (i) the person does not comply with an infringement notice given to the person for the contravention; or (ii) an infringement notice is not given to the person for the contravention; or (iii) an infringement notice is given to the person for the contravention and is subsequently withdrawn; or (c) prevent the giving of 2 or more infringement notices to a person for an alleged contravention of a prescribed civil penalty provision; or (d) limit a court’s discretion to determine the amount of a penalty to be imposed on a person who is found to have contravened a prescribed civil penalty provision. ### Division 3—Enforceable undertakings #### 69EL Acceptance of undertakings (1) The APVMA may accept any of the following undertakings: (a) a written undertaking given by a person that the person will, in order to comply with a provision of this Act or the Collection Act, take specified action; (b) a written undertaking given by a person that the person will, in order to comply with a provision of this Act or the Collection Act, refrain from taking specified action; (c) a written undertaking given by a person that the person will take specified action directed towards ensuring one or more of the following: (i) that the person does not commit an offence against this Act or the Collection Act; (ii) that the person does not contravene a civil penalty provision; (iii) that the person is unlikely to commit an offence against this Act or the Collection Act, or to contravene a civil penalty provision, in the future. (2) The undertaking must be expressed to be an undertaking under this section. (3) The person may withdraw or vary the undertaking at any time, but only with the written consent of the APVMA. (4) The APVMA’s consent is not a legislative instrument. (5) The APVMA may, by written notice given to the person, cancel the undertaking. (6) The APVMA must publish the undertaking on the APVMA’s website. (7) However, the APVMA is not required to publish so much of the undertaking that the APVMA is satisfied: (a) is confidential commercial information; or (b) is personal information (within the meaning of the Privacy Act 1988); or (c) should not be disclosed because it would be against the public interest to do so. #### 69ELA Enforcement of undertakings (1) If: (a) a person has given an undertaking under section 69EL; and (b) the undertaking has not been withdrawn or cancelled; and (c) the APVMA considers that the person has breached the undertaking; the APVMA may, on behalf of the Commonwealth, apply to a court of competent jurisdiction for an order under subsection (2). (2) If the court is satisfied that the person has breached the undertaking, the court may make any or all of the following orders: (a) an order directing the person to comply with the undertaking; (b) an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach; (c) any order that the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach; (d) any other order that the court considers appropriate. ### Division 4—Injunctions #### 69EM Grant of injunctions Restraining injunctions (1) If a person has engaged, is engaging or is proposing to engage, in conduct that constitutes an offence against this Act or the Collection Act or a contravention of a civil penalty provision, a court of competent jurisdiction may, on application by any person, grant an injunction: (a) restraining the first‑mentioned person from engaging in the conduct; and (b) if, in the court’s opinion, it is desirable to do so—requiring the first‑mentioned person to do a thing. Performance injunctions (2) If: (a) a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do a thing; and (b) the refusal or failure was, is or would be, an offence against this Act or the Collection Act or a contravention of a civil penalty provision; the court may, on application by any person, grant an injunction requiring the first‑mentioned person to do that thing. Grant of interim injunctions (3) Before deciding an application for an injunction under this section, the court may grant an interim injunction: (a) restraining a person from engaging in conduct; or (b) requiring a person to do a thing. #### 69EMA Discharging or varying injunctions A court may discharge or vary an injunction granted by that court under this Division. #### 69EMB Certain limits on granting injunctions not to apply Restraining injunctions (1) The power of a court under this Division to grant an injunction restraining a person from engaging in conduct may be exercised: (a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; and (b) whether or not the person has previously engaged in conduct of that kind; and (c) whether or not the conduct involves a serious and immediate risk of: (i) an effect that is harmful to human beings; or (ii) an unintended effect that is harmful to animals, plants or things, or to the environment. Performance injunctions (2) The power of a court under this Division to grant an injunction requiring a person to do a thing may be exercised: (a) whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that thing; and (b) whether or not the person has previously refused or failed to do that thing; and (c) whether or not the conduct involves a serious and immediate risk of: (i) an effect that is harmful to human beings; or (ii) an unintended effect that is harmful to animals, plants or things, or to the environment. #### 69EMC Other powers of a court unaffected The powers conferred on a court under this Division are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise. ### Division 5—Substantiation notices #### 69EN APVMA may require claims to be substantiated etc. (1) This section applies if a person has made a claim or representation in relation to: (a) the import, or possible import, of a chemical product by the person or another person; or (b) the export of a chemical product by the person or another person. (2) The APVMA may give the person who made the claim or representation a written notice that requires the person to do either or both of the following: (a) give information or produce documents to the APVMA that could be capable of substantiating or supporting the claim or representation; (b) give information or produce documents to the APVMA that are of a kind specified in the notice; within 21 days after the notice is given to the person who made the claim or representation. (3) Any kind of information or documents that the APVMA specifies under paragraph (2)(b) must be a kind that the APVMA is satisfied is relevant to substantiating or supporting the claim or representation. (4) The notice must: (a) name the person to whom it is given; and (b) specify the claim or representation to which it relates; and (c) explain the effect of sections 69ENA and 69ENB. (5) The notice may relate to more than one claim or representation that the person has made. (6) This section does not apply to a person who made the claim or representation if the person: (a) made the claim or representation by publishing it on behalf of another person in the course of carrying on a business of providing information; and (b) does not have a commercial relationship with the other person other than for the purpose of: (i) publishing claims or representations promoting, or apparently intended to promote, the other person’s business or other activities; or (ii) the other person supplying goods or services. #### 69ENA Compliance with substantiation notices (1) A person given a substantiation notice under section 69EN must comply with the notice: (a) within the period specified in the notice; or (b) within such further time as the APVMA allows under subsection (3). (2) A person given a substantiation notice under section 69EN may apply to the APVMA for further time to comply with the notice. An application must be in writing and made within 21 days after the notice is given to the person. (3) The APVMA may, by written notice given to the person, extend the period within which the person must comply with the notice. (4) Despite subsection (1), an individual may refuse or fail to give particular information or produce a particular document in compliance with a substantiation notice on the ground that the information, or production of the document, might tend to incriminate the individual or to expose the individual to a penalty. #### 69ENB Failure to comply with substantiation notice (1) A person contravenes this section if: (a) the person is given a notice under section 69EN; and (b) the person fails to comply with the notice: (i) within the period specified in the notice; or (ii) if the APVMA has allowed the person further time under subsection 69ENA(3)—within such further time. (2) Subsection (1) does not apply if: (a) the person is an individual; and (b) the person refuses or fails to give particular information or produce a particular document in compliance with a substantiation notice; and (c) the information, or production of the document, might tend to incriminate the individual or to expose the individual to a penalty. (3) A person commits an offence if the person contravenes subsection (1). Penalty: 50 penalty units. > Note: A defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal Code. (4) Subsection (1) is a civil penalty provision. > Note 1: Division 1 of this Part provides for pecuniary penalties for contraventions of civil penalty provisions. > Note 2: For the evidential burden in civil penalty proceedings in relation to the matter in subsection (2), see section 69EJP. ### Division 6—Formal warnings #### 69EO APVMA may issue a formal warning (1) The APVMA may, by written notice, issue a formal warning to a person if the APVMA has reasonable grounds to suspect that the person may have contravened this Act or the Collection Act. (2) A formal warning under subsection (1) is not a legislative instrument. ### Division 7—Miscellaneous #### 69EP Hearings (1) The APVMA may hold hearings for the purposes of the performance or exercise of any of its functions or powers. (2) Before holding a hearing, the APVMA must cause to be published in the Gazette, and in any other manner that it thinks appropriate, a notice setting out the place and time for the hearing. (3) Subject to subsection (4), a hearing is to be held in public. (4) The APVMA, having regard to the confidential nature of any submissions or evidence or for any other reason, may direct that a part of a hearing be in private and may determine who may be present. (5) The APVMA may give directions prohibiting or restricting the publication of submissions or evidence given at a hearing, whether in public or in private, or of matters contained in such submissions or evidence or in documents produced at such a hearing. (6) A person must not contravene a direction given under subsection (5). Penalty: 50 penalty units. (6A) Subsection (6) does not apply if the person has a reasonable excuse. > Note: The defendant bears an evidential burden in relation to the matter in subsection (6A). See subsection 13.3(3) of the Criminal Code. (6B) An offence under subsection (6) is an offence of strict liability. > Note: For strict liability, see section 6.1 of the Criminal Code. (7) If the APVMA directs that a part of a hearing be in private, a person must not be present at that part of the hearing unless he or she: (a) is a Board member of the APVMA; or (b) is a member of the staff of the APVMA that the APVMA has authorised to be present; or (c) is entitled to be present because of a determination under subsection (4). Penalty: 50 penalty units. (7A) Subsection (7) does not apply if the person has a reasonable excuse. > Note: The defendant bears an evidential burden in relation to the matter in subsection (7A). See subsection 13.3(3) of the Criminal Code. (8) At a hearing the APVMA may receive submissions or evidence, in a form determined by it, from persons who, in its opinion, are likely to be able to help it in the performance or exercise of the functions or powers to which the hearing relates. (9) A hearing is to be conducted with as little formality and technicality as is practicable and the APVMA is not bound by the rules of evidence. #### 69EQ Self‑incrimination to be a reasonable excuse for non‑compliance with requirement It is a reasonable excuse for a person to refuse or fail to give information, produce a document or do any other thing that the person is required to do by or under Part 7A, 7AA or this Part that the information, the production of the document or the doing of that other thing would tend to incriminate the person. #### 69ER False or misleading information or document Offences (1) A person commits an offence if, for the purposes of, or in connection with, the making of a decision by the APVMA as to whether it should give a consent under section 69B, the person: (a) gives information (whether orally or in writing) that the person knows to be false or misleading in a material particular; or (b) produces a document that the person knows to be false or misleading in a material particular without: (i) indicating to the person to whom the document is produced that it is false or misleading and the respect in which it is false or misleading; and (ii) providing correct information to that person if the person producing the document is in possession of, or can reasonably acquire, the correct information. Penalty: 300 penalty units. (2) A person commits an offence if, in compliance or purported compliance with a requirement made by an inspector under Part 7A, Part 7AA or this Part or for the purposes of, or in connection with, any provision of Part 7A (other than section 69B), Part 7AA or this Part, the person: (a) gives information (whether orally or in writing) that the person knows to be false or misleading in a material particular; or (b) produces a document that the person knows to be false or misleading in a material particular without: (i) indicating to the person to whom the document is produced that it is false or misleading and the respect in which it is false or misleading; and (ii) providing correct information to that person if the person producing the document is in possession of, or can reasonably acquire, the correct information. Penalty: 60 penalty units. Civil penalties (3) A person must not, for the purposes of, or in connection with, the making of a decision by the APVMA as to whether it should give a consent under section 69B: (a) give information (whether orally or in writing) that the person knows to be false or misleading in a material particular; or (b) produce a document that the person knows to be false or misleading in a material particular without: (i) indicating to the person to whom the document is produced that it is false or misleading and the respect in which it is false or misleading; and (ii) providing correct information to that person if the person producing the document is in possession of, or can reasonably acquire, the correct information. (4) A person must not, in compliance or purported compliance with a requirement made by an inspector under Part 7A, Part 7AA or this Part or for the purposes of, or in connection with, any provision of Part 7A (other than section 69B), Part 7AA or this Part: (a) give information (whether orally or in writing) that the person knows to be false or misleading in a material particular; or (b) produce a document that the person knows to be false or misleading in a material particular without: (i) indicating to the person to whom the document is produced that it is false or misleading and the respect in which it is false or misleading; and (ii) providing correct information to that person if the person producing the document is in possession of, or can reasonably acquire, the correct information. (5) Subsections (3) and (4) are civil penalty provisions. > Note: Division 1 provides for pecuniary penalties for contraventions of civil penalty provisions. #### 69ES Evidential certificates (1) This section has effect for the purposes of any proceeding before a court or tribunal or an authority or person having power to require the production of documents or the answering of questions, other than a proceeding for an offence that is directly punishable by imprisonment. (2) A certificate that states a matter referred to in subsection (3) is prima facie evidence of that matter if it is signed by the Chief Executive Officer of the APVMA, or by a member of the staff of the APVMA whom the APVMA has authorised to give certificates under this section. (3) The matters that may be stated in a certificate referred to in subsection (2) are as follows: (a) that a substance referred to in the certificate was, or was not, at a particular time, or during a particular period, an active constituent, or an approved active constituent, for a proposed or existing chemical product; (b) that a chemical product referred to in the certificate was, or was not, at a particular time, or during a particular period, a chemical product or a registered chemical product; (c) that a person named in the certificate was an inspector at a particular time or during a particular period; (d) that a notice, direction or requirement referred to in the certificate was given at a particular time to a particular person under this Part; (e) any matter that could be stated in a certificate given under section 149 of any of the Agvet Codes. (4) Unless the contrary is proved, a document purporting to be a certificate referred to in subsection (2) is taken to be such a certificate and to have been duly given. #### 69ET Forfeiture (1) If a person is convicted of an offence against Part 7A, 7AA or this Part in respect of a thing that the court finds to be the property of that person, the court may order all or any part of the thing to be forfeited to the APVMA. (2) If the court makes an order under subsection (1) in respect of, or in respect of part of, a thing, the thing, or that part of the thing, as the case may be, becomes the property of the APVMA and may be dealt with or disposed of in any manner that the APVMA considers appropriate. #### 69EU Conduct by directors, employees and agents (1) Subject to subsection (2), in proceedings against a body corporate for an offence against Part 7A, 7AA or this Part: (a) any conduct engaged in by a director, employee or agent of the body corporate within the actual or apparent scope of his or her employment or within his or her actual or apparent authority is taken to have been engaged in also by the body corporate; and (b) it is taken to be established that conduct (the relevant conduct) was engaged in by the body corporate intentionally, knowingly or recklessly if it is proved: (i) that the directors of the body corporate intentionally, knowingly or recklessly engaged in the relevant conduct or expressly, tacitly or impliedly authorised or permitted the relevant conduct to be engaged in; or (ii) that an employee or agent of the body corporate with duties of such responsibility that his or her conduct may fairly be assumed to represent the policy of the body corporate intentionally, knowingly or recklessly engaged in the relevant conduct or expressly, tacitly or impliedly authorised or permitted the relevant conduct to be engaged in. (2) Subparagraph (1)(b)(ii) does not apply if the body corporate proves that it exercised due diligence to prevent the relevant conduct. (3) Subject to subsection (4), in proceedings against an individual for an offence against Part 7A, 7AA or this Part: (a) any conduct engaged in by an employee or agent of the individual within the actual or apparent scope of his or her employment or within his or her actual or apparent authority is taken to have been engaged in also by the individual; and (b) it is taken to be established that conduct (the relevant conduct) was engaged in by the individual intentionally, knowingly or recklessly if it is proved that an employee or agent of the individual with duties of such responsibility that his or her conduct may fairly be assumed to represent the policy of the individual intentionally, knowingly or recklessly engaged in the relevant conduct or expressly, tacitly or impliedly authorised or permitted the relevant conduct to be engaged in. (4) Paragraph (3)(b) does not apply if the individual proves that he or she exercised due diligence to prevent the relevant conduct. (5) If: (a) an individual is convicted of an offence against Part 7A, 7AA or this Part; and (b) the individual would not have been convicted of that offence if subsections (3) and (4) had not been enacted; the individual is not liable to be punished by imprisonment for that offence. (6) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct. ## Part 8—Miscellaneous #### 69F Appointment of inspectors (1) The APVMA may, by writing, appoint members of its staff, persons engaged under the Public Service Act 1999, or other persons having appropriate qualifications, to be inspectors for the purposes of a relevant law referred to in the document of appointment. (2) If: (a) a Department of State of a State; or (b) a Department or administrative unit of the Public Service of a participating Territory; or (c) an authority of a State or of a participating Territory; has functions relating to agricultural or veterinary chemicals, the Chief Executive Officer may, by signed writing, authorise officers of the Department, administrative unit or authority to exercise the powers and perform the functions of inspectors for the purposes of a relevant law. (3) An inspector is a Commonwealth officer for the purposes of Part 5.6 (secrecy of information) of the Criminal Code. (4) The APVMA must cause to be issued to each person who is an inspector for the purposes of a relevant law an identity card which states the name of the person and the fact that the person is an inspector for the purposes of that law and to which is attached a photograph of the person taken within the 3 years before the identity card is issued. (5) A person must, within 14 days of ceasing to be an inspector, return to the APVMA the identity card issued to him or her under this section. Penalty: One penalty unit. (5A) Subsection (5) does not apply if the person has a reasonable excuse. > Note: The defendant bears an evidential burden in relation to the matter in subsection (5A). See subsection 13.3(3) of the Criminal Code. (5B) An offence under subsection (5) is an offence of strict liability. > Note: For strict liability, see section 6.1 of the Criminal Code. (6) In this section: > relevant law means: (a) this Act; or (b) the Agvet Codes; or (c) any other Act providing for the collection of a levy imposed in respect of the disposal of chemical products. #### 69G Approval of analysts (1) The APVMA may, by writing, appoint persons whom it considers to have appropriate qualifications and experience to be approved analysts for the purposes of the Agvet Codes. (2) The APVMA must cause the name, and the address of the place of business, of each approved analyst to be published in the Gazette. #### 69H Exemptions from liability for damages (1) Subject to subsection (3), no action, suit or other proceeding for damages lies against the Commonwealth, the APVMA, or any other Commonwealth authority, or a person who is or has been an officer or employee of the Commonwealth, of the APVMA or of any other Commonwealth authority, or is or has been a delegate of the APVMA, a director of the APVMA, a consultant to the APVMA, an inspector, or a mediator or arbitrator appointed by the APVMA under any of the Agvet Codes, for any loss or injury directly or indirectly suffered as a result of: (a) the handling of an approved active constituent for a proposed or existing chemical product; or (b) the handling of a registered chemical product or a reserved chemical product; or (c) the handling of an active constituent for a proposed or existing chemical product, or of a chemical product, in respect of which a permit or exemption has been issued or given by the APVMA; or (d) an inability to use, or to use in a particular manner, an active constituent for a proposed or existing chemical product: (i) because an approval, permit or exemption permitting its use, or permitting its use in that manner, has been refused by the APVMA or such an approval, permit or exemption that was previously granted by the APVMA has been suspended or cancelled; or (ii) because its use, or its use in that manner, is precluded by the conditions of an approval, permit or exemption; or (e) an inability to use, or to use in a particular manner, a chemical product: (i) because a registration, permit or exemption permitting its use, or permitting its use in that manner, has been refused by the APVMA or such a registration, permit or exemption that was previously granted by the APVMA has been suspended or cancelled; or (ii) because its use, or its use in that manner, is precluded by the conditions of a registration, permit or exemption; or (f) the carrying out of a step in the manufacture of a chemical product in respect of which a licence has been issued by the APVMA; or (g) an inability to carry out, or to carry out in a particular manner or at particular premises, a step in the manufacture of a chemical product: (i) because a licence to carry out that step, or to carry out that step in that manner or at those premises, has been refused by the APVMA or such a licence that was previously granted by the APVMA has been suspended or cancelled; or (ii) because the carrying out of that step, or the carrying out of that step in that manner or at those premises, is precluded by the conditions of a licence. (2) If an action, suit or other proceeding is brought against a person responsible for the importation, manufacture, supply or handling of: (a) an approved active constituent for a proposed or existing chemical product; or (b) a registered chemical product; or (c) an active constituent for a proposed or existing chemical product, or a chemical product, in respect of which the APVMA has issued a permit or given an exemption; or (d) a chemical product in respect of a step in the manufacture of which the APVMA has issued a licence; in relation to any loss or injury directly or indirectly suffered because of the importation, manufacture, supply or handling of the constituent or product, it is not a defence to that action, suit or other proceeding that the APVMA had approved the constituent, registered the product, issued a permit or given an exemption in relation to the constituent or the product, or issued a licence in relation to a step in the manufacture of the product. (3) This section does not affect section 148 of Schedule 2 to the Competition and Consumer Act 2010, as that section applies as a law of the Commonwealth. (4) Expressions used in this section have the same meanings as in the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994. #### 69HA Protection of inspectors etc. An inspector, a person assisting an inspector, or other member of the staff of the APVMA, is not liable to any proceedings relating to an act done, or omitted to be done, in good faith in the performance or purported performance of a function, or in the exercise or purported exercise of a power, conferred on the inspector, person or member by this Act or the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994. #### 69J Documents or substances held by APVMA at commencement of Agvet Codes Any documents or substances that were in the possession or custody of the APVMA under the Agricultural and Veterinary Chemicals Act 1988 immediately before the repeal of that Act are taken to be in the possession or custody of the APVMA under the Agvet Codes. #### 70 Acts done by APVMA (1) A certificate that: (a) purports to be signed by: (ii) the Chief Executive Officer; or (iii) another person authorised by the APVMA to sign certificates for the purposes of this subsection; and (b) states any of the following: (i) that the APVMA has done any act or thing or formed any opinion; (ii) that a substance referred to in a certificate was, or was not, at a particular time, or during a particular period, an active constituent, or an approved active constituent, for a proposed or existing chemical product; (iii) that a chemical product referred to in the certificate was, or was not, at a particular time, or during a particular period, a chemical product, a registered chemical product or a reserved chemical product; is, upon mere production, receivable as prima facie evidence of the matters stated in the certificate. (2) A certificate that: (a) purports to be signed by the Chief Executive Officer; and (b) states that a named person is authorised by the APVMA to sign certificates for the purposes of subsection (1); is, upon mere production, receivable as prima facie evidence that the person is so authorised. #### 71 Delegation by Minister (1) The Minister may, by signed writing, delegate to an officer of, or person employed in, the Department all or any of: (a) the powers conferred on the Minister under this Act, the Agricultural and Veterinary Chemicals Act 1994, the Agricultural and Veterinary Chemicals Code Act 1994 or the Agvet Codes or the Agvet Regulations; or (b) the powers expressed to be conferred on the Minister under a law of a State relating to agricultural or veterinary chemicals. (2) A delegate of the Minister is, in the exercise of the delegate’s delegated powers, subject to the Minister’s directions. #### 72 Review of Agvet Scheme every 10 years (1) The Minister must ensure that, at least every 10 years, there is a review of the operation of the following Acts, and any instruments made under those Acts: (a) the Agricultural and Veterinary Chemical Products (Collection of Levy) Act 1994; (b) the Agricultural and Veterinary Chemical Products Levy Imposition (Customs) Act 1994; (c) the Agricultural and Veterinary Chemical Products Levy Imposition (Excise) Act 1994; (d) the Agricultural and Veterinary Chemical Products Levy Imposition (General) Act 1994; (e) the Agricultural and Veterinary Chemicals Act 1994; (f) the Agricultural and Veterinary Chemicals (Administration) Act 1992; (g) the Agricultural and Veterinary Chemicals Code Act 1994. (2) The Minister may include any related matter in the review. (3) At least one of the persons conducting the review must not be otherwise appointed, employed or engaged by the Commonwealth. (4) The review must include a request for, and consideration of, submissions from members of the public. (5) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report. #### 73 Regulations The Governor‑General may make regulations prescribing all matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.