New South Wales act

Biosecurity Act 2015

In ForceNSW

Jurisdiction

New South Wales

Act Number

24 of 2015

Collection

act

Plain English Summary

9/10 complexity

Mechanically, the Act creates a single, risk‑based regulatory framework that makes any person who deals with biosecurity matter or carriers legally responsible to prevent, eliminate or minimise biosecurity risk, and gives the Secretary and authorised officers wide powers (emergency orders, directions, entry, inspection, destruction), plus permitting, auditing, accreditation, fees and penalties. It affects importers, farmers, occupiers, service providers, permit‑holders and industry bodies; those parties pay compliance costs (permits, audits, financial assurances, fees) and must change practices to meet duties and directions.

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What it does

The Biosecurity Act 2015 (NSW) establishes a modern, risk-based regulatory framework for the prevention, elimination, minimisation, and management of biosecurity risks across New South Wales. Its primary object (s 3(1)) is to provide this framework in respect of biosecurity matter (defined broadly in s 10 to include any living thing other than a human, parts or products of living things, diseases, prions, contaminants, and disease agents), carriers (s 11), and dealings (s 12, which encompasses a wide range of activities from keeping and moving to breeding, selling, or releasing). Secondary objects (s 3(2)) include promoting shared responsibility among government, industry, and communities; managing economically significant pests and diseases in primary production; addressing threats to terrestrial and aquatic environments; mitigating public health risks from contaminants, non-indigenous animals, bees, weeds, and other matter; and supporting risk-based decision-making while giving effect to intergovernmental agreements and maintaining market access.

At its core, the Act imposes a general biosecurity duty (Part 3, s 22): any person who deals with biosecurity matter or a carrier and knows (or ought reasonably to know) the biosecurity risk must ensure, so far as is reasonably practicable, that the risk is prevented, eliminated, or minimised. "Reasonably practicable" is defined in s 16 by reference to the risk, potential impact, knowledge of the person, availability of controls, and whether the cost is grossly disproportionate. Failure to discharge this duty is an offence (s 23), classified as category 1 (intentional/reckless with significant biosecurity impact, maximum $1.1m/3 years for individuals) or category 2 (otherwise, maximum $220k for individuals). Mandatory measures may be prescribed by regulation (s 24), with contravention also an offence (s 25).

Current sections

Direct links to the current provisions in Biosecurity Act 2015.

471

Part 1

Preliminary

Part 1 Preliminary

Name of Act

1 Name of Act

This Act is the Biosecurity Act 2015.

Commencement

2 Commencement

This Act commences on a day or days to be appointed by proclamation.

Objects of Act

3 Objects of Act

(1) The primary object of this Act is to provide a framework for the prevention, elimination and minimisation of biosecurity risks posed by biosecurity matter, dealing with biosecurity matter, carriers and potential carriers, and other activities that involve biosecurity matter, carriers or potential carriers.

(2) The other objects of this Act are as follows—

(a) to promote biosecurity as a shared responsibility between government, industry and communities,

(b) to provide a framework for the timely and effective management of the following—

(i) pests, diseases, contaminants and other biosecurity matter that are economically significant for primary production industries,

(ii) threats to terrestrial and aquatic environments arising from pests, diseases, contaminants and other biosecurity matter,

(iii) public health and safety risks arising from contaminants, non-indigenous animals, bees, weeds and other biosecurity matter known to contribute to human health problems,

(iv) pests, diseases, contaminants and other biosecurity matter that may have an adverse effect on community activities and infrastructure,

(c) to provide a framework for risk-based decision-making in relation to biosecurity,

(d) to give effect to intergovernmental biosecurity agreements to which the State is a party,

(e) to provide the means by which biosecurity requirements in other jurisdictions can be met, so as to maintain market access for industry.

Act to bind Crown

4 Act to bind Crown

This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.

Extraterritorial application

5 Extraterritorial application

(1) It is the intention of the Parliament that this Act apply within the State and outside the State to the full extent of the extraterritorial legislative capacity of the Parliament.

(2) Without limiting subsection (1), it is the intention of the Parliament that the operation of this Act is, as far as possible, to include operation in relation to the following—

(a) things situated in or outside the territorial limits of this State,

(b) acts, transactions and matters done, entered into or occurring in or outside the territorial limits of this State,

(c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of another jurisdiction.

Act does not give rise to or affect civil cause of action

6 Act does not give rise to or affect civil cause of action

(1) A provision of this Act does not confer a right of action in civil proceedings based on a contravention of the provision.

(2) Except as otherwise expressly provided by this Act, this Act does not affect or limit a civil right or remedy that exists apart from this Act, whether at common law or otherwise.

(3) Without limiting subsection (2), compliance with this Act does not necessarily show that a civil obligation that exists apart from this Act has been satisfied or has not been breached.

Part 2

Interpretation, key concepts and principles

Part 2 Interpretation, key concepts and principles

Division 1

Interpretation

Division 1 Interpretation

General definitions

7 General definitions

In this Act—

accreditation audit—see section 218.

accreditation authority—see section 260.

approved form means a form approved by the Secretary.

approved manner means a manner approved by the Secretary.

assess includes investigate.

authorised analyst means a person appointed as an authorised analyst under section 378.

authorised officer means a person who is appointed as an authorised officer under this Act and authorised by that appointment to exercise the function in relation to which the expression is used.

bee means a managed bee of the species Apis mellifera or any other species of managed bee prescribed in the regulations for the purposes of this definition.

biosecurity audit means an accreditation audit or a compliance audit.

biosecurity auditor means a person who has been appointed as a biosecurity auditor under Part 16 and whose appointment is in force.

biosecurity certificate—see section 184.

biosecurity certifier means a person who has been accredited by an accreditation authority as a biosecurity certifier under Part 14 and whose accreditation is in force.

biosecurity direction means a general biosecurity direction or an individual biosecurity direction under Part 9.

biosecurity duty means a biosecurity duty imposed by this Act.

Note.

See Parts 3 and 4 for biosecurity duties.

biosecurity emergency means an emergency arising because of a biosecurity risk or biosecurity impact.

biosecurity event—see section 39.

biosecurity impact—see section 13.

biosecurity matter—see section 10.

biosecurity participant means a person who is, or formerly was—

(a) a registered entity, or

(b) a biosecurity certifier, or

(c) a biosecurity auditor, or

(d) the holder of an individual permit, or

(e) an applicant for a group permit that was granted, or

(f) a person who has given a biosecurity undertaking, or

(g) an accreditation authority.

biosecurity registration means biosecurity registration granted under Part 12.

biosecurity risk—see section 14.

biosecurity undertaking means a biosecurity undertaking under Part 10 that is in effect.

biosecurity zone regulation means a regulation made under Part 7.

carrier—see section 11.

category 1 offence—see section 279 for the maximum penalty.

category 2 offence—see section 280 for the maximum penalty.

Chief Plant Protection Officer means the person appointed under this Act to be the Chief Plant Protection Officer.

Chief Veterinary Officer means the person appointed under this Act to be the Chief Veterinary Officer.

compliance audit—see section 224.

conduct includes an omission.

contaminant means any non-living thing—

(a) occurring in or on biosecurity matter or a carrier, or

(b) that may be ingested or absorbed by biosecurity matter or a carrier.

contravene includes cause or permit a contravention to occur.

control order means an order under Part 6.

corresponding law means a law of another State or a Territory, or the Commonwealth, that corresponds to the provisions of this Act, and includes any law declared by the regulations to be a corresponding law.

cost recovery order means an order under section 322.

critical non-compliance means anything prescribed by the regulations as critical non-compliance.

deal—see section 12.

Department means the Department of Primary Industries and Regional Development.

director has the same meaning it has in the Corporations Act 2001 of the Commonwealth.

disease means any infection of an organism having the potential to result in or resulting in an abnormal, pathological or unhealthy condition that is caused by a known or unknown disease agent.

disease agent includes a prion, a microorganism, an infectious agent and a parasite.

emergency biosecurity matter means biosecurity matter that is the subject of an emergency order.

emergency order means an order under Part 5.

emergency permit—see section 337.

engage in a dealing—see section 12.

executive liability offence—see section 306.

external treatment measure means a treatment measure (such as cleaning or disinfection) that is limited to the external parts of the subject’s body and, accordingly, that does not require—

(a) the penetration of the subject’s skin, or

(b) the subject to take any substance.

fertiliser means—

(a) a substance that consists of or contains nitrogen, phosphorus or potassium (or any combination of nitrogen, phosphorus or potassium) and is manufactured, represented, sold or used as a means for directly or indirectly supplying nutriment for the purpose of enhancing the development, productivity, quality or reproductive capacity of vegetation, other than a substance excluded from this definition by the regulations, or

(b) any other substance prescribed by the regulations to be a fertiliser.

fitting means any thing that is commonly used for production, management, growing, housing, cultivation, harvesting, storage, transport, handling, processing or sale of animals, animal products or plants.

fodder means any water, meal, meat, plant, vegetable, grain, algal products or other material (including a mixture of materials) used for the food, supplementation or litter of animals.

function includes a power, authority or duty, and exercise a function includes perform a duty.

general biosecurity direction—see section 124.

government agency means—

(a) a Public Service agency within the meaning of the Government Sector Employment Act 2013, or

(b) a NSW Government agency, or

(c) a State owned corporation within the meaning of the State Owned Corporations Act 1989, or

(d) a council, county council or joint organisation within the meaning of the Local Government Act 1993, or

(e) any other public or local authority constituted by or under an Act, or

(f) (Repealed)

(g) any person or body declared by the regulations to be a government agency.

group permit—see section 335.

identified individual, with respect to a function of a biosecurity certifier or a biosecurity auditor, means an individual who is notified to the responsible accreditation authority as an individual who is to carry out that function for the biosecurity certifier or biosecurity auditor.

Independent Biosecurity Commissioner means the Commissioner under section 360B(1).

individual biosecurity direction—see section 124.

individual permit—see section 335.

intentionally includes knowingly.

interstate biosecurity certificate—see section 186.

land includes—

(a) the sea or an arm of the sea, and

(b) a bay, inlet, lagoon, lake or body of water, whether inland or not and whether tidal or non-tidal, and

(c) a river, stream or watercourse, whether tidal or non-tidal.

liming material means a substance that—

(a) consists of or contains dolomite (an artificially prepared or naturally occurring mixture of carbonates, oxides or hydroxides of calcium and magnesium), gypsum (the sulphate of calcium in either hydrated or anhydrous form), lime (an oxide, hydroxide or carbonate compound of calcium) or magnesite (an oxide, hydroxide or carbonate compound of magnesium), and

(b) is manufactured, represented, sold or used as a means for directly or indirectly affecting the nature or composition of soil or any other matter in which vegetation is grown.

local control authority—see section 370.

mandatory measures—see section 24.

move includes transport or distribute.

negligent—see section 281.

non-indigenous animal means an animal not native to Australia before European settlement.

obstruction offence means an offence of—

(a) furnishing false or misleading information, or

(b) resisting or obstructing an authorised officer, or

(c) assaulting, abusing or threatening an authorised officer.

occupier, in relation to land, includes any person having the care, control or management of the land.

permit means a permit granted by the Secretary or an authorised officer under Part 21.

pest—see section 15.

plant includes any member of the Plantae, Fungi and Protista kingdoms, whether whole or in part, and whether alive or dead.

premises includes any land, building, structure or vehicle and any place, whether built on or not.

prohibited dealing means a dealing described in Schedule 3.

prohibited matter means biosecurity matter that is prohibited matter throughout the State or in a part of the State under section 27.

prohibited matter event—see section 31.

prohibited matter permit—see section 338.

property, in Part 19, means any building, structure, animal products, fodder, fittings and vehicles.

reasonably practicable—see section 16.

recoverable amount—see section 320.

registered entity—see section 157.

registrable dealing means a dealing described in Schedule 4.

responsible accreditation authority—see sections 194 and 242.

Secretary means the Secretary of the Department.

sell includes—

(a) sell by wholesale, retail, auction or tender, or

(b) barter or exchange, or

(c) supply for profit, or

(d) offer for sale, receive for sale or expose for sale, or

(e) consign or deliver for sale, or

(f) have in possession for sale, or

(g) cause or allow any of the above to be done.

special executive liability offence—see section 305.

stock food means a stockfood within the meaning of the Agvet Regulations of New South Wales and also includes any block, lick, premix or stockfood supplement (within the meaning of those Regulations) and any substance prescribed by the regulations under this Act as stock food, (whether or not any such stock food is mixed or treated with a stock medicine (within the meaning of the Stock Medicines Act 1989)), but does not include—

(a) a stock medicine (within the meaning of the Stock Medicines Act 1989), or

(b) a substance declared by the regulations not to be a stock food, or

(c) subject to the regulations, a substance that is intended to be fed to animals other than horses or animals belonging to a food-producing species.

Note.

Section 6 of the Agricultural and Veterinary Chemicals (New South Wales) Act 1994 gives effect to the Agvet Regulations of New South Wales.

thing includes any biosecurity matter.

trace element product means a substance that—

(a) consists of or contains a trace element (that is, boron, cobalt, copper, iron, magnesium, manganese, molybdenum, selenium or zinc or any other element prescribed by the regulations), or any compound of a trace element, and

(b) is manufactured, represented, sold or used as a means for directly or indirectly—

(i) supplying nutriment for the purpose of enhancing the development, productivity, quality or reproductive capacity of vegetation, or

(ii) affecting the nature or composition of soil or any other matter in which vegetation is grown.

treatment measure means a treatment or process for the prevention, elimination, minimisation or management of biosecurity matter (including cleaning, fumigation, disinfection, medication and vaccination).

vehicle includes a conveyance of any kind, whether or not self-propelled, and whether or not (at any material time) capable of being moved or operated, and includes—

(a) any caravan, trailer, truck, train or other land vehicle, and

(b) any ship, hovercraft, boat, ferry, raft and pontoon or other water craft, and

(c) any aeroplane, helicopter, hot air balloon, drone or other aircraft.

weed means a plant that is a pest.

Western Division means that part of the State that is the Western Division within the meaning of the Crown Land Management Act 2016.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

s 7: Am 2016 No 27, Sch 1.3 [1] [2]; 2016 No 55, Sch 1.4 [1]; 2017 No 5, Sch 1 [1]; 2017 No 17, Sch 4.7 [1] [2]; 2017 No 65, Sch 2.2 [1]; 2020 No 30, Sch 3.8; 2023 No 56, Sch 1[1]; 2024 No 82, Sch 1.4[1] [2].

Identification of biosecurity matter

8 Identification of biosecurity matter

(1) If biosecurity matter referred to in this Act or the regulations is referred to by both a common name and a scientific name, the common name is for information purposes only and does not limit the description of the biosecurity matter.

(2) If biosecurity matter referred to in this Act or the regulations has a life cycle, a reference to the biosecurity matter includes a reference to that biosecurity matter at any stage of its life cycle.

Notes

9 Notes

Notes included in this Act do not form part of this Act.

Division 2

Key concepts

Division 2 Key concepts

Biosecurity matter

10 Biosecurity matter

Biosecurity matter means—

(a) any living thing, other than a human, or

(b) any part of an animal, plant or living thing, other than a human, or

(c) a product of a living thing, other than a human, or

(d) a disease, or

(e) a prion, or

(f) a contaminant, or

(g) a disease agent that can cause disease in a living thing (other than a human) or that can cause disease in a human via transmission from a non-human host to a human, or

(h) any thing declared by the regulations to be biosecurity matter.

Carriers

11 Carriers

A carrier means any thing (whether alive, dead or inanimate, and including a human) that has, or is capable of having, any biosecurity matter on it, attached to it or contained in it.

Dealings

12 Dealings

(1) Deal with biosecurity matter or a carrier, or engage in a dealing with biosecurity matter or a carrier, includes any of the following—

(a) keep biosecurity matter or a carrier,

(b) have possession, care, custody or control of biosecurity matter or a carrier,

(c) produce, manufacture or supply biosecurity matter or a carrier,

(d) import biosecurity matter or a carrier into the State,

(e) acquire biosecurity matter or a carrier,

(f) buy, sell or dispose of biosecurity matter or a carrier,

(g) move biosecurity matter or a carrier,

(h) release biosecurity matter or a carrier from captivity,

(i) use or treat biosecurity matter or a carrier for any purpose,

(j) breed, propagate, grow, raise, feed or culture biosecurity matter or a carrier,

(k) experiment with biosecurity matter or a carrier,

(l) display biosecurity matter or a carrier,

(m) enter into an agreement or other arrangement under which another person deals with biosecurity matter or a carrier,

(n) agree to deal with biosecurity matter or a carrier,

(o) cause or permit a dealing in biosecurity matter or a carrier to occur,

(p) anything prescribed by the regulations as a dealing with, or engaging in a dealing with, biosecurity matter or a carrier.

(2) An occupier of land is taken to have possession of any biosecurity matter or carrier on that land unless the occupier establishes that the biosecurity matter or carrier was in the possession, care, custody or control of another person.

(3) The regulations may specify circumstances in which a person is taken not to be dealing with or engaging in a dealing with biosecurity matter or a carrier for the purposes of this Act or any provision of this Act.

Biosecurity impact

13 Biosecurity impact

(1) A biosecurity impact means an adverse effect on the economy, the environment or the community that arises, or has the potential to arise, from biosecurity matter, a carrier or dealing with biosecurity matter or a carrier, being an adverse effect that is related to—

(a) the introduction, presence, spread or increase of a disease or disease agent into or within the State or any part of the State, or

(b) the introduction, presence, spread or increase of a pest into or within the State or any part of the State, or

(c) stock food or fertilisers, or

(d) animals, plants or animal products becoming chemically affected, or

(e) public nuisance caused by bees, or

(f) a risk to public safety caused by bees or non-indigenous animals, or

(g) any thing declared by the regulations to be a biosecurity impact.

(2) An animal or plant, or a product of an animal or plant, is chemically affected if it contains a contaminant and, as a result—

(a) it is or is likely to become unfit for sale or export for human consumption, or

(b) it is or is likely to pose a danger to human health or to the environment, or

(c) it is or is likely to be detrimental to export or other trade.

Note.

Plant is defined to include parts of plants (whether alive or dead).

Biosecurity risk

14 Biosecurity risk

Biosecurity risk means the risk of a biosecurity impact occurring.

Pests

15 Pests

(1) A pest means a plant or animal (other than a human) that has an adverse effect on, or is suspected of having an adverse effect on, the environment, the economy or the community because it has the potential to—

(a) out-compete other organisms for resources, including food, water, nutrients, habitat and sunlight, or

(b) prey or feed on other organisms, or

(c) transmit disease to other organisms, or

(d) cause harm to other organisms through its toxicity, or

(e) otherwise reduce the productivity of agricultural systems or the value of agricultural products, or

(f) damage infrastructure, or

(g) reduce the amenity or aesthetic value of premises, or

(h) harm or reduce biodiversity, or

(i) do any other thing, or have any other effect, prescribed by the regulations.

(2) A pest includes any thing declared by the regulations to be a pest for the purposes of this Act.

Reasonably practicable

16 Reasonably practicable

Reasonably practicable, in relation to the prevention, elimination or minimisation of a biosecurity risk, means that which is, or was at a particular time, reasonably able to be done, taking into account and weighing up all relevant matters including—

(a) the biosecurity risk concerned, and

(b) the degree of biosecurity impact that arises, or might arise, from the biosecurity risk, and

(c) what the person concerned knows, or ought reasonably to know, about the biosecurity risk and the ways of preventing, eliminating or minimising the risk, and

(d) the availability and suitability of ways to prevent, eliminate or minimise the biosecurity risk, and

(e) the cost associated with available ways of preventing, eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

Division 3

Principles that apply to biosecurity duties

Division 3 Principles that apply to biosecurity duties

Principles that apply to duties

17 Principles that apply to duties

This Division sets out the principles that apply to all biosecurity duties that persons have under this Act.

Duties not transferable

18 Duties not transferable

A biosecurity duty cannot be transferred to another person.

Person can have more than one duty

19 Person can have more than one duty

A person can have more than one biosecurity duty.

More than one person can have a duty

20 More than one person can have a duty

(1) More than one person can concurrently have the same biosecurity duty.

(2) Each person who has a biosecurity duty must discharge that duty to the standard required by this Act even if another person has the same duty.

(3) If more than one person has a biosecurity duty in relation to the same thing, each person—

(a) retains responsibility for the person’s duty in relation to the thing, and

(b) must discharge the person’s duty to the extent to which the person has the capacity to influence and control the thing or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.

Duty to prevent, eliminate or minimise biosecurity risk

21 Duty to prevent, eliminate or minimise biosecurity risk

A duty imposed on a person to prevent, eliminate or minimise a biosecurity risk so far as is reasonably practicable is a duty—

(a) to prevent or eliminate a biosecurity risk so far as is reasonably practicable, and

(b) if it is not reasonably practicable to prevent or eliminate the biosecurity risk, to minimise the biosecurity risk so far as is reasonably practicable.

Part 3

General biosecurity duty

Part 3 General biosecurity duty

Biosecurity duty—dealings with biosecurity matter and carriers

22 Biosecurity duty—dealings with biosecurity matter and carriers

Any person who deals with biosecurity matter or a carrier and who knows, or ought reasonably to know, the biosecurity risk posed or likely to be posed by the biosecurity matter, carrier or dealing has a biosecurity duty to ensure that, so far as is reasonably practicable, the biosecurity risk is prevented, eliminated or minimised.

Offence of failing to discharge biosecurity duty

23 Offence of failing to discharge biosecurity duty

(1) A person who fails to discharge the person’s biosecurity duty under this Part is guilty of an offence.

(2) An offence against this section is a category 1 offence if—

(a) the failure is intentional or reckless, and

(b) the failure caused, or was likely to cause, a significant biosecurity impact.

(3) In any other case, the offence is a category 2 offence.

(4) An offence against this section is an executive liability offence.

(5) A person who is guilty of a category 1 offence or category 2 offence against this section because the person fails to discharge the person’s biosecurity duty under this Part—

(a) continues, until the duty is discharged, to be required to discharge that duty, and

(b) is guilty of a continuing offence (of the same category) for each day the failure continues.

Mandatory measures

24 Mandatory measures

(1) The regulations may require persons who deal with biosecurity matter or carriers to take specified actions to prevent, eliminate or minimise a biosecurity risk posed or likely to be posed by the biosecurity matter, carrier or dealing. Those requirements are mandatory measures.

(2) The mandatory measures may apply in relation to all or any specified class of persons, dealings, biosecurity matter or carriers.

(3) A person who deals with biosecurity matter or a carrier and who contravenes any mandatory measures that are applicable to the biosecurity matter, carrier or dealing is taken to have failed to ensure that, so far as is reasonably practicable, the biosecurity risk posed or likely to be posed by the biosecurity matter, carrier or dealing is prevented, eliminated or minimised.

Note.

Accordingly, the person could be charged with an offence under section 23 in respect of that failure.

(4) The mandatory measures may be specified to be minimum mandatory measures, in which case compliance with those measures does not, of itself, demonstrate that a person ensured that, so far as is reasonably practicable, the biosecurity risk posed or likely to be posed by the biosecurity matter, carrier or dealing was prevented, eliminated or minimised.

(5) In this section, actions include—

(a) refraining from doing a thing, and

(b) adopting any procedures or programs.

Offence of failure to comply with mandatory measures

25 Offence of failure to comply with mandatory measures

(1) A person who deals with biosecurity matter or a carrier in contravention of any mandatory measures that apply to that biosecurity matter, carrier or dealing is guilty of an offence.

(2) An offence against this section is a category 2 offence.

(3) An offence against this section is an executive liability offence.

(4) A person who is guilty of an offence against this section because of a contravention of any mandatory measures—

(a) continues, until the mandatory measures are complied with and despite the fact that any specified period or time for compliance has expired or passed, to be required to comply with the mandatory measures, and

(b) is guilty of a continuing offence for each day the contravention continues.

(5) A person cannot be found guilty of both an offence against section 23 and an offence against this section in respect of the same conduct.

(6) In proceedings for an offence against section 23 in which it is alleged the person charged with the offence contravened any mandatory measures, if the court is not satisfied that the offence is proven, but is satisfied that the person committed an offence against this section, the court may find the person guilty of an offence against this section. The person is liable to punishment accordingly.

Special provisions relating to weeds

26 Special provisions relating to weeds

Schedule 1 contains further provisions relating to the requirements imposed by this Part. Those provisions relate specifically to weeds.

Part 4

Prohibited matter and related biosecurity duties

Part 4 Prohibited matter and related biosecurity duties

What is prohibited matter

27 What is prohibited matter

(1) The biosecurity matter described in Schedule 2 is prohibited matter.

(2) Biosecurity matter described in Part 1 of Schedule 2 is prohibited matter throughout the State.

(3) Biosecurity matter described in Columns 1 and 2 of Part 2 of Schedule 2 is prohibited matter in that part of the State described opposite the biosecurity matter in Column 3.

(4) The regulations may amend Schedule 2 by inserting, altering or omitting any items or descriptions in that Schedule.

(5) The regulations may provide for transitional arrangements for the lawful disposal or destruction of biosecurity matter that becomes prohibited matter (including by providing for exceptions to offences under this Part).

Dealings with prohibited matter

28 Dealings with prohibited matter

(1) A person who deals with any biosecurity matter that is prohibited matter throughout the State is guilty of an offence.

(2) A person who deals with biosecurity matter is guilty of an offence if—

(a) the biosecurity matter is located in a part of the State in which it is prohibited matter, or

(b) as a result of the dealing, the biosecurity matter enters or is likely to enter a part of the State in which it is prohibited matter.

(3) An offence against subsection (1) or (2) is a category 1 offence if the offence is committed intentionally or recklessly.

(4) In any other case, the offence is a category 2 offence.

(5) A category 1 offence or category 2 offence against subsection (1) or (2) is an executive liability offence.

(6) A person who is guilty of a category 1 offence or category 2 offence against subsection (1) or (2) because the person deals with biosecurity matter in contravention of that subsection—

(a) continues, until that contravention ceases, to be liable for a contravention of subsection (1), and

(b) is guilty of a continuing offence (of the same category) for each day that contravention continues.

Defence for unknowing possession

29 Defence for unknowing possession

In proceedings for a category 2 offence under this Division, it is a defence to the prosecution of an offence constituted by a person having prohibited matter in the person’s possession, care, custody or control if the person charged with the offence proves that the person did not know, and could not reasonably be expected to have known, that the person had the prohibited matter in the person’s possession, care, custody or control.

Note.

A due diligence defence applies to category 1 offences. See Part 18.

Biosecurity duty

30 Biosecurity duty

(1) A person who becomes aware of, or suspects, that a prohibited matter event has occurred, is occurring or is about to occur has a biosecurity duty to immediately notify the prohibited matter event in accordance with the requirements specified in the regulations.

(2) A biosecurity duty arises under this Division only if the person—

(a) is the owner, occupier or person in charge of, or has the care, custody or control of, premises, a carrier or other thing in relation to which the prohibited matter is present or suspected of being present, or

(b) becomes aware of, or suspects, the occurrence of the prohibited matter event as a result of any consultation or other work carried out in relation to premises, a carrier or other thing in the person’s professional capacity, or

(c) is a person of a class prescribed by the regulations.

Prohibited matter event—meaning

31 Prohibited matter event—meaning

A prohibited matter event means—

(a) the presence of biosecurity matter in a part of the State in which it is prohibited matter, or

(b) the introduction of biosecurity matter into a part of the State in which it is prohibited matter.

Offence of failing to discharge biosecurity duty to notify presence of prohibited matter

32 Offence of failing to discharge biosecurity duty to notify presence of prohibited matter

(1) A person who fails to discharge the person’s biosecurity duty under this Division is guilty of an offence.

(2) An offence against this section is a category 1 offence if the failure is intentional or reckless.

(3) In any other case, the offence is a category 2 offence.

(4) A category 1 offence against this section is a special executive liability offence.

(5) A category 2 offence against this section is an executive liability offence.

(6) A person who is guilty of a category 1 offence or category 2 offence against this section because the person fails to discharge the person’s biosecurity duty under this Division—

(a) continues, until the duty is discharged, to be required to discharge that duty, and

(b) is guilty of a continuing offence (of the same category) for each day the failure continues.

Defence for failure to notify prohibited matter event that is well-known

33 Defence for failure to notify prohibited matter event that is well-known

It is a defence to the prosecution of an offence under this Division if the person charged with the offence proves that the person did not notify the prohibited matter event because the person had good reason to believe that the particular circumstances that the person became aware of, or suspected, were widely and publicly known (including to the Department).

Protection against self-incrimination

34 Protection against self-incrimination

(1) Information furnished or an answer given by a natural person that the person was required to furnish or give to comply with a requirement under this Division is not admissible in evidence against the person in criminal proceedings, except proceedings for an obstruction offence.

(2) Further information obtained as a result of information furnished or an answer given in compliance with a requirement under this Division is not inadmissible on the ground—

(a) that the information had to be furnished or the answer had to be given, or

(b) that the information furnished or answer given might incriminate the person.

Regulations relating to notifications

35 Regulations relating to notifications

The regulations may make further provision for notifications under this Division, including the following—

(a) the person or persons to whom notification is to be given,

(b) the form and manner in which notification is to be given,

(c) the information required to be given,

(d) requirements in relation to notifications (such as a requirement to provide further information or answer questions).

Division 4

Duty to prevent, eliminate or minimise risk posed by prohibited matter

Division 4 Duty to prevent, eliminate or minimise risk posed by prohibited matter

Biosecurity duty

36 Biosecurity duty

(1) A person who becomes aware of, or suspects, the presence of biosecurity matter in a part of the State in which it is prohibited matter has a biosecurity duty to ensure that, so far as is reasonably practicable, the biosecurity risk posed or likely to be posed by the prohibited matter is prevented, eliminated or minimised.

(2) A biosecurity duty arises under this Division only if the person—

(a) is the owner, occupier or person in charge of, or has the care, custody or control of, premises, a carrier or other thing in relation to which the prohibited matter is present or suspected of being present, or

(b) becomes aware of, or suspects, the presence of prohibited matter as a result of any consultation or other work carried out in relation to premises, a carrier or other thing in the person’s professional capacity, or

(c) is a person of a class prescribed by the regulations.

Offence of failing to discharge biosecurity duty

37 Offence of failing to discharge biosecurity duty

(1) A person who fails to discharge the person’s biosecurity duty under this Division is guilty of an offence.

(2) An offence against this section is a category 1 offence if the failure is intentional or reckless.

(3) In any other case, the offence is a category 2 offence.

(4) A category 1 offence or category 2 offence against this section is an executive liability offence.

(5) A person who is guilty of a category 1 offence or category 2 offence against this section because the person fails to discharge the person’s biosecurity duty under this Division—

(a) continues, until the duty is discharged, to be required to discharge that duty, and

(b) is guilty of a continuing offence (of the same category) for each day the failure continues.

Division 5

Duty to notify biosecurity events

Division 5 Duty to notify biosecurity events

Biosecurity duty

38 Biosecurity duty

(1) A person who becomes aware of, or suspects, the existence of a biosecurity event has a biosecurity duty to immediately notify the biosecurity event in accordance with the requirements specified in the regulations.

(2) A biosecurity duty arises under this Division only if the person—

(a) is the owner, occupier or person in charge of, or has the care, custody or control of, premises, a carrier or other thing in relation to which the biosecurity event has occurred, is occurring or is likely to occur, or

(b) becomes aware of, or suspects, the biosecurity event as a result of any consultation or other work carried out in relation to premises, a carrier or other thing in the person’s professional capacity, or

(c) is a person of a class prescribed by the regulations.

Biosecurity event—meaning

39 Biosecurity event—meaning

(1) A biosecurity event means something that has occurred, is occurring or is likely to occur and that has had, is having, or is likely to have, a significant biosecurity impact, other than a prohibited matter event.

(2) A biosecurity event includes anything declared by the regulations to be a biosecurity event.

Offence of failing to discharge biosecurity duty to notify event

40 Offence of failing to discharge biosecurity duty to notify event

(1) A person who fails to discharge the person’s biosecurity duty under this Division is guilty of an offence.

(2) An offence against this section is a category 1 offence if the failure is intentional or reckless.

(3) In any other case, the offence is a category 2 offence.

(4) A category 1 offence or category 2 offence against this section is an executive liability offence.

(5) A person who is guilty of a category 1 offence or category 2 offence against this section because the person fails to discharge the person’s biosecurity duty under this Division—

(a) continues, until the duty is discharged, to be required to discharge that duty, and

(b) is guilty of a continuing offence (of the same category) for each day the failure continues.

Defence for failure to notify event that is well-known

41 Defence for failure to notify event that is well-known

It is a defence to the prosecution of an offence under this Division if the person charged with the offence proves that the person did not notify the biosecurity event because the person had good reason to believe that the particular circumstances that the person became aware of, or suspected, were widely and publicly known (including to the Department).

Protection against self-incrimination

42 Protection against self-incrimination

(1) Information furnished or an answer given by a natural person that the person was required to furnish or give to comply with a requirement under this Division is not admissible in evidence against the person in criminal proceedings, except proceedings for an obstruction offence.

(2) Further information obtained as a result of information furnished or an answer given in compliance with a requirement under this Division is not inadmissible on the ground—

(a) that the information had to be furnished or the answer had to be given, or

(b) that the information furnished or answer given might incriminate the person.

Regulations relating to notifications

43 Regulations relating to notifications

The regulations may make further provision for notifications under this Division, including the following—

(a) the person or persons to whom notification is to be given,

(b) the form and manner in which notification is to be given,

(c) the information required to be given,

(d) requirements in relation to notifications (such as a requirement to provide further information or answer questions).

Part 5

Emergency orders

Part 5 Emergency orders

Emergency order

44 Emergency order

(1) The Secretary may, by order in writing (an emergency order)—

(a) declare a biosecurity emergency, and

(b) establish measures to respond to that biosecurity emergency.

(2) The Secretary may make an emergency order only if the Secretary is satisfied, or reasonably suspects, that there is a current or imminent biosecurity risk that may have a significant biosecurity impact.

(3) The principal objects of an emergency order are—

(a) to isolate an emergency zone or biosecurity matter, and

(b) to prevent the spread of the biosecurity matter, and

(c) to eradicate the biosecurity matter (if practicable).

(4) However, the principal objects of an emergency order do not limit the matters that may be provided for by an emergency order.

Content of emergency order

45 Content of emergency order

An emergency order is to specify the following—

(a) the biosecurity matter, biosecurity risk or biosecurity impact that is the subject of the emergency,

(b) the emergency zone or zones,

(c) the emergency measures,

(d) the persons or class of persons to whom the emergency measures apply,

(e) the duration of the emergency order.

Notice of emergency order

46 Notice of emergency order

(1) The Secretary is to give notice of an emergency order by causing a copy of the order to be published on a NSW Government website used by the Department or in the Gazette (or both).

(2) The Secretary is to take reasonable steps to ensure that persons who are likely to be directly affected by the order are made aware of the order.

s 46: Am 2024 No 47, Sch 1.4[1].

Notice of property specific order

47 Notice of property specific order

(1) The Secretary may, if the Secretary considers it appropriate in the circumstances, give notice of an emergency order that is property specific by causing a copy of the order to be served on the owner, occupier or person apparently in charge of the affected property (instead of by publishing the order on a NSW Government website used by the Department or in the Gazette).

(2) An emergency order is property specific if it relates to specified premises, specified biosecurity matter or any other specified thing (each of which is affected property).

s 47: Am 2024 No 47, Sch 1.4[1].

Duration of emergency order

48 Duration of emergency order

(1) An emergency order remains in force for the period specified in the order, not exceeding 6 months from the date the order is made.

(2) The Secretary may make an order to extend the period during which an emergency order remains in force for a further period of up to 6 months.

(3) The period during which an emergency order remains in force may be extended any number of times.

s 48: Am 2025 No 48, Sch 1.3[1].

Emergency zone

49 Emergency zone

(1) An emergency zone is the principal area or areas in relation to which, in the opinion of the Secretary, measures are required to be implemented under the emergency order.

(2) An emergency zone may be—

(a) any specified premises or specified part of premises, or

(b) any specified area, or

(c) the whole or any specified part of the State.

(3) An emergency order may provide for more than one emergency zone and for different classes of emergency zone.

Emergency measures

50 Emergency measures

(1) The emergency measures are the measures that the Secretary establishes under an emergency order to respond to a biosecurity emergency.

(2) The Secretary may specify, as emergency measures, any measures that the Secretary decides are reasonably necessary to respond to the biosecurity emergency concerned.

(3) The emergency measures are to be no more onerous than the Secretary considers necessary having regard to the nature of the biosecurity emergency.

(4) In deciding on the emergency measures, the Secretary is to have regard to the principal objects of an emergency order and any other matters the Secretary considers are relevant.

(5) The emergency measures may apply—

(a) within an emergency zone, and

(b) outside an emergency zone, but only if the Secretary considers that reasonably necessary having regard to the nature of the biosecurity emergency.

(6) The emergency measures may—

(a) prohibit, regulate or control the doing of any thing, or

(b) require or authorise the doing of any thing.

(7) A power to require the doing of a thing includes a power to require a person to arrange for that thing to be done.

Examples of emergency measures

51 Examples of emergency measures

Without limiting the powers conferred on the Secretary by this Part, emergency measures may include provisions that prohibit, regulate or control, or that require or authorise, any of the following—

(a) activities that involve biosecurity matter, a carrier or a potential carrier,

(b) the use of premises for an activity that involves biosecurity matter, a carrier or a potential carrier,

(c) the movement of any biosecurity matter, carrier, potential carrier or other thing,

(d) the isolation, confinement or detention of any biosecurity matter or other thing,

(e) treatment measures to be carried out in relation to biosecurity matter, a carrier, a potential carrier, premises or other thing,

(f) the erection or repair of fencing, gates or any other method of enclosure, or the taking of any other specified security or containment measures in relation to any premises, biosecurity matter or other thing,

(g) the erection of signs,

(h) the provision of samples of any biosecurity matter or other thing,

(i) the testing of any biosecurity matter or other thing,

(j) the obtaining of a biosecurity certificate in relation to any biosecurity matter or other thing,

(k) the installation or use of a device at any premises, for the purpose of detecting or monitoring the presence of any biosecurity matter or other thing or capturing any biosecurity matter or other thing,

(l) the destruction, disposal or eradication of any thing (including by specifying the manner of destruction, disposal or eradication),

(m) any other matters expressly authorised by the regulations.

Special powers

52 Special powers

(1) In addition, the emergency measures may do any of the following—

(a) prohibit, regulate or control entry to or exit from any specified premises or area,

(b) prohibit, regulate or control the use of any road within or going into or out of a specified premises or area (including by closing roads),

(c) require persons entering or leaving any specified premises or area in a vehicle to stop and, if required by an authorised officer—

(i) permit the vehicle to be inspected, and

(ii) permit treatment measures to be carried out in relation to the vehicle,

(d) require persons entering or leaving any specified premises or area to stop and, if required by an authorised officer—

(i) permit themselves and any thing in their care, custody or control to be inspected, and

(ii) carry out or permit external treatment measures to be carried out in relation to themselves and any thing in their care, custody or control,

(e) prohibit a person from entering or leaving any specified premises or area unless the person has done either or both of the following—

(i) carried out, in relation to himself or herself, any specified external treatment measure,

(ii) carried out, in relation to any thing in the person’s care, custody or control, any specified treatment measure.

(2) An emergency order cannot prohibit, regulate or control the movement of a person, except as expressly provided for by this section.

(3) Subsection (2) does not prevent emergency measures being imposed in relation to any biosecurity matter, premises, activity or thing that have an impact on the movement of a person but that are not imposed for the purpose of restricting the movement of a person.

Note.

For example, emergency measures could prohibit persons from taking a particular animal or plant out of premises. This measure may have an impact on the movement of a person but is not imposed for that purpose.

Treatment of persons

53 Treatment of persons

(1) An emergency order cannot require any treatment measure to be carried out on a person, other than an external treatment measure.

(2) An emergency order cannot require a person to provide samples of the person’s blood, hair, saliva or any other body part or body fluid.

Inspection of persons

54 Inspection of persons

A requirement in an emergency order that persons permit themselves to be inspected by an authorised officer authorises the authorised officer to require a person to do any of the following—

(a) to submit to a visual inspection (including of the exterior of the person’s clothing and shoes),

(b) to shake, or otherwise move, the person’s hair.

Destruction requirements

55 Destruction requirements

(1) An emergency order cannot require or authorise the destruction of biosecurity matter or any other thing unless—

(a) the Secretary is of the opinion that the destruction is reasonably necessary to prevent, eliminate or minimise a significant biosecurity impact, or

(b) the biosecurity matter to be destroyed is an animal and the Secretary is of the opinion that the destruction is necessary to ensure that the other emergency measures provided for by the emergency order do not have or continue to have an adverse effect on animal welfare.

(2) To avoid doubt, distress or likely distress to an animal is an adverse effect on animal welfare.

(3) Part 2B of the Prevention of Cruelty to Animals Act 1979 does not apply to the destruction of an animal as required or authorised by an emergency order.

Persons directly affected by destruction requirement to be advised of requirement

56 Persons directly affected by destruction requirement to be advised of requirement

If an emergency order requires or authorises the destruction of any biosecurity matter or other thing, the Secretary must ensure that a copy of the order is given to the owner or person in charge of the biosecurity matter or thing, unless—

(a) there appears to be no one immediately in control of it, and the owner or person in charge cannot, after such search and inquiry as is reasonable in the circumstances, be located, and

(b) the Secretary considers that, in the circumstances, the order must be carried out without prior notice to the owner or person in charge.

Order prevails over other instruments

57 Order prevails over other instruments

An emergency order prevails, to the extent of any inconsistency, over the following—

(a) the regulations,

(b) any biosecurity registration, permit (other than an emergency permit) or exemption granted under this Act,

(c) any control order,

(d) any other instrument made or issued under this Act.

Offence of contravening emergency order

58 Offence of contravening emergency order

(1) A person who contravenes an emergency order is guilty of an offence.

(2) An offence against this section is a category 1 offence if the contravention is intentional or reckless.

(3) In any other case, the offence is a category 2 offence.

(4) A category 1 offence against this section is a special executive liability offence.

(5) A category 2 offence against this section is an executive liability offence.

(6) A person who is guilty of a category 1 offence or category 2 offence against this section because the person contravenes a requirement of an emergency order—

(a) continues, until the requirement is complied with and despite the fact that any specified period or time for compliance has expired or passed, to be liable to comply with the requirement, and

(b) is guilty of a continuing offence (of the same category) for each day the contravention continues.

(7) Subsection (6) does not apply to the extent that a requirement of an emergency order is revoked.

(8) A person does not commit an offence against this section of contravening an emergency order unless—

(a) the order was published on a NSW Government website used by the Department or in the Gazette, or

(b) the person was served with a copy of the order.

s 58: Am 2024 No 47, Sch 1.4[1].

Secretary may authorise required actions and recover costs

59 Secretary may authorise required actions and recover costs

(1) If a person (the liable person) fails to comply with an emergency order, the Secretary may authorise any person to enter premises and take any actions in relation to those premises, or any thing on those premises, that the liable person is required to take by the order or that are otherwise necessary to remedy that failure.

(2) The Secretary may charge the liable person a fee for action taken under this section.

(3) The fee is to be no more than is reasonable to cover the costs and expenses incurred in connection with the action.

(4) Costs and expenses incurred include costs and expenses incurred by or on behalf of any government agency.

(5) The fee is—

(a) a recoverable amount that is payable to the Secretary, and

(b) recoverable from the liable person.

Note.

See Part 20, which provides for the recovery of recoverable amounts.

(6) The Secretary must give an occupier of premises used for residential purposes written notice of an intention to enter any part of the premises used only for residential purposes under this section.

(7) The notice must specify the day on which the premises are intended to be entered and must be given before that day.

(8) Notice is not required to be given if—

(a) entry is made with the consent of the occupier of the premises, or

(b) entry is made under the authority of a search warrant.

(9) This section does not prevent the taking of proceedings for an offence of contravening an emergency order.

Amendment or revocation of emergency order

60 Amendment or revocation of emergency order

(1) The Secretary may, by order in writing, amend or revoke an emergency order.

(2) An amendment to an emergency order may make provision for any matter for which an emergency order may make provision.

(3) An amendment to, or revocation of, an emergency order takes effect, and is to be notified, in the same way as an emergency order.

Protection of emergency actions

61 Protection of emergency actions

(1) A court or tribunal must not issue an interim injunction, make any other interim order or give any other interim relief having the effect of preventing, restricting or deferring any emergency order or anything authorised or required to be done pursuant to an emergency order during the period in which the order has effect.

(2) This section does not prevent a court from making a permanent injunction or other final order in any proceedings at any time.

Part 6

Control orders

Part 6 Control orders

Control order

62 Control order

(1) The Minister may, by order in writing (a control order)—

(a) establish one or more control zones, and

(b) establish measures, in connection with a control zone, to prevent, eliminate, minimise or manage a biosecurity risk or biosecurity impact.

(2) The Minister may make a control order if the Minister reasonably believes that the order is necessary to prevent, eliminate, minimise or manage a biosecurity risk or biosecurity impact.

(3) The principal object of a control order is to prevent the introduction of, or eradicate, biosecurity matter that poses or is likely to pose a biosecurity risk.

(4) A control order may also serve as a measure for the management of a biosecurity risk or biosecurity impact. In that case, an additional or alternative object of the control order is to provide for the management of a biosecurity risk or biosecurity impact.

(5) Subsections (3) and (4) do not limit the matters that may be provided for by a control order.

Content of control order

63 Content of control order

A control order is to specify the following—

(a) the biosecurity matter, biosecurity risk or biosecurity impact to which the control order relates,

(b) the control zone or zones,

(c) the control measures,

(d) the persons or class of persons to whom the control measures apply,

(e) the duration of the control order.

Notice of control order

64 Notice of control order

(1) The Minister is to give notice of a control order by causing a copy of the order to be published on a NSW Government website used by the Department or in the Gazette (or both).

(2) The Minister is to take reasonable steps to ensure that persons who are likely to be directly affected by the order are made aware of the order.

s 64: Am 2024 No 47, Sch 1.4[1].

Notice of property specific order

65 Notice of property specific order

(1) The Minister may, if the Minister considers it appropriate in the circumstances, give notice of a control order that is property specific by causing a copy of the order to be served on the owner, occupier or person apparently in charge of the affected property (instead of by publishing the order on a NSW Government website used by the Department or in the Gazette).

(2) A control order is property specific if it relates to specified premises, specified biosecurity matter or any other specified thing (each of which is affected property).

s 65: Am 2024 No 47, Sch 1.4[1].

Duration of control order

66 Duration of control order

(1) A control order has effect for the period specified by the Minister in the order, not exceeding 5 years from the date the order is made.

(2) The Minister may make an order to extend the period during which a control order has effect for a further period of up to 5 years.

(3) The period during which a control order has effect may be extended any number of times.

s 66: Am 2025 No 48, Sch 1.3[2].

Control zone

67 Control zone

(1) A control zone is the principal area or areas in relation to which, in the opinion of the Minister, measures are required to be implemented under the control order.

(2) A control zone may be—

(a) any specified premises or specified part of premises, or

(b) any specified area, or

(c) the whole or any specified part of the State.

(3) A control order may provide for more than one control zone and for different classes of control zone.

Control measures

68 Control measures

(1) The control measures are the measures that the Minister establishes under a control order to prevent, eliminate, minimise or manage the biosecurity risk or biosecurity impact to which the order relates.

(2) The Minister may specify, as control measures under a control order, any measures that the Minister decides are reasonably necessary to prevent, eliminate, minimise or manage the biosecurity risk or biosecurity impact to which the order relates.

(3) The control measures are to be no more onerous than the Minister considers necessary having regard to the nature of the biosecurity risk or biosecurity impact to which the order relates.

(4) In deciding on the control measures, the Minister is to have regard to the principal objects of a control order and any other matters the Minister considers relevant.

(5) The control measures may apply—

(a) within a control zone, and

(b) outside a control zone, but only if the Minister considers that reasonably necessary having regard to the nature of the biosecurity risk or biosecurity impact.

(6) The control measures may—

(a) prohibit, regulate or control the doing of any thing, or

(b) require or authorise the doing of any thing.

(7) A power to require the doing of a thing includes a power to require a person to arrange for that thing to be done.

Examples of control measures

69 Examples of control measures

Without limiting the powers conferred on the Minister by this Part, control measures may include provisions that prohibit, regulate or control, or that require or authorise, any of the following—

(a) activities that involve biosecurity matter, a carrier or a potential carrier,

(b) the use of premises for an activity that involves biosecurity matter, a carrier or a potential carrier,

(c) the movement of any biosecurity matter or other thing,

(d) the isolation, confinement or detention of any biosecurity matter or other thing,

(e) treatment measures to be carried out in relation to biosecurity matter, premises or any other thing,

(f) the erection or repair of fencing, gates or any other method of enclosure, or the taking of any other specified security or containment measures in relation to any premises, biosecurity matter or other thing,

(g) the erection of signs,

(h) the provision of samples of any biosecurity matter or other thing,

(i) the testing of any biosecurity matter or other thing,

(j) the obtaining of a biosecurity certificate in relation to biosecurity matter or any other thing,

(k) the installation or use of a device at any premises, for the purpose of detecting or monitoring the presence of any biosecurity matter or other thing or capturing any biosecurity matter or other thing,

(l) the destruction, disposal or eradication of any thing (including by specifying the manner of destruction, disposal or eradication),

(m) any other matters expressly authorised by the regulations.

Consultation required for control order affecting game animals

70 Consultation required for control order affecting game animals

(1) A control order in relation to or affecting a game animal (being a game animal within the meaning of the Game and Feral Animal Control Act 2002 that is specified in Part 1 or 1A of Schedule 3 to that Act) may only be made after consultation with the Chairperson of the Game and Pest Management Advisory Board constituted under that Act.

(2) A failure to comply with this section does not affect the validity of a control order.

Consultation required for control order affecting native flora or fauna

71 Consultation required for control order affecting native flora or fauna

(1) A control order in relation to or affecting native flora or fauna may only be made after consultation with the Minister for the Environment.

(2) A failure to comply with this section does not affect the validity of a control order.

Detention or treatment of persons

72 Detention or treatment of persons

(1) A control order cannot—

(a) prohibit, regulate or control the movement of a person, or

(b) require any treatment measure to be carried out on a person.

(2) A control order cannot require a person to provide samples of the person’s blood, hair, saliva or any other body part or body fluid.

(3) Subsection (1)(a) does not prevent a control measure being imposed in relation to any biosecurity matter, premises, area, activity or thing that has an impact on the movement of a person but is not imposed for the purpose of restricting the movement of a person.

Note.

For example, a control measure cannot prohibit a person from leaving premises but could prohibit a person from taking a particular animal out of premises. This measure may have an impact on the movement of a person but is not imposed for that purpose.

Destruction requirements

73 Destruction requirements

(1) A control order cannot require or authorise the destruction of a thing unless—

(a) the thing is, or is reasonably suspected of being, prohibited matter, or

(b) the thing is a carrier of, or reasonably suspected of being a carrier of, prohibited matter, or

(c) the thing is a pest to which the control order relates, or

(d) the thing is, or is reasonably suspected of being, infected or infested with, or harbouring, the biosecurity matter to which the control order relates and there are no other reasonably practicable treatment measures that could eliminate or minimise the biosecurity risk posed by the biosecurity matter, or

(e) the thing is, or is reasonably suspected of being—

(i) abandoned, and

(ii) biosecurity matter to which the control order relates or a carrier of biosecurity matter to which the control order relates.

(2) In this section—

reasonably practicable means reasonably practicable in the opinion of the Minister or an authorised officer.

reasonably suspected means reasonably suspected by the Minister or an authorised officer.

Interaction of powers with restrictions imposed by other Acts

74 Interaction of powers with restrictions imposed by other Acts

(1) The Minister must not, in a control order, require the destruction of any living thing that is a protected animal or protected plant within the meaning of the Biodiversity Conservation Act 2016, except after consultation with the head of the government agency responsible for the administration of that Act.

(2) The Minister must not, in a control order, require the destruction of any living thing that is a threatened species within the meaning of the Biodiversity Conservation Act 2016, except after consultation with the head of the government agency responsible for the administration of that Act.

(3) The Minister must not, in a control order, require the clearing of any native vegetation within the meaning of Part 5A of the Local Land Services Act 2013, except after consultation with the head of the government agency responsible for the administration of that Part of that Act.

(4) The Minister must not, in a control order, require harm (within the meaning of the Heritage Act 1977) to any building, work, relic, moveable object or place the subject of an interim heritage order or listing on the State Heritage Register under that Act, except after consultation with the head of the government agency responsible for the administration of that Act.

(5) A failure to comply with this section does not affect the validity of a control order.

s 74: Am 2018 No 25, Sch 3.3 [1]–[4].

Offence of contravening control order

75 Offence of contravening control order

(1) A person who contravenes a control order is guilty of an offence.

(2) An offence against this section is a category 2 offence.

(3) An offence against this section is an executive liability offence.

(4) A person who is guilty of an offence against this section because the person contravenes a requirement of a control order—

(a) continues, until the requirement is complied with and despite the fact that any specified period or time for compliance has expired or passed, to be liable to comply with the requirement, and

(b) is guilty of a continuing offence for each day the contravention continues.

(5) Subsection (4) does not apply to the extent that a requirement of a control order is revoked.

(6) A person does not commit an offence against this section of contravening a control order unless—

(a) the order was published on a NSW Government website used by the Department or in the Gazette, or

(b) the person was served with a copy of the order.

s 75: Am 2024 No 47, Sch 1.4[1].

Secretary may authorise required actions and recover costs

76 Secretary may authorise required actions and recover costs

(1) If a person (the liable person) fails to comply with a control order, the Secretary may authorise any person to enter premises and take any actions in relation to those premises or any thing on those premises that the liable person is required to take by the order or that are otherwise necessary to remedy that failure.

(2) The Secretary may charge the liable person a fee for action taken under this section.

(3) The fee is to be no more than is reasonable to cover the costs and expenses incurred in connection with the action.

(4) Costs and expenses incurred include costs and expenses incurred by or on behalf of any government agency.

(5) The fee is—

(a) a recoverable amount that is payable to the Secretary, and

(b) recoverable from the liable person.

Note.

See Part 20, which provides for the recovery of recoverable amounts.

(6) The Secretary must give an occupier of premises used for residential purposes written notice of an intention to enter any part of the premises used only for residential purposes under this section.

(7) The notice must specify the day on which the premises are intended to be entered and must be given before that day.

(8) Notice is not required to be given if—

(a) entry is made with the consent of the occupier of the premises, or

(b) entry is made under the authority of a search warrant.

(9) This section does not prevent the taking of proceedings for an offence of contravening a control order.

Amendment or revocation of control order

77 Amendment or revocation of control order

(1) The Minister may, by order in writing, amend or revoke a control order.

(2) An amendment to a control order may make provision for any matter for which a control order may make provision.

(3) An amendment to, or revocation of, a control order takes effect, and is to be notified, in the same way as a control order.

Authorisation of person to make control orders

78 Authorisation of person to make control orders

The Minister may authorise a person to exercise any functions of the Minister under this Part.

Part 7

Biosecurity zones

Part 7 Biosecurity zones

Biosecurity zones

79 Biosecurity zones

(1) The regulations may establish one or more biosecurity zones for the purpose of preventing, eliminating, minimising or managing a biosecurity risk or biosecurity impact.

(2) The principal object of a biosecurity zone regulation is to provide for the long term management of a biosecurity risk or biosecurity impact.

(3) Subsection (2) does not limit the matters that may be provided for by the regulations.

Matters to be specified

80 Matters to be specified

A biosecurity zone regulation is to specify the following—

(a) the biosecurity matter, biosecurity risk or biosecurity impact in relation to which the biosecurity zone is established,

(b) the biosecurity zone or zones,

(c) the regulatory measures,

(d) the persons or class of persons to whom those measures apply.

Biosecurity zone

81 Biosecurity zone

(1) A biosecurity zone may be—

(a) any specified premises or specified part of premises, or

(b) any specified area, or

(c) the whole or any specified part of the State.

(2) The regulations may provide for more than one biosecurity zone and for different classes of biosecurity zone.

Regulatory measures

82 Regulatory measures

(1) The regulatory measures are the measures to be implemented for the purpose of preventing, eliminating, minimising or managing a biosecurity risk or biosecurity impact.

(2) The regulatory measures may apply within or outside a biosecurity zone.

(3) The regulatory measures may—

(a) prohibit, regulate or control the doing of any thing, or

(b) require or authorise the doing of any thing.

(4) A power to require the doing of a thing includes a power to require a person to arrange for that thing to be done.

Examples of regulatory measures

83 Examples of regulatory measures

Without limiting the power to make regulations conferred by this Part, the regulatory measures may include provisions that prohibit, regulate or control, or that require or authorise, any of the following—

(a) activities that involve biosecurity matter, a carrier or a potential carrier,

(b) the use of premises for an activity that involves biosecurity matter, a carrier or a potential carrier,

(c) the movement of any biosecurity matter or other thing,

(d) the isolation, confinement or detention of any biosecurity matter or other thing,

(e) the treatment measures to be carried out in relation to any biosecurity matter, premises or other thing,

(f) the erection or repair of fencing, gates or any other method of enclosure, or the taking of any other specified security or containment measures in relation to any premises, biosecurity matter or other thing,

(g) the erection of signs,

(h) the provision of samples of any biosecurity matter or other thing,

(i) the testing of any biosecurity matter or other thing,

(j) the obtaining of a biosecurity certificate in relation to any biosecurity matter or other thing,

(k) the installation or use of a device at any premises, for the purpose of detecting or monitoring the presence of any biosecurity matter or other thing or capturing any biosecurity matter or other thing,

(l) the destruction, disposal or eradication of any thing (including by specifying the manner of destruction, disposal or eradication).

Detention or treatment of persons

84 Detention or treatment of persons

(1) A biosecurity zone regulation cannot—

(a) prohibit, regulate or control the movement of a person, or

(b) require treatment measures to be carried out on any person.

(2) A biosecurity zone regulation cannot require a person to provide samples of the person’s blood, hair, saliva or any other body part or body fluid.

(3) Subsection (1)(a) does not prevent a biosecurity zone regulation being imposed in relation to any biosecurity matter, premises, area, activity or thing that has an impact on the movement of a person but is not imposed for the purpose of restricting the movement of a person.

Note.

For example, a regulatory measure cannot prohibit a person from leaving premises but could prohibit a person from taking a particular animal or plant out of premises. This measure may have an impact on the movement of a person, but is not imposed for that purpose.

Destruction requirements

85 Destruction requirements

(1) A biosecurity zone regulation cannot require or authorise the destruction of a thing unless—

(a) the thing is, or is reasonably suspected of being, prohibited matter, or

(b) the thing is a carrier of, or reasonably suspected of being a carrier of, prohibited matter, or

(c) the thing is a pest to which the biosecurity zone relates, or

(d) the thing is, or is reasonably suspected of being, infected or infested with, or of harbouring, the biosecurity matter to which the regulations relate and there are no other reasonably practicable treatment measures that could eliminate or minimise the biosecurity risk posed by the biosecurity matter, or

(e) the thing is, or is reasonably suspected of being—

(i) abandoned, and

(ii) biosecurity matter to which the regulations relate or a carrier of biosecurity matter to which the regulations relate.

(2) In this section—

reasonably practicable means reasonably practicable in the opinion of the Secretary or an authorised officer.

reasonably suspected means reasonably suspected by the Secretary or an authorised officer.

Consultation requirements

86 Consultation requirements

(1) The Minister is not to recommend to the Governor the making of a biosecurity zone regulation that would authorise or require the destruction of any living thing that is a protected animal or protected plant within the meaning of the Biodiversity Conservation Act 2016 unless the Minister has certified that he or she consulted with the Minister administering that Act before recommending the making of the regulation.

(2) The Minister is not to recommend to the Governor the making of a biosecurity zone regulation that would authorise or require the destruction of any living thing that is a threatened species within the meaning of the Biodiversity Conservation Act 2016 unless the Minister has certified that he or she consulted with the Minister administering that Act before recommending the making of the regulation.

(3) The Minister is not to recommend to the Governor the making of a biosecurity zone regulation that would authorise or require the clearing of any native vegetation within the meaning of Part 5A of the Local Land Services Act 2013 unless the Minister has certified that he or she consulted with the Minister administering that Part of that Act before recommending the making of the regulation.

(4) The Minister is not to recommend to the Governor the making of a biosecurity zone regulation that would authorise or require harm (within the meaning of the Heritage Act 1977) to any building, work, relic, moveable object or place the subject of an interim heritage order or listing on the State Heritage Register under that Act unless the Minister has certified that he or she consulted with the Minister administering that Act before recommending the making of the regulation.

(5) A failure to comply with this section does not affect the validity of any regulation.

s 86: Am 2018 No 25, Sch 3.3 [1]–[4].

Offence of contravening biosecurity zone regulation

87 Offence of contravening biosecurity zone regulation

(1) A person who contravenes any biosecurity zone regulation is guilty of an offence.

(2) An offence against this section is a category 2 offence.

(3) An offence against this section is an executive liability offence.

(4) A person who is guilty of an offence against this section because the person contravenes a requirement of a biosecurity zone regulation—

(a) continues, until the requirement is complied with and despite the fact that any specified period or time for compliance has expired or passed, to be liable to comply with the requirement, and

(b) is guilty of a continuing offence for each day the contravention continues.

(5) Subsection (4) does not apply to the extent that a requirement of a biosecurity zone regulation is repealed.

Secretary may authorise required actions and recover costs

88 Secretary may authorise required actions and recover costs

(1) If a person (the liable person) fails to comply with a biosecurity zone regulation, the Secretary may authorise any person to enter premises and take any actions in relation to those premises or any thing on those premises that the liable person is required to take by the regulation or that are otherwise necessary to remedy that failure.

(2) The Secretary may charge the liable person a fee for action taken under this section.

(3) The fee is to be no more than is reasonable to cover the costs and expenses incurred in connection with the action.

(4) Costs and expenses incurred include costs and expenses incurred by or on behalf of any government agency.

(5) The fee is—

(a) a recoverable amount that is payable to the Secretary, and

(b) recoverable from the liable person.

Note.

See Part 20, which provides for the recovery of recoverable amounts.

(6) The Secretary must give an occupier of premises used for residential purposes written notice of an intention to enter any part of the premises used only for residential purposes under this section.

(7) The notice must specify the day on which the premises are intended to be entered and must be given before that day.

(8) Notice is not required to be given if—

(a) entry is made with the consent of the occupier of the premises, or

(b) entry is made under the authority of a search warrant.

(9) This section does not prevent the taking of proceedings for an offence of contravening a biosecurity zone regulation.

Part 8

Powers of authorised officers

Part 8 Powers of authorised officers

Purposes for which functions under Part may be exercised

89 Purposes for which functions under Part may be exercised

(1) An authorised officer may exercise the functions conferred by this Part for any of the following purposes—

(a) for the purpose of investigating, monitoring and enforcing compliance with the requirements imposed by or under this Act,

(b) for the purpose of obtaining information or records for purposes connected with the administration of this Act,

(c) if the authorised officer is a biosecurity auditor, for the purpose of exercising functions in connection with a biosecurity audit,

(d) for the purpose of assisting a biosecurity auditor to exercise the biosecurity auditor’s functions in connection with a biosecurity audit,

(e) for the purpose of preventing, eliminating, minimising or managing biosecurity risks or suspected biosecurity risks,

(f) for the purpose of preventing, managing or controlling a biosecurity impact,

(g) for the purpose of enforcing, administering or executing this Act (including any instrument made under this Act).

(2) In this Part, a reference to an authorised purpose is a reference to any purpose referred to in subsection (1).

Exercise of functions under other legislation

90 Exercise of functions under other legislation

(1) The functions conferred by this Part may also be exercised in connection with the following legislation—

(a) the Stock Medicines Act 1989 and the regulations under that Act,

(b) any previous legislation, in respect of offences under the previous legislation that are alleged to have been committed before the enactment of this Act or in respect of any other provisions of the previous legislation that continue to have any force or effect after the enactment of this Act.

(2) Accordingly, a reference in this Part to this Act or the regulations includes a reference to the Stock Medicines Act 1989, the regulations under the Stock Medicines Act 1989 and the previous legislation.

(3) Nothing in this Part limits any function that an authorised officer has under a provision of the previous legislation that continues to have any force or effect after the enactment of this Act.

(4) In this section—

previous legislation means—

(a) an Act or regulation repealed by this Act, or

(b) a provision of the Border Fence Maintenance Act 1921, the Fisheries Management Act 1994 or the Local Land Services Act 2013 that was repealed or amended by this Act, or any regulations under any such provision.

Note.

See Schedule 6 for a list of repealed Acts and Schedule 7 for transitional provisions relating to those repeals. Under Schedule 7, the repealed Acts continue to have effect in relation to some matters.

References to functions exercisable “in the case of an emergency”

91 References to functions exercisable “in the case of an emergency”

(1) A provision of this Part that enables an authorised officer to exercise a function in the case of an emergency enables the authorised officer to exercise that function if—

(a) the authorised officer is required or authorised to exercise the function under an emergency order, or

(b) the authorised officer otherwise reasonably believes it is necessary to exercise the function because—

(i) a biosecurity emergency has occurred, is occurring or is imminent, or

(ii) the authorised officer reasonably suspects a biosecurity emergency has occurred, is occurring or is imminent.

(2) A function under this Part is taken to have been exercised in the case of an emergency if it is exercised by an authorised officer in the circumstances referred to in subsection (1).

(3) The fact that this Part enables an authorised officer to exercise certain functions only in the case of an emergency does not prevent an authorised officer from exercising any other function conferred by this Part in the case of an emergency.

Exercise in conjunction with other powers

92 Exercise in conjunction with other powers

A power conferred by this Division may be exercised whether or not a power of entry under Division 3 is being exercised.

Powers of authorised officers to require information and records

93 Powers of authorised officers to require information and records

(1) An authorised officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as he or she may require for an authorised purpose.

(2) A notice under this Division must specify the manner in which information or records are required to be furnished and a reasonable time by which the information or records are required to be furnished.

(3) A notice under this Division may only require a person to furnish existing records that are in the person’s possession or that are within the person’s power to obtain lawfully.

(4) The person to whom any record is furnished under this Division may take copies of it.

(5) If any record required to be furnished under this Division is in electronic, mechanical or other form, the notice requires the record to be furnished in written form, unless the notice otherwise provides.

Power of authorised officers to require answers

94 Power of authorised officers to require answers

(1) An authorised officer may require a person whom the authorised officer suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required for an authorised purpose to answer questions in relation to those matters.

(2) An authorised officer may, by notice in writing, require a corporation to nominate, in writing within the time specified in the notice, a director or officer of the corporation to be the corporation’s representative for the purpose of answering questions under this section.

(3) Answers given by a person nominated under subsection (2) bind the corporation.

(4) An authorised officer may, by notice in writing, require a person to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered.

(5) The place and time at which a person may be required to attend under subsection (4) is to be—

(a) a place and time nominated by the person, or

(b) if the place and time nominated is not reasonable in the circumstances or a place and time is not nominated by the person, a place and time nominated by the authorised officer that is reasonable in the circumstances.

Recording of evidence

95 Recording of evidence

(1) An authorised officer may cause any questions and answers to questions given under this Division to be recorded if the officer has informed the person who is to be questioned that the record is to be made.

(2) A record may be made using sound recording apparatus or audio visual apparatus, or any other method determined by the authorised officer.

(3) A copy of any such record must be provided by the authorised officer to the person who is questioned as soon as practicable after it is made.

(4) A record may be made under this section despite the provisions of any other law.

Power of authorised officers to demand name and address

96 Power of authorised officers to demand name and address

(1) An authorised officer may require a person whom the authorised officer suspects on reasonable grounds to have committed, or to be committing, an offence against this Act or the regulations to state the person’s full name and residential address.

(2) An authorised officer may request a person who is required under this section to state the person’s full name and residential address to provide proof of the name and address. It is not an offence to fail to comply with any such request.

Requiring information in the case of an emergency

97 Requiring information in the case of an emergency

(1) A person is not excused from a requirement made by an authorised officer to furnish records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty if—

(a) the authorised officer makes the requirement in the case of an emergency, and

(b) the authorised officer warns the person that the authorised officer is making the requirement in the case of an emergency.

(2) However, any information furnished (other than a record) or answer given by a natural person in compliance with a requirement under this Part is not admissible in evidence against the person in criminal proceedings (except proceedings for an obstruction offence) if—

(a) the person objected at the time to doing so on the ground that it might incriminate the person, or

(b) the person was not warned on that occasion that the person may object to furnishing the information or giving the answer on the ground that it might incriminate the person.

(3) Any record furnished by a person in compliance with a requirement under this Part is not inadmissible in evidence against the person in criminal proceedings on the ground that the record might incriminate the person.

(4) Further information obtained as a result of a record or information furnished or an answer given in compliance with a requirement under this Part is not inadmissible on the ground—

(a) that the record or information had to be furnished or the answer had to be given, or

(b) that the record or information furnished or answer given might incriminate the person.

(5) This section extends to a requirement to state a person’s name and address.

Powers of authorised officers to enter premises

98 Powers of authorised officers to enter premises

(1) An authorised officer may enter any premises—

(a) at any reasonable time, or

(b) in the case of an emergency, at any time.

(2) A power to enter premises conferred by this Act authorises entry by foot, vehicle, vessel or aircraft or by any other means.

(3) Entry may be effected under this Act with the use of reasonable force.

(4) Entry to any premises may be effected with or without the authority of a search warrant.

Entry into residential premises only with permission or warrant

99 Entry into residential premises only with permission or warrant

This Division does not empower an authorised officer to enter any part of premises used only for residential purposes without the permission of the occupier or the authority of a search warrant.

100

Search warrants

100 Search warrants

(1) An authorised officer under this Act may apply to an issuing officer for the issue of a search warrant if the authorised officer believes on reasonable grounds that—

(a) a requirement imposed by or under this Act is being or has been contravened at any premises, or

(b) there is, in or on any premises, matter or a thing that is connected with an offence under this Act or the regulations.

(2) An issuing officer to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an authorised officer named in the warrant—

(a) to enter the premises, and

(b) to exercise any function of an authorised officer under this Part.

(3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.

(4) In this section—

issuing officer means an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002.

101

Power to require occupier to provide assistance

101 Power to require occupier to provide assistance

An authorised officer proposing to exercise a power of entry under this Division may, by notice in writing given to the owner or occupier of the premises, require the owner or occupier to provide such reasonable assistance and facilities as are specified in the notice within a specified time and in a specified manner.

102

Powers that can be exercised on premises

102 Powers that can be exercised on premises

(1) An authorised officer may, at any premises lawfully entered, do anything that in the opinion of the authorised officer is necessary to be done for an authorised purpose, including (but not limited to) the things specified in subsection (2).

(2) An authorised officer may do any or all of the following—

(a) examine and inspect any thing,

(b) take and remove samples of a thing,

(c) make any examinations, inquiries or tests that the authorised officer considers necessary,

(d) carry out any treatment measures in relation to any biosecurity matter, carrier, potential carrier, premises or other thing,

(e) isolate, confine or detain any biosecurity matter or other thing,

(f) erect or repair fencing, gates or any other method of enclosure, or carry out any other security or containment measures in relation to any premises, biosecurity matter or other thing,

(g) erect signs,

(h) move any biosecurity matter or other thing,

(i) install or use a device for the purpose of detecting or monitoring the presence of any biosecurity matter or other thing,

(j) install devices for the purpose of capturing any biosecurity matter or other thing,

(k) take any photographs or other recordings that the authorised officer considers necessary,

(l) require records to be produced for inspection,

(m) examine and inspect any records,

(n) copy any records,

(o) seize any biosecurity matter or other thing if the authorised officer has reasonable grounds for believing that seizure of the biosecurity matter or other thing is necessary to prevent, eliminate or minimise a biosecurity risk posed by or in relation to the biosecurity matter or thing,

(p) seize any thing that the authorised officer has reasonable grounds for believing is connected with an offence against this Act or the regulations,

(q) move any seized thing from the place where it is seized or leave it at the place where it is seized and take reasonable action to restrict access to the thing,

(r) direct the occupier of the premises where a thing is seized to retain it at those premises or at another place under the control of the occupier,

(s) destroy, dispose of or eradicate any thing,

(t) do anything else authorised by or under this Act.

(3) The power to examine and inspect any thing includes a power to use reasonable force to break open or otherwise access a container or other thing being used, or suspected of being used, to hold or contain another thing.

(4) The power to seize any thing connected with an offence includes a power to seize—

(a) a thing with respect to which the offence has been committed, and

(b) a thing that will afford evidence of the commission of the offence, and

(c) a thing that was used for the purpose of committing the offence.

(5) The power to do a thing under this section includes a power to arrange for that thing to be done.

(6) A power to do something under this section in relation to a thing may be exercised without the consent of the owner of the thing.

(7) The power to destroy a thing is subject to the other provisions of this Part.

Note.

See Division 6.

(8) In this section, a reference to an offence includes a reference to an offence that there are reasonable grounds for believing has been committed.

103

Requiring assistance

103 Requiring assistance

(1) An authorised officer may require the owner or occupier of premises, or any person in or on premises (other than a public place), to provide any reasonable assistance that the authorised officer specifies for the purposes of exercising the authorised officer’s functions under this Division in relation to those premises.

(2) The requirement may be made in the form of a direction that is given orally to the person or by notice in writing served on the person.

(3) The direction may, for example, require the person—

(a) to confine or move any animal under the care, custody or control of the person, or

(b) to provide any facilities, including yards and crushes, that the authorised officer requires to inspect, examine, treat or take samples from any biosecurity matter, carrier, potential carrier or other thing, or

(c) to restrain any animal.

104

Recovery of fee for action taken

104 Recovery of fee for action taken

(1) The Secretary may charge a person (the liable person) a fee for any action taken by an authorised officer under a power conferred by this Division if, in the opinion of the Secretary, it is reasonable to do so having regard to the following—

(a) any biosecurity duty of the liable person under this Act,

(b) any contravention or likely contravention by the liable person of a requirement imposed by or under this Act.

(2) The fee is to be no more than is reasonable to cover the costs and expenses incurred in connection with the action.

(3) Costs and expenses incurred include costs and expenses incurred by or on behalf of any government agency.

(4) The fee is—

(a) a recoverable amount that is payable to the Secretary, and

(b) recoverable from the liable person.

Note.

See Part 20, which provides for the recovery of recoverable amounts and also provides for appeals to the Land and Environment Court against the decision to charge a fee.

105

Definitions

105 Definitions

(1) In this Division—

owner of a thing includes a person entitled to possession of the thing.

responsible person for a seized thing means the apparent owner of the thing or the apparent occupier of premises at which the thing is seized.

seized thing means a thing seized by an authorised officer under this Part.

(2) For the purposes of the Division, the continued retention of a seized thing in custody is not justified if and only if—

(a) it is not or is no longer necessary to retain the thing to prevent, eliminate or minimise a biosecurity risk posed by or in relation to the thing, and

(b) it is not or is no longer necessary to retain the thing as evidence of an offence.

106

Receipt for seized things

106 Receipt for seized things

(1) As soon as practicable after an authorised officer seizes a thing, the authorised officer must give a receipt for it to a responsible person.

(2) If it is not practicable to comply with subsection (1), the authorised officer may instead leave the receipt at the place of seizure in a conspicuous position and in a reasonably secure way.

(3) A receipt is not required if the thing is seized in a public place and the apparent owner of the thing cannot be located after reasonable inquiry.

(4) A receipt must describe generally the seized thing and its condition.

(5) This section does not apply if it is impracticable or would be unreasonable to give a receipt given the nature, condition or value of a seized thing.

107

Return of seized things

107 Return of seized things

(1) An authorised officer must return a seized thing to its owner if the authorised officer is satisfied that—

(a) it is lawful for the owner to have possession of the thing, and

(b) the continued retention of the thing in custody is not justified.

(2) A requirement to return a seized thing to its owner includes a requirement to remove or lift any restrictions on an owner’s access to a seized thing.

(3) This section does not apply if an authorised officer certifies in writing that the authorised officer is unable to return the seized thing to its owner.

108

Certification of inability to return seized thing

108 Certification of inability to return seized thing

(1) An authorised officer may certify in writing that the authorised officer is unable to return a seized thing to its owner if—

(a) the authorised officer cannot find the owner of the thing after making any inquiries it is reasonable to make in the circumstances, or

(b) the authorised officer cannot, for any other reason, return the thing to its owner after making any efforts to do so that are reasonable to make in the circumstances.

(2) Regard is to be had to a thing’s nature, condition and value in deciding—

(a) whether it is reasonable to make inquiries or efforts, and

(b) what inquiries or efforts (if any) are reasonable in the circumstances.

(3) The Secretary may give directions as to the inquiries or efforts that are to be made by authorised officers in relation to the return of any seized thing or class of seized things.

(4) Compliance with any such directions is evidence that all reasonable inquiries or efforts were made.

109

Court order requiring delivery of seized thing

109 Court order requiring delivery of seized thing

(1) A court may, on application by any person, make an order directing that a seized thing be delivered to the person.

(2) A court may make such an order only if satisfied that—

(a) the person is the owner of the seized thing, and

(b) it is lawful for the person to have possession of the thing, and

(c) the continued retention of the seized thing in custody is not justified.

(3) In deciding an application the court may do any one or more of the following things—

(a) make a finding or order as to the ownership of the thing,

(b) make a finding or order as to liability for, and payment of, costs and expenses incurred in keeping a thing in custody,

(c) make any necessary incidental or ancillary findings or orders.

(4) The court to which an application under this section may be made is—

(a) the Local Court, if the estimated value of the thing does not exceed $100,000, or

(b) the Land and Environment Court, if the estimated value of the thing exceeds $100,000.

(5) Despite subsection (4), a court that is hearing proceedings for an offence may deal with an application relating to a seized thing connected with that offence regardless of the estimated value of the thing.

(6) A court cannot make an order under this section in respect of a thing that has been seized by an authorised officer in the case of an emergency unless the Secretary has given notice of the Secretary’s intention to declare the seized thing to be forfeited to the Secretary.

(7) A court cannot make an order under this section in respect of a seized thing that has been forfeited to the Secretary.

(8) A requirement to deliver a seized thing to its owner includes a requirement to remove or lift any restrictions on an owner’s access to a seized thing.

110

Forfeiture of seized thing

110 Forfeiture of seized thing

(1) The Secretary may, by order in writing, declare any seized thing to be forfeited to the Secretary.

(2) The Secretary may make such an order only if—

(a) the Secretary is satisfied that the continued retention of the thing in custody is not justified, and

(b) the thing cannot be returned to its owner.

(3) A thing cannot be returned to its owner if—

(a) the Secretary is satisfied that it is not lawful for the owner of the seized thing to have possession of the thing, or

(b) an authorised officer certifies in writing that the authorised officer is unable to return the seized thing to its owner.

(4) The Secretary must give notice of the Secretary’s intention to declare a seized thing to be forfeited to the Secretary.

(5) The notice must be given at least 21 days before the order is made.

(6) The Secretary gives notice by—

(a) publishing the notice on a NSW Government website used by the Department, and

(b) serving the notice on the apparent owner of the thing.

(7) However, it is not necessary to serve the notice on the apparent owner of the thing if an authorised officer has certified in writing that the authorised officer is unable to return the seized thing to its owner.

Note.

Notice of the intention to make the declaration gives the owner of the thing an opportunity to seek a court order for the return of the thing.

s 110: Am 2024 No 47, Sch 1.4[2].

111

Dealing with forfeited things

111 Dealing with forfeited things

(1) When an order is made by the Secretary declaring a seized thing to be forfeited to the Secretary, the seized thing is forfeited to the Secretary and becomes the property of the Secretary.

(2) The Secretary may deal with the thing in any way the Secretary considers appropriate.

(3) Without limiting subsection (2), the Secretary may destroy, sell or dispose of the thing or authorise its destruction, sale or disposal.

Division 6

Limitations on powers

Division 6 Limitations on powers

112

Detention or treatment of persons

112 Detention or treatment of persons

(1) An authorised officer cannot do any of the following except as expressly authorised by an emergency order or under Part 9—

(a) prohibit, regulate or control the movement of a person,

(b) examine or inspect a person,

(c) require a person to undergo treatment measures or require treatment measures to be carried out in relation to a person.

(2) An authorised officer cannot—

(a) require a person to submit to any testing, or

(b) require a person to provide samples of the person’s blood, hair, saliva or any other body part or body fluid.

(3) Subsection (1)(a) does not prevent an authorised officer from doing any thing in relation to any biosecurity matter, premises, area, activity or thing that has an impact on the movement of a person but is not done for the purpose of restricting the movement of a person.

Note.

For example, an authorised officer could erect a fence on premises so as to isolate particular animals or plants from other animals or plants. This may have an impact on the movement of a person but is not done for that purpose.

113

Destruction requirements

113 Destruction requirements

(1) An authorised officer may destroy a thing under this Part only if—

(a) the thing is, or is reasonably suspected of being, prohibited matter, or

(b) the thing is a pest, or

(c) the thing is, or is reasonably suspected of being, infected or infested with, or of harbouring, biosecurity matter that poses a biosecurity risk and there are no other reasonably practicable treatment measures that could eliminate or minimise the biosecurity risk posed by the biosecurity matter, or

(d) the destruction is expressly authorised or required by an emergency order, control order or biosecurity zone regulation.

(2) This section does not prevent an authorised officer from destroying a thing that has been forfeited to the Secretary.

(3) In this section—

reasonably practicable means reasonably practicable in the opinion of the authorised officer.

reasonably suspected means reasonably suspected by the authorised officer.

114

Persons directly affected by destruction to be advised of proposed destruction

114 Persons directly affected by destruction to be advised of proposed destruction

(1) An authorised officer must not destroy any thing in the exercise of a function under this Part unless—

(a) before taking that action, the authorised officer gives notice in writing of the proposed destruction to the owner or person in charge of the thing, or

(b) the authorised officer is satisfied that the owner or person in charge of the thing has already been given notice in writing of the proposed destruction.

(2) Notice must be given at least one day before the function is exercised.

(3) A requirement to give notice does not apply to the destruction of a thing if—

(a) there appears to be no one immediately in control of it, and the owner or person in charge cannot, after such search and inquiry as is reasonable in the circumstances, be located, and

(b) the authorised officer considers that, in the circumstances, the function must be exercised without prior notice to the owner or person in charge.

(4) This section does not apply to the destruction of a thing that has been forfeited to the Secretary.

115

Interaction of powers with restrictions imposed by other Acts

115 Interaction of powers with restrictions imposed by other Acts

(1) An authorised officer must not, under this Part—

(a) destroy any living thing that is a protected animal or protected plant within the meaning of the Biodiversity Conservation Act 2016, or

(b) destroy any living thing that is a threatened species within the meaning of the Biodiversity Conservation Act 2016, or

(c) clear any native vegetation within the meaning of Part 5A of the Local Land Services Act 2013, or

(d) harm (within the meaning of the Heritage Act 1977) any building, work, relic, moveable object or place the subject of an interim heritage order or listing on the State Heritage Register under that Act.

(2) This section does not limit the power of an authorised officer to do a thing where that action is expressly authorised or required by an emergency order, a control order or a biosecurity zone regulation.

s 115: Am 2018 No 25, Sch 3.3 [1]–[3].

Division 7

General

Division 7 General

116

Offence of failing to comply with requirement made by authorised officer

116 Offence of failing to comply with requirement made by authorised officer

(1) A person who contravenes a requirement made of the person by an authorised officer exercising a power conferred by this Part is guilty of an offence.

(2) An offence against this section is a category 2 offence.

(3) A person is not guilty of an offence of failing to comply with a requirement to furnish records or information or to answer a question unless the person was warned on that occasion that a failure to comply is an offence.

(4) A person who is guilty of an offence against this section because the person contravenes a requirement made by an authorised officer to do or refrain from doing something—

(a) continues, until the requirement is complied with and despite the fact that any specified period or time for compliance has expired or passed, to be liable to comply with the requirement, and

(b) is guilty of a continuing offence for each day the contravention continues.

(5) Subsection (4) does not apply to the extent that a requirement of an authorised officer is revoked.

117

Defence to contravention

117 Defence to contravention

(1) In proceedings in which a person is charged with an offence of contravening a requirement made of the person by an authorised officer exercising a function conferred by this Part, it is a defence to the prosecution of the offence if the person charged proves that the person had a reasonable excuse for the contravention concerned.

(2) Subsection (1) does not apply to a requirement made under Division 2.

(3) A requirement made under Division 2 does not affect the privilege against self-incrimination as it applies to a natural person, except where the authorised officer makes the requirement in the case of an emergency.

Note.

See section 97.

118

Care to be taken

118 Care to be taken

In the exercise of a power of entering or searching premises under this Part, or doing anything else on premises under this Act, an authorised officer must do as little damage as possible.

119

Compensation

119 Compensation

(1) The Secretary must compensate all interested parties for damage caused by an authorised officer in exercising a power to enter premises, or a power to break open or otherwise access a thing for the purposes of examination or inspection, but not any damage caused by the exercise of any other power.

(2) Subsection (1) does not apply if the occupier obstructed or hindered the authorised officer in the exercise of the power concerned.

120

Revocation or variation of notices

120 Revocation or variation of notices

(1) A notice given under this Part may be revoked or varied by a subsequent notice or notices.

(2) Without limiting the above, a notice may be varied by extending the time for complying with the notice.

(3) A notice may be revoked or varied by the Secretary or by any authorised officer.

Part 9

Biosecurity directions

Part 9 Biosecurity directions

121

Exercise in conjunction with other powers

121 Exercise in conjunction with other powers

A power conferred by this Part to give a biosecurity direction may be exercised whether or not a power of entry under Part 8 is being exercised.

122

References to functions exercisable “in the case of an emergency”

122 References to functions exercisable “in the case of an emergency”

(1) A provision of this Part that enables an authorised officer to exercise a function in the case of an emergency enables the authorised officer to exercise that function if—

(a) the authorised officer is required or authorised to exercise the function under an emergency order, or

(b) the authorised officer otherwise reasonably believes it is necessary to exercise the function because—

(i) a biosecurity emergency has occurred, is occurring or is imminent, or

(ii) the authorised officer reasonably suspects a biosecurity emergency has occurred, is occurring or is imminent.

(2) A function under this Part is taken to have been exercised in the case of an emergency if it is exercised by an authorised officer in the circumstances referred to in subsection (1).

(3) The fact that this Part enables an authorised officer to exercise certain functions only in the case of an emergency does not prevent an authorised officer from exercising any other function conferred by this Part in the case of an emergency.

123

Power to issue biosecurity direction

123 Power to issue biosecurity direction

(1) An authorised officer may give a direction as authorised by this Part.

(2) A direction under this Part is a biosecurity direction.

124

Types of biosecurity direction

124 Types of biosecurity direction

(1) A biosecurity direction may be given as a general biosecurity direction or an individual biosecurity direction.

(2) A general biosecurity direction is a direction that applies to the public generally or to a specified class of persons (such as persons who engage in a specified activity, or who frequent particular premises).

(3) An individual biosecurity direction is a direction that applies to a particular person.

125

Revocation or variation of biosecurity direction

125 Revocation or variation of biosecurity direction

(1) A biosecurity direction may be revoked or varied by a subsequent biosecurity direction or directions.

(2) Without limiting the above, a biosecurity direction may be varied by extending the time for complying with the direction.

(3) A biosecurity direction may be revoked or varied by the Secretary or by any authorised officer.

126

General biosecurity direction

126 General biosecurity direction

(1) An authorised officer may give a general biosecurity direction if the officer reasonably believes it is necessary to do so for any of the following purposes—

(a) to prevent, eliminate or minimise a biosecurity risk,

(b) to prevent, manage or control a biosecurity impact that has occurred, is occurring or is likely to occur,

(c) to enforce, administer or execute this Act (including any instrument made under this Act).

(2) The authorised officer may, in a general biosecurity direction, prohibit, regulate or control (absolutely or conditionally) the carrying out of any activity in connection with biosecurity matter, a carrier or a potential carrier.

(3) The authorised officer may also, in a general biosecurity direction, do any of the following, but only in the case of an emergency—

(a) prohibit, regulate or control entry to or exit from any specified premises or area,

(b) prohibit, regulate or control the use of any road within or going into or out of a specified area or premises (including by closing roads).

Note.

See Division 5 for limitations on directions.

127

How general biosecurity direction is given

127 How general biosecurity direction is given

(1) An authorised officer may give a general biosecurity direction by publishing notice of the direction on a NSW Government website used by the Department or in the Gazette (or both).

(2) An authorised officer may, in the case of an emergency, give a general biosecurity direction by displaying a copy of the direction in a prominent place in or adjacent to any premises to which, or in the vicinity of which, the direction applies.

(3) If a general biosecurity direction is given in the manner referred to in subsection (2), notice of the direction is to be published on a NSW Government website used by the Department or in the Gazette (or both) as soon as practicable after it is made.

(4) If an authorised officer gives a general biosecurity direction in the case of an emergency, the direction is to include a warning that the direction is being given in the case of an emergency.

(5) A failure to comply with subsection (4) does not affect the validity of a biosecurity direction.

s 127: Am 2024 No 47, Sch 1.4[1].

128

Individual biosecurity direction

128 Individual biosecurity direction

(1) An authorised officer may give an individual biosecurity direction that prohibits, regulates or controls (absolutely or conditionally) the doing of anything by the person to whom the biosecurity direction is given if the authorised officer reasonably believes the direction is necessary for any of the following purposes—

(a) to prevent the person from contravening or continuing to contravene a requirement imposed by or under this Act,

(b) to prevent, eliminate or minimise a biosecurity risk,

(c) to prevent, manage or control a biosecurity impact that has occurred, is occurring or is likely to occur,

(d) to enforce, administer or execute this Act (including an instrument made under this Act).

(2) An authorised officer may also give an individual biosecurity direction that requires a person to do anything if the authorised officer reasonably believes the direction is necessary for any of the following purposes—

(a) to ensure the person discharges a biosecurity duty of the person under this Act,

(b) to ensure that the person remedies a contravention, suspected contravention or likely contravention by the person of a requirement imposed by or under this Act,

(c) to prevent, eliminate, minimise or manage a biosecurity risk posed by a dealing of the person, or suspected dealing of the person, with biosecurity matter, a carrier or a potential carrier,

(d) to enforce, administer or execute this Act (including an instrument made under this Act).

Note.

See Division 5 for limitations on directions.

129

How individual biosecurity direction is given

129 How individual biosecurity direction is given

(1) An authorised officer may give an individual biosecurity direction by giving the direction to the person the subject of the direction orally (in person) or by notice in writing served on the person.

(2) An authorised officer may, in the case of an emergency, give an individual biosecurity direction to an occupier of premises by displaying notice of the direction in a prominent place in or adjacent to the premises.

(3) Written confirmation of any individual biosecurity direction that is given orally or in the manner referred to in subsection (2) is to be served on the person the subject of the direction within 7 days after it is so given, unless the direction has already been complied with.

(4) If an authorised officer gives an individual biosecurity direction in the case of an emergency, the direction is to include a warning that the direction is being given in the case of an emergency.

(5) A failure to comply with subsection (4) does not affect the validity of a biosecurity direction.

130

Examples of individual biosecurity directions

130 Examples of individual biosecurity directions

(1) Without limiting the generality of this Division, an individual biosecurity direction may include provisions that prohibit, regulate or control, or that require, any of the following—

(a) the isolation, confinement or detention of any biosecurity matter or other thing,

(b) the erection or repair of fencing, gates or any other method of enclosure, or other specified security or containment measures in relation to any premises, biosecurity matter or other thing,

(c) the erection of signs,

(d) the movement of any biosecurity matter, carrier, potential carrier or other thing,

(e) treatment measures in relation to any biosecurity matter, carrier, potential carrier, premises or other thing,

(f) the provision of samples of any biosecurity matter or other thing,

(g) the testing of any biosecurity matter or other thing,

(h) the obtaining of a biosecurity certificate in relation to any biosecurity matter or any other thing,

(i) the installation or use of a device for the purpose of detecting or monitoring the presence of any biosecurity matter or other thing or capturing any biosecurity matter or other thing,

(j) the destruction, disposal or eradication of any thing,

(k) any other matters expressly authorised by the regulations.

(2) A power to require a person to do something includes a power to require a person to arrange for that thing to be done.

131

Special emergency powers—inspection and treatment measures

131 Special emergency powers—inspection and treatment measures

(1) An authorised officer who gives an individual biosecurity direction in the case of an emergency may direct a person to do any of the following—

(a) permit the authorised officer to inspect the person for biosecurity matter, a carrier or potential carrier,

(b) permit the authorised officer to inspect any thing in the person’s possession, care, custody or control for biosecurity matter, a carrier or a potential carrier,

(c) carry out or permit an external treatment measure to be carried out in relation to that person,

(d) carry out a treatment measure or permit a treatment measure to be carried out in relation to any thing in the person’s possession, care, custody or control.

(2) An authorised officer who gives an individual biosecurity direction in the case of an emergency may direct a person in control or apparently in control of a vehicle to do any of the following—

(a) permit the vehicle to be inspected for biosecurity matter, a carrier or a potential carrier,

(b) carry out a treatment measure or permit a treatment measure to be carried out in relation to the vehicle.

(3) An authorised officer may direct a person to stop, or to stop a vehicle, for the purpose of exercising a power conferred by this section.

(4) This section does not limit the powers of an authorised officer under Part 8 with respect to any vehicle, or vehicle on premises, entered under a power conferred by that Part that is not occupied by a person at the time that the power is exercised.

132

Fee for individual biosecurity direction

132 Fee for individual biosecurity direction

(1) An authorised officer who gives an individual biosecurity direction may charge the person to whom it is given a fee for preparing and giving the direction.

(2) The fee charged is to be an amount provided for by, or calculated in accordance with, the regulations.

(3) The fee is, for the purposes of this Act—

(a) a recoverable amount that is payable to the Secretary, and

(b) recoverable from the person given the biosecurity direction.

Note.

See Part 20, which provides for the recovery of recoverable amounts.

133

Taking of required actions and recovery of costs

133 Taking of required actions and recovery of costs

(1) If a person (the liable person) fails to comply with an individual biosecurity direction, an authorised officer may enter or authorise any person to enter premises and take any actions in relation to those premises or any thing on those premises that the liable person is required to take by the direction or that are otherwise necessary to remedy that failure.

(2) The Secretary may charge the liable person a fee for action taken under this section.

(3) The fee is to be no more than is reasonable to cover the costs and expenses incurred in connection with the action.

(4) Costs and expenses incurred include costs and expenses incurred by or on behalf of any government agency.

(5) The fee is—

(a) a recoverable amount that is payable to the Secretary, and

(b) recoverable from the liable person.

Note.

See Part 20, which provides for the recovery of recoverable amounts.

(6) An authorised officer must give an occupier of premises used for residential purposes written notice of an intention to enter any part of the premises used only for residential purposes under this section.

(7) The notice must specify the day on which the premises are intended to be entered and must be given before that day.

(8) Notice is not required to be given if—

(a) entry is made with the consent of the occupier of the premises, or

(b) entry is made under the authority of a search warrant.

(9) This section does not prevent the taking of proceedings for an offence of contravening a biosecurity direction.

134

Detention or treatment of persons

134 Detention or treatment of persons

(1) An authorised officer cannot do any of the following in a biosecurity direction, except as expressly authorised by this Act in the case of an emergency—

(a) prohibit, regulate or control the movement of a person,

(b) require a person to undergo any treatment measures or require treatment measures to be carried out in relation to a person.

(2) An authorised officer cannot, in a biosecurity direction, require a person to provide samples of the person’s blood, hair, saliva or any other body part or body fluid.

(3) Subsection (1)(a) does not prevent a biosecurity direction being imposed in relation to any biosecurity matter, premises, activity or thing that has an impact on the movement of a person but is not imposed for the purpose of restricting the movement of a person.

Note.

For example, a biosecurity direction could prohibit a person from taking a particular animal or plant out of premises. This direction may have an impact on the movement of a person but is not imposed for that purpose.

135

Inspection of persons

135 Inspection of persons

A power conferred by this Part to require a person to submit to an inspection is a power to require a person to do any of the following—

(a) to submit to a visual inspection (including of the exterior of the person’s clothing and shoes),

(b) to shake, or otherwise move, the person’s hair,

(c) to make available for inspection any thing in the person’s possession.

136

Destruction requirements

136 Destruction requirements

(1) An authorised officer may, under this Part, destroy or require the destruction of a thing only if—

(a) the thing is, or is reasonably suspected of being, prohibited matter, or

(b) the thing is a pest, or

(c) the thing is, or is reasonably suspected of being, infected or infested with, or of harbouring, biosecurity matter that poses a biosecurity risk and there are no other reasonably practicable treatment measures that could eliminate or minimise the biosecurity risk posed by the biosecurity matter, or

(d) the destruction is expressly authorised or required by an emergency order, control order or biosecurity zone regulation.

(2) In this section—

reasonably practicable means reasonably practicable in the opinion of the authorised officer.

reasonably suspected means reasonably suspected by the authorised officer.

137

Interaction of powers with restrictions imposed by other Acts

137 Interaction of powers with restrictions imposed by other Acts

(1) An authorised officer must not, under this Part—

(a) destroy or require the destruction of any living thing that is a protected animal or protected plant within the meaning of the Biodiversity Conservation Act 2016, or

(b) destroy or require the destruction of any living thing that is a threatened species within the meaning of the Biodiversity Conservation Act 2016, or

(c) clear or require the clearing of native vegetation within the meaning of Part 5A of the Local Land Services Act 2013, or

(d) harm (within the meaning of the Heritage Act 1977) or require the harming of any building, work, relic, moveable object or place the subject of an interim heritage order or listing on the State Heritage Register under that Act.

(2) This section does not limit the power of an authorised officer to do or require a thing to be done where that action is expressly authorised or required by an emergency order, a control order or a biosecurity zone regulation.

s 137: Am 2018 No 25, Sch 3.3 [1]–[3].

138

Offence not to comply with biosecurity direction

138 Offence not to comply with biosecurity direction

(1) A person who contravenes a biosecurity direction is guilty of an offence.

(2) An offence against this section is a category 2 offence.

(3) An offence against this section is an executive liability offence.

(4) A person who is guilty of an offence against this section because the person contravenes a requirement of a biosecurity direction to do or refrain from doing something—

(a) continues, until the requirement is complied with and despite the fact that any specified period or time for compliance has expired or passed, to be liable to comply with the requirement, and

(b) is guilty of a continuing offence for each day the contravention continues.

(5) Subsection (4) does not apply to the extent that a requirement of a biosecurity direction is revoked.

139

Defence of reasonable excuse

139 Defence of reasonable excuse

In proceedings in which a person is charged with an offence of contravening a biosecurity direction, it is a defence to the prosecution of the offence if the person charged proves that the person had a reasonable excuse for the contravention concerned.

140

Appeal to Land and Environment Court

140 Appeal to Land and Environment Court

(1) A person aggrieved by a decision of an authorised officer to give a biosecurity direction, or to amend a biosecurity direction, may appeal to the Land and Environment Court against the decision.

(2) An appeal is to be made in accordance with the rules of court, but may not be made more than 28 days after the day on which written notice of the decision is served on the person.

(3) Subject to any order made by the Land and Environment Court, an appeal does not operate to stay the decision to which the appeal relates.

(4) No appeal lies against any of the following decisions—

(a) a decision to give a general biosecurity direction,

(b) a decision to give an individual biosecurity direction that is given by an authorised officer in the case of an emergency.

141

Prior notice of direction not required

141 Prior notice of direction not required

An authorised officer is not required to notify any person who may be affected by a biosecurity direction before giving the direction.

Part 10

Biosecurity undertakings

Part 10 Biosecurity undertakings

142

Authorised officer may accept undertakings

142 Authorised officer may accept undertakings

(1) An authorised officer may accept a written undertaking (a biosecurity undertaking) given by a person if the person has contravened or the authorised officer suspects that the person has contravened or is likely to contravene a requirement imposed by or under this Act.

(2) An authorised officer may accept a biosecurity undertaking from a person instead of giving the person a biosecurity direction.

(3) The giving of an undertaking does not constitute an admission of guilt by the person giving it in relation to the contravention, suspected contravention or likely contravention to which the undertaking relates.

143

Contents of biosecurity undertaking

143 Contents of biosecurity undertaking

(1) A biosecurity undertaking must specify—

(a) the contravention, suspected contravention or likely contravention to which the biosecurity undertaking relates, and

(b) the measures that the person has agreed to implement to remedy or prevent the contravention, suspected contravention or likely contravention, and

(c) the period or periods by the end of which the measures must be implemented.

(2) A failure to comply with this section does not affect the validity of a biosecurity undertaking.

144

When biosecurity undertaking takes effect

144 When biosecurity undertaking takes effect

(1) A biosecurity undertaking takes effect and becomes enforceable when a written instrument evidencing the terms of the undertaking is executed by both the person giving the undertaking and the authorised officer who is accepting the undertaking.

(2) An authorised officer who executes a biosecurity undertaking is taken to enter into that biosecurity undertaking on behalf of the Secretary.

145

Contravention of biosecurity undertaking

145 Contravention of biosecurity undertaking

(1) A person who contravenes a biosecurity undertaking given by that person, and that is in effect, is guilty of an offence.

(2) An offence against this section is a category 2 offence.

(3) An offence against this section is an executive liability offence.

(4) A person who is guilty of an offence against this section because the person contravenes a requirement of a biosecurity undertaking to do or refrain from doing something—

(a) continues, until the requirement is complied with and despite the fact that any specified period or time for compliance has expired or passed, to be liable to comply with the requirement, and

(b) is guilty of a continuing offence for each day the contravention continues.

(5) Subsection (4) does not apply to the extent that a requirement of a biosecurity undertaking is withdrawn in accordance with this Part.

146

Fee for biosecurity undertaking

146 Fee for biosecurity undertaking

(1) An authorised officer who accepts a biosecurity undertaking may charge the person who gives the undertaking a fee for preparing and accepting the undertaking.

(2) The fee charged is to be an amount provided for by, or calculated in accordance with, the regulations.

(3) For the purposes of this Act, the fee is—

(a) a recoverable amount that is payable to the Secretary, and

(b) recoverable from the person who gave the biosecurity undertaking.

Note.

See Part 20, which provides for the recovery of recoverable amounts.

147

Authorised officer may take or authorise required actions and recover costs

147 Authorised officer may take or authorise required actions and recover costs

(1) If a person (the liable person) fails to comply with a biosecurity undertaking, an authorised officer may enter or authorise any person to enter premises and take any actions in relation to those premises or any thing on those premises that the liable person is required to take by the biosecurity undertaking or that are otherwise necessary to remedy that failure.

(2) The Secretary may charge the liable person a fee for action taken under this section.

(3) The fee is to be no more than is reasonable to cover the costs and expenses incurred in connection with the action.

(4) Costs and expenses incurred include any costs and expenses incurred by or on behalf of any government agency.

(5) The fee is—

(a) a recoverable amount that is payable to the Secretary, and

(b) recoverable from the liable person.

Note.

See Part 20, which provides for the recovery of recoverable amounts.

(6) An authorised officer must give an occupier of premises used for residential purposes written notice of an intention to enter any part of the premises used only for residential purposes under this section.

(7) The notice must specify the day on which the premises are intended to be entered and must be given before that day.

(8) Notice is not required to be given if—

(a) entry is made with the consent of the occupier of the premises, or

(b) entry is made under the authority of a search warrant.

(9) This section does not prevent the taking of proceedings for an offence of contravening a biosecurity undertaking.

148

Order requiring compliance with biosecurity undertaking

148 Order requiring compliance with biosecurity undertaking

(1) The Secretary may apply to the Land and Environment Court for an order if a person contravenes a biosecurity undertaking.

(2) If the Court is satisfied that the person who made the biosecurity undertaking has contravened the undertaking, the Court may make one or both of the following orders—

(a) an order directing the person to comply with the undertaking,

(b) an order discharging or varying the undertaking.

(3) In addition to the orders referred to in subsection (2), the Court may make any other order that the Court considers appropriate in the circumstances, including orders directing the person to pay to the State—

(a) the costs of the proceedings, and

(b) the reasonable costs of the Secretary in monitoring compliance with the biosecurity undertaking in the future.

(4) Nothing in this section affects the liability of a person who contravenes a biosecurity undertaking for an offence.

149

Withdrawal or variation of biosecurity undertaking

149 Withdrawal or variation of biosecurity undertaking

(1) A person who has made a biosecurity undertaking may, at any time, with the written agreement of an authorised officer—

(a) withdraw the undertaking, or

(b) vary the undertaking.

(2) Any authorised officer may, at any time—

(a) withdraw an authorised officer’s acceptance of a biosecurity undertaking, by notice in writing served on the person who gave the undertaking, or

(b) vary a biosecurity undertaking (but only with the written agreement of the person who gave the undertaking).

(3) The provisions of an undertaking cannot be varied to provide for a different alleged contravention.

(4) A biosecurity undertaking ceases to have effect if—

(a) it is withdrawn by the person who made it (in accordance with this section), or

(b) acceptance of the undertaking is withdrawn by an authorised officer.

150

Enforcement action not prevented by undertaking

150 Enforcement action not prevented by undertaking

A biosecurity undertaking does not prevent the taking or continuation of proceedings for an offence against this Act or the regulations in respect of any matter that is the subject of the undertaking.

Part 11

Prohibited dealings and registrable dealings

Part 11 Prohibited dealings and registrable dealings

151

Prohibited dealings

151 Prohibited dealings

(1) A dealing with biosecurity matter described in Schedule 3 is a prohibited dealing.

(2) The regulations may amend Schedule 3 by inserting, altering or omitting the description of any matter in that Schedule.

152

Offence of engaging in prohibited dealing

152 Offence of engaging in prohibited dealing

(1) A person who engages in a prohibited dealing is guilty of an offence.

(2) An offence against this section is a category 2 offence.

(3) An offence against this section is an executive liability offence.

(4) A person who is guilty of an offence against this section because the person engages in a prohibited dealing in contravention of subsection (1)—

(a) continues, until that contravention ceases, to be liable for a contravention of subsection (1), and

(b) is guilty of a continuing offence (of the same category) for each day the contravention continues.

153

Registrable dealings in biosecurity matter

153 Registrable dealings in biosecurity matter

(1) Each of the dealings described in Schedule 4 is a registrable dealing.

(2) The regulations may amend Schedule 4 by inserting, altering or omitting the description of any matter in that Schedule.

154

Offence of engaging in registrable dealing without biosecurity registration

154 Offence of engaging in registrable dealing without biosecurity registration

(1) A person who engages in a registrable dealing is guilty of an offence unless—

(a) the person is a registered entity, and

(b) the dealing is authorised by the person’s biosecurity registration.

(2) An offence against this section is a category 2 offence.

(3) An offence against this section is an executive liability offence.

(4) A person who is guilty of an offence against this section because the person engages in a registrable dealing in contravention of subsection (1)—

(a) continues, until that contravention ceases, to be liable for a contravention of subsection (1), and

(b) is guilty of a continuing offence (of the same category) for each day the contravention continues.

Note.

Part 12 deals with biosecurity registration.

155

Defence for employees and agents

155 Defence for employees and agents

In proceedings for an offence against this Division, it is a defence to the prosecution of the offence if the person who engaged in the registrable dealing proves that—

(a) the person did so as the employee or agent of a registered entity, and

(b) the biosecurity registration authorises the registered entity to engage in the dealing.

Part 12

Biosecurity registration

Part 12 Biosecurity registration

More sections below

Source text: opening excerpt

Sourced from legislation.nsw.gov.au, CC BY 4.0.

Part 1 Preliminary

1 Name of Act

This Act is the Biosecurity Act 2015.

2 Commencement

This Act commences on a day or days to be appointed by proclamation.

3 Objects of Act

(1) The primary object of this Act is to provide a framework for the prevention, elimination and minimisation of biosecurity risks posed by biosecurity matter, dealing with biosecurity matter, carriers and potential carriers, and other activities that involve biosecurity matter, carriers or potential carriers.

(2) The other objects of this Act are as follows—

(a) to promote biosecurity as a shared responsibility between government, industry and communities,

(b) to provide a framework for the timely and effective management of the following—

(i) pests, diseases, contaminants and other biosecurity matter that are economically significant for primary production industries,

(ii) threats to terrestrial and aquatic environments arising from pests, diseases, contaminants and other biosecurity matter,

(iii) public health and safety risks arising from contaminants, non-indigenous animals, bees, weeds and other biosecurity matter known to contribute to human health problems,

(iv) pests, diseases, contaminants and other biosecurity matter that may have an adverse effect on community activities and infrastructure,

(c) to provide a framework for risk-based decision-making in relation to biosecurity,

(d) to give effect to intergovernmental biosecurity agreements to which the State is a party,

(e) to provide the means by which biosecurity requirements in other jurisdictions can be met, so as to maintain market access for industry.