Part 14Functions and powers of authorised officers

Part 14—Functions and powers of authorised officers 228—Purposes for which functions and powers under Part may be exercised (1) An authorised officer may perform the functions and exercise the powers conferred by this Part for any of the following purposes: (a) for the purpose of investigating, monitoring or enforcing compliance with a requirement imposed by or under this Act; (b) for the purpose of obtaining information or records for purposes connected with the administration, operation or enforcement of this Act; (c) if the authorised officer is an authorised auditor, for the purpose of performing functions or exercising powers in connection with a biosecurity audit; (d) for the purpose of assisting a biosecurity auditor to perform or exercise the biosecurity auditor's functions or powers in connection with a biosecurity audit; (e) for the purpose of preventing, eliminating, minimising, controlling or managing a biosecurity risk or suspected biosecurity risk; (f) for the purpose of preventing, eliminating, minimising, controlling or managing a biosecurity impact; (g) for the purpose of enforcing, administering or implementing this Act (including an instrument made under this Act). (2) To avoid doubt, an authorised officer who is also a biosecurity auditor may perform the functions or exercise the powers of an authorised officer while also performing the functions or exercising the powers of a biosecurity auditor. (3) In this Part, a reference to an authorised purpose is a reference to any purpose referred to in subsection (1). Division 2—Information gathering 229—Exercise in conjunction with other powers A power conferred by this Division may be exercised whether or not a power of entry is being exercised under another part of this Act. 230—Power to require information and records (1) An authorised officer may, by written notice, require a person to furnish to the authorised officer such information or records as the authorised officer 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 authorised officer to whom any information or record is furnished under this Division may— (a) take copies of the information or record; and (b) retain the information or record for such time as is reasonably necessary. (5) If any information or record required to be furnished under this Division is in electronic, mechanical or other form, the notice requires the information or record to be furnished in written form, unless the notice otherwise provides. 231—Power to require answers to questions (1) An authorised officer may require a person to answer questions in relation to a matter if the authorised officer reasonably believes that the questions may assist in the performance of an authorised purpose. (2) An authorised officer may require, by written notice, that a person attend at the time and place specified in the notice in order to answer questions under this Division. (3) If a time and place specified in a notice under subsection (2) is not reasonable in the circumstances, the authorised officer is to nominate a time and place after taking into account any request of the person who is the subject of the notice. 232—Recording of evidence (1) An authorised officer may cause any questions and answers to questions given under this Division to be recorded if the authorised officer has informed the person who is to be questioned that the record is to be made. (2) A recording may be made by using any method determined by the authorised officer. (3) A copy of a recording must be provided by the authorised officer to the person who is questioned at the request of the person. (4) A recording may be made under this section despite the provisions of any other law. 233—Power of authorised officer 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 under this Act or the regulations to state the person's full name and residential address. (2) An authorised officer may require a person who is required under this section to state the person's name and address to provide proof of the name and address. 234—Requiring information in case of an emergency (1) A person is not excused from a requirement made by an authorised officer to furnish information or records or to answer a question on the ground that the information, record 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 or 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 any criminal proceedings, other than proceedings designated under subsection (3), 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 record, or giving the answer, on the ground that it might incriminate the person. (3) The following proceedings are designated under this subsection: (a) proceedings for an offence under section 33; or (b) proceedings for an offence under this Act that involves furnishing false or misleading information or failing to furnish material information. Division 3—Power to enter 235—Power to enter (1) An authorised officer may enter any premises or vehicle— (a) at any reasonable time; or (b) in the case of an emergency, at any time. (2) Subject to section 236, entry to any premises or vehicle may be effected with or without the authority of a warrant. 236—Entry to residential premises (1) An authorised officer may only enter a dwelling under this Part if the authorised officer— (a) is entering the dwelling with the consent of an occupier of the relevant premises; or (b) is acting under the authority of a warrant; or (c) is acting in the case of an emergency. (2) An authorised officer may only enter any other part of residential premises under this Part if the authorised officer— (a) is entering the premises with the consent of an occupier of the premises; or (b) is acting under the authority of a warrant; or (c) is acting in the case of an emergency; or (d) in relation to the premises that are within a biosecurity zone, or under a control order or an emergency order that provides for a power to enter premises—has given at least 24 hours notice of an intention to enter the premises to an occupier of the premises; or (e) is entering the premises in circumstances prescribed by the regulations. (3) In this section— dwelling means the building, or a part of a building, in which a person resides. Division 4—Investigation powers 237—Powers that can be exercised on premises or in relation to a vehicle (1) An authorised officer may do anything that in the opinion of the authorised officer is reasonably 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) enter, inspect and search and, if necessary, use reasonable force to break into or open— (i) any premises or vehicle; or (ii) part of, or anything in or on, any premises or vehicle; (b) require a vehicle to stop, or to be presented at a place and time specified by the authorised officer, and board any vessel or craft; (c) give directions with respect to the stopping, securing or movement of a vehicle, plant, equipment or other thing; (d) as part of an inspection, require a person to produce a document, record or other information, including a document, record or other information that is stored by in an electronic or other form; (e) examine, copy or take extracts from a document, record or other information so produced or require a person to provide a copy of any such document, record or other information; (f) bring any vehicle onto any premises; (g) bring any equipment or other thing onto any premises or onto or into any vehicle, and use that equipment; (h) examine and inspect any thing; (i) take and remove samples of any thing (including any thing under land); (j) make any examinations, inquiries or tests; (k) carry out measures in relation to any biosecurity matter, carrier, potential carrier, premises, vehicle or other thing, including to cleanse, disinfect or otherwise treat any such thing or to subject any such thing to any treatment measure; (l) isolate, confine or detain any biosecurity matter, carrier or other thing; (m) construct, reinforce or repair any building, fencing, gates, structures, barriers or other methods of enclosure, or carry out any other security or containment measures in relation to any premises, biosecurity matter, carrier or other thing; (n) erect signs; (o) move any biosecurity matter, carrier or other thing; (p) apply, install, inspect, use or retrieve any device, bait, lure, trap or other equipment for the purpose of detecting, identifying, monitoring, controlling, capturing, suppressing, destroying or eradicating any biosecurity matter, carrier or other thing; (q) carry out any activity, work or operation as may be necessary for the detection, identification, monitoring, controlling, capture, suppression, disposal, destruction or eradication of any biosecurity matter, carrier or other thing; (r) verify that the packaging or labelling of any animal or plant, or animal product or plant product, complies with this Act or a corresponding law; (s) evaluate any facilities or equipment used in or in connection with, or processes or procedures carried out at or on, any premises or vehicle, including at any artificial breeding centre or veterinary diagnostic laboratory; (t) take any photographs, films or audio, video or other recordings; (u) seize any biosecurity matter, carrier or other thing if the authorised officer has reasonable grounds for believing that seizure of the biosecurity matter, carrier or other thing is necessary to prevent, eliminate, minimise, control or manage a biosecurity risk posed by or in relation to the biosecurity matter, carrier or thing; (v) seize any thing that the authorised officer has reasonable grounds for believing— (i) is connected with an offence under this Act or the regulations; or (ii) without limiting subparagraph (i), is being held or maintained contrary to any requirement of this Act, or is prohibited from being in the State or a relevant part of the State under this Act; (w) 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; (x) direct an occupier of premises where a thing is seized to retain it at those premises or at another place under the control of the occupier; (y) require a person to deliver any biosecurity matter or carrier to a quarantine station, or to any other place specified by the authorised officer; (z) identify, by marking, branding, tagging, implanting microchips or otherwise, any premises, vehicle, biosecurity matter, carrier or other thing; (za) use reasonable force to prevent the commission of an offence under this Act; (zb) do anything else authorised by or under this Act; (zc) give directions reasonably required in connection with the exercise of a power conferred by any of the above paragraphs or otherwise in connection with the administration, operation or enforcement of this Act. (3) An authorised officer may only use force under subsection (2)(a) to break into premises or a vehicle on the authority of a warrant or in circumstance where the authorised officer is acting in the case of an emergency. (4) Subject to subsection (5), if an authorised officer seizes any biosecurity matter, carrier or other thing under subsection (2)(u), the authorised officer may do 1 or more of the following in relation to the biosecurity matter, carrier or other thing: (a) retain it; (b) cleanse, disinfect or otherwise treat it or subject it to any treatment measure; (c) submit it for testing and analysis; (d) return it to its owner subject to any specified conditions. (5) If an authorised officer seizes anything under subsection (2)(v) or acts in the circumstances described in subsection (2)(u) and has (at the time of so acting or subsequently) reasonable grounds for believing that the thing is or was also liable to seizure under subsection (2)(v)— (a) the authorised officer may retain it and do 1 or both of the following in relation to the biosecurity matter, carrier or other thing: (i) cleanse, disinfect or otherwise treat it or subject it to any treatment measures; (ii) submit it for testing and analysis; and (b) section 239 applies in relation to the seizure. (6) Despite a preceding subsection, if any biosecurity matter, carrier or other thing has been seized by an authorised officer, the biosecurity matter, carrier or other thing may be destroyed or disposed of in such manner as the Chief Executive approves if the Chief Executive believes on reasonable grounds that such action should be taken. (7) The power to seize any thing in connection with an offence includes the power to seize— (a) a thing with respect to which the offence has been committed; (b) a thing that will afford evidence of the commission of the offence; (c) a thing that was used for the purpose of committing the offence. (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. (9) 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. (10) The power to do a thing under this section includes the power to arrange for that thing to be done. (11) An authorised officer who is not a veterinary surgeon must not carry out any veterinary treatment within the meaning of the Veterinary Practice Act 2003 unless authorised to do so by the Chief Veterinary Officer to carry out veterinary treatment of that kind. 238—Recovery of fee for action taken (1) The Chief Executive may determine that a person (the liable person) should pay a fee for any action taken by an authorised officer under a power conferred by this Division if, in the opinion of the Chief Executive, it is reasonable to do so having regard to— (a) any biosecurity duty of the liable person under this Act; and (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 Crown or, if the authorised officer is not a public sector employee, by or on behalf of the authorised officer's employer. (4) The fee is— (a) a debt due to— (i) in the case of action taken by an authorised officer who is a public sector employee—the Crown; or (ii) in any other case—the employer of the authorised officer who took the action; and (b) recoverable from the liable person. Division 5—Provisions relating to seizure 239—Provisions relating to seizure (1) If a thing is subject to the operation of section 237(5), the following provisions apply: (a) the thing must be held pending a decision on whether to institute proceedings for an offence related to the thing seized, unless the Chief Executive, on application, authorises its release to the person from whom it was seized, or to any person who had legal title to it at the time of its seizure, subject to such conditions as the Chief Executive thinks fit (including as to the giving of security for satisfaction of an order under paragraph (b)(ii)); (b) if proceedings for an offence relating to the thing are instituted within the prescribed period after its seizure and the defendant is convicted or found guilty of an offence, the court may— (i) order that it be forfeited to the Crown; or (ii) where it has been released pursuant to paragraph (a)—order that it be forfeited to the Crown or that the person to whom it was released or the defendant pay to the Crown an amount equal to its market value at the time of its seizure, as the court thinks fit; (c) if— (i) proceedings are not instituted for an offence relating to the thing within the prescribed period after its seizure; or (ii) proceedings have been so instituted and— (A) the defendant is found not guilty of the offence; or (B) the defendant is convicted or found guilty of an offence but no order for forfeiture is made under paragraph (b), then the person from whom the thing was seized, or any person with legal title to it, is entitled to recover from the Crown (if necessary, by action in a court of competent jurisdiction) the thing itself, or if it has been damaged or destroyed, compensation of an amount equal to its market value at the time of its seizure, unless possession of the thing is (or would be) contrary to another provision of this or any other Act; (d) if— (i) possession of the thing by the person from whom the thing was seized is (or would be) contrary to another provision of this Act; or (ii) a thing is not liable for forfeiture under a preceding paragraph and the Chief Executive has, after taking reasonable steps in the circumstances, been unable to return the thing to the person from whom it was seized, the Chief Executive may deal with or dispose of the thing in such manner as the Chief Executive thinks fit. (2) Subsection (1) does not limit the operation of section 237(6). (3) In subsection (1)— prescribed period means 12 months or such longer period as may be prescribed by the regulations. Division 6—Warrants 240—Warrants (1) A warrant required for the purposes of this Part in relation to premises or a vehicle is a warrant issued by a magistrate. (2) A magistrate must not issue a warrant that will allow entry into premises or a vehicle under this Part unless satisfied that there are reasonable grounds to believe— (a) that a contravention of this Act has been, is being, or is about to be, committed in or on the premises or vehicle; or (b) that something may be found in or on the premises or vehicle that has been used in, or constitutes evidence of, a contravention of this Act; or (c) that the circumstances require such action to be taken. (3) A warrant may authorise the use of reasonable force to break into the premises or vehicle. Division 7—Related matters 241—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 is reasonably possible. 242—Detention or treatment of persons (1) An authorised officer cannot do any of the following except as expressly authorised by an emergency order, control order, biosecurity direction or any regulation: (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 may not require a person to— (a) to submit to any testing; or (b) 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, vehicle, area, activity or thing that has an impact on the movement of a person but that is not done for the purpose of restricting the movement of a person. 243—Destruction requirements (1) An authorised officer may destroy a thing under this Part only if— (b) the thing is a carrier of, or reasonably suspected of being the carrier of, prohibited matter; or (c) the thing is, or is reasonably suspected of being, a pest; or (d) the thing is, or is reasonably suspected of being, infected or infested with, or of harbouring, the biosecurity matter that poses a biosecurity risk and there are no other reasonably practicable and available— (i) treatment measures that could eliminate, minimise, control or manage the biosecurity risk posed by the biosecurity matter; or (ii) means of determining or confirming whether the thing is infected or infested with, or harbouring, the biosecurity matter; or (e) the destruction is expressly authorised or required by— (iii) a biosecurity direction; or (iv) a Government biosecurity program; or (v) a biosecurity control agreement; or (vi) any regulation. (2) This section does not prevent an authorised officer destroying a thing that has been forfeited to the Crown. (3) An authorised officer may destroy a thing in the exercise of powers under this Act despite the fact that the action may constitute a trespass or cause loss or damage to property. (4) In this section— reasonably practicable means reasonably practicable in the opinion of the authorised officer; reasonably suspected means reasonably suspected in the opinion of the authorised officer. 244—Destruction proposal (1) An authorised officer must not destroy any thing in the exercise of a power under this Part unless— (a) before taking the action, the authorised officer gives written notice of the proposed destruction to the owner or person in charge of the thing; or (b) the authorised officer is satisfied, on reasonable grounds, that the owner or person in charge of the thing has already been given written notice of the proposed destruction. (2) Notice must be given at least 24 hours before the power is exercised. (3) A requirement to give notice under this section does not apply to the destruction of a thing if— (a) the destruction is expressly authorised by— (iii) a biosecurity direction; or (iv) a Government biosecurity program; or (v) a biosecurity control agreement; or (vi) any regulation; or (b) — (i) there appears to be no one immediately in control of it; and (ii) the owner or person in charge cannot, after such search and inquiry as is reasonable in the circumstances, be located; and (iii) the authorised officer is satisfied that, in the circumstances, the power 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 Crown. 245—Interaction with other Acts (1) An authorised officer, other than a Chief Officer or an authorised officer acting with the approval of the Chief Executive or a Chief Officer, must not in the exercise of a power under this Part— (a) destroy a fish that is an aquatic resource of a protected species under the Fisheries Management Act 2007; or (b) destroy a living thing that is an animal or plant that is subject to any form of protection under the National Parks and Wildlife Act 1972; or (c) clear any native vegetation that is subject to any form of protection under the Native Vegetation Act 1991; or (d) damage, destroy or disturb any place, object, specimen, artefact or other thing that is subject to any form of protection under the Heritage Places Act 1993; or (e) damage, destroy or disturb any Aboriginal site, object or remains that are subject to any form of protection under the Aboriginal Heritage Act 1988. (2) The Minister must, in connection with the operation of this section, enter into an arrangement with the Minister responsible for the administration of any Act referred to in subsection (1) specifying the circumstances in which that Minister is to be consulted before action is taken under that subsection. (3) The Chief Executive, a Chief Officer or an authorised officer must, when acting under subsection (1), take into account the requirements of an arrangement under subsection (2). (4) An arrangement under subsection (2) does not limit the power of a Chief Officer or an authorised officer to do anything in the case of an emergency. (5) Furthermore, this section (including an arrangement under subsection (2) does not limit the power of a Chief Officer or an authorised officer to do a thing where that action is expressly authorised by— (c) a biosecurity direction; or (d) any regulation. (6) This section applies despite the provisions of any Act referred to in subsection (1). 246—Interference with device, trap or equipment A person must not, without reasonable excuse, move, damage or otherwise interfere with any device, bait, trap or other equipment, or any sign, placed on premises by, or under the direction of, an authorised officer for an authorised purpose. (a) for a body corporate—$20 000; (b) for a natural person—$4 000.