Part 16Legal proceedings

Part 16—Legal proceedings Division 1—Offences generally 252—Classification of offence All offences under this Act, other than an offence against section 248, are classified as summary offences. 253—Proceedings for offences (1) Proceedings for an offence under this Act may be commenced by (and only by)— (b) the Director of Public Prosecutions; or (c) the Chief Executive; or (d) a Chief Officer; or (e) an authorised officer; or (f) in the case of an offence against Schedule 2, the Dog Fence Board; (g) a prescribed person or a person of a prescribed class; or (h) a person acting with the written authorisation of the Minister (2) A prosecution for an offence under this Act may be commenced at any time within 5 years after the date of the alleged commission of the offence or, with the authorisation of the Minister after consultation with the Attorney-General, at any later time within 7 years after the date of the alleged commission of the offence. (3) An apparently genuine document purporting to be signed by the Minister and to authorise a person to act under subsection (1)(h) or the commencement of a prosecution under subsection (2) will be accepted in any legal proceedings, in the absence of proof to the contrary, as proof of the authorisation. 254—Offences by employers (vicarious liability) (1) If an employee or agent commits an offence under this Act, the employer or principal is taken to have committed the same offence. (2) It is a defence in proceedings for an offence to which subsection (1) applies if the defendant establishes— (a) that the employer or principal (as the case may be) could not by the exercise of due diligence have prevented the commission of the offence; or (b) that the offence did not occur in the course of the employment or agency. (3) An employer or principal may be prosecuted and convicted of an offence to which subsection (1) applies whether or not the employee or agent has been prosecuted or convicted of the principal offence. 255—Offences by bodies corporate (1) If a body corporate is guilty of a prescribed offence, each director and the chief executive officer of the body corporate are guilty of an offence and liable to the same penalty as is prescribed for the principal offence when committed by a natural person unless the director or the chief executive officer (as the case may be) proves that they could not by the exercise of due diligence have prevented the commission of the offence. (2) If a body corporate is guilty of any other offence under this Act (other than an offence under the regulations), each director and the chief executive officer of the body corporate are guilty of an offence and liable to the same penalty as is prescribed for the principal offence when committed by a natural person if the prosecution proves that— (a) the director or chief executive officer (as the case may be) knew, or ought reasonably to have known, that there was a significant risk that such an offence would be committed; and (b) the director or chief executive officer (as the case may be) was in a position to influence the conduct of the body corporate in relation to the commission of such an offence; and (c) the director or chief executive officer (as the case may be) failed to exercise due diligence to prevent the commission of the offence. (3) Subsection (2) does not apply if the principal offence is an offence against a section prescribed by the regulations for the purposes of this subsection. (4) A person referred to in this section may be prosecuted and convicted of an offence against this section whether or not the body corporate has been prosecuted or convicted of the principal offence committed by the body corporate. (5) The regulations may make provision in relation to the criminal liability of a director or the chief executive officer of a body corporate that is guilty of an offence under the regulations. 256—Offences by employees and agents (1) It is not a defence in proceedings for an offence under this Act that the defendant was, at the time of the commission of an offence, an employee or agent of another person and was acting for, or on behalf of, the other person. (2) Despite subsection (1), it is a defence in proceedings for an offence under this Act if the defendant establishes— (a) that at the time of the commission of the offence, the defendant was acting under the direction or supervision of— (i) the owner of, or the person carrying on the day-to-day operation of, an entity; or (ii) the owner or person in charge of premises, a place, a vehicle, or a thing in relation to which the offence was committed; or (iii) another person representing that owner or person referred to in a preceding subparagraph; and (b) that the defendant's actions were as a direct result of that direction or supervision; and (c) that the defendant could not have reasonably known that the defendant's actions would constitute an offence under this Act. 257—Continuing offences If a person commits an offence which is a continuing offence under this Act— (a) the person is liable to a penalty for each day during which the offence continues of not more than one-tenth of the maximum penalty prescribed for the offence to which the continuing offence relates (the principal offence); and (b) if the act or omission giving rise to the offence continues after a conviction for the principal offence, subject to any determination of a court, the person is guilty of a further offence against the principal offence and liable, in addition to the penalty otherwise applicable to the further offence, to a penalty for each day during which the offence continues of not more than one-tenth of the maximum penalty prescribed for the principal offence. 258—General defence of due diligence It is a defence in proceedings for an offence under this Act if the defendant establishes that the defendant had taken all reasonable precautions and exercised all due diligence to prevent the commission of the offence by the defendant or by another person under the direction, or the supervision, of the defendant. 259—Defence of lawful excuse It is a defence in proceedings for an offence under this Act if the defendant establishes that the conduct of the defendant was authorised by or under this Act. 260—Actions done under direction of an authorised person A person is not guilty of an offence under this Act for an act done, or omitted, by the person in good faith at the request of, or under the direction of— (b) a Chief Officer; or (c) an authorised officer. 261—Common carriers (1) A person is not guilty of an offence under this Act because of a dealing with any biosecurity matter, carrier or potential carrier in the ordinary course of business as a common carrier. (2) The regulations may— (a) declare that a person or a class of persons is a common carrier for the purposes of this section; and (b) declare that a person or a class of persons is not a common carrier for the purposes of this section. (3) This section does not apply in relation to— (a) an offence against section 33, section 123, section 183(6), section 196(5) or section 211(5); or (b) an offence of contravening an individual biosecurity direction; or (c) an offence against Part 15; or (d) an offence excluded from the operation of this section by the regulations. 262—Burden of proof in certain circumstances In proceedings for an offence under this Act, the burden is on the defendant to prove— (a) that the defendant was exempt from a requirement imposed by or under this Act; or (b) that the defendant was authorised by or under this Act to engage in any conduct so engaged in by the defendant (including on account of being a permit holder under Part 8). 263—Expiation of offences (1) Despite section 6 of the Expiation of Offences Act 1996, an expiation notice for an offence which is expiable under this Act may be given after the expiration of the period of 6 months from the date on which the offence was alleged to have been committed. (2) However, an expiation notice for an expiable offence of a prescribed class cannot be given after the expiry of the period of 2 years from the date on which the offence was alleged to have been committed. Division 2—Evidentiary provisions 264—Evidentiary certificates designated official means— (c) a Chief Officer; given includes served; instrument includes, but is not limited to, an emergency order, a control order, a biosecurity direction or a biosecurity certificate. (2) A certificate issued by a designated official and that states any of the following matters is admissible as evidence in any legal proceedings as evidence of the matters so certified: (a) that an instrument was issued, made, granted or given under this Act, or signed, on a specified day, by a specified person; (b) the terms of any instrument issued, made, granted or given, or purported to be issued, made, granted or given, under this Act, as in force on a specified day or during a specified period; (c) that an instrument issued, made, granted or given under this Act was amended, varied or revoked, the day on which it was amended, varied or revoked, and the terms of any amendment or variation; (d) that a person was, on a specified day or during a specified period— (i) a Chief Officer; or (ii) a Deputy Chief Officer; or (iii) an authorised officer; or (iv) an authorised analyst; (e) the terms of, and any conditions of or limitations on, the following, as in force on a specified day or during a specified period: (i) a person's appointment as an authorised officer or authorised analyst; (ii) an approval that authorises an authorised officer to perform the functions of a biosecurity auditor or biosecurity certifier; (f) that a function or power was delegated under this Act, including the following: (i) the person or persons to whom the function or power was delegated; (ii) the date of the delegation; (iii) the period during which the delegation had effect; (iv) the terms of the delegation, including any conditions or limitations on the delegation; (g) that a specified instrument was or was not, on a specified day, registered under Part 3 Division 6; (h) that a person who issued, made, granted or gave, or purported to issue, make, grant or give, an instrument under this Act was the holder of a specified office on a specified day or during a specified period; (i) the terms of any approved form, on a specified day or during a specified period; (j) the terms of any application made under this Act; (k) that a person was or was not, on a specified day or during a specified period— (i) a registered entity; or (ii) an accreditation authority; or (iii) a biosecurity auditor; or (iv) a biosecurity certifier; (l) the terms of, and any conditions of or limitations on, the following, as in force on a specified day or during a specified period: (i) a person's biosecurity registration; (ii) a person's approval as an accreditation authority; (iii) a person's appointment as a biosecurity auditor; (iv) a person's accreditation as a biosecurity certifier; (m) the suspension or cancellation of any of the following on a specified day: (i) a person's biosecurity registration; (ii) a person's approval as an accreditation authority; (iii) a person's appointment as a biosecurity auditor; (iv) a person's accreditation as a biosecurity certifier; (n) that a person was or was not, on a specified day or during a specified period, the holder of a permit under this Act; (o) the terms of, and any conditions of or limitations on, a permit, as in force on a specified day or during a specified period; (p) the suspension or cancellation of any permit; (q) that a specified authorised officer gave a specified person a written biosecurity direction on a specified day, and the terms of that biosecurity direction; (r) that a report or document on a biosecurity audit was received by the Chief Executive on a particular day, and the particulars of any report or document so received; (s) that a notice or other information was provided by a person to the Chief Executive, or any other person authorised by or under this Act to receive the notice or information, on a specified date, and particulars of the notice or information so provided; (t) that a notice or other information had not been received by the Chief Executive, a Chief Officer, a Deputy Chief Officer, or an authorised officer, by a specified date; (u) that a person was, on a specified date, directed to engage a biosecurity auditor to perform a biosecurity audit; (v) that a particular code or other traceability system, as recognised under the regulations, had been issued or applied in respect of a particular person, property, animal or plant, and whether the code or other traceability system was active on a specified day; (w) the amount of costs or expenses incurred in taking specified action; (x) that an amount payable under this Act by a specified person has, or has not been, paid. (3) The evidence under subsection (2) constitutes proof of a matter that has been certified in the absence of proof to the contrary. (4) For the purposes of this section, a document purporting to be a certificate of a designated official issued under this section is to be taken to be such a certificate in the absence of proof to the contrary. 265—Evidence of allegation An allegation contained in an information for an offence under this Act that states any of the following matters constitutes proof of the matter so alleged in the absence of proof to the contrary: (a) that a specified person is or was, at the specified time, the owner, occupier or person in charge of premises, a place, biosecurity matter, carrier or other thing; (b) that a specified person was, at the specified time, the person apparently in charge of a vehicle; (c) that specified biosecurity matter or a specified carrier was, at the specified time, in a specified area or was moved into or out of a specified area; (d) that any specified thing was, at the specified time, infected or infested with or harbouring any specified biosecurity matter; (e) that something was done without the approval of the Chief Executive, a Chief Officer or an authorised officer. 266—Evidence of authorised analyst (1) A certificate of an authorised analyst certifying the result of an analysis, or examination, is admissible in any legal proceedings and as evidence of: (a) the facts stated in the certificate; and (b) the correctness of the result of the analysis or examination. (2) A certificate of an authorised analyst certifying that, on receipt of a container containing a sample submitted to the analyst under this Act, the container was sealed and the seal securing the container was unbroken is admissible in any legal proceedings and is evidence— (a) of the facts stated in the certificate; and (b) that the sample— (i) was the same sample as the one submitted to the analyst under this Act; and (ii) had not been tampered with after sealing. (3) The evidence under subsection (1) or (2) constitutes proof of a matter that has been certified in the absence of proof to the contrary. (4) For the purposes of this section, a document purporting to be a certificate of an authorised analyst is to be taken to be such a certificate in the absence of proof to the contrary. 267—Evidence of state of mind of body corporate (1) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a body corporate (while acting in their capacity as such)— (a) was responsible for a particular act or omission, is evidence that the body corporate was responsible for that act or omission; or (b) had at any particular time a particular state of mind, is evidence that the body corporate had that state of mind. (2) In this section, the state of mind of a person includes, but is not limited to— (a) the knowledge, intention, opinion, belief or purpose of the person; and (b) the person's reasons for the intention, opinion, belief or purpose. 268—Evidence of publication of instruments on website (1) In any legal proceedings, a certificate issued by the Chief Executive stating that a notice, order, direction, declaration or other instrument was published on the Department website on a particular date— (a) is admissible in those legal proceedings; and (b) constitutes proof of the matters stated in the certificate in the absence of proof to the contrary. (2) For the purposes of this section, a document purporting to be a certificate of the Chief Executive issued under this section is to be taken to be such a certificate in the absence of proof to the contrary. 269—Evidence of part to be evidence of whole In any legal proceedings, evidence as to the nature of the whole or part of a sample of a thing— (a) taken from a parcel of the thing; or (b) taken from a quantity of the thing that was, at the time when the sample was so taken, represented as being, or as being part of, a bulk lot of the thing, in the performance or exercise of a function or power under this Act, is evidence as to the nature of the whole of the contents of the parcel or bulk lot (as the case may be). 270—Evidence in relation to bees In any legal proceedings, proof that a hive was found on premises constitutes proof, in the absence of proof to the contrary, that the bees were kept by the occupier of those premises. Division 3—Court orders 271—Preliminary (1) A court may make 1 or more orders under this Division if the court finds an offence against this Act or the regulations proved. (2) An order may be made under this Division in addition to any other penalty that may be imposed, or any other action that may be taken, in relation to the offence or on account of a contravention of this Act. (3) An order may be made under this Division regardless of whether any penalty is imposed, or any other action is taken, in relation to the offence or on account of a contravention of this Act. (4) In this Division— the court means the court that finds the offence proved; the offender means the person who is found to have committed the offence. 272—Orders for restoration and prevention The court may order the offender to take such steps as are specified in the order, within such time as is so specified (or such further time as the court, on application, may allow)— (a) to prevent, eliminate, minimise, control or manage any biosecurity impact caused by the commission of the offence; or (b) to take any other action on account of the commission of the offence, including to rectify or make good any resulting biosecurity impact or other consequences associated with the commission of the offence; or (c) to prevent the continuance or recurrence of the offence or otherwise to ensure that a further contravention of this Act does not occur. 273—Orders for costs, expenses and compensation at time offence proved The court may order the offender to pay to a government agency or person costs and expenses incurred, or compensation for loss or damage suffered, as the case may be, in such amount fixed by the court, if the court is satisfied (on the balance of probabilities) that— (a) a government agency has incurred costs and expenses in connection with— (i) the prevention, elimination, minimisation, control or management of any biosecurity impact caused by the commission of the offence; or (ii) making good any resulting biosecurity impact; or (b) a person (including a government agency) has, by reason of the commission of the offence, suffered loss or damage or has incurred costs or expenses in preventing, eliminating, minimising, controlling or managing any such loss or damage, or attempting to do so. 274—Recovery of costs, expenses and compensation after offence proved (1) If, after the court finds the offence proved— (a) a government agency has incurred costs and expenses in connection with— (i) the prevention, elimination, minimisation, control or management of any biosecurity impact caused by the commission of the offence; or (ii) making good any resulting biosecurity impact; or (b) a person (including a government agency) has, by reason of the commission of the offence, suffered loss or damage or has incurred costs or expenses in preventing, eliminating, minimising, controlling or managing any such loss or damage, or attempting to do so, the government agency or person may recover from the offender the costs and expenses incurred or the amount of the loss or damage in a court of competent jurisdiction. (2) The amount of any such costs and expenses (but not the amount of any such loss or damage) may be recovered as a debt. 275—Orders regarding costs and expenses of investigation (1) The court may, if satisfied (on the balance of probabilities) that a government agency has reasonably incurred costs and expenses during the investigation of the offence, order the offender to pay to the government agency the costs and expenses so incurred in such amount as is fixed by the order. costs and expenses, in relation to the investigation of an offence, includes the costs and expenses of or incidental to— (a) taking any sample or conducting any inspection, examination, test, measurement or analysis of any thing; or (b) seizing, transporting, storing, destroying or disposing of any thing; or (c) taking any other action associated with the investigation of the offence. 276—Orders regarding financial benefits (1) The court may order the offender to pay an amount which the court is satisfied, on the balance of probabilities, represents the amount of any financial benefits acquired by the offender or an associate of the offender, or accrued or accruing to the offender or an associate of the offender, as a result of the commission of the offence. (2) For the purposes of this section, a person is an associate of an offender if— (a) they are partners; or (b) one is a spouse, domestic partner, parent or child of another; or (c) they are both trustees or beneficiaries of the same trust, or one is a trustee and the other is a beneficiary of the same trust; or (d) one is a body corporate or other entity (whether inside or outside Australia) and the other is a director of the body corporate or other entity; or (e) one is a body corporate or other entity (whether inside or outside Australia) and the other is a person who has a legal or equitable interest in 5% or more of the share capital of the body corporate or other entity; or (f) they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth; or (g) a chain of relationships can be traced between them under any one or more of the preceding paragraphs. (3) For the purposes of subsection (2), a beneficiary of a trust includes an object of a discretionary trust. (4) In this section— financial benefit means monetary, financial or economic benefit. 277—Prohibition orders (1) The court may do 1 or more of the following in respect of the offender: (a) order the offender not to deal with any specified biosecurity matter or thing or not to engage in any specified dealing with specified biosecurity matter; (b) cancel, suspend or vary any biosecurity registration, permit, approval as an accreditation authority, appointment as a biosecurity auditor or accreditation as a biosecurity certifier held by the offender under this Act; (c) order that the offender not be eligible for biosecurity registration, a permit, approval as an accreditation authority, appointment as a biosecurity auditor or accreditation as a biosecurity certifier. (2) The court may, in an order under this section, fix a period during which the order applies and impose any other requirements that the court considers necessary or expedient for enforcement of the order. 278—Forfeiture (1) The court may order forfeiture to the Crown of any biosecurity matter or other thing to which the offence relates. (2) If an order is made under subsection (1), the biosecurity matter or other thing becomes the property of the Crown. (3) The Chief Executive may deal with the biosecurity matter or other thing in any way the Chief Executive considers appropriate. (4) Without limiting subsection (3), the Chief Executive may destroy, sell or dispose of the biosecurity matter or other thing or authorise its destruction, sale or disposal. 279—Publication order (1) The court may order the offender to take specified action to publicise 1 or more of the following: (a) the offence, including the circumstances of the offence; (b) the biosecurity impact of the offence; (c) any other consequences and any other orders made against the offender. (2) The court may, in an order under this section, fix a period for compliance and impose other requirements that the court considers necessary or expedient for enforcement of the order. (3) If the offender fails to comply with an order under subsection (1), the Chief Executive or a person authorised by the Chief Executive may take action to carry out the order. (4) The reasonable cost of taking action under subsection (3) is recoverable in a court of competent jurisdiction from the offender as a debt due to the Crown. 280—Failure to comply with orders A person must not contravene an order under this Division that is made in respect of the person.