11 Concurrent operation of State and Territory laws
(1) This Act does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.
(2) Without limiting subsection (1), this Act does not exclude or limit the concurrent operation of a law of a State or Territory to the extent that:
(a) the law makes an act or omission:
(i) an offence; or
(ii) subject to a civil penalty; and
(b) that (or any similar) act or omission is also:
(i) an offence against a provision of this Act; or
(ii) subject to a civil penalty under this Act.
(3) Subsection (2) applies even if the law of the State or Territory does any one or more of the following, in relation to the offence or civil penalty:
(a) provides for a penalty that differs from the penalty provided in this Act;
(b) provides for fault elements that differ from the fault elements applicable to the offence or civil penalty provision created by this Act;
(c) provides for defences or exceptions that differ from the defences or exceptions applicable to the offence or civil penalty provision created by this Act.
Part 2—Interpretation
Division 1—Definitions
12 Definitions
In this Act:
accredited property means a property that is accredited under Chapter 3.
accredited veterinarian means a veterinarian who is accredited in accordance with rules made for the purposes of subsection 312(1).
adjacent premises warrant means a warrant issued under section 335.
aircraft means any machine or craft that can derive support in the atmosphere from the reactions of the air, other than the reactions of the air against the earth’s surface.
animal includes a dead animal and any part of an animal, but does not include a human or a part of a human, whether the human is dead or alive.
animal reproductive material:
(a) means any part of an animal from which another animal can be produced; and
(b) includes an embryo, an egg or ovum, and semen.
applied, in relation to a trade description, has the meaning given by section 247.
appropriate person for premises to which an adjacent premises warrant relates, or premises entered under section 346 or 347, means:
(a) the occupier of the premises; or
(b) another person who apparently represents the occupier.
approved arrangement means an approved arrangement under Chapter 5.
approved assessor:
(a) means a person, or a person included in a class of persons, approved under subsection 281(1); and
(b) includes a person included in a class of persons specified by rules made for the purposes of section 282.
approved auditor:
(a) means a person, or a person included in a class of persons, approved under subsection 273(1); and
(b) includes a person included in a class of persons specified by rules made for the purposes of section 274.
approved export program means a program of export operations approved under subsection 311(1).
assessor means:
(a) an approved assessor; or
(b) an authorised officer whose functions and powers include carrying out an assessment of goods under Part 2 of Chapter 9.
associate of a person has a meaning affected by section 13.
auditor means:
(a) an approved auditor; or
(b) an authorised officer whose functions and powers include conducting an audit under Part 1 of Chapter 9.
Australian aircraft means an aircraft that is registered under regulations made under the Civil Aviation Act 1988.
Australia New Zealand Food Standards Code has the same meaning as in the Food Standards Australia New Zealand Act 1991.
Australian fishing zone has the same meaning as in the Fisheries Management Act 1991.
Australian law means a law of the Commonwealth, or of a State or Territory.
Australian national means:
(a) an Australian citizen; or
(b) a body corporate established by or under a law of the Commonwealth or of a State or Territory.
Australian resident means:
(a) an individual who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law; or
(b) a body corporate that has its principal place of business in Australia.
Australian territory has the meaning given by section 14.
Australian vessel means an Australian ship within the meaning of the Shipping Registration Act 1981.
authorised officer means (except as provided by section 324) a person who is authorised under section 291 to be an authorised officer under this Act.
Note: Section 324 provides a modified meaning of authorised officer for the purposes of Chapter 10 (compliance and enforcement).
certificate of registration, for a registered establishment, means the most recent certificate of registration for the establishment given to the occupier of the establishment under Chapter 4.
civil penalty provision has the same meaning as in the Regulatory Powers Act.
Commonwealth authorised officer means an authorised officer who is an officer or employee of a Commonwealth body.
Commonwealth body includes a Department of State, or an authority or agency, of the Commonwealth.
Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013.
conveyance means any of the following:
(a) an aircraft;
(b) a vessel;
(c) a vehicle;
(d) any other means of transport prescribed by the rules.
corporation means a corporation within the meaning of the Corporations Act 2001.
cost‑recovery charge means:
(a) a fee prescribed by rules made for the purposes of subsection 399(1) for a fee‑bearing activity; or
(b) a charge imposed by:
(i) the Export Charges (Imposition—Customs) Act 2015; or
(ii) the Export Charges (Imposition—Excise) Act 2015; or
(iii) the Export Charges (Imposition—General) Act 2015; or
(c) a late payment fee relating to a fee or charge described in paragraph (a) or (b).
covering, in relation to goods, includes a bottle, box, capsule, case, container, frame, glass, seal, stopper and wrapper.
de‑identified, in relation to personal information, has the same meaning as in the Privacy Act 1988.
dishonest, in relation to conduct engaged in by a person, means dishonest according to the standards of ordinary people.
economic consequences for Australia includes the following:
(a) substantial damage to Australia’s trading reputation;
(b) a restriction on, or the closure of, access to one or more overseas markets for all goods or a kind of goods from Australia.
eligible animal reproductive material means prescribed goods that are animal reproductive material.
eligible live animals means prescribed goods that are live animals.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
entered for export has the meaning given by section 15.
entrusted person means any of the following:
(a) the Minister;
(b) the Secretary;
(c) an APS employee in the Department;
(d) any other person employed or engaged by the Commonwealth to provide services to the Commonwealth in connection with the Department;
(e) any other person who is:
(i) employed or engaged by the Commonwealth or a body corporate that is established by a law of the Commonwealth; and
(ii) in a class of persons specified by rules made for the purposes of this subparagraph.
establishment has the same meaning as premises.
evidential material has the same meaning as in the Regulatory Powers Act.
examine includes count, gauge, grade, measure and weigh.
executive officer of a body corporate means a person, by whatever name called and whether or not a director of the body corporate, who is concerned in, or takes part in, the management of the body corporate.
expiry date:
(a) for the accreditation of a property—has the meaning given by subsection 82(4); or
(b) for the registration of an establishment—has the meaning given by subsection 115(4); or
(c) for an approved arrangement—has the meaning given by subsection 154(4); or
(d) for an export licence—has the meaning given by subsection 194(4).
export means export from Australian territory to a place outside Australian territory.
Note: See also section 20 which provides for when goods are exported.
export business means a business that carries out export operations in relation to a kind of goods.
export licence means an export licence granted under Chapter 6.
export operations has the meaning given by section 16.
export permit means an export permit issued under Part 2 of Chapter 7.
false trade description has the meaning given by section 251.
Federal Court means the Federal Court of Australia.
fee‑bearing activities has the meaning given by subsection 399(1).
fish means aquatic vertebrates and aquatic invertebrates but does not include mammals or birds.
fit for human consumption means safe and suitable for human consumption.
food includes:
(a) any substance or thing of a kind used, or capable of being used, for human consumption (whether it is live, raw, prepared or partly prepared); and
(b) any substance or thing of a kind used, or capable of being used, as an ingredient or additive in a substance or thing referred to in paragraph (a);
whether or not the substance or thing is in a condition fit for human consumption.
foreign aircraft means an aircraft other than an Australian aircraft.
foreign person or body means any of the following:
(a) an individual who is not an Australian national or an Australian resident;
(b) a body corporate that is not an Australian national or an Australian resident;
(c) a body politic of a foreign country;
(d) a trust, where the trustee, or a majority of the trustees, are covered by any or all of the above paragraphs.
foreign vessel means a vessel other than an Australian vessel.
goods means any of the following:
(a) an animal or a plant;
(b) an article, substance or thing (including reproductive material) derived from an animal or a plant, whether or not in combination with any other article, substance or thing;
(c) food;
(d) any other article, substance or thing.
government certificate means a certificate (other than a tariff rate quota certificate) in relation to goods that are to be, or that have been, exported and that relates to any of the following:
(a) matters in respect of which a country requires certification before goods of that kind may be imported into that country from Australian territory or from a part of Australian territory;
(b) requirements of this Act that must be complied with before goods of that kind may be exported;
(c) other matters concerning goods of that kind.
husbandry activities, in relation to a live animal, means activities relating to the care and maintenance of the animal (for example, housing, daily monitoring, feeding, cleaning of facilities and administration of medication).
importing country requirement, in relation to goods that are to be imported into a country from Australian territory or from a part of Australian territory, means a requirement of that country that must be met before the goods may be imported into that country from Australian territory or from that part of Australian territory.
installation has the meaning given by section 17.
integrity has the meaning given by section 18.
International Plant Protection Convention means the International Plant Protection Convention, done at Rome on 6 December 1951, as in force from time to time.
Note: The Convention is in Australian Treaty Series 1952 No. 5 ([1952] ATS 5) and could in 2020 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
investigation warrant means:
(a) a warrant issued under section 70 of the Regulatory Powers Act as it applies in relation to evidential material that relates to a provision mentioned in subsection 329(1); or
(b) a warrant signed by an issuing officer under section 71 of the Regulatory Powers Act as it applies in relation to evidential material that relates to a provision mentioned in subsection 329(1).
issuing body for a government certificate in relation to a kind of goods means a person or body that may issue a government certificate in relation to goods of that kind under section 63.
issuing officer means:
(a) a magistrate; or
(b) a Judge of a court of a State or Territory; or
(c) a Judge of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2).
label includes a tag, band, ticket, brand and pictorial or other descriptive matter.
landing place means any place where an aircraft can land, including:
(a) an area of land or water; and
(b) an area on a building or a vessel.
late payment fee has the meaning given by section 403.
manager of a property means the person who is responsible for the day‑to‑day management of the property.
mark includes a stamp, seal and label.
monitoring warrant means a warrant issued under section 32 of the Regulatory Powers Act as it applies in relation to this Act.
natural resources has the same meaning as in paragraph 4 of Article 77 of the United Nations Convention on the Law of the Sea.
Note: Paragraph 4 of Article 77 of the Convention provides as follows:
The natural resources referred to in this Part consist of the mineral and other non‑living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.
nominated export permit issuer, in relation to a kind of prescribed goods, means a person who:
(a) manages or controls export operations in relation to goods of that kind that are covered by an approved arrangement; and
(b) is nominated in the approved arrangement as a person who may issue export permits for goods of that kind.
Note: A nominated export permit issuer in relation to a kind of prescribed goods may only issue export permits for goods of that kind if the power to issue export permits for goods of that kind has been subdelegated to the nominated export permit issuer under paragraph 288(2)(c).
non‑prescribed goods means goods of a kind that are not prescribed goods.
notice of intention to export means a notice under section 243.
occupier, of an establishment where export operations in relation to goods are, were or will be carried out, has the meaning given by section 19.
official mark means a mark that is an official mark for the purposes of this Act under rules made for the purposes of subsection 255(1).
official marking device has the meaning given by subsection 257(1).
permanently prohibited export means an export that is prohibited by section 23A.
permanently prohibited goods means goods the export of which is prohibited absolutely by section 23.
person has a meaning affected by sections 421, 422 and 423.
personal information has the same meaning as in the Privacy Act 1988.
plant means a live plant or a dead plant, and includes any part of a plant.
port includes a harbour.
PPSA security interest means a security interest within the meaning of the Personal Property Securities Act 2009 and to which that Act applies, other than a transitional security interest within the meaning of that Act.
Note 1: The Personal Property Securities Act 2009 applies to certain security interests in personal property. See the following provisions of that Act:
(a) section 8 (interests to which the Act does not apply);
(b) section 12 (meaning of security interest);
(c) Chapter 9 (transitional provisions).
Note 2: For the meaning of transitional security interest, see section 308 of the Personal Property Securities Act 2009.
premises includes the following:
(a) a structure, building or conveyance;
(b) a place (whether or not enclosed or built on), including a place situated underground or under water;
(c) a part of a thing referred to in paragraph (a) or (b).
Note: Premises does not include a conveyance in Part 4 of Chapter 10 (compliance and enforcement) (see section 332).
prepare, in relation to goods, includes the following:
(a) admission of animals for slaughter, being animals from which goods are to be derived;
(b) slaughter or kill animals from which goods are to be derived;
(c) dress carcases from which goods are to be derived;
(d) take (whether from the wild or otherwise):
(i) fish; or
(ii) fish from which goods are to be derived;
(e) process, pack and store goods;
(f) treat goods;
(g) handle and load goods.
Note: Take, in relation to fish, means catch, capture, or harvest (see the definition of take in this section).
prescribed agriculture law means a law (other than this Act) that is administered by the Minister and is prescribed by the rules.
prescribed export conditions means conditions prescribed by rules made for the purposes of section 29.
prescribed goods means goods of a kind prescribed by rules made for the purposes of subsection 28(1), but does not include a kind of goods in the circumstances prescribed by rules made for the purposes of subsection 28(4).
Note: The rules may prescribe a class of goods for the purposes of subsection 28(1) or (4).
produce, in relation to goods, includes the following:
(a) pick or harvest (whether from the wild or otherwise):
(i) goods; or
(ii) goods from which goods are to be derived;
(b) capture or take (whether from the wild or otherwise):
(i) goods other than fish; or
(ii) goods (other than fish) from which goods are to be derived;
(c) propagate, rear, keep or breed (including as part of aquaculture operations):
(i) fish; or
(ii) fish from which goods are to be derived;
(d) breed, or carry out husbandry activities in relation to:
(i) live animals; or
(ii) live animals from which goods are to be derived;
(e) grow:
(i) plants; or
(ii) plants from which goods are to be derived.
property has the same meaning as premises.
protected information has the meaning given by section 397F.
protected person has the meaning given by subsection 430(4).
registered establishment means an establishment that is registered under Chapter 4.
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
related provision means the following:
(a) a provision of this Act that creates an offence;
(b) a civil penalty provision of this Act;
(c) a provision of the Crimes Act 1914 or the Criminal Code that relates to this Act and creates an offence.
relevant Commonwealth liability means:
(a) a cost‑recovery charge that is due and payable; or
(b) a pecuniary penalty, or other liability for an amount, imposed by or under a prescribed agriculture law.
Note: A relevant Commonwealth liability of a person is taken to have been paid for the purposes of a provision of this Act in certain circumstances (see section 431).
relevant court means:
(a) the Federal Court; or
(b) the Federal Circuit and Family Court of Australia (Division 2); or
(c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
relevant information means information obtained or generated by a person in the course of or for the purposes of:
(b) assisting another person to perform functions or duties, or exercise powers, under this Act.
relevant person:
(a) for an audit under Part 1 of Chapter 9—has the meaning given by section 269; or
(b) for an assessment of goods under Part 2 of Chapter 9—has the meaning given by section 278; or
(c) for a reviewable decision referred to in column 1 of an item in the table in subsection 381(1)—means the person referred to in column 3 of that item; or
(d) for a reviewable decision prescribed by rules made for the purposes of subsection 381(2)—means the person specified by the rules as the relevant person for that decision.
relevant premises, in Part 5 of Chapter 10, has the meaning given by section 345.
reviewable decision has the meaning given by subsections 381(1) and (2).
rules means rules made under section 432.
Secretary means the Secretary of the Department.
State or Territory authorised officer means an authorised officer who is an officer or employee of a State or Territory body.
State or Territory body includes a Department of State, or an authority or agency, of a State or Territory.
take, in relation to fish, means catch, capture, or harvest.
tariff rate quota certificate means a certificate provided for by rules made for the purposes of section 264.
temporary prohibition determination means a determination made under paragraph 24(1)(a) or (b).
third party authorised officer means a person who is authorised under paragraph 291(6)(a) to be a third party authorised officer under this Act.
this Act includes:
(a) legislative instruments made under this Act; and
(b) the Regulatory Powers Act as it applies in relation to this Act.
trade description has the meaning given by subsections 246(1) and (2).
United Nations Convention on the Law of the Sea means the United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982, as in force for Australia from time to time.
Note: The Convention is in Australian Treaty Series 1994 No. 31 ([1994] ATS 31) and could in 2020 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
vessel:
(a) means any kind of vessel used in navigation by water, however propelled or moved, including the following:
(i) a barge or other floating craft;
(ii) an air‑cushion vehicle, or other similar craft, used wholly or primarily in navigation by water; and
(b) includes:
(i) an installation; and
(ii) any floating structure.