Part 10Enforcement

Part 10—Enforcement 145—Simplified outline (a) enables the Regulator to give directions to a licence holder or to a person covered by a licence if— (i) the Regulator believes that the person is not complying with this Act or the regulations; and (ii) the Regulator believes that it is necessary to do so in order to protect the health and safety of people or to protect the environment, or for certain other reasons; (ab) enables the Regulator to give directions to a person permitted by an emergency dealing determination to deal with a GMO if— (i) the Regulator believes that the person is not complying with this Act or the regulations; and (ii) the Regulator believes that it is necessary to do so in order to protect the health and safety of people or to protect the environment, or for certain other reasons; (b) empowers the Supreme Court to issue injunctions, and contains a forfeiture provision. This section differs from section 145 of the Commonwealth Act. 146—Regulator may give directions (1) If the Regulator believes, on reasonable grounds, that— (a) a licence holder is not complying with this Act or the regulations in respect of a thing; and (b) either of the following applies: (i) it is necessary to exercise powers under this section in order to protect the health and safety of people or to protect the environment; (ii) it is desirable in the public interest, having regard to the matters specified in subsection (2A), for the Regulator to exercise powers under this section, the Regulator may give directions to the licence holder, by written notice, requiring the licence holder, within the time specified in the notice, to take such steps in relation to the thing as are reasonable in the circumstances for the licence holder to comply with this Act or the regulations. (2) If the Regulator believes on reasonable grounds that— (a) 1 of the following kinds of persons is not complying with this Act or the regulations in respect of a thing: (i) a person covered by a GMO licence; (ii) a person dealing with, or who has dealt with, a GMO specified in an emergency dealing determination; and (b) either of the following applies: (i) it is necessary to exercise powers under this section in order to protect the health and safety of people or to protect the environment; (ii) it is desirable in the public interest, having regard to the matters specified in subsection (2A), for the Regulator to exercise powers under this section, the Regulator may give directions to the person, by written notice, requiring the person, within the time specified in the notice, to take such steps in relation to the thing as are reasonable in the circumstances for the person to comply with this Act or the regulations. (2A) For the purposes of deciding under subsection (1)(b)(ii) or (2)(b)(ii) whether it is desirable to exercise powers under this section to give directions to a licence holder or another person, the Regulator must have regard to the following: (a) the types of dealings with GMOs authorised by the licence or specified in the emergency dealing determination concerned and, in particular, whether the dealings are ongoing; (b) whether measures have been, or are being, taken to address the non‑compliance with this Act or the regulations that the Regulator believes is occurring (the suspected non‑compliance); (c) the likelihood of the licence holder or other person not complying with this Act or the regulations at a future time; (d) the severity of the suspected non‑compliance; (e) whether, on 1 or more occasions, the licence holder or the other person— (i) has been charged with or convicted of an offence against this Act; or (ii) has been given a direction under this section; (f) other means available to the Regulator to address the suspected non‑compliance (including, but not limited to, by cancelling, varying or suspending a licence, accreditation or certification); (g) whether, in the Regulator's opinion, the suspected non‑compliance was deliberate; (h) the desirability of deterring future non‑compliance with this Act or the regulations. (3) A person must take the steps specified in a notice under subsection (1) or (2) within the time specified in the notice. Maximum penalty: in the case of an aggravated offence—$220 000; in any other case—$55 000. Aggravated offence is defined in section 38. (4) If the licence holder or the person, as the case requires, does not take the steps specified in the notice within the time specified in the notice, the Regulator may arrange for those steps to be taken. (5) If the Regulator incurs costs because of arrangements made by the Regulator under subsection (4), the licence holder or the person, as the case requires, is liable to pay to the State of South Australia an amount equal to the cost, and the amount may be recovered by the State as a debt due to the State in a court of competent jurisdiction. (6) A time specified in a notice under subsection (1) or (2) must be reasonable having regard to the circumstances. This section differs from section 146 of the Commonwealth Act. 147—Injunctions (1) If a person has engaged, is engaging, or is about to engage in any conduct that is or would be an offence against this Act or the regulations, the Supreme Court (the Court) may, on the application of the Regulator or any other aggrieved person, grant an injunction restraining the person from engaging in the conduct. (2) If— (a) a person has refused or failed, is refusing or failing, or is about to refuse or fail, to do a thing; and (b) the refusal or failure is, or would be, an offence against this Act or the regulations, the Court may, on the application of the Regulator or any other aggrieved person, grant an injunction requiring the person to do the thing. (3) The power of the Court to grant an injunction may be exercised— (a) whether or not it appears to the Court that the person intends to engage, or to continue to engage, in conduct of that kind; and (b) whether or not the person has previously engaged in conduct of that kind. (4) The Court may discharge or vary an injunction granted under this section. (5) The Court may grant an interim injunction pending a determination of an application under subsection (1). (6) The powers granted by this section are in addition to, and not in derogation of, any other powers of the Court. Section 147 of the Commonwealth Act confers a similar power to grant injunctions on the Federal Court of Australia. 148—Forfeiture (1) If a court finds a person guilty of an offence against this Act or the regulations, the court may order forfeiture to the State of South Australia of any thing used or otherwise involved in the commission of the offence. (2) A thing ordered by a court to be forfeited under this section becomes the property of the State of South Australia and may be sold or otherwise dealt with in accordance with the directions of the Regulator. (3) Until the Regulator gives a direction, the thing must be kept in such custody as the Regulator directs. This section differs from section 148 of the Commonwealth Act.