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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Biosecurity Amendment (Ballast Water
and Other Measures) Bill 2017
No. , 2017
(Agriculture and Water Resources)
A Bill for an Act to amend the Biosecurity Act 2015,
and for related purposes
No. , 2017
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments relating to the Ballast Water
Convention
3
Biosecurity Act 2015
3
Schedule 2--Amendments relating to human health
34
Biosecurity Act 2015
34
No. , 2017
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
1
A Bill for an Act to amend the Biosecurity Act 2015,
1
and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Biosecurity Amendment (Ballast Water and Other
5
Measures) Act 2017.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
No. , 2017
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day after this Act receives the Royal
Assent.
2. Schedule 1
The later of the following days:
(a) the day after this Act receives the Royal
Assent;
(b) the day the International Convention for
the Control and Management of Ships'
Ballast Water and Sediments, done at
London on 13 February 2004, comes into
force for Australia.
However, the provisions do not commence
at all if the event mentioned in paragraph (b)
does not occur.
The Minister must announce, by notifiable
instrument, the day the Convention comes
into force for Australia.
3. Schedule 2
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments relating to the Ballast Water Convention Schedule 1
No. , 2017
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
3
Schedule 1--Amendments relating to the
1
Ballast Water Convention
2
3
Biosecurity Act 2015
4
1 Section 3 (paragraph relating to Chapter 5)
5
Repeal the paragraph, substitute:
6
Chapter 5 implements the Ballast Water Convention and regulates
7
the ballast water and sediment of certain vessels in accordance with
8
the United Nations Convention on the Law of the Sea. It requires
9
reporting of intended or actual discharges of ballast water in
10
Australian territorial seas. Discharging ballast water is an offence,
11
subject to a range of exceptions, and there is an offence of
12
disposing of sediment. For an Australian vessel, these offences
13
apply whether the vessel is in or outside Australian seas. For a
14
foreign vessel, the offences apply only if the vessel is in Australian
15
seas. The definition of Australian seas depends on whether the
16
Administration of the foreign vessel is a party to the Ballast Water
17
Convention. The Chapter also includes provisions for ballast water
18
management plans and certificates, record-keeping obligations and
19
powers to ensure compliance.
20
2 Paragraph 4(b)
21
After "SPS Agreement", insert ", the Ballast Water Convention, the
22
United Nations Convention on the Law of the Sea".
23
3 Section 9 (definition of appropriate ballast water records)
24
Repeal the definition, substitute:
25
appropriate ballast water records has the meaning given by
26
section 295.
27
4 Section 9 (definition of Australian seas)
28
Repeal the definition, substitute:
29
Australian seas means:
30
Schedule 1 Amendments relating to the Ballast Water Convention
4
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
No. , 2017
(a) for Australian vessels and foreign vessels whose
1
Administration is a party to the Ballast Water Convention--
2
the waters (including the internal waters of Australia) that are
3
within the outer limits of the exclusive economic zone of
4
Australia; or
5
(b) for all other foreign vessels--the Australian territorial seas.
6
Note:
This definition is affected by sections 260 (vessels in dry dock) and
7
261 (foreign vessels and the Australian Antarctic Territory).
8
5 Section 9
9
Insert:
10
Australian territorial seas means the waters (including the internal
11
waters of Australia) within the outer limits of the territorial sea of
12
Australia (including every external Territory).
13
Note:
This definition is affected by sections 260 (vessels in dry dock) and
14
261 (foreign vessels and the Australian Antarctic Territory).
15
6 Section 9 (at the end of the definition of Ballast Water
16
Convention)
17
Add ", as in force from time to time".
18
7 Section 9
19
Insert:
20
IMO guidelines means guidelines or procedures adopted by the
21
Marine Environment Protection Committee of the International
22
Maritime Organization, as in force from time to time.
23
Note:
The text of guidelines or procedures adopted by the Marine
24
Environment Protection Committee of the International Maritime
25
Organization could in 2017 be accessed through the International
26
Maritime Organization's website (http://www.imo.org).
27
offshore terminal has the same meaning as in the Ballast Water
28
Convention.
29
8 Section 9 (paragraph (b) of the definition of relevant
30
person)
31
After "regulations" (first occurring), insert "or a determination".
32
Amendments relating to the Ballast Water Convention Schedule 1
No. , 2017
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
5
9 Section 9 (paragraph (b) of the definition of relevant
1
person)
2
After "regulations" (second occurring), insert "or determination".
3
10 Section 9 (definition of sediment reception facility)
4
Repeal the definition, substitute:
5
sediment reception facility means:
6
(a) for an Australian vessel that is not in Australian seas--a
7
facility for receiving sediment from vessels for treatment or
8
disposal in accordance with IMO guidelines; or
9
(b) otherwise--a facility in Australian territory for receiving
10
sediment from vessels for treatment or disposal in a way
11
authorised under:
12
(i) a law of the Commonwealth; or
13
(ii) if the facility is in a State or Territory--a law of the
14
State or Territory.
15
11 Section 9 (definition of survey authority)
16
Omit "section 289", substitute "section 290A".
17
12 Section 260
18
Omit "Australian seas", substitute "the territorial sea of Australia".
19
13 Section 261
20
Repeal the section, substitute:
21
261 Foreign vessels and the Australian Antarctic Territory
22
(1) For the purposes of this Chapter, a foreign vessel that is within the
23
outer limits of the territorial sea of the Australian Antarctic
24
Territory is taken not to be in Australian seas.
25
(2) In addition, a foreign vessel:
26
(a) whose Administration is a party to the Ballast Water
27
Convention; and
28
(b) that is within the outer limits of the exclusive economic zone
29
adjacent to the coast of the Australian Antarctic Territory;
30
is also taken not to be in Australian seas.
31
Schedule 1 Amendments relating to the Ballast Water Convention
6
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
No. , 2017
14 After section 263
1
Insert:
2
263A Warships, naval auxiliary or other vessels owned or operated
3
by the Australian government or the government of a
4
foreign country
5
This Chapter does not apply in relation to vessels referred to in
6
Article 3.2(e) of the Ballast Water Convention.
7
Note:
Article 3.2(e) of the Ballast Water Convention refers to "any warship,
8
naval auxiliary or other ship owned or operated by a State and used,
9
for the time being, only on government non-commercial service".
10
15 Part 2 of Chapter 5 (heading)
11
Repeal the heading, substitute:
12
Part 2--Notice of discharge of ballast water in
13
Australian territorial seas
14
16 Section 266
15
Omit "Australian seas", substitute "Australian territorial seas".
16
17 Section 267 (heading)
17
Repeal the heading, substitute:
18
267 Reporting ballast water discharges in Australian territorial seas
19
18 Subsection 267(1)
20
Omit "Australian seas", substitute "Australian territorial seas".
21
19 Paragraph 267(2)(a)
22
Omit "the regulations", substitute "the determination under
23
section 308A".
24
20 Paragraph 267(2)(b)
25
Omit "the regulations", substitute "the determination".
26
Amendments relating to the Ballast Water Convention Schedule 1
No. , 2017
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
7
21 Paragraph 267(2)(c)
1
Omit "the regulations (which may be before or after the vessel enters
2
Australian seas", substitute "the determination (which may be before or
3
after the vessel enters Australian territorial seas".
4
22 Subsection 267(2) (note)
5
Omit "The regulations", substitute "The determination".
6
23 Subsection 267(3)
7
Omit "The regulations", substitute "The determination under
8
section 308A".
9
24 Section 268 (heading)
10
Repeal the heading, substitute:
11
268 Reporting ballast water discharges in Australian territorial
12
seas--requirement to give additional or corrected
13
information
14
25 Section 269
15
Repeal the section, substitute:
16
269 Simplified outline of this Part
17
Division 2 provides an offence of discharging ballast water. For an
18
Australian vessel, the offence applies whether the vessel is in or
19
outside Australian seas. For a foreign vessel, the offence applies
20
only if the vessel is in Australian seas.
21
The rest of this Part sets out exceptions to the offence that may
22
apply if:
23
(a)
the ballast water was managed for discharge by an
24
approved method of ballast water management, or by
25
ballast water exchange (Division 3); or
26
(b)
the discharge was part of an acceptable ballast water
27
exchange (Division 4); or
28
(c)
the discharge was an approved discharge of ballast water
29
to a ballast water reception facility (Division 5); or
30
Schedule 1 Amendments relating to the Ballast Water Convention
8
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
No. , 2017
(d)
the discharge was covered by an exemption (Division 6,
1
which also provides for the Director of Biosecurity to
2
prescribe and grant exemptions); or
3
(e)
the ballast water was discharged at or near the place
4
where it was taken up into the vessel (Division 7); or
5
(f)
the ballast water was discharged for reasons of safety,
6
by accident or in order to avoid or minimise pollution
7
(Division 8, which also sets out reporting requirements
8
for such discharges).
9
26 Section 270 (heading)
10
Repeal the heading, substitute:
11
270 Offence--discharging ballast water
12
27 Subsection 270(1)
13
Repeal the subsection, substitute:
14
Australian vessels
15
(1) A person contravenes this subsection if:
16
(a) the person is the person in charge or the operator of a vessel;
17
and
18
(b) the vessel is an Australian vessel; and
19
(c) the vessel discharges ballast water (whether in or outside
20
Australian seas).
21
Note:
The physical elements of offences against subsections (2) and (3) are
22
set out in this subsection (see section 534).
23
Foreign vessels
24
(1A) A person contravenes this subsection if:
25
(a) the person is the person in charge or the operator of a vessel;
26
and
27
(b) the vessel is a foreign vessel; and
28
(c) the vessel is in Australian seas; and
29
(d) the vessel discharges ballast water.
30
Note:
The physical elements of offences against subsections (2) and (3) are
31
set out in this subsection (see section 534).
32
Amendments relating to the Ballast Water Convention Schedule 1
No. , 2017
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
9
28 Subsections 270(2) and (3)
1
After "subsection (1)", insert "or (1A)".
2
29 Subsection 270(3) (penalty)
3
Repeal the penalty, substitute:
4
Penalty: 500 penalty units.
5
30 At the end of section 270
6
Add:
7
Exception
8
(4) Subsection (1) does not apply if:
9
(a) the condition in section 271, 276, 277, 278A, 279, 282, or
10
subsection 283(1), (2) or (3), is met in relation to the
11
discharge of ballast water; and
12
(b) either of the following applies:
13
(i) the vessel has a ballast water management plan, and a
14
ballast water management certificate is in force for the
15
vessel;
16
(ii) the vessel is prescribed for the purposes of
17
subsection 285A(3) or is granted an exemption under
18
the scheme prescribed for the purposes of section 285B;
19
and
20
(c) if subparagraph (b)(i) of this subsection applies--the
21
management of the ballast water was carried out in
22
accordance with the ballast water management plan; and
23
(d) if subparagraph (b)(ii) of this subsection applies--any
24
condition of the exemption granted under the scheme
25
prescribed for the purposes of section 285B has been met.
26
Note:
A defendant bears an evidential burden in relation to the matter in this
27
subsection (see subsection 13.3(3) of the Criminal Code).
28
31 Application of amendments
29
The amendments of section 270 of the Biosecurity Act 2015 made by
30
this Schedule apply in relation to discharges of ballast water that occur
31
after the commencement of this Schedule.
32
Schedule 1 Amendments relating to the Ballast Water Convention
10
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
No. , 2017
32 Section 271
1
Omit "Section 270 does not apply", substitute "The condition in this
2
section is met in relation".
3
33 Section 271 (note)
4
Repeal the note.
5
34 Paragraph 272(a)
6
Omit "by the Director of Biosecurity under", substitute "for the
7
purposes of".
8
35 Paragraphs 272(b) and (c)
9
Repeal the paragraphs, substitute:
10
(b) at the time the ballast water is discharged, the vessel has
11
appropriate ballast water records; and
12
36 Paragraph 272(d)
13
Omit "the regulations", substitute "the determination under
14
section 308A".
15
37 Section 272 (note 1)
16
Omit "sections 295 (for Australian vessels) and 296 (for foreign
17
vessels)", substitute "section 295".
18
38 Section 272 (note 2)
19
Omit "The regulations", substitute "The determination".
20
39 Subsections 273(1) and (3)
21
Omit "the regulations", substitute "the determination under
22
section 308A".
23
40 Subsection 273(3) (note)
24
Omit "The regulations", substitute "The determination".
25
41 Section 274
26
Repeal the section, substitute:
27
Amendments relating to the Ballast Water Convention Schedule 1
No. , 2017
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
11
274 Method of ballast water management--approval of method
1
approved by foreign country
2
The determination under section 308A may specify a method of
3
ballast water management that is approved, for the purposes of this
4
section, if the method has been approved, in accordance with the
5
Ballast Water Convention, by a foreign country.
6
42 Paragraph 275(1)(a)
7
Omit "prescribed proportion (by volume)", substitute "proportion (by
8
volume), prescribed by the determination under section 308A,".
9
43 At the end of subsection 275(1)
10
Add:
11
; and (c) the vessel is not specified by the determination to be
12
excluded from the operation of this section.
13
44 Subsection 275(1) (note 1)
14
Omit "sections 295 (for Australian vessels) and 296 (for foreign
15
vessels)", substitute "section 295".
16
45 Subsection 275(2)
17
Omit "The regulations", substitute "The determination under
18
section 308A".
19
46 Paragraph 275(3)(a)
20
Omit "area declared by the Director of Biosecurity under
21
subsection (4)", substitute "area prescribed, or an area meeting
22
requirements prescribed, by the determination under section 308A".
23
47 Paragraph 275(3)(b)
24
Repeal the paragraph.
25
48 Paragraph 275(3)(c)
26
Omit "the regulations", substitute "the determination".
27
49 Subsections 275(4) and (5)
28
Repeal the subsections.
29
Schedule 1 Amendments relating to the Ballast Water Convention
12
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
No. , 2017
50 Section 276
1
Omit "Section 270 does not apply", substitute "The condition in this
2
section is met in relation".
3
51 Section 276 (note)
4
Repeal the note.
5
52 Section 277
6
Omit "Section 270 does not apply", substitute "The condition in this
7
section is met in relation".
8
53 Paragraph 277(a)
9
Repeal the paragraph, substitute:
10
(a) the ballast water is discharged to a ballast water reception
11
facility:
12
(i) in accordance with an approval given by the Director of
13
Biosecurity under section 278; or
14
(ii) that has been provided, or approved, in accordance with
15
IMO guidelines; and
16
54 Section 277 (note)
17
Repeal the note.
18
55 Subsection 278(1)
19
Omit "the regulations", substitute "the determination under
20
section 308A".
21
56 Paragraph 278(1)(a)
22
Omit "a discharge", substitute "one or more discharges".
23
57 Paragraph 278(3)(a)
24
Omit "the regulations", substitute "the determination under
25
section 308A".
26
58 Before section 279
27
Insert:
28
Amendments relating to the Ballast Water Convention Schedule 1
No. , 2017
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
13
278A Exception--discharge covered by prescribed conditions
1
(1) The condition in this section is met in relation to a discharge of
2
ballast water from a vessel if conditions prescribed by the
3
determination under section 308A for the purposes of this section
4
are met in relation to the discharge.
5
(2) The Director of Biosecurity may prescribe conditions for the
6
purposes of this section only if he or she is satisfied that those
7
conditions are consistent with the objects of this Act.
8
59 Section 279
9
Omit "Section 270 does not apply", substitute "The condition in this
10
section is met in relation".
11
60 Section 279 (note)
12
Repeal the note.
13
61 Paragraphs 280(1)(a) and (b)
14
Omit "or locations", substitute ", offshore terminals or other locations".
15
62 Subsection 280(3)
16
Omit "the regulations", substitute "the determination under
17
section 308A".
18
63 Section 282
19
Omit "Section 270 does not apply", substitute "The condition in this
20
section is met in relation".
21
64 Paragraph 282(a)
22
After "port", insert ", offshore terminal".
23
65 Paragraph 282(c)
24
After "port", insert "or offshore terminal".
25
66 Section 282 (note)
26
Repeal the note.
27
Schedule 1 Amendments relating to the Ballast Water Convention
14
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
No. , 2017
67 Subsection 283(1)
1
Omit "Section 270 does not apply", substitute "The condition in this
2
subsection is met in relation".
3
68 Subsection 283(1) (note)
4
Repeal the note.
5
69 Subsection 283(2)
6
Omit "Section 270 does not apply", substitute "The condition in this
7
subsection is met in relation".
8
70 Subsection 283(2) (note)
9
Repeal the note.
10
71 Subsection 283(3)
11
Omit "Section 270 does not apply", substitute "The condition in this
12
subsection is met in relation".
13
72 Subsection 283(3) (note)
14
Repeal the note.
15
73 Paragraph 284(1)(a)
16
Omit "Australian seas", substitute "Australian territorial seas".
17
74 Subsection 284(3)
18
After "277,", insert "278A,".
19
75 Subsection 284(4) (penalty)
20
Omit "500 penalty units", substitute "120 penalty units".
21
76 Application of amendments
22
The amendments of subsection 284(4) of the Biosecurity Act 2015 made
23
by this Schedule apply in relation to discharges of ballast water that
24
occur after the commencement of this Schedule.
25
77 Section 285
26
Omit:
27
Amendments relating to the Ballast Water Convention Schedule 1
No. , 2017
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
15
Division 2 sets out what a ballast water management plan is, and
1
provides for the regulations to prescribe a scheme for the Director
2
of Biosecurity to approve ballast water management plans for
3
Australian vessels.
4
Division 3 sets out what a ballast water management certificate is,
5
and provides for the regulations to prescribe a scheme for the
6
Director of Biosecurity and survey authorities to survey vessels for
7
the purposes of certification.
8
substitute:
9
Division 1A requires most vessels to have a ballast water
10
management plan and a ballast water management certificate.
11
Australian vessels require a plan and certificate in and outside
12
Australian seas. Foreign vessels require a plan and certificate only
13
if they are in Australian seas.
14
Division 2 sets out what a ballast water management plan is, and
15
provides for the determination under section 308A to prescribe a
16
scheme for the Director of Biosecurity and survey authorities to
17
approve ballast water management plans for vessels.
18
Division 3 sets out what a ballast water management certificate is,
19
and provides for the determination under section 308A to prescribe
20
a scheme for the Director of Biosecurity and survey authorities to
21
survey vessels for the purposes of certification.
22
78 After Division 1 of Part 4 of Chapter 5
23
Insert:
24
Division 1A--General requirement to have ballast water
25
management plan and certificate
26
285A Vessels to have a ballast water management plan and
27
certificate
28
(1) An Australian vessel (whether in or outside Australian seas) must,
29
subject to subsection (3) and section 285B, have:
30
(a) a ballast water management plan; and
31
Schedule 1 Amendments relating to the Ballast Water Convention
16
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
No. , 2017
(b) a ballast water management certificate that is in force.
1
Note:
A person may commit an offence if the vessel does not have a ballast
2
water management plan and a ballast water management certificate
3
that is in force (see section 285C).
4
(2) A foreign vessel in Australian seas must, subject to subsection (3)
5
and section 285B, have:
6
(a) a ballast water management plan; and
7
(b) a ballast water management certificate that is in force.
8
(3) The determination under section 308A may prescribe vessels that
9
are exempt from the requirements in subsections (1) and (2).
10
285B Scheme to provide further exemptions from requirement to
11
have a ballast water management plan and certificate
12
The determination under section 308A may prescribe a scheme for
13
the Director of Biosecurity or a survey authority to grant an
14
exemption to a particular vessel from the requirement in
15
subsection 285A(1) or (2).
16
285C Offence for failing to have a ballast water management plan or
17
certificate
18
Australian vessels
19
(1) A person commits an offence if:
20
(a) the person is the person in charge of a vessel; and
21
(b) the vessel is an Australian vessel; and
22
(c) neither of the following applies:
23
(i) the vessel has a ballast water management plan, and a
24
ballast water management certificate that is in force for
25
the vessel;
26
(ii) the vessel is prescribed for the purposes of
27
subsection 285A(3) or is granted an exemption under
28
the scheme prescribed for the purposes of section 285B.
29
Penalty: 200 penalty units.
30
Foreign vessels
31
(2) A person commits an offence if:
32
Amendments relating to the Ballast Water Convention Schedule 1
No. , 2017
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
17
(a) the person is the person in charge of a vessel; and
1
(b) the vessel is a foreign vessel; and
2
(c) the vessel is in Australian seas; and
3
(d) neither of the following applies:
4
(i) the vessel has a ballast water management plan, and a
5
ballast water management certificate that is in force for
6
the vessel;
7
(ii) the vessel is prescribed for the purposes of
8
subsection 285A(3) or is granted an exemption under
9
the scheme prescribed for the purposes of section 285B.
10
Penalty for contravention of this subsection: 200 penalty units.
11
79 Application of amendments
12
Sections 285A to 285C of the Biosecurity Act 2015, as inserted by this
13
Schedule, apply in relation to discharges of ballast water that occur after
14
the commencement of this Schedule.
15
80 Section 286
16
Repeal the section, substitute:
17
286 Ballast water management plan
18
A ballast water management plan for a vessel is a document:
19
(a) that deals with ballast water management for the vessel and
20
the disposal of sediments from the vessel; and
21
(b) that meets the requirements prescribed by the determination
22
under section 308A; and
23
(c) for which an approval:
24
(i) by the Director of Biosecurity, or a survey authority, is
25
in force under section 287; or
26
(ii) by, or on behalf of, the vessel's Administration is in
27
force.
28
81 Transitional provision
29
A ballast water management plan that is in force for the purposes of
30
section 286 of the Biosecurity Act 2015 immediately before the
31
commencement of this Schedule is taken, after that time, to be in force
32
for the purposes of that section as amended by this Schedule.
33
Schedule 1 Amendments relating to the Ballast Water Convention
18
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
No. , 2017
82 Section 287 (heading)
1
Repeal the heading, substitute:
2
287 Approval of ballast water management plans for vessels
3
83 Section 287
4
Omit "The regulations may prescribe a scheme for the Director of
5
Biosecurity to do any of the following in relation to an Australian
6
vessel", substitute "(1) The determination under section 308A may
7
prescribe a scheme for the Director of Biosecurity or a survey authority
8
to take any of the following actions in relation to a vessel".
9
84 At the end of section 287
10
Add:
11
(2) An action referred to in subsection (1) may be taken in relation to a
12
foreign vessel only on request by the vessel's Administration.
13
85 Transitional provision
14
An approval of a ballast water management plan for a vessel that is in
15
force immediately before the commencement of this Schedule under the
16
scheme prescribed by the regulations for the purposes of section 287 of
17
the Biosecurity Act 2015 is taken, after that time, to have been given
18
under the scheme prescribed by the determination made for the
19
purposes of that section under section 308A of that Act.
20
86 Section 288
21
Repeal the section, substitute:
22
288 Ballast water management certificate
23
A ballast water management certificate for a vessel is a document
24
that:
25
(a) certifies that the vessel has a ballast water management plan
26
for which an approval by, or on behalf of, the vessel's
27
Administration (including an approval under section 287) is
28
in force; and
29
(b) is issued or endorsed:
30
(i) by the Director of Biosecurity, or a survey authority,
31
under section 290; or
32
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19
(ii) by, or on behalf of, the vessel's Administration; and
1
(c) certifies that the vessel meets any other requirements
2
prescribed by the determination under section 308A.
3
87 Transitional provision
4
A ballast water management certificate that is in force for the purposes
5
of section 288 of the Biosecurity Act 2015 immediately before the
6
commencement of this Schedule is taken, after that time, to be in force
7
for the purposes of that section as amended by this Schedule.
8
88 Section 289
9
Repeal the section.
10
89 Subsection 290(1) (heading)
11
Repeal the heading.
12
90 Subsection 290(1)
13
Omit "The regulations may prescribe a scheme for the Director of
14
Biosecurity or a survey authority to do, on behalf of the
15
Commonwealth, any of the following in relation to an Australian
16
vessel", substitute "The determination under section 308A may
17
prescribe a scheme for the Director of Biosecurity or a survey authority
18
to take, on behalf of the Commonwealth, any of the following actions in
19
relation to a vessel".
20
91 Subsection 290(1) (note)
21
Omit "an Australian vessel", substitute "a vessel".
22
92 Subsection 290(2)
23
Repeal the subsection, substitute:
24
(2) An action referred to in subsection (1) may be taken in relation to a
25
foreign vessel only on request by the vessel's Administration.
26
93 Application of amendments
27
The amendments of section 290 of the Biosecurity Act 2015 made by
28
this Schedule apply in relation to any ballast water management
29
certificate, whether the certificate is issued before or after the
30
commencement of this Schedule.
31
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20
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94 At the end of Part 4 of Chapter 5
1
Add:
2
Division 4--Survey authorities
3
290A Director of Biosecurity may authorise person to be survey
4
authority
5
(1) The Director of Biosecurity may, in writing, authorise a person to
6
be a survey authority if the Director is satisfied the person has
7
suitable qualifications to perform the functions of a survey
8
authority under:
9
(a) the scheme prescribed for the purposes of section 285B; and
10
(b) sections 287 and 290.
11
(2) An authorisation made under subsection (1) is not a legislative
12
instrument.
13
(3) A survey authority may charge a fee in relation to anything done
14
under this Part.
15
(4) A fee must not be such as to amount to taxation.
16
95 Section 291
17
Omit:
18
Division 2 sets out record-keeping requirements for Australian
19
vessels, and the circumstances in which an Australian vessel has
20
appropriate ballast water records for the purposes of using certain
21
methods of ballast water management.
22
Division 3 sets out the circumstances in which a foreign vessel has
23
appropriate ballast water records for the purposes of using certain
24
methods of ballast water management.
25
substitute:
26
Division 2 sets out record-keeping requirements for vessels, and
27
the circumstances in which a vessel has appropriate ballast water
28
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records for the purposes of using certain methods of ballast water
1
management.
2
96 Division 2 of Part 5 of Chapter 5 (heading)
3
Repeal the heading, substitute:
4
Division 2--Ballast water records
5
97 Section 292 (heading)
6
Repeal the heading, substitute:
7
292 Vessels must have a ballast water record system
8
98 Subsection 292(1)
9
After "An Australian vessel", insert "(whether in or outside Australian
10
seas)".
11
99 Subsection 292(1)
12
Omit "the regulations", substitute "the determination under
13
section 308A".
14
100 After subsection 292(1)
15
Insert:
16
(1A) A foreign vessel in Australian seas that is capable of carrying
17
ballast water must have on board a ballast water record system that
18
complies with the requirements (if any) prescribed by the
19
determination under section 308A.
20
101 Paragraph 292(2)(a)
21
Omit "an Australian vessel", substitute "a vessel".
22
102 Paragraph 292(2)(c)
23
After "subsection (1)", insert "or (1A)".
24
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103 Application of amendments
1
The amendments of section 292 of the Biosecurity Act 2015 made by
2
this Schedule apply in relation to any voyage, or part of a voyage, that
3
occurs after the commencement of this Schedule (whether the voyage
4
began before or after that commencement).
5
104 After subsection 293(1)
6
Insert:
7
(1A) A record must be made if a foreign vessel:
8
(a) conducts a ballast water operation in Australian seas; or
9
(b) disposes of sediment in Australian seas.
10
105 Subsection 293(2)
11
After "subsection (1)", insert "or (1A)".
12
106 Paragraph 293(2)(c)
13
Omit "the regulations", substitute "the determination under
14
section 308A".
15
107 Paragraph 293(3)(a)
16
Omit "an Australian vessel", substitute "a vessel".
17
108 Paragraph 293(3)(b)
18
After "subsection (1)", insert "or (1A)".
19
109 Paragraph 293(4)(a)
20
Omit "an Australian vessel's", substitute "a vessel's".
21
110 Application of amendments
22
The amendments of section 293 of the Biosecurity Act 2015 made by
23
this Schedule apply in relation to any ballast water operation or disposal
24
of sediment that occurs after the commencement of this Schedule.
25
111 Subsections 294(1) and (2)
26
Omit "using an Australian vessel's", substitute ", for the purposes of
27
subsection 293(1) or (1A), using a vessel's".
28
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112 Subsection 294(3)
1
Omit "an Australian vessel", substitute "a vessel (the first vessel)".
2
113 Subsection 294(3)
3
Omit "the Australian vessel", substitute "the first vessel".
4
114 Paragraph 294(4)(a)
5
Omit "an Australian vessel", substitute "a vessel".
6
115 Application of amendments
7
The amendments of section 294 of the Biosecurity Act 2015 made by
8
this Schedule apply in relation to any ballast water records made after
9
the commencement of this Schedule.
10
116 Section 295 (heading)
11
Repeal the heading, substitute:
12
295 Appropriate ballast water records for vessels
13
117 Subsection 295(1)
14
Omit "An Australian vessel", substitute "A vessel".
15
118 Subsection 295(1) (note)
16
Repeal the note.
17
119 Subsection 295(2)
18
Omit "an Australian vessel", substitute "a vessel (the first vessel)".
19
120 Subsection 295(2)
20
Omit "the Australian vessel", substitute "the first vessel".
21
121 Division 3 of Part 5 of Chapter 5
22
Repeal the Division.
23
122 Section 297
24
Repeal the section, substitute:
25
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24
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297 Simplified outline of this Part
1
This Part provides an offence of disposing of sediment, and sets
2
out exceptions in relation to safety, accidents, and avoiding or
3
minimising pollution. For an Australian vessel, the offence applies
4
whether the vessel is in or outside Australian seas. For a foreign
5
vessel, the offence applies only if the vessel is in Australian seas.
6
123 Section 298 (heading)
7
Repeal the heading, substitute:
8
298 Offence--disposing of sediment
9
124 Subsection 298(1)
10
Repeal the subsection, substitute:
11
Australian vessels
12
(1) A person contravenes this subsection if:
13
(a) the person is the person in charge or the operator of a vessel;
14
and
15
(b) the vessel is an Australian vessel; and
16
(c) the vessel disposes of sediment (whether in or outside
17
Australian seas); and
18
(d) the sediment is not disposed of to a sediment reception
19
facility.
20
Note 1:
For exceptions relating to safety, accidents and pollution, see
21
section 299.
22
Note 2:
The physical elements of offences against subsections (2) and (3) are
23
set out in this subsection (see section 534).
24
Foreign vessels
25
(1A) A person contravenes this subsection if:
26
(a) the person is the person in charge or the operator of a vessel;
27
and
28
(b) the vessel is a foreign vessel; and
29
(c) the vessel is in Australian seas; and
30
(d) the vessel disposes of sediment; and
31
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25
(e) the sediment is not disposed of to a sediment reception
1
facility.
2
Note 1:
For exceptions relating to safety, accidents and pollution, see
3
section 299.
4
Note 2:
The physical elements of offences against subsections (2) and (3) are
5
set out in this subsection (see section 534).
6
125 Subsections 298(2) and (3)
7
After "subsection (1)", insert "or (1A)".
8
126 At the end of Division 2 of Part 6 of Chapter 5
9
Add:
10
299A Report of disposal of sediment relating to safety, accident or
11
pollution
12
Report of disposal of sediment must be made to Director of
13
Biosecurity
14
(1) The person in charge or the operator of a vessel must make a report
15
to the Director of Biosecurity if:
16
(a) the vessel disposes of sediment in Australian territorial seas;
17
and
18
(b) the disposal is:
19
(i) for the purpose of ensuring the safety of the vessel in an
20
emergency or saving life at sea; or
21
(ii) accidental; or
22
(iii) for the purpose of avoiding or minimising pollution
23
from the vessel.
24
(2) The report must:
25
(a) set out the reason for the disposal of the sediment; and
26
(b) be made as soon as practicable, and in any case within 24
27
hours, after a member of the vessel's crew becomes aware of
28
the disposal.
29
Strict liability offence
30
(3) A person commits an offence of strict liability if:
31
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26
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(a) the person is the person in charge or the operator of a vessel;
1
and
2
(b) a report under subsection (1) is required to be made in
3
relation to the vessel; and
4
(c) the report is not made in accordance with this section.
5
Penalty for contravention of this subsection: 120 penalty units.
6
127 Section 300
7
Omit:
8
This Part gives the Director of Biosecurity and biosecurity officers
9
powers to enforce the provisions of this Chapter.
10
Under Division 2, a biosecurity officer may require the owner of an
11
Australian vessel to produce records from the vessel's ballast water
12
record system.
13
substitute:
14
This Part gives the Director of Biosecurity and biosecurity officers
15
powers to enforce the provisions of this Chapter at a port or
16
offshore terminal within the outer limits of the exclusive economic
17
zone of Australia.
18
Under Division 2, a biosecurity officer may exercise powers for the
19
purposes of monitoring compliance with this Chapter (such as
20
taking samples of ballast water and requiring ballast water records
21
to be produced).
22
128 At the end of Division 1 of Part 7 of Chapter 5
23
Add:
24
300A Purpose and location of exercise of powers
25
The powers in this Part may be exercised, for the purposes of this
26
Chapter, at a port or offshore terminal within the outer limits of the
27
exclusive economic zone of Australia.
28
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129 Division 2 of Part 7 of Chapter 5 (heading)
1
Repeal the heading, substitute:
2
Division 2--Powers in relation to vessels
3
130 Before section 301
4
Insert:
5
300B Securing vessels
6
(1) A biosecurity officer may direct the person in charge or the
7
operator of a vessel to secure the vessel in a manner, and for a
8
period (which must not exceed 48 hours), specified by the
9
biosecurity officer.
10
Note:
The biosecurity officer may give more than one direction relating to
11
the vessel (see subsection 33(1) of the Acts Interpretation Act 1901).
12
Civil penalty provision
13
(2) A person who is given a direction under subsection (1) must
14
comply with the direction.
15
Civil penalty:
120 penalty units.
16
Note 1:
If judicial review is sought in relation to a direction given under
17
subsection (1), the direction remains in force unless a court finally
18
determines the validity of the decision to give the direction (see
19
section 538).
20
Note 2:
A person may commit an offence for failing to comply with a
21
direction given under subsection (1) (see section 305).
22
Note 3:
See also section 572 (general provisions relating to directions).
23
300C Inspecting and taking samples from vessels
24
(1) A biosecurity officer may conduct a physical inspection of a
25
vessel.
26
(2) A biosecurity officer may:
27
(a) take samples of ballast water from the vessel; or
28
(b) direct a person in charge of the vessel to deliver to the
29
biosecurity officer samples of ballast water from the vessel;
30
or
31
Schedule 1 Amendments relating to the Ballast Water Convention
28
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
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(c) arrange for another person, with appropriate qualifications or
1
expertise, to take samples of ballast water from the vessel.
2
(3) A biosecurity officer may:
3
(a) carry out tests on any samples taken or delivered under
4
subsection (2); or
5
(b) arrange for another person, with appropriate qualifications or
6
expertise, to carry out tests on any of those samples.
7
Civil penalty provision
8
(4) A person who is given a direction under paragraph (2)(b) must
9
comply with the direction.
10
Civil penalty:
120 penalty units.
11
300D Asking questions about vessels
12
(1) A biosecurity officer may require a person who the biosecurity
13
officer suspects, on reasonable grounds, has information in relation
14
to a vessel to answer questions, or provide information in writing,
15
in relation to the vessel.
16
Note:
A person may commit an offence or contravene a civil penalty
17
provision if the person provides false or misleading information (see
18
section 137.1 of the Criminal Code and section 532 of this Act).
19
Civil penalty provision
20
(2) A person who is required to answer questions, or provide
21
information in writing, under subsection (1) must comply with the
22
requirement.
23
Civil penalty:
120 penalty units.
24
Note:
This section is not subject to the privilege against self-incrimination
25
(see section 635).
26
131 Section 301 (heading)
27
Repeal the heading, substitute:
28
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29
301 Power to require owner of vessel to provide ballast water
1
records
2
132 Subsection 301(1)
3
Omit "an Australian vessel", substitute "a vessel".
4
133 Subsection 301(1) (note 1)
5
Repeal the note.
6
134 Subsection 301(1) (note 2)
7
Omit "Note 2", substitute "Note".
8
135 Subsection 302(1)
9
Repeal the subsection, substitute:
10
(1) The Director of Biosecurity or a biosecurity officer may give a
11
direction under this section to the person in charge of a vessel if:
12
(a) the Director or the biosecurity officer is satisfied that:
13
(i) a sample of the vessel's ballast water indicates that the
14
vessel poses an unacceptable level of biosecurity risk; or
15
(ii) the person in charge or crew of the vessel are not
16
familiar with, or have not implemented, essential
17
shipboard procedures relating to ballast water
18
management that are set out in the ballast water
19
management plan for the vessel; or
20
(iii) the vessel does not have appropriate ballast water
21
records; or
22
(iv) if ballast water were discharged from the vessel, an
23
offence against this Chapter involving the vessel would
24
be committed; or
25
(b) the Director or the biosecurity officer has reasonable grounds
26
for believing that an offence against this Chapter involving
27
the vessel has been committed.
28
136 Application of amendments
29
The amendments of section 302 of the Biosecurity Act 2015 made by
30
this Schedule apply in relation to directions given after the
31
commencement of this Schedule.
32
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30
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
No. , 2017
137 Paragraph 303(1)(b)
1
Omit ", or proceeding to, a port in Australian territory or an installation
2
in".
3
138 Paragraphs 303(2)(a) and (b)
4
Omit "port in Australian territory", insert "port or offshore terminal
5
within the outer limits of the exclusive economic zone of Australia".
6
139 After section 304
7
Insert:
8
304A Report on failure to comply with direction
9
(1) The person in charge or the operator of a vessel must make a report
10
to the Director of Biosecurity if:
11
(a) the person is given a direction under Division 2 or this
12
Division; and
13
(b) the person fails to comply with the direction.
14
(2) The report must:
15
(a) set out the reason for the failure to comply; and
16
(b) be made as soon as practicable, and in any case within 24
17
hours, after a member of the vessel's crew becomes aware of
18
the failure to comply; and
19
(c) specify (as the case requires) that the failure to comply is:
20
(i) necessary for the purpose of ensuring the safety of the
21
vessel in an emergency or saving life at sea; or
22
(ii) accidental and results from damage to the vessel or its
23
equipment; or
24
(iii) for the purpose of avoiding or minimising pollution
25
from the vessel.
26
140 Application of amendments
27
Section 304A of the Biosecurity Act 2015, as inserted by this Schedule,
28
applies in relation to any direction given under Division 2 or 3 of Part 7
29
of Chapter 5 of that Act after the commencement of this Schedule.
30
141 Paragraph 305(1)(a)
31
After "person in charge", insert "or operator".
32
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31
142 Paragraph 305(1)(b)
1
After "direction under", insert "Division 2 or".
2
143 Section 308
3
Omit "Legislative Instruments Act 2003, regulations made for the
4
purposes of this Chapter", substitute "Legislation Act 2003, the
5
determination under section 308A".
6
144 At the end of Part 8 of Chapter 5
7
Add:
8
308A Determination
9
(1) The Director of Biosecurity may, by legislative instrument, make a
10
determination prescribing matters:
11
(a) required or permitted by this Chapter to be prescribed by the
12
determination; or
13
(b) necessary or convenient to be prescribed for carrying out or
14
giving effect to this Chapter.
15
Note:
The power to make the determination must not be delegated (see
16
paragraph 542(1)(b)).
17
(2) Without limiting subsection (1), the determination may provide for
18
any one or more of the following:
19
(a) the Director of Biosecurity to enter into agreements;
20
(b) the Director of Biosecurity to make decisions;
21
(c) the Director of Biosecurity to determine matters by notifiable
22
instrument.
23
Note:
The decisions may be reviewable (see subsection 574(2)).
24
(3) To avoid doubt, the determination may not do the following:
25
(a) create an offence or civil penalty;
26
(b) provide powers of:
27
(i) arrest or detention; or
28
(ii) entry, search or seizure;
29
(c) impose a tax;
30
(d) set an amount to be appropriated from the Consolidated
31
Revenue Fund under an appropriation in this Act;
32
(e) directly amend the text of this Act.
33
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32
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
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(4) A determination that is inconsistent with the regulations has no
1
effect to the extent of the inconsistency, but the determination is
2
taken to be consistent with the regulations to the extent that the
3
determination is capable of operating concurrently with the
4
regulations.
5
(5) This section does not limit section 645 (regulations).
6
145 Subsection 523(1) (after table item 19)
7
Insert:
8
9
19A
Subsection 300B(2)
19B
Subsection 300C(4)
19C
Subsection 300D(2)
146 Subsection 538(1)
10
After "198", insert ", 300B".
11
147 Paragraph 542(1)(b)
12
Repeal the paragraph, substitute:
13
(b) exclude:
14
(i) the power to make the determination under
15
section 308A; and
16
(ii) functions and powers under subsections 541(1) and
17
618(2) of this Act.
18
148 Subsection 574(1) (after table item 13)
19
Insert:
20
21
13A
To refuse to grant an
exemption from the
requirement in
subsection 285A(1)
or (2)
The provision of the
scheme prescribed for
the purposes of
section 285B under
which the decision is
made
A person who applied
for the exemption
Amendments relating to the Ballast Water Convention Schedule 1
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33
149 Subsection 574(1) (at the end of the cell at table item 15,
1
column 2)
2
Add "(whether the decision is made by the Director of Biosecurity or a
3
survey authority)".
4
150 Subsection 574(2)
5
After "The regulations", insert "and the determination under
6
section 308A".
7
151 Subsection 592(1) (note)
8
Omit "subsection 289(3)", substitute "subsection 290A(3)".
9
152 Paragraph 635(1)(d)
10
Omit "and 268", substitute ", 268 and 300D".
11
Schedule 2 Amendments relating to human health
34
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
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Schedule 2--Amendments relating to human
1
health
2
3
Biosecurity Act 2015
4
1 Section 3 (paragraph relating to Chapter 2)
5
Omit "only deals with diseases (listed human diseases)", substitute
6
"mainly deals with diseases (listed human diseases)".
7
2 Subparagraph 4(a)(ii)
8
After "listed human disease", insert "or any other infectious human
9
disease".
10
3 Subparagraph 4(a)(iii)
11
After "listed human diseases", insert "or any other infectious human
12
diseases".
13
4 Section 9
14
Insert:
15
vector means an arthropod or other living carrier that transports an
16
infectious agent from an infected plant or animal to an individual.
17
5 Section 43 (paragraph relating to Division 5)
18
Omit "Regulations may prescribe requirements for destroying disease
19
agents for listed human diseases on aircraft and vessels.".
20
6 Section 53
21
Repeal the section.
22
7 Before section 205
23
Insert:
24
Amendments relating to human health Schedule 2
No. , 2017
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
35
204A Requirements to destroy vectors on incoming or outgoing
1
aircraft or vessels
2
The regulations may prescribe measures to be taken by operators of
3
incoming aircraft or vessels or outgoing aircraft or vessels to
4
destroy vectors that:
5
(a) have the potential to cause, directly or indirectly, a listed
6
human disease or any other human disease; and
7
(b) may exist on the aircraft or vessels.
8
8 Application of amendments
9
(1)
Section 204A of the Biosecurity Act 2015, as inserted by this Schedule,
10
applies in relation to flights and voyages of aircraft and vessels
11
(whether incoming aircraft or vessels or outgoing aircraft or vessels)
12
that commence after this Schedule commences.
13
(2)
Regulations in force for the purposes of section 53 of the Biosecurity
14
Act 2015 immediately before this Schedule commences are taken to
15
have been made for the purposes of section 204A (as inserted by this
16
Schedule) (and may be amended or repealed as if they were made for
17
the purposes of that section).
18
9 Section 235
19
Omit "Division 4 provides", substitute "Division 4 allows for directions
20
to be given requiring activities to control vectors to be carried out in
21
first points of entry. Division 4 also provides".
22
10 At the end of Division 4 of Part 4 of Chapter 4
23
Add:
24
252A Direction to operator of first point of entry to carry out
25
activities to control vectors
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(1) The Director of Human Biosecurity or a chief human biosecurity
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officer for a State or Territory may, in writing, direct the operator
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of a first point of entry to carry out specified activities within the
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area of a first point of entry to control a vector if the Director or
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chief has reasonable grounds to believe that carrying out those
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activities in that area is necessary to ensure that the vector has not
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spread into, or is not likely to become established in, the area.
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Schedule 2 Amendments relating to human health
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Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
No. , 2017
(2) A chief human biosecurity officer for a State or Territory may give
1
a direction under subsection (1) to an operator of a first point of
2
entry only if the first point of entry is in the State or Territory.
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Offence and civil penalty
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(3) A person commits an offence if:
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(a) the person is given a direction under this section; and
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(b) the person fails to comply with the direction.
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Penalty: Imprisonment for 5 years or 300 penalty units, or both.
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(4) A person who is given a direction must comply with the direction.
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Civil penalty:
120 penalty units.
10
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