Plant Biosecurity Act 2010 (Vic)

Version No. 010

Plant Biosecurity Act 2010

No. 60 of 2010

Version incorporating amendments as at

22 April 2024

TABLE OF PROVISIONS

Section  Page

Part 1—Preliminary

1Purposes

2Commencement

3Definitions

4Binding of Crown

5Orders in Council

6Ministerial orders

Part 2—Plant pest and disease control

Division 1—General controls

7Definition

8Importation of prescribed material

9Possession of prescribed material

10Introduction of plants and plant products

11Assurance certificates

12Plant health certificates

13Plant health declarations

14No offence by reason only of transporting from a prescribed State or Territory

15Property identification code

16Consent by Minister

17Notification of plant pests or diseases

18Prohibition on sale of diseased plants etc.

Division 2—Control areas

19Declaration of control areas

20Restrictions on movement of material into or from control area

21Permits for movement of material into or from control area—specified person

21APermits for movement of material into or from control area—specified class of person

Division 3—Control measures

22Destruction or disposal of plants etc. at direction of Minister

23Return, treatment or disposal of plants etc. at direction of inspector

24Treatment or disposal of diseased plants etc.

25Infested land notice

26Control notices

27Disposal of plant refuse etc.

Part 3—Exotic pests and diseases

Division 1—Preliminary

28Application of this Part to land

29Application of this Part to plants etc.

Division 2—Declared areas

30Declaration of infected place

31Notice of order declaring infected place

32Declaration of restricted area

33Movement in restricted area

34Permits for activity in restricted area—specified person

34APermits for activity in restricted area—specified class of person

35Further powers under orders

Division 3—Importation orders

36Border security

37Plant health certificate, assurance certificate or plant health declaration

38Contravention of importation order

39Notification of importation order

40Duration of importation order

Division 4—Special provisions

41Possession or administration of exotic disease agents

42Certificates relating to exotic pest or disease

Division 5—Testing

43Testing for exotic pests or diseases

Part 4—Plants and plant products

44Application

45Packages to be sound and clean

46Marking or labelling where produce grown

Part 5—Compliance agreements, authorisation and accreditation

47Compliance agreements

47AAuthorisation of persons to issue plant health declarations

48Accreditation

49Register

50Amendment and cancellation

51Suspension

52Grounds for cancellation or suspension

Part 6—Administration

Division 1—General

53Delegations by Minister

54Delegations by Secretary

55Fees and charges

56When and how the power to fix fees or charges may be exercised

57Requirements for orders etc. under Part 2

58Non-compliance under order

59Review of Minister's determination on costs

59ANotice of debt to be served on prescribed owner of land

59BAmounts owing to be a charge on the land

59CRecording of charge

59DCertificate of Secretary

Division 2—Review of decisions

60Review of decisions

Part 7—Enforcement

Division 1—Inspectors

61Inspectors

62Secretary may authorise other persons to be inspectors

63Inspector's identification certificates

Division 2—Approved inspection services

64Approved inspection services

65Secretary may approve inspection services with conditions

66Agreements relating to approved inspection services

67Matters an agreement for inspection services may cover

68Withdrawal of approval of inspection service

69Approved inspection services and employed or appointed inspectors

70Powers of inspection agents

71Identification of inspection agents of approved inspection services

72Fees

73Application of FOI

Division 3—General powers of inspectors

75Purpose of exercise of powers

76Power to enter and inspect premises

77Power to stop and inspect vehicles

78Power to require information

79Powers regarding production of documents

80Powers to inspect

81Power to take samples

82Power to take photographs, etc.

83Power to attach warnings

Division 4—Further powers of inspectors

84Inspector may use assistants

85Inspector must reseal inspected packages

86Use of electronic equipment at premises

87Copying information on electronic storage devices

88Use only if no damage to equipment

89Application for search warrants

90Application for warrants for access to residences

91Information to be included in a search warrant

92Announcement before entry

93Details of warrant to be given to occupier

94Seizure of evidence not mentioned in the warrant

95Copies of seized documents

96Powers of detention and seizure

97Inspector must give notice of detention or seizure

98Offence to remove detained or seized items without authority

99Return of detained or seized items after examination

100Retention of detained or seized items after examination

101Secretary to provide directions

102Compliance with directions

103Power to take legal proceedings not affected

104Inspector's powers of detention

105Procedures on taking samples

106Retention and return of seized documents or other things

107Magistrates' Court may extend 3 month period

108Power to enter private property to lay baits etc.

109Road barriers

110Signs regarding road barriers or inspectors

111Inspector may stop vehicles at road barriers

112Inspector may require access to ratepayer details

Division 5—Additional powers of inspectors for exotic pests and diseases

113Search and entry powers

114Power to stop and search vehicles

115Power to stop movement of material

116Power to remove material

117Power to obtain information

118No privilege against self-incrimination

Division 6—Infringement notices

119Power to serve a notice

120Penalties to be paid for offences under infringement notices

Division 7—Power to accept undertakings relating to contraventions

121Secretary may accept undertakings

122Enforcement of undertakings

123Copy of undertaking

Division 8—Provisions related to court proceedings

124Power to file charges under this Act

125Extension of time

126Service of documents

127Offences by bodies corporate

128Conduct by officers, employees or agents of a body corporate

129Deemed proof with regard to samples

130Adverse publicity orders

Division 9—General

131Evidence of certain matters

132Offences relating to enforcement

133Offences about certification

133AOffences about authorisation

134False statements in certificates and declarations

135Alterations to certificates and declarations

136Release of information

Part 8—General

137No appeal or review of decisions under section 42

138Protection of court actions

139Supreme Court—limitation of jurisdiction

140Power to approve forms

141Regulations

Part 9—Repeal, savings and transitional provisions

142Repeal of Plant Health and Plant Products Act 1995

143Transitional and savings provisions

144Transitional provision—Plant Biosecurity Amendment Act 2013

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Endnotes

1      General information

2      Table of Amendments

3      Explanatory details

Version No. 010

Plant Biosecurity Act 2010

No. 60 of 2010

Version incorporating amendments as at

22 April 2024

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1Purposes

The main purposes of this Act are—

(a)to provide for the preventing, monitoring, controlling and eradicating of plant pests and diseases; and

(b)to provide for the packaging, labelling and description of plants and plant products; and

(c)to facilitate the movement of plants, plant products, used packages, used equipment and earth material within, into and out of Victoria; and

(d)to repeal the Plant Health and Plant Products Act 1995.

2Commencement

(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2)If a provision of this Act does not come into operation before 1 July 2012, it comes into operation on that day.

3Definitions

(1)In this Act—

accredited person means a person accredited to issue assurance certificates—

(a)under section 48; or

(b)by an officer or authority of a State or Territory administering a corresponding law;

agricultural equipment means any equipment used for the culture, harvesting, packing or processing of any plant or plant product and includes any vehicle;

approved inspection service means an inspection service for the time being approved under section 65;

assurance certificate means a certificate issued by an accredited person;

contain, in relation to a pest or disease of plants or plant products, means to restrict the spread of the pest or disease;

control, in relation to a pest or disease of plants or plant products, means to reduce the occurrence of the pest or disease;

corresponding law means an Act of another State or Territory that corresponds with this Act;

Department means Department of Energy, Environment and Climate Action;

disease means—

(a)any disease of plants or plant products caused by any bacterium, fungus, protozoa, phytoplasma, virus, viroid or other organism which is declared by Ministerial Order or by Order in Council to be a disease; or

(b)an exotic disease;

earth material means soil, gravel, sand or rocks;

eradication means the reduction of a pest or disease to a level where it can no longer be detected;

examination includes any analysis or test or any combination of analyses or tests;

exotic disease means any disease of plants or plant products which is declared by Ministerial Order or by Order in Council to be an exotic disease;

exotic pest means any pest which is declared by Ministerial Order or by Order in Council to be an exotic pest;

infected place means a place declared under Part 3 to be an infected place for the containment, control or eradication of an exotic pest or disease;

inspection agent means a principal or an employee of an approved inspection service;

inspector means a person appointed under section 61 or authorised under section 62;

kind, in relation to plants, means plants of the same botanical species;

label includes any tag or sticker;

Ministerial Order means an order made under section 6;

occupier, in relation to land, means any person or body in occupation or possession or having the control or management of land and includes any joint occupier;

officer—

(a)in relation to a body corporate which is a corporation within the meaning of the Corporations Act, has the same meaning as officer of a corporation has in section 9 of that Act; and

(b)in relation to a body corporate which is not a corporation within the meaning of that Act, means any person (by whatever name called) who is concerned in or takes part in the management of the body corporate or an employee of the body corporate;

Order in Council means an order made under section 5;

owner, in relation to land, includes—

(a)any person or body holding or occupying land under lease or licence from the Crown or deriving title from, under or through that person or body;

(b)any mortgagee of land in possession of the land;

(c)any joint owner and agent of the owner;

owner, in relation to any plant or plant product, except in sections 97, 99, 100, 101 and 102, includes part-owner, consignor, agent and any person for the time being in charge of the plant or plant product;

package includes—

(a)anything in or by which a plant or plant product is contained, wrapped or packed; and

(b)bulk containers;

pest means—

(a)any centipede, eelworm, insect, millipede, mite, scorpion, slug, snail, spider or invertebrate animal declared by Order in Council to be a pest; or

(b)an exotic pest;

place includes any land, road, structure and premises;

plant means any member of the vegetable kingdom and includes any tree, vegetable, vine and edible fungi but does not include any plant product;

plant health certificate means a certificate—

(a)issued by an inspector or inspection agent; or

(b)issued by an officer of a department responsible for the agriculture of another State or Territory;

plant health declaration means a declaration—

(a)issued by a person authorised under section 47A; or

(b)issued by a person authorised under a corresponding law to issue a plant health declaration or equivalent;

plant product means the whole or part of any flower, fruit, nut, seed, leaf, bulb, corm, tuber or stem, that has been separated from a plant and includes—

(a)dried plant material; and

(b)timber that has been sawn or dressed; and

(c)the juice of a plant;

plant vector, in relation to an exotic pest or disease, means any livestock or livestock product within the meaning of the Livestock Disease Control Act 1994 that is a vector of the exotic pest or disease;

point of entry, in relation to a place, means any gate, driveway or path by which a person or vehicle may be expected to enter the place;

police officer has the same meaning as in the Victoria Police Act 2013;

prescribed owner means—

(a)in relation to land that has been alienated in fee by the Crown and is under the operation of the Transfer of Land Act 1958 (other than land in an identified folio under that Act)—the person who is registered or entitled to be registered as proprietor, or the persons who are registered or entitled to be registered as proprietors, of an estate in fee simple in the land;

(b)in relation to land that has been alienated in fee by the Crown and is land in an identified folio under the Transfer of Land Act 1958 or land not under the Transfer of Land Act 1958—the person who is the owner, or the persons who are the owners, of the fee or equity of redemption;

property identification code means a code issued by the Secretary in relation to a property under section 15 or a property identification code issued under section 9B of the Livestock Disease Control Act 1994;

recording includes an audio or video recording;

restricted area means a place declared under Part 3 to be a restricted area for the containment, control or eradication of an exotic pest or disease;

Secretary means Secretary to the Department;

seeds includes any seeds to which or to clusters of which any fruit normally adheres, any seeds in pods or burrs normally used in agricultural practice and any seeds artificially encased;

sell includes barter or exchange, agreeing to sell, offering or exposing for sale or having in possession for sale or sending, forwarding, delivering or receiving for or on sale and authorising, directing, causing, suffering, permitting or attempting those things;

this Act includes regulations made under this Act;

used equipment means any—

(a)used agricultural equipment; or

(b)used roadwork equipment; or

(c)used earthmoving equipment;

used package means any package which contains or is known to have contained or may reasonably be suspected of containing or having contained any plant or plant product;

variety, in relation to plants, means a plant or population of plants recognisable by agronomic, biochemical, morphological or other characters as being distinct from other plants or populations of plants of the same botanical species;

vehicle includes aircraft or vessel.

(2)In this Act any reference to a plant, fruit, vegetable or nut includes a reference to all or any part of a plant, fruit, vegetable or nut.

4Binding of Crown

This Act binds the Crown, not only in right of the State of Victoria but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

5Orders in Council

(1)The Governor in Council may make any orders that are required for the purposes of this Act.

(2)The orders must be published in the Government Gazette.

(3)Without affecting the generality of subsection (1), the Governor in Council may make an order declaring any pest or disease to be an exotic pest or disease even though the pest or disease—

(a)has not been found in Victoria; or

(b)is being controlled, contained or eradicated in Victoria.

6Ministerial orders

(1)The Minister may make any orders that are permitted or required for the purposes of this Act.

(2)Without affecting the generality of subsection (1), if the Minister is of the opinion that—

(a)an organism of the plant or animal kingdom (other than vertebrates); or

(b)any bacterium, fungus, protozoa, phytoplasma, virus or viroid; or

(c)a disorder, condition or cause of specified symptoms in plants or plant products—

(a suspected exotic pest or disease) is harmful to the growth or quality (including the commercial or marketable quality) of plants or plant products, the Minister may, by order published in the Government Gazette, declare the suspected pest or disease to be an exotic pest or disease.

(3)An order made under subsection (2) may declare the exotic pest or disease by reference to one or both of the following—

(a)a general description of the organism, bacterium, fungus, protozoa, phytoplasma, virus or viroid, disorder, condition or symptoms;

(b)a description of the effect the suspected exotic pest or disease has on the growth or quality (including the commercial or marketable quality) of plants or plant products.

(4)An order under subsection (2) remains in force for 6 months after the date of making unless sooner revoked by the Minister.

PART 2—PLANT PEST AND DISEASE CONTROL

Division 1—General controls

7Definition

In this Division, prescribed material means any—

(a)plant, plant product or plant vector;

(b)used package or used equipment;

(c)earth material;

(d)beehive—

that is prescribed or of a class prescribed by the regulations for the purposes of this Division.

8Importation of prescribed material

(1)A person must not import, introduce or bring into Victoria from a prescribed State or Territory or a prescribed part of a State or Territory any prescribed material unless the person complies with the applicable requirements of subsection (1C).

Penalty:In the case of a natural person, 10 penalty units;

In the case of a body corporate, 60 penalty units.

(1A)A person must not introduce or bring prescribed material into any part of Victoria from a restricted area unless the person complies with the applicable requirements of subsection (1C).

Penalty:In the case of a natural person, 10 penalty units;

In the case of a body corporate, 60 penalty units.

(1B)A person must not cause or permit any of the things in subsection (1) or (1A) to be done unless the person complies with the applicable requirements of subsection (1C).

Penalty:In the case of a natural person, 10 penalty units;

In the case of a body corporate, 60 penalty units.

(1C)For the purposes of subsections (1), (1A) and (1B), the requirements are that the person—

(a)must ensure that the prescribed material—

(i)meets the prescribed condition requirements; or

(ii)has been tested or treated in accordance with the requirements prescribed in the regulations; or

(iii)meets the requirements (if any) determined by the Secretary and published on a website maintained by the Department; and

(b)if required by the regulations—

(i)has sent to the Secretary or a person authorised under a compliance agreement made under section 47 and has in the person's possession at the time that the prescribed material is delivered to a person in Victoria a copy of—

(A)an assurance certificate; or

(B)a plant health certificate; or

(C)a plant health declaration; or

(ii)presents the prescribed material for inspection, examination and treatment at a prescribed place or a place nominated by an inspector.

(2)A person must not knowingly, recklessly or negligently do any of the things in subsection (1), (1A) or (1B) unless the requirements under subsection (1C) have been satisfied.

Penalty:In the case of a natural person, 60 penalty units;

I n the case of a body corporate, 240 penalty units.

9Possession of prescribed material

(1)A person must not have in the person's possession, custody or control for sale for the first time in Victoria any prescribed material imported, introduced or brought or caused or permitted to be imported, introduced or brought, into Victoria unless the requirements under section 8(1C)(a) or (b) have been satisfied.

Penalty:In the case of a natural person, 10 penalty units;

In the case of a body corporate, 60 penalty units.

(2)A person must not knowingly, recklessly or negligently have in the person's possession, custody or control for sale for the first time in Victoria any prescribed material imported, introduced or brought, or caused or permitted to be imported, introduced or brought, into Victoria unless the requirements under section 8(1C)(a) or (b) have been satisfied.

Penalty:In the case of a natural person, 60 penalty units;

In the case of a body corporate, 240 penalty units.

10Introduction of plants and plant products

(1)A person must not—

(a)import, introduce or bring into Victoria from another State or Territory any plant or plant product affected by any disease or pest or any pest or any disease organism; or

(b)cause or permit any of the things in paragraph (a) to be done—

except—

(c)for scientific purposes or purposes of protecting the environment or furthering agricultural interests; and

(d)in accordance with the written consent of the Minister.

Penalty:20 penalty units.

(2)A person must not knowingly, recklessly or negligently do any of the things in subsection (1)(a) or (b) unless the person complies with subsection (1)(c) and (d).

Penalty:120 penalty units.

11Assurance certificates

An assurance certificate that is required under section 8(1C)(b)(i) in respect of prescribed material must—

(a)set out details of—

(i)the person in Victoria to whom the prescribed plant material is being delivered; and

(ii)the grower or packer and the consignor of the prescribed material; and

(iii)the quantity, type, origin and destination of the prescribed material; and

(iv)the condition, treatment or testing of the prescribed material; and

(v)the accreditation number assigned to the accredited person by the Secretary or by an officer or authority of a State or Territory administering a corresponding law; and

(b)contain any other prescribed particulars; and

(c)be certified by the accredited person who issued the certificate verifying the details set out in paragraph (a) and any other prescribed particulars; and

(d)be in the form approved by the Secretary, if issued by a person accredited under section 48.

12Plant health certificates

A plant health certificate that is required under section 8(1C)(b)(i) in respect of prescribed material must—

(a)set out details of—

(i)the person in Victoria to whom the prescribed plant material is being delivered; and

(ii)the grower or packer and the consignor of the prescribed material; and

(iii)the quantity, type, origin and destination of the prescribed material; and

(iv)the condition, treatment or testing of the prescribed material; and

(b)contain any other prescribed particulars; and

(c)be certified by the person issuing it verifying the details set out in paragraph (a) and any other prescribed particulars; and

(d)be in the form approved by the Secretary, if issued by an inspector or inspection agent.

13Plant health declarations

A plant health declaration that is required under section 8(1C)(b)(i) in respect of prescribed material must—

(a)set out details of—

(i)the person in Victoria to whom the prescribed plant material is being delivered; and

(ii)the grower or packer and the consignor of the prescribed material; and

(iii)the quantity, type, origin and destination of the prescribed material; and

(iv)the condition, treatment or testing of the prescribed material; and

(b)contain any other prescribed particulars; and

(c)include a declaration by the person issuing it verifying the details set out in paragraph (a) and any other prescribed particulars; and

(d)be in the form approved by the Secretary, if issued by a person authorised under section 47A.

14No offence by reason only of transporting from a prescribed State or Territory

(1)A person does not commit an offence under this Division by reason only of transporting into Victoria on behalf of another person any prescribed material from a prescribed State or Territory or a prescribed part of another State or Territory.

(2)A person does not commit an offence against section 10 by reason only of transporting into Victoria on behalf of another person any plant or plant product from a prescribed State or Territory.

15Property identification code

(1)A person who owns or occupies a property on which any prescribed plant is grown must, within 30 days after the plant is prescribed or starting to be grown on the property—

(a)in the case of a property that does not have a property identification code, apply to the Secretary for the allocation of a code that identifies the property where the prescribed plant is being grown; or

(b)in the case of a property that already has a property identification code, advise the Secretary that a prescribed plant is being grown on the property.

Penalty:60 penalty units.

(2)An application under subsection (1)(a) must be made in a manner specified by the Secretary by notice published in the Government Gazette.

(3)The Secretary must issue a property identification code to a person who has applied in accordance with this section.

(4)A property identification code remains in force for any period that is specified by the Secretary with respect to the property identification code.

(5)A person who owns or occupies a property that has a property identification code issued under this section must advise the Secretary in writing of any change in the name, address or telephone number of the owner or occupier of that property within 30 days after the change.

Penalty:10 penalty units.

(6)The Secretary may maintain a database containing details of properties that have had a property identification code issued under this section.

(7)A person must not peruse the information contained in the database referred to in subsection (6) unless the person is doing so for the purposes of administering this Act and the person is—

(a)an inspector; or

(b)authorised in writing by the Secretary to peruse the database.

16Consent by Minister

The Minister may grant a consent for the purposes of this Division—

(a)that applies generally to the importation, movement or possession of samples of plants or plant products from another State or Territory for diagnosis by a plant testing laboratory in Victoria except samples of plants or plant products known to be infected or infested by an exotic pest or disease; and

(b)that is unconditional or is subject to conditions.

17Notification of plant pests or diseases

(1)If a person knows or has reason to suspect that an exotic pest or disease or a notifiable pest or disease is present in any plant, plant product, used package, used equipment or earth material—

(a)owned by that person or in the possession, control or charge of that person; or

(b)on land owned or occupied by that person; or

(c)dealt with by that person as—

(i)a consultant or contractor engaged by a person referred to in paragraph (a) or (b); or

(ii)the owner or person in charge of a diagnostic laboratory—

the person must notify an inspector in accordance with subsection (2) or (3).

Penalty:In the case of a notifiable pest or disease, 120 penalty units;

In the case of an exotic pest or disease, 1200 penalty units.

(2)In the case of an exotic pest or disease, the person must notify an inspector without delay after becoming aware or suspecting that the pest or disease is present by the fastest means of communication available.

(3)In the case of a notifiable pest or disease, the person must notify an inspector, orally or in writing, within 7 days after becoming aware or suspecting that the pest or disease is present.

(4)In this section notifiable pest or disease means a pest or disease which the Governor in Council has declared by order to be a notifiable pest or disease.

18Prohibition on sale of diseased plants etc.

(1)A person must not sell—

(a)any plant or plant product, other than seeds, which the person knows, or may be reasonably expected to know, is affected by any disease or pest; or

(b)any seeds for sowing that are mixed with any seeds that the person knows, or may be reasonably expected to know, are affected by any disease and the affected seeds form a proportion of the total quantity of seeds that exceeds the proportion prescribed.

Penalty:In the case of a natural person, 60 penalty units;

In the case of a body corporate, 300 penalty units.

(2)A person must not sell any plant or plant product, other than seeds, that is affected by any disease or pest.

Penalty:In the case of a natural person, 10 penalty units;

In the case of a body corporate, 60 penalty units.

Division 2—Control areas

19Declaration of control areas

(1)The Minister may, by order published in the Government Gazette—

(a)declare the whole of or any place within Victoria to be a control area; and

(b)specify any prohibitions, restrictions or requirements which are to operate in, or in relation to, the whole or part of the control area for the purpose of—

(i)preventing the spread of pests or diseases within the control area or from the control area to other parts of Victoria; or

(ii)preventing the entry of pests or diseases into the control area.

(2)Without limiting the powers of the Minister under subsection (1), an order declaring a control area may, for the purposes set out in subsection (1)—

(a)prohibit absolutely or restrict subject to prescribed conditions—

(i)the removal of any plant, plant product, used package, used equipment or earth material from the control area to a place outside the control area; or

(ii)the entry of any plant, plant product, used package, used equipment or earth material into the control area; or

(iii)the movement of any plant or plant product, used package, used equipment or earth material within the control area; or

(b)require the owners or occupiers of land within the control area to do any of the following—

(i)prune any fruit tree;

(ii)treat or contain any plant affected by a pest or disease;

(iii)grow a variety of plant which is resistant or tolerant to pests or diseases;

(iv)destroy any plant;

(v)treat earth material in which a plant is grown or has been growing;

(vi) treat any used package or used equipment;

(vii)take any other prescribed action to control pests or diseases; or

(c)require owners or occupiers of land in specified parts of the control area to take more stringent measures, as specified in the order, than owners or occupiers of other land in the control area.

(2A)An order declaring a control area remains in force for a period of 12 months or any shorter period that is specified in the order, unless sooner revoked.

(2B)The Minister may from time to time, by notice published in the Government Gazette, extend the duration of an order declaring a control area for any period or periods not exceeding 12 months.

(3)An order declaring a control area may authorise an inspector to issue a direction to an owner or occupier of land within the control area to do any of the things specified in subsection (2)(b).

(4)A direction issued by an inspector under subsection (3) must—

(a)be in writing; and

(b)be given to the person to whom it applies; and

(c)fix a reasonable time by which the direction is to be complied with.

(5)A person must not contravene any direction of an inspector under subsection (3).

Penalty:60 penalty units.

20Restrictions on movement of material into or from control area

(1)A person who knows, or may be reasonably expected to know, that any place has been declared to be a control area must not cause or permit the movement of any plant, plant product, used package, used equipment or earth material into or from that control area or within specified parts of the control area or within the control area contrary to any prohibition or restriction in the order unless the person—

(a)is authorised to do so under a permit issued by the Secretary; and

(b)complies with any conditions set out in the permit.

Penalty:In the case of an individual, 60 penalty units;

In the case of a body corporate, 300 penalty units.

(2)A person must not transport, move or take any plant, plant product, used package, used equipment or earth material into or out of a control area past a sign posted on or within sight of a public highway passing in or out of a control area contrary to any prohibition in an order if the sign indicates that the movement of plants, plant products, used packages, used equipment or earth material into or out of the control area is prohibited under the order.

Penalty:10 penalty units.

(3)A person who contravenes any prohibition, restriction or requirement specified in an order declaring any place to be a control area, where that person is not liable for an offence under subsection (1) in respect of that contravention, is guilty of an offence and liable to a penalty not exceeding 10 penalty units in the case of an individual and 60 penalty units in the case of a corporation.

(4)Subsection (3) does not apply if the person is acting under a permit issued by the Secretary and the person complies with any conditions set out in the permit.

21Permits for movement of material into or from control area—specified person

(1)The Secretary may issue a permit to a specified person for the purposes of section 19 or 20 for the transport or movement of any plant, plant product, used package, used equipment or earth material into or out of a control area subject to any conditions about the treatment of the plant, plant product, used package, used equipment or earth material.

(1A)A permit has effect for the period specified in the permit.

(2)The Secretary may revoke or vary a permit at any time by notice in writing to the holder.

(3)If a permit given under this section is revoked, the holder must, upon request by the Secretary, immediately deliver the revoked permit to the Secretary.

21APermits for movement of material into or from control area—specified class of person

(1)The Secretary may issue a permit to a specified class of person for the purposes of section 19 or 20 for the transport or movement of any plant, plant product, used package, used equipment or earth material into or out of a control area subject to any conditions about the treatment of the plant, plant product, used package, used equipment or earth material.

(2)A permit issued under subsection (1)—

(a)must be published—

(i)in the Government Gazette; and

(ii)on a website maintained by the Department; and

(b)has effect for the period specified in the permit.

(3)If a permit issued under subsection (1) is revoked or varied, notice of the revocation or variation must be published—

(a)in the Government Gazette; and

(b)on a website maintained by the Department.

Division 3—Control measures

22Destruction or disposal of plants etc. at direction of Minister

(1)If any plant, plant product, plant vector, used package, used equipment, earth material or beehive is introduced into—

(a)Victoria; or

(b)a control area declared by the Minister under section 19; or

(c)an infected place or restricted area—

contrary to any provision of this Act or an order made under this Act, the plant, plant product, plant vector, used package, used equipment, earth material or beehive may be treated, destroyed or otherwise disposed of as directed in writing by the Minister.

(2)The Minister must cause a copy of a direction under subsection (1) to be given to the owner or person apparently in charge of the plant, plant product, plant vector, used package, used equipment, earth material or beehive before the direction is carried out unless—

(a)the owner or person apparently in charge of the plant, plant product, plant vector, used package, used equipment, earth material or beehive cannot be found after reasonable search or inquiry; and

(b)the Minister considers that, in the circumstances, the direction must be carried out without prior notice to the owner or person apparently in charge.

23Return, treatment or disposal of plants etc. at direction of inspector

(1)This section applies if any plant, plant product, plant vector, used package, used equipment, earth material or beehive is—

(a)introduced into Victoria; or

(b)introduced into a control area declared by the Minister under section 19; or

(c)introduced into an infected place or restricted area; or

(d)sent from a control area declared by the Minister under section 19 into another part of Victoria; or

(e)sent from an infected place or restricted area—

contrary to any provision of this Act or an order made under this Act.

(2)An inspector may, by direction in writing given to the owner or person apparently in charge of the plant, plant product, plant vector, used package, used equipment, earth material or beehive, require that owner or person to do one of the following in accordance with the requirements of the direction—

(a)return the plant, plant product, plant vector, used package, used equipment, earth material or beehive to the consignor;

(b)treat the plant, plant product, plant vector, used package, used equipment, earth material or beehive;

(c)dispose of the plant, plant product, plant vector, used package, used equipment, earth material or beehive.

(3)A person who has been given a direction in writing under subsection (2) must—

(a)return the plant, plant product, plant vector, used package, used equipment, earth material or beehive to the consignor in accordance with the requirements of the direction; or

(b)treat or dispose of the plant, plant product, plant vector, used package, used equipment, earth material or beehive in accordance with the requirements of the direction.

Penalty:60 penalty units.

24Treatment or disposal of diseased plants etc.

(1)If an inspector knows or reasonably suspects that a plant or plant product is affected by any disease or pest the inspector may seize the plant or plant product and—

(a)apply any prescribed physical or chemical treatment to the plant or plant product; or

(b)dispose of the plant or plant product in a manner which will prevent the spread of the pest or disease; or

(c)order the things set out in paragraph (a) or (b) to be done.

(2)Without limiting an inspector's powers under subsection (1), an inspector may—

(a)process the plant or plant product;

(b)allow the plant or plant product to be used for stock food or for any other purpose other than for human consumption;

(c)dispose of the plant or plant product by burning, burial or leaving it on a waste disposal site—

or order the owner of the plant or plant product to do any of the things set out in paragraph (a), (b) or (c).

(3)The inspector must notify the owner or person apparently in charge of the plant or plant product of the inspector's intention to do any of the things set out in subsection (1) or (2).

(4)If an inspector knows or reasonably suspects that any plants or plant products are affected by any disease or pest and the owner of the plants or plant products cannot be located after reasonable inquiry and there is no person apparently in charge of them, the inspector may, with the approval of the Secretary, destroy or otherwise dispose of them.

25Infested land notice

(1)If an inspector knows or reasonably suspects that any plant or plant product affected by any disease or pest or any pest is on any land and the inspector so reports to the Secretary, the Secretary may give the owner or occupier of the land a notice—

(a)prohibiting or restricting, subject to specified conditions, the removal of any plant, plant product, used package, used equipment or earth material from the land specified in the notice; or

(b)requiring that the owner or occupier destroy or cause the destruction of that pest, plant or plant product; or

(c)requiring that the owner or occupier control or eradicate, or cause the control or eradication of, the disease or pest affecting that plant or plant product.

(2)If a notice is given under subsection (1)(a), a person must not remove or allow or cause or permit to be removed from the land specified in the notice any plant, plant product, used package, used equipment or earth material specified, or of a type or class specified, in the notice contrary to any prohibition, or contrary to the conditions of any restriction, in the notice.

Penalty:In the case of a natural person, 120 penalty units;

In the case of a body corporate, 600 penalty units.

(3)If a notice is given under subsection (1)(b), the owner or occupier must destroy or cause the destruction of the pest, plant or plant product specified in the notice.

Penalty:In the case of a natural person, 120 penalty units;

In the case of a body corporate, 600 penalty units.

(4)If a notice is given under subsection (1)(c), the owner or occupier must control or eradicate, or cause the control or eradication of, the disease or pest affecting the plant or plant products specified in the notice.

Penalty:In the case of a natural person, 120 penalty units;

In the case of a body corporate, 600 penalty units.

(5)The Secretary must cause a copy of a notice given to the owner or occupier of land under subsection (1) to be given to the prescribed owner of the land unless notice was given to the prescribed owner under subsection (1).

26Control notices

(1)This section applies if an inspector knows or reasonably suspects that any plant, plant product, used package, used equipment or earth material is or might become affected by a pest or disease.

(2)The inspector may issue a notice to the person who owns or has possession or control of the plant, plant product, used package, used equipment or earth material containing any orders or directions that the inspector considers may be reasonably necessary to prevent the outbreak or spread of the pest or disease.

(3)A notice under subsection (2) may contain orders or directions in relation to any plant, plant product, used package, used equipment or earth material that is or might become affected by the pest or disease requiring any of the following—

(a)that it be kept at a specified place for a specified period;

(b)that it be subjected to specified treatment;

(c)that it be subjected to examinations at specified intervals or that other specified action be taken for the purposes of determining the presence of a pest or disease;

(d)that its sale or supply or the purposes for which it may be used be restricted;

(e)that it be destroyed or disposed of in a specified manner.

(4)The inspector must cause a notice under subsection (2) to be served on the person referred to in that subsection.

(5)A person served with a notice under subsection (2) must not contravene or fail to comply with any order or direction in the notice.

Penalty:In the case of a natural person, 10 penalty units;

In the case of a body corporate, 50 penalty units.

27Disposal of plant refuse etc.

(1)If the Secretary is satisfied that any plant refuse, used package or earth material is affected by or contaminated with any pest or disease, the Secretary may cause to be served on the owner or person apparently in charge of the plant refuse, used package or earth material a notice specifying the means, method or manner of disposing of that plant refuse, package or earth material or of treating the package before it is disposed of.

(2)A person served with a notice under subsection (1) must treat the used package or dispose of the plant refuse, used package or earth material described in the notice in accordance with the notice.

Penalty:In the case of a natural person, 120 penalty units;

In the case of a body corporate, 600 penalty units.

PART 3—EXOTIC PESTS AND DISEASES

Division 1—Preliminary

28Application of this Part to land

(1)Any provision of this Act that operates in relation to an exotic pest or disease, to the extent that it confers any function or power that may be exercised in relation to land, applies to all land, whatever its status.

(2)Without limiting subsection (1), any provision of this Act that operates in relation to an exotic pest or disease applies to places—

(a)that are the property of the Crown, or that are dedicated or reserved for any purpose, or protected or otherwise dealt with under any other Act; or

(b)the care, control or supervision of which is vested in any statutory authority or other person.

(3)It is not necessary, in order for any place to be declared to be an infected place or restricted area under this Part or for the validity of any order or the exercise of any power to enter a place or of any other power conferred by this Act and exercised in relation to an exotic pest or disease, to obtain the consent of any person or body or to meet any requirements other than the requirements of this Act.

(4)If land is owned, jointly or as tenants in common or otherwise, by 2 or more persons an order, notice or other document relating to an exotic pest or disease which is, under this Act, served on one of them as owner of the land is taken to have been served on them all.

29Application of this Part to plants etc.

(1)Any provision of this Act that operates in relation to an exotic pest or disease, to the extent that it confers any function or power that may be exercised in relation to plants or plant products applies to all plants or plant products whatever their status and whether or not the property of the Crown or any other person.

(2)Without limiting subsection (1), any provision of this Act that operates in relation to an exotic pest or disease applies to any plant and plant product—

(a)that is protected or otherwise dealt with under any Act; or

(b)the care, control, management or supervision of which is vested by any Act in the Crown or any statutory authority or other person.

(3)It is not necessary for the validity of any order under this Part for the destruction, confinement or other control or treatment of, or otherwise affecting, any plant or plant product, or for the exercise of any other power conferred by this Act in relation to an exotic pest or disease to obtain the consent of any person or body or to meet any requirements other than the requirements of this Act.

Division 2—Declared areas

30Declaration of infected place

(1)If the Secretary reasonably suspects that an exotic pest or disease is present in any place within Victoria, the Secretary may by order published in the Government Gazette—

(a)declare that place to be an infected place; and

(b)specify any prohibitions, restrictions or requirements that are to operate in the infected place or part of the infected place.

(2)The order must identify the classes or description of any plant, plant product, used package, used equipment or earth material that are affected by it.

(3)If the Secretary is satisfied that any livestock or livestock product within the meaning of the Livestock Disease Control Act 1994 is a vector of an exotic pest or disease, the Secretary may specify in an order under subsection (1) any prohibitions, restrictions or requirements that are to operate in the infected place or part of the infected place with respect to that vector and the order must identify the classes or description of vector that are affected by the order.

(4)An order made under subsection (1) remains in force for a period of 21 days after the date of publication of the order in the Government Gazette, unless sooner revoked.

(5)A person must not contravene any prohibition, restriction or requirement specified in an order made under subsection (1).

Penalty:In the case of a natural person, 1200 penalty units;

In the case of a body corporate, 1800 penalty units.

31Notice of order declaring infected place

(1)The Secretary must ensure that notice of an order declaring an infected place is published on an approved alternative publication Internet site.

(2)The Secretary must ensure that written notice of an order declaring an infected place is given to the owner or person in charge or in apparent control of any place to which the notice relates.

(3)The Secretary must display a copy of an order declaring an infected place at any point of entry to the place to which the notice relates.

32Declaration of restricted area

(1)If the Minister reasonably believes or suspects that there is a possibility that an exotic pest or disease is present in or may be introduced into any area within Victoria (including the whole of Victoria), the Minister may by order published in the Government Gazette—

(a)declare the area to be a restricted area; and

(b)specify any prohibitions, restrictions and requirements that are to operate in the restricted area.

(2)The order must identify the classes or descriptions of any plant, plant product, used package, used equipment, earth material or beehive that is affected by it.

(2A)The order must specify whether it applies to the movement of a thing identified in the order under subsection (2) in relation to one or more of the following—

(a)into the restricted area;

(b)within the restricted area;

(c)from the restricted area.

(3)If the Minister is satisfied that any livestock or livestock product within the meaning of the Livestock Disease Control Act 1994 is a vector of an exotic pest or disease, the Minister may specify in an order under subsection (1) any prohibitions, restrictions or requirements which are to operate in the restricted area with respect to that vector and the order must identify the classes or description of vector that are affected by the order.

(4)The Minister must ensure that notice of an order declaring a restricted area is published on an approved alternative publication Internet site.

(5)An order under this section remains in force for a period of 12 months or any shorter period that is specified in the order, unless sooner revoked.

(6)The Minister may from time to time, by notice published in the Government Gazette, extend the duration of an order under this section for any period not exceeding 12 months.

33Movement in restricted area

(1)A person must not knowingly—

(a)cause or permit the movement of any plant, plant product, plant vector, used package, used equipment, earth material or beehive to which the declaration of the restricted area applies into, within or from that area in contravention of that declaration; or

(b)contravene any prohibition, restriction or requirement specified in the order which declared the restricted area.

Penalty:In the case of a natural person, 1200 penalty units;

In the case of a body corporate, 1800 penalty units.

(2)Subsection (1) does not apply if the person is authorised to do so under a permit issued by an inspector or the Secretary and complies with any conditions set out in the permit.

(3)A person who contravenes any prohibition, restriction or requirement specified in an order declaring any place to be a restricted area, where that person is not liable for an offence under subsection (1) in respect of that contravention, is—

(a)guilty of an offence; and

(b)liable to a penalty not exceeding 10 penalty units in the case of an individual and 60 penalty units in the case of a body corporate.

(4)Subsection (3) does not apply if the person is acting under a permit issued by an inspector or the Secretary and the person complies with any conditions set out in the permit.

34Permits for activity in restricted area—specified person

(1)An inspector may issue a permit to a specified person for the purposes of section 33 subject to any conditions that the inspector specifies in the permit.

(2)A permit has effect for the period specified in the permit.

(3)Without limiting subsection (1), an inspector may issue a permit subject to any conditions relating to the control or eradication of the pest or disease.

(4)An inspector may revoke or vary a permit at any time by notice in writing to the holder.

(5)If a permit issued under this section is revoked, the holder must, on request by an inspector, immediately deliver the revoked permit to the inspector.

34APermits for activity in restricted area—specified class of person

(1)The Secretary may issue a permit to a specified class of person for the purposes of section 33 subject to any conditions that the Secretary specifies in the permit, including conditions relating to the control or eradication of the exotic pest or disease.

(2)A permit issued under subsection (1)—

(a)must be published—

(i)in the Government Gazette; and

(ii)on a website maintained by the Department; and

(b)has effect for the period specified in the permit.

(3)If a permit issued under subsection (1) is varied or revoked, notice of the variation or revocation must be published—

(a)in the Government Gazette; and

(b)on a website maintained by the Department.

35Further powers under orders

(1)Without limiting the powers of the Secretary under section 30 or of the Minister under section 32, an order declaring an infected place or a restricted area may—

(a)prohibit the removal from the declared area of—

(i)any plant, plant product or plant vector of a species, kind or variety;

(ii)any used package or used equipment;

(iii)any earth material; or

(iv)any beehive—

specified in the order that might, in the opinion of the Minister or Secretary, transmit an exotic pest or disease;

(b)require owners or occupiers of any place within the area to take measures, including the destruction of any plant, plant product or plant vector, specified in the order that are, in the opinion of the Minister or Secretary, necessary for the containment, eradication or control of the exotic pest or disease;

(c)require owners or occupiers of places within specified portions of the area to take more stringent measures (including the destruction of any plant, plant product or plant vector), specified in the order, than the owners or occupiers of other places within the declared area;

(d)prohibit the planting and propagation of any plant or plant product, or plant or plant product of a specified species, kind or variety within the restricted area or infected place during a period specified in the order;

(e)restrict the purposes for which any plant, plant product, plant vector, used package or used equipment may be used;

(f)require any plant, plant product, plant vector, used package or used equipment to be subject to a specified treatment or a specified course of treatment or requiring other action of a specified kind to be taken for the purpose of controlling an exotic pest or disease;

(g)require any plant, plant product, plant vector, plant refuse, used package or used equipment to be destroyed or disposed of in a specified manner;

(h)require any used package or used equipment to be cleansed, disinfected or otherwise treated in a specified manner;

(i)require any plant, plant product, plant vector, beehive or any place to be identified in a specified manner;

(j)control or prohibit the movement of any specified plant, plant product, plant vector, used package, used equipment or earth material in the restricted area or infected place;

(k)require any plant, plant product or plant vector suspected of being affected by an exotic pest or disease to be kept in a place which is separate from unaffected plants or plant products;

(l)control or prohibit the removal of any specified plant, plant product, plant vector, used package, used equipment or earth material from the whole or part of the restricted area or infected place;

(m)specify tests or treatments to be applied to any plant, plant product, plant vector, used package, used equipment or earth material;

(n)specify tests or treatments to be applied to a place whether or not there are any plants growing there;

(o)apply to the whole or any part of an infected place or a restricted area;

(p)require beekeepers who keep beehives within the area to take measures, including the destruction of bees, honey, beeswax, honeycomb, beehives or pollen, specified in the order that are, in the opinion of the Minister or Secretary, necessary for the containment, eradication or control of the exotic pest or disease.

(2)An order may authorise an inspector to issue any directions to any person to do any of the things specified in subsection (1).

(3)A direction issued by an inspector under subsection (2) must—

(a)be in writing; and

(b)be given to the person to whom it applies; and

(c)fix a reasonable time by which the direction is to be complied with.

(4)A person must not contravene any direction of an inspector under subsection (2).

Penalty:60 penalty units.

(5)The inspector must cause a copy of a direction issued under subsection (2) that imposes a requirement on the owner or occupier of land to do anything in relation to the land to be given to the prescribed owner of the land, unless the direction was given to the prescribed owner under subsection (2).

Division 3—Importation orders

36Border security

(1)If the Minister reasonably suspects an exotic disease or pest exists within Australia (whether or not it exists in Victoria), the Minister may by order prohibit absolutely, restrict, or impose conditions upon, the entry or importation into Victoria of any plant, plant product, plant vector, used equipment, used package, earth material or beehive.

(2)Without limiting subsection (1), an order—

(a)may prohibit or restrict the entry or importation into Victoria of any plant, plant product, plant vector, used equipment, used package, earth material or beehive from a State or Territory, or part of a State or Territory, that the Secretary reasonably suspects is affected by an exotic disease or pest;

(b)may specify tests or treatment to be applied to any kind of plant, plant product, plant vector, used equipment, used package, earth material or beehive;

(c)may require the plant, plant product, plant vector, used equipment, used package, earth material or beehive referred to in the order to be accompanied by a plant health certificate, assurance certificate or a plant health declaration that complies with section 37.

(3)Without limiting subsection (1), an order may, in relation to a requirement for a plant health declaration under subsection (2)(c), limit or restrict the circumstances in which a plant health declaration may be issued by reference to all or any of the following—

(a)the plant, plant product, plant vector, used equipment, used package, earth material or beehive or class of plant, plant product, plant vector, used equipment, used package, earth material or beehive;

(b)the area or the class of area in which the plant, plant product, plant vector, used equipment, used package, earth material or beehive was grown, produced or packed or from which it was consigned, having regard to the pest and disease status of that area;

(c)the persons or class of persons authorised or permitted by this Act to issue plant health declarations.

37Plant health certificate, assurance certificate or plant health declaration

If an order made under section 36 requires a plant health certificate, assurance certificate or a plant health declaration, the certificate or declaration must—

(a)set out details of—

(i)the person in Victoria to whom the plant, plant product, plant vector, used equipment, used package, earth material or beehive is being delivered; and

(ii)the grower or packer and the consignor of the plant, plant product, plant vector, used equipment, used package, earth material or beehive; and

(iii)the quantity, type, origin and destination of the plant, plant product, plant vector, used equipment, used package, earth material or beehive; and

(b)state that the plant, plant product, plant vector, used equipment, used package, earth material or beehive has been treated or tested in accordance with the requirements of the order; and

(c)provide a description of the treatment or tests.

38Contravention of importation order

(1)A person must not knowingly cause, permit or assist any plant, plant product, plant vector, used equipment, used package, earth material or beehive to enter or be imported into Victoria in contravention of an importation order under section 36.

Penalty:In the case of a natural person, 1200 penalty units;

In the case of a body corporate, 1800 penalty units.

(2)A person must not cause, permit or assist any plant, plant product, plant vector, used equipment, used package, earth material or beehive to enter or be imported into Victoria in contravention of an importation order under section 36.

Penalty:In the case of a natural person, 10 penalty units;

In the case of a body corporate, 60 penalty units.

39Notification of importation order

The Minister must ensure that notice of an order under section 36 is published in the Government Gazette as soon as practicable after the making of the order.

40Duration of importation order

(1)An order under section 36 remains in force for a period of 12 months or any shorter period that is specified in the order, unless sooner revoked.

(2)The Minister may from time to time, by notice published in the Government Gazette, extend the duration of an order for any period or periods not exceeding 12 months.

Division 4—Special provisions

41Possession or administration of exotic disease agents

(1)A person must not—

(a)possess an exotic disease agent; or

(b)administer or release an exotic disease agent or cause or permit the administration or release of an exotic disease agent; or

(c)threaten to release or administer an exotic disease agent.

Penalty:3000 penalty units.

(2)Subsection (1)(a) and (b) do not apply to a person who has the authority of the Secretary to be in possession of an exotic disease agent for the purposes of research.

(3)In this section, exotic disease agent means any exotic pest or disease organism or any plant or plant product affected by an exotic pest or disease.

42Certificates relating to exotic pest or disease

(1)The Minister may by order certify that—

(a)an outbreak of an exotic pest or an exotic disease exists in any part of Victoria; or

(b)an outbreak of an exotic pest or an exotic disease exists in any part of Australia outside Victoria and it is necessary or expedient to take action, including making an order under this Act, to prevent or reduce the risk of the spread of the pest or disease to Victoria.

(2)An order under this section comes into force on the date it is published in the Government Gazette.

Division 5—Testing

43Testing for exotic pests or diseases

(1)The Secretary may direct any person to have carried out, at a laboratory or place nominated by the Secretary, a specified examination of any plant or plant product owned by or in the possession or control of that person.

(2)The direction may require the taking, delivery and examination of samples from the plant or plant product.

(3)Any direction issued by the Secretary under subsection (1) must—

(a)be in writing; and

(b)be given to the person to whom it applies; and

(c)fix a reasonable time by which the direction must be complied with.

(4)A person given a direction under this section must comply with it.

Penalty:60 penalty units.

PART 4—PLANTS AND PLANT PRODUCTS

44Application

Nothing in this Part applies to fruit, vegetables or nuts sold for processing, repackaging, stock food or for any use other than for human consumption.

45Packages to be sound and clean

(1)A person must not pack for sale or sell any packaged fruit, vegetables or nuts unless the package is—

(a)clean to touch; and

(b)free of extraneous visible matter; and

(c)free of objectionable odour; and

(d)in good repair.

Penalty:60 penalty units.

(2)An inspector may by order require used packages referred to in subsection (1)—

(a)to be subject to a specified treatment or a specified course of treatment or to be subject to other action of a specified kind for the purpose of ensuring compliance with subsection (1);

(b)to be destroyed or disposed of in a specified manner;

(c)to be cleaned, repaired or otherwise treated in a specified manner.

(3)Any order issued by an inspector under subsection (2) must—

(a)be in writing; and

(b)be given to the person to whom it applies; and

(c)fix a reasonable time by which the order must be complied with.

(4)A person must not contravene any written order of an inspector under subsection (2).

Penalty:60 penalty units.

46Marking or labelling where produce grown

(1)A person must not pack for sale or sell any fruit, vegetables or nuts in a package unless the package is correctly labelled with the required information in accordance with this section.

Penalty:60 penalty units.

(2)For the purposes of subsection (1), a package is correctly labelled if the required information is legibly marked—

(a)on the outside of the package; or

(b)on a label or ticket affixed to the outside of the package; or

(c)in the case of a transparent package, on a label or ticket placed inside the package which can be read from the outside.

(3)For the purposes of subsections (1) and (2), the required information is—

(a)the kind of fruit, vegetable or nut in the package; and

(b)in the case of prescribed fruit, vegetables or nuts grown in Australia, the name and postcode of the city or town nearest to the locality where the fruit, vegetables or nuts were grown or a code indicating the location of their packing or production that is approved by the Secretary for use by that person.

PART 5—COMPLIANCE AGREEMENTS, AUTHORISATION AND ACCREDITATION

47Compliance agreements

(1)The Secretary, on behalf of the Crown, may enter into a compliance agreement with a person in connection with the application of particular procedures under this Act in respect of any plant, plant product, used package, used equipment or earth material for the monitoring or control of any pest or disease in accordance with the agreement.

(2)The terms and conditions of a compliance agreement must be in accordance with this section.

(3)A compliance agreement may provide that in the circumstances stated in the agreement, the Secretary may, by written notice given to a party to the agreement other than the Crown, cancel the agreement or suspend its operation for a period, or until the happening of an event, stated in the notice.

(4)An inspector may release any plant, plant product, used package, used equipment or earth material to which a compliance agreement applies from seizure or detention under this Act on the basis of a certificate or assurance, given by a person authorised under the agreement to give such a certificate or assurance, that all procedures under this Act to which the agreement refers have been complied with in respect of the plants, plant products, used package, used equipment or earth material.

(5)A party to a compliance agreement must take reasonable steps to ensure that any requirements imposed on that party under the agreement are complied with.

Penalty:600 penalty units.

(6)A party to a compliance agreement, other than the Crown, must pay the charges set out in the agreement for the preparation of the agreement and for taking reasonable steps to ensure that it complies with the agreement.

47AAuthorisation of persons to issue plant health declarations

For the purposes of this Act, the Secretary may authorise persons to issue plant health declarations in respect of any plant, plant product, plant vector, used equipment, used package, earth material or beehive that is grown, produced, packed, treated or tested in Victoria.

48Accreditation

(1)The Secretary may grant accreditation to a person to issue assurance certificates about any plant, plant product, plant vector, used equipment, used package, earth material or beehive that—

(a)is grown, produced, packed, treated or tested in Victoria; or

(b)is to be imported, introduced or brought into Victoria.

(2)A person may apply to the Secretary for accreditation.

(3)The Secretary may—

(a)grant the accreditation applied for or another accreditation; or

(b)refuse accreditation; or

(c)grant accreditation subject to conditions, limitations or restrictions.

(4)If the Secretary is considering refusing to grant accreditation to an applicant, the Secretary must give the applicant a written notice stating—

(a)the proposed refusal; and

(b)the reasons for the proposed refusal; and

(c)that the applicant may make a submission in support of their application.

(5)If, after sending a notice under subsection (4) and considering any further submission made by the applicant, the Secretary decides to refuse the application, the Secretary must give the applicant a written notice stating—

(a)the decision; and

(b)the reasons for the decision; and

(c)that the applicant may apply to VCAT for a final review of the Secretary's decision.

49Register

(1)The Secretary must keep a register of accredited persons.

(2)The register must include particulars of—

(a)all current accreditations;

(b)any amendment or suspension of an accreditation.

(3)A person must not access the register unless the person is authorised in writing by the Secretary to do so.

50Amendment and cancellation

(1)If the Secretary considers that a ground exists to amend or cancel an accreditation the Secretary must give the accredited person written notice—

(a)of the Secretary's intention to take the proposed action; and

(b)of the reasons and grounds for the proposed action; and

(c)inviting the accredited person (within a stated time of at least 28 days) to show cause why the action should not be taken.

(2)If, after considering all written submissions made within the time stated in the notice, the Secretary still considers a ground exists to take the proposed action, the Secretary may amend or cancel the accreditation in accordance with the terms of the notice.

(3)The Secretary must give the person written notice of the decision and, if the Secretary decides to amend or cancel the accreditation, the reasons for the decision and that the person may apply to the Secretary for a reconsideration of the decision.

51Suspension

(1)If the Secretary considers that a ground exists to suspend an accreditation, the Secretary must—

(a)immediately suspend that accreditation; and

(b)give the accredited person written notice of the suspension as soon as practicable stating—

(i)the reasons and grounds for the suspension; and

(ii)that the accredited person may appeal against the suspension within 7 days after receiving the notice.

(2)After considering any appeal by the accredited person made under subsection (1)(b), the Secretary may—

(a)if the Secretary still considers a ground exists to suspend the accreditation, suspend the accreditation for such period as the Secretary may determine; or

(b)in any other case, cancel the suspension.

(3)A decision under subsection (2) must be made within 21 days of the appeal by the accredited person.

52Grounds for cancellation or suspension

For the purposes of section 50 and 51, the grounds for cancellation, suspension or amendment of the accreditation of an accredited person are—

(a)a substantial failure to comply with any conditions imposed on an accreditation granted under section 48; or

(b)a series of minor failures to comply with any conditions imposed on an accreditation granted under section 48.

PART 6—ADMINISTRATION

Division 1—General

53Delegations by Minister

(1)The Minister may, by instrument, delegate to any person or class of persons employed in the administration of this Act (other than an inspection agent) any power of the Minister under this Act except this power of delegation and the powers under sections 6, 19, 32 and 55.

(2)Despite subsection (1), the Minister may by instrument delegate a power of the Minister under section 6, 19 or 32 to the following persons—

(a)the Secretary;

(b)the chief plant health officer of the Department;

(c)any other executive within the meaning of the Public Administration Act 2004 employed in the administration of this Act.

54Delegations by Secretary

(1)The Secretary may by instrument delegate to any person or class of persons employed in the administration of this Act (other than an inspection agent) any power of the Secretary under this Act except this power of delegation and the powers under sections 21A and 34A.

(2)Despite subsection (1), the Secretary may by instrument delegate a power of the Secretary under section 21A or 34A to the following persons—

(a)the chief plant health officer of the Department;

(b)any other executive within the meaning of the Public Administration Act 2004 employed in the administration of this Act.

55Fees and charges

(1)The Minister may, by notice published in the Government Gazette, fix fees and charges and the rate of interest on those fees and charges for anything done under this Act, other than inspection fees payable to an approved inspection service.

(2)A fee or charge fixed under subsection (1) must be fixed as one or more fee units or as part of a fee unit.

(3)The following applies in respect of a fee or charge—

(a)the fee or charge may be expressed as being, or including, a part of a fee unit, but only of a part that is a tenth or more of a fee unit;

(b)the amount of the fee or charge is to be calculated by multiplying the number of fee units applicable by the value of a fee unit fixed from time to time under section 5 of the Monetary Units Act 2004;

(c)despite section 7(3) of the Monetary Units Act 2004, if the amount of a fee or charge calculated in accordance with paragraph (b) is not a multiple of 5 cents, the amount must be rounded down to the nearest multiple of 5 cents.

(4)Any fee or charge due under this Act bears interest at the rate fixed under subsection (1) from the date that the fee or charge becomes due to the date that it is paid.

56When and how the power to fix fees or charges may be exercised

The power to fix fees or charges under section 55 may be exercised—

(a)either in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified case or class of case; and

(b)so as to make, with respect to the cases in relation to which the power is exercised—

(i)the same provision for all cases in relation to which the power is exercised, or different provisions for different cases or classes of case, or different provisions for the same case or class of case for different purposes; or

(ii)any such provision either unconditionally or subject to any specified condition.

57Requirements for orders etc. under Part 2

(1)An order, direction or notice made, issued or given by an inspector, or a notice issued or given by the Secretary, under Part 2 must—

(a)be in writing; and

(b)be given to or served on the person to whom it applies; and

(c)fix a time, of not less than 7 days, within which the order, direction or notice comes into effect or must be carried out or complied with.

(2)Despite subsection (1)(c), an inspector or the Secretary may fix a time, of not less than 2 days, in which an order, direction or notice comes into effect or must be carried out or complied with if the inspector or Secretary is satisfied that it is necessary to do so.

(6)The court must not make an adverse publicity order unless it is satisfied that the costs of complying with the order do not exceed the maximum penalty amount that the court may impose on the offender for the offence concerned.

(7)The court may make an adverse publicity order in relation to an offender in addition to or instead of—

(a)imposing a penalty on the offender; or

(b)making any other order that the court may make in relation to the offence.

Division 9—General

131Evidence of certain matters

(1)A document appearing to be a copy of an instrument of authorisation of an inspector, approval, agreement or permit issued, granted or made under this Act if accompanied by a certificate appearing to be signed by the Secretary to the effect that it is a copy is evidence and, in the absence of evidence to the contrary, is proof of the existence and contents of the original.

(2)A certificate appearing to be signed by the Secretary to the effect that, on a date specified in the certificate, a person held or did not hold an authority under this Act specified in the certificate is evidence and, in the absence of evidence to the contrary, is proof of the matters stated in the certificate.

132Offences relating to enforcement

(1)A person must not—

(a)without reasonable excuse obstruct or hinder an inspector in exercising the inspector's powers under this Act; or

(b)contravene a lawful direction, order or requirement of an inspector; or

(c)refuse to answer a question lawfully asked by an inspector or to produce a document lawfully required by an inspector; or

(d)give to an inspector any information or answer that is false or misleading if the inspector's request for the information is lawfully made and the person knows the information or answer to be false or misleading in a material particular; or

(e)refuse to produce any plant, plant product, used package, used equipment or earth material when lawfully requested to do so by an inspector; or

(f)give, procure or offer or promise any bribe, recompense, inducement or reward to influence an inspector in the exercise of the inspector's powers or the discharge of the inspector's duties under this Act or attempt to do so; or

(g)interfere with anything done by an inspector in the exercise of the inspector's powers under this Act; or

(h)include in an application or request to the Secretary under this Act a statement that the person knows to be false or misleading in a material respect.

Penalty:60 penalty units.

(2)Despite anything to the contrary in subsection (1), a person may refuse to answer an inspector's question or to produce a document to the inspector if the person believes that the answer or information in the document would tend to incriminate the person.

133Offences about certification

A person who is not an accredited person must not—

(a)issue for, or in respect of, any plant, plant product, used equipment, used package, earth material, bees, honey, beeswax, honeycomb, beehives or pollen anything that purports to be an assurance certificate; or

(b)use for the purposes of this Act anything that purports to be an assurance certificate.

Penalty:In the case of a natural person, 120 penalty units;

In the case of a body corporate, 600 penalty units.

133AOffences about authorisation

(1)A person who is not authorised under section 47A must not—

(a)issue a plant health declaration; or

(b)use, for the purposes of this Act, anything that purports to be a plant health declaration.

Penalty:In the case of a natural person, 60 penalty units;

In the case of a body corporate, 300 penalty units.

(2)Subsection (1) does not apply to a person authorised under a corresponding law to issue a plant health declaration or equivalent.

134False statements in certificates and declarations

(1)A person must not include a statement or information that the person knows to be false in any assurance certificate, plant health certificate, plant health declaration or document that purports to be an assurance certificate, plant health certificate or plant health declaration.

Penalty:In the case of a natural person, 120 penalty units;

In the case of a body corporate, 600 penalty units.

(2)A person must not include a false statement or false information in any assurance certificate, plant health certificate, plant health declaration or document that purports to be an assurance certificate, plant health certificate or plant health declaration.

Penalty:In the case of a natural person, 10 penalty units;

In the case of a body corporate, 60 penalty units.

135Alterations to certificates and declarations

(1)A person must not—

(a)alter or permit to be altered any information or statement in a plant health certificate unless the alteration is authorised in writing by an inspector, inspection agent or officer who is authorised by this Act to issue plant health certificates; or

(b)alter or permit to be altered any information or statement in a plant health declaration unless the alteration is authorised in writing by a person authorised by the Secretary to issue plant health declarations.

Penalty:In the case of a natural person, 120 penalty units;

In the case of a body corporate, 600 penalty units.

(2)A person must not alter or permit to be altered any information or statement in an assurance certificate unless—

(a)the alteration is authorised in writing by the accredited person who issued the assurance certificate; or

(b)the alteration—

(i)relates to the splitting of a consignment to which that assurance certificate relates; and

(ii)is made by a person authorised by the Secretary or by an officer or authority of a State or Territory administering a corresponding law to split consignments.

Penalty:In the case of a natural person, 120 penalty units;

In the case of a body corporate, 600 penalty units.

136Release of information

A person employed under Part 3 of the Public Administration Act 2004 who is authorised by the Secretary either generally or in a particular case may communicate information that comes to the person's knowledge in the exercise of the person's powers or authorities or the discharge of the person's functions or duties under this Act or under any scheme or agreement between the States and Territories of the Commonwealth relating to the movement of material to which this Act applies to—

(a)an officer or authority of a State or Territory of the Commonwealth administering a corresponding law; or

(b)any department or authority of the Commonwealth that the Secretary specifies.

PART 8—GENERAL

137No appeal or review of decisions under section 42

If an order has been made by the Minister under section 42(1), no proceedings for an injunction, or for any order in the nature of a prerogative writ, or an order of any other kind, may be instituted or continued in any court against the Minister, the Secretary, an inspector or any other person that would stop, prevent or restrain the Minister, Secretary, inspector or other person from taking or purporting to take any action, including the making of orders and authorisations under this Act, in relation to, or in consequence of, an outbreak or suspected outbreak of an exotic pest or an exotic disease within Victoria or within any other part of Australia referred to in an order under section 42(1)(b).

138Protection of court actions

Nothing in section 137 prevents the institution or continuation in any court of any action or proceedings to recover damages in respect of any loss incurred or damage suffered as a result of any act or omission in the negligent exercise or purported exercise by any person of a power or authority conferred by or under this Act.

139Supreme Court—limitation of jurisdiction

It is the intention of section 137 to alter or vary section 85 of the Constitution Act 1975.

140Power to approve forms

(1)The Secretary may approve forms for the purposes of this Act.

(2)The Secretary must ensure forms approved under subsection (1) are made available in any manner required to support the administration of this Act.

141Regulations

(1)The Governor in Council may make regulations for or with respect to—

(a)prohibiting or controlling the movement of plants, plant products, used packages, used equipment or earth material which are likely to spread any pests or disease;

(b)securing the effectual treatment of plants, plant products, plant vectors, plant refuse, used equipment, used packages, earth material or beehives affected by or which may be affected by pests or diseases and the effectual control or eradication of any pest or disease and the destruction of any plant, plant product, plant vector, plant refuse, used package, used equipment, earth material or beehive which may be affected with a pest or disease;

(ba)requirements for the testing of plants, plant products, plant vectors, used packages, used equipment, earth materials or beehives;

(bb)requirements for the condition of plants, plant products, plant vectors, used packages, used equipment, earth materials or beehives;

(c)authorising and requiring inspectors to impose fees and charges of such amounts or rates as the Minister may determine for—

(i)inspecting plants, plant products, plant vectors, used packages, used equipment, beehives or land; or

(ii)supervising the treatment of any plant, plant product, plant vector, used package, used equipment, earth material or beehive; or

(iii)supervising the destruction or disposal of any plant, plant product, plant vector, plant refuse, used package, used equipment, earth material or beehive; or

(iv)the preparation of a compliance agreement and ensuring that the agreement is complied with;

(d)exempting any person, place, plant or plant product from the application of this Act, whether wholly or partially or subject to conditions, restrictions or limitations;

(e)requirements for the packing of fruit, vegetables and nuts for human consumption for sale;

(f)the markings to be placed on packages containing fruit, vegetables or nuts for sale and prohibiting the use of marks other than those prescribed;

(g)prescribing a system for lodging and issuing electronic copies of plant health certificates, assurance certificates and plant health declarations in a manner consistent with the Electronic Transactions (Victoria) Act 2000;

(h)prescribing the size, form and quality of labels required to be attached to packages of plants or plant products;

(i)prescribing the manner and size of printing or writing and any particulars to be set out on any package of plants, plant products or any label to the package;

(j)prescribing, generally, any other matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

(2)The regulations—

(a)may be of general or limited application; and

(b)may differ according to differences in time, place or circumstances; and

(c)may leave any matter to be approved or determined by an inspector or the Secretary; and

(d)may confer powers or impose duties on any person; and

(e)may apply, adopt or incorporate by reference any document either—

(i)as in force at the date of the regulations or at any date before then; or

(ii)wholly or in part or as amended by the regulations; and

(f)may require any application, return or other document required by this Act to be verified by statutory declaration; and

(g)may impose penalties not exceeding 10 penalty units for any contravention of the regulations.

(3)Without limiting subsections (1) and (2), for the purposes of Part 2, the regulations may limit or restrict the persons or class of persons authorised or permitted by the Act to issue plant health declarations in relation to particular prescribed material or classes of prescribed material.

(4)The regulations may be disallowed in whole or in part by resolution of the Parliament in accordance with the requirements of section 23(2) of the Subordinate Legislation Act 1994.

PART 9—REPEAL, SAVINGS AND TRANSITIONAL PROVISIONS

142Repeal of Plant Health and Plant Products Act 1995

The Plant Health and Plant Products Act 1995 is repealed.

143Transitional and savings provisions

(1)Despite the repeal of the Plant Health and Plant Products Act 1995, any permit, notice or direction issued or made by an inspector, the Secretary or the Minister under that Act and in force immediately before the commencement of this section continues in operation under this Act and is taken to be a permit, notice or direction issued under this Act.

(2)Despite the repeal of the Plant Health and Plant Products Act 1995, any Order under that Act by—

(a)the Governor in Council; or

(b)the Minister; or

(b)an inspector (except for orders made under section 57 of that Act)—

and in force immediately before the commencement of this section continues in operation under this Act and is taken to be an Order made under this Act.

(3)Despite the repeal of the Plant Health and Plant Products Act 1995, any consent given by the Minister under section 6(2)(d) or 6(3A) of that Act and in force immediately before the commencement of this section continues in operation under this Act and is taken to be a consent given under this Act.

144Transitional provision—Plant Biosecurity Amendment Act 2013

(1)Without limiting sections 59A, 59B, 59C and 59D, those sections apply to the recovery of an amount of reasonable costs and expenses incurred under section 58(1) on or after 1 July 2013 but not paid before the commencement date, whether a determination by the Minister under section 58(2) in relation to the recovery of the costs and expenses was made before the commencement date or is made after that date.

(2)Subsection (1) applies to the recovery of an amount determined to be owing even though the prescribed owner of the land to which the determination relates was not given notice under section 25(5) or 35(5) or, in the case of a determination made by the Minister before the commencement date, under section 58(4).

(3)In this section—

commencement date means the date of commencement of section 7 of the Plant Biosecurity Amendment Act 2013.

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ENDNOTES

1   General information

See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 28 July 2010

Legislative Council: 12 August 2010

The long title for the Bill for this Act was "A Bill for an Act to re-enact with amendments the laws relating to plant pest and disease control and plant product description, to repeal the Plant Health and Plant Products Act 1995 and for other purposes."

Constitution Act 1975:

Section 85(5) statement:

Legislative Assembly: 28 July 2010

Legislative Council: 12 August 2010

Absolute majorities:

Legislative Assembly: 12 August 2010

Legislative Council: 2 September 2010

The Plant Biosecurity Act 2010 was assented to on 14 September 2010 and came into operation on 1 July 2012: section 2(2).

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

•     Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act.  Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act.  This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms.  See section 36(1A)(2A).

•     Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act.  Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act.  See section 36(3A).

•     Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act.  Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act.  See section 36(3B).

•     Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001.  Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs.  See section 36(3C).

•     Location of "legislative items"

A "legislative item" is a penalty, an example or a note.  As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision.  For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision.  See section 36B.

•     Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act. 
See section 36(3)(3D)(3E).

2   Table of Amendments

This publication incorporates amendments made to the Plant Biosecurity Act 2010 by Acts and subordinate instruments.

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Integrity and Accountability Legislation Amendment Act 2012, No. 82/2012

Assent Date:	18.12.12
Commencement Date:	S. 295 on 10.2.13: Special Gazette (No. 32) 6.2.13 p. 2
Current State:	This information relates only to the provision/s amending the Plant Biosecurity Act 2010

Plant Biosecurity Amendment Act 2013, No. 54/2013

Assent Date:	24.9.13
Commencement Date:	Ss 3–8 on 25.9.13: s. 2
Current State:	This information relates only to the provision/s amending the Plant Biosecurity Act 2010

Statute Law Revision Act 2013, No. 70/2013

Assent Date:	19.11.13
Commencement Date:	S. 4(Sch. 2 item 37) on 1.12.13: s. 2(1)
Current State:	This information relates only to the provision/s amending the Plant Biosecurity Act 2010

Victoria Police Amendment (Consequential and Other Matters) Act 2014, No. 37/2014

Assent Date:	3.6.14
Commencement Date:	S. 10(Sch. item 125) on 1.7.14: Special Gazette (No. 200) 24.6.14 p. 2
Current State:	This information relates only to the provision/s amending the Plant Biosecurity Act 2010

Primary Industries Legislation Amendment Act 2014, No. 71/2014

Assent Date:	30.9.14
Commencement Date:	Ss 39–47 on 1.7.15: s. 2(3)
Current State:	This information relates only to the provision/s amending the Plant Biosecurity Act 2010

Oaths and Affirmations Act 2018, No. 6/2018

Assent Date:	27.2.18
Commencement Date:	S. 68(Sch. 2 item 96) on 1.3.19: s. 2(2)
Current State:	This information relates only to the provision/s amending the Plant Biosecurity Act 2010

Primary Industries Legislation Amendment Act 2019, No. 40/2019

Assent Date:	6.11.19
Commencement Date:	Ss 79–83 on 1.2.20: s. 2(2)
Current State:	This information relates only to the provision/s amending the Plant Biosecurity Act 2010

Agriculture Legislation Amendment Act 2022, No. 22/2022

Assent Date:	15.6.22
Commencement Date:	Ss 145–164 on 5.4.23: s. 2(2)
Current State:	This information relates only to the provision/s amending the Plant Biosecurity Act 2010

Biosecurity Legislation Amendment (Incident Response) Act 2024, No. 1/2024

Assent Date:	13.2.24
Commencement Date:	Ss 60−89 on 22.4.24: Special Gazette (No. 182) 16.4.24 p. 1
Current State:	This information relates only to the provision/s amending the Plant Biosecurity Act 2010

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3   Explanatory details

No entries at date of publication.