Primary Industries Legislation (Miscellaneous Amendments) Act 2004 (Vic)
Primary Industries Legislation (Miscellaneous Amendments) Act 2004
Act No. 22/2004
table of provisions
Section Page
Part 1—Preliminary
1.Purposes
2.Commencement
Part 2—Amendments to the Agricultural and Veterinary Chemicals (Control of Use) Act 1992
3.Powers of authorised officers to take samples and specimens
4.Repeal of provision relating to age of committee members
Part 3—Amendment to the Dairy Act 2000
5.Insertion of new section 21A
21A.Minister to ensure tabling of report
Part 4—Amendments to the Fisheries Act 1995
6.Clarification of scope of section 11A
7.Levies that may be prescribed for Rock Lobster Fishery Access Licences
8.Appointment of person to vacant office of body
Part 5—Amendments to the Fisheries (Further Amendment) Act 2003
9.Amendments to provisions concerning who may hold access
and aquaculture licences
Part 6—Amendments to the Plant Health and Plant Products Act 1995
10.Declaration of control areas
11.Substitution of new Division heading
12.Insertion of new section 28A
28A.Protection of actions relating to areas where exotic pest or disease exists
13.Insertion of new section 71E
71E.Supreme Court—limitation of jurisdiction
Part 7—Amendments to the Stock (Seller
Liability and Declarations) Act 1993
14.Seller may make an ongoing declaration as to disease status
15.Seller may make a one-off declaration as to disease status
16.Withdrawal of an ongoing declaration
17.Substitution of new section 16
16.Registration of ongoing declarations
18.Substitution of new section 17 and insertion of new
section 17A17.Secretary may suspend registration of ongoing declaration on certain grounds
17A.Secretary may cancel registration of suspended declaration if grounds remain
19.Insertion of new Part 4A
Part 4A—Review by Victorian Civil and Administrative Tribunal
22A.Review by VCAT
20.Other declarations as to quality of stock
21.Amendment to regulation-making powers
Part 8—the Australian Food Industry Science Centre
22.Definitions
23.Repeal of Australian Food Industry Science Centre Act 1995
24.Abolition of Centre, Board and committees
25.Money in Fund vests in Trust Account
26.State to be successor in law to Centre
27.Certain leases deemed to be granted in accordance with the repealed Act
28.Continuation of reservation of Centre land
29.Amendment to the Borrowing and Investment Powers
Act 1987
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Endnotes
Primary Industries Legislation (Miscellaneous Amendments) Act 2004
[Assented to 18 May 2004]
The Parliament of Victoria enacts as follows:
Part 1—Preliminary
1.Purposes
The main purposes of this Act are—
(a)to amend the Agricultural and Veterinary Chemicals (Control of Use) Act 1992, the Dairy Act 2000, the Fisheries Act 1995, the Fisheries (Further Amendment) Act 2003, the Plant Health and Plant Products Act 1995 and the Stock (Seller Liability and Declarations) Act 1993; and
(b)to repeal the Australian Food Industry Science Centre Act 1995.
2.Commencement
(1)This Act, except sections 22 to 26, 28 and 29, comes into operation on the day after the day on which it receives the Royal Assent.
(2)Subject to sub-section (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.
(3)If a provision referred to in sub-section (2) does not come into operation before 1 January 2005, it comes into operation on that day.
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Part 2Amendments to the Agricultural and Veterinary Chemicals (Control of Use) Act 1992—
3.Powers of authorised officers to take samples and specimens
(1)Sections 54(1)(i)(ii) and 54(1)(i)(iii) of the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 are repealed.
(2)After section 54(1) of the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 insert—
"(1A)An authorised officer has the power to take and remove for analysis or examination—
(a)samples of any agricultural produce;
(b)samples of a plant (whether alive or dead) that is not agricultural produce;
(c)specimens from an animal, or the carcass of an animal that is not agricultural produce;
(d)samples of soil or water;
(e)samples of material deposited in or on an object—
for the following purposes—
(f)to ascertain whether this Act or any regulations or Orders made under this Act are being complied with; or
(g)if an officer reasonably believes that the taking and removing of the specimens or samples will assist, to ascertain—
(i)possible sources of agricultural spraying; or
(ii)the cause of stock or agricultural produce being contaminated.".
(3)In section 54(4) of the Agricultural and Veterinary Chemicals (Control of Use) Act 1992—
(a)after "sub-section (1)(i)" insert "or (1A)";
(b)for "or animal" substitute ", plant, animal or object".
4.Repeal of provision relating to age of committee members
Section 66(5) of the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 is repealed.
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Part 3Amendment to the Dairy Act 2000—
5.Insertion of new section 21A
After section 21 of the Dairy Act 2000 insert—
"21A.Minister to ensure tabling of report
The Minister must ensure that any annual report of the Geoffrey Gardiner Dairy Foundation Ltd ACN 094 733 418 that the Minister receives is tabled in each House of Parliament within 10 sitting days after the day that he or she receives the report.".
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Part 4—Amendments to the Fisheries Act 1995
6.Clarification of scope of section 11A
At the end of section 11A of the Fisheries Act 1995 insert—
"(2)Sub-section (1) does not limit the application of any provision of this Act.".
7.Levies that may be prescribed for Rock Lobster Fishery Access Licences
In section 151(2) of the Fisheries Act 1995—
(a)in paragraph (d), for "held." substitute "held; or";
(b)after paragraph (d) insert—
"(e)in the case of a Rock Lobster Fishery Access Licence, in proportion to—
(i)the number of rock lobster pots specified in the licence; and
(ii)the number of quota units held.".
8.Appointment of person to vacant office of body
In clause 4(2) in Schedule 1 to the Fisheries Act 1995, for "member" (where secondly occurring) substitute "person".
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Part 5Amendments to the Fisheries (Further Amendment) Act 2003—
9.Amendments to provisions concerning who may hold access and aquaculture licences
(1)In section 29(3) of the Fisheries (Further Amendment) Act 2003, in proposed section 57(12) of the Fisheries Act 1995, for "if the licence is held by more than one person" substitute "unless the person who is to hold the renewed licence is an individual, a single corporation or a co-operative".
(2)In section 30 of the Fisheries (Further Amendment) Act 2003, in proposed section 57A of the Fisheries Act 1995—
(a)in the heading, for "held by more than one person" substitute "not held by one person";
(b)in sub-section (1)(a), for "held by more than one person" substitute "not held by an individual, a single corporation or a co-operative";
(c)in sub-section (1)(b), for "one, and one only, of those people" substitute ", an individual, a single corporation or a co-operative that holds the licence or that is a successor of a person who holds the licence,";
(d)in sub-section (2)(a), for "one, and one only, of those people" substitute "an individual, a single corporation or a co-operative that held the licence or that is a successor of a person who held the licence, immediately before it was suspended,".
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Part 6—Amendments to the Plant Health and Plant Products Act 1995
10.Declaration of control areas
(1)In section 9(4) of the Plant Health and Plant Products Act 1995—
(a)for "or plant product" substitute ", plant product, used package, used agricultural equipment or soil";
(b)for "or plant products" substitute ", plant products, used packages, used agricultural equipment or soil".
(2)In section 9(5) of the Plant Health and Plant Products Act 1995—
(a)for "or soil" (where first and thirdly occurring) substitute ", used packages, used agricultural equipment or soil";
(b)omit "for scientific purposes or to examine samples of the plants, plant products or soil".
11.Substitution of new Division heading
For the heading to Division 4 of Part 3 of the Plant Health and Plant Products Act 1995 substitute—
"Division 4Special Provisions"—.
12.Insertion of new section 28A
After section 28 of the Plant Health and Plant Products Act 1995 insert—
"28A.Protection of actions relating to areas where exotic pest or disease exists
(1)The Minister may by order in writing 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)If an order has been made by the Minister under sub-section (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 sub-section (1)(b).
(3)An order under this section comes into force on the date it is published in the Government Gazette.
(4)Nothing in this section 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.".
13.Insertion of new section 71E
After section 71D of the Plant Health and Plant Products Act 1995 insert—
"71E.Supreme Courtlimitation of jurisdiction—
It is the intention of section 28A(2) to alter or vary section 85 of the Constitution Act 1975.".
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Part 7Amendments to the Stock (Seller Liability and Declarations) Act 1993—
14.Seller may make an ongoing declaration as to disease status
In section 11(1)(a) of the Stock (Seller Liability and Declarations) Act 1993—
(a)in sub-paragraph (ii) for "Part; and" substitute "Part; or";
(b)after sub-paragraph (ii) insert—
"(iii)will be, or will not be, free of certain diseases described in the regulations for the purposes of this Part; and".
15.Seller may make a one-off declaration as to disease status
In section 12(1)(a) of the Stock (Seller Liability and Declarations) Act 1993—
(a)in sub-paragraph (ii) for "Part; and" substitute "Part; or";
(b)after sub-paragraph (ii) insert—
"(iii)will be, or will not be, free of certain diseases described in the regulations for the purposes of this Part; and".
16.Withdrawal of an ongoing declaration
In section 14(1) of the Stock (Seller Liability and Declarations) Act 1993, after "ongoing declaration" insert "that has been registered by the Secretary".
17.Substitution of new section 16
For section 16 of the Stock (Seller Liability and Declarations) Act 1993 substitute—
"16.Registration of ongoing declarations
(1)The Secretary may register an ongoing declaration if—
(a)requested in writing to do so by the person who made the declaration; and
(b)the request for registration is accompanied by the required fee (if any).
(2)The Secretary may refuse to register the declaration if—
(a)the person making the declaration has been convicted of an offence against section 11 or 12 within the 3 years immediately before the date the registration is requested; or
(b)the Secretary has reasonable grounds for believing that the person making the declaration will be unable to comply with any part of the declaration.
(3)In deciding whether to refuse registration on the ground set out in sub-section (2)(a), the Secretary must have regard to the seriousness of the offence.
(4)The Secretary must, within 14 days of making a decision under sub-section (1) or (2), give the person—
(a)written notice of the decision, including the date of the decision; and
(b)if the Secretary refuses the registration, a written statement setting out the reasons for refusing the registration which must accompany the notice.".
18.Substitution of new section 17 and insertion of new section 17A
For section 17 of the Stock (Seller Liability and Declarations) Act 1993 substitute—
"17.Secretary may suspend registration of ongoing declaration on certain grounds
(1)The Secretary may suspend the registration of an ongoing declaration for a period not exceeding 3 years if the Secretary is satisfied that any of the following grounds exist—
(a)the person who made the declaration will be unable to comply with any part of the declaration;
(b)the person who made the declaration has not complied with any part of the declaration;
(c)the continued existence of the declaration on the register may cause damage to the Victorian or Australian livestock industry or any segment of that industry.
(2)The Secretary must give written notice to a person whose declaration has been suspended of the decision to suspend the registration (including the date of the decision) accompanied by a written statement setting out the reasons for suspending the registration.
(3)A suspension of the registration of an ongoing declaration takes effect on—
(a)the 28th day after the person who made the declaration received the notice of the suspension under sub-section (2); or
(b)if the person requests a statement of reasons for the decision under the Victorian Civil and Administrative Tribunal Act 1998, the 28th day after the day on which the statement is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given; or
(c)if the person applies to the Victorian Civil and Administrative Tribunal for a review of the decision, the day that the Tribunal affirms the decision of the Secretary to suspend the registration.
17A.Secretary may cancel registration of suspended declaration if grounds remain
(1)The Secretary may cancel the registration of an ongoing declaration that has been suspended under section 17.
(2)The Secretary may cancel the registration if—
(a)more than half the period of the suspension has expired; and
(b)the Secretary is satisfied that any of the grounds upon which the suspension was based still exist.
(3)If the Secretary cancels the registration of an ongoing declaration, he or she must, within 14 days of the decision to cancel the registration, give to the person whose registration is cancelled a written notice setting out the following—
(a)that the Secretary has decided to cancel the registration;
(b)the date of the decision;
(c)the reasons why the Secretary is satisfied that the ground or grounds for suspension still exist;
(d)that the person may apply for a review of the decision under section 22A.
(4)The cancellation of the registration of an ongoing declaration takes effect on—
(a)the 28th day after the day that the person who made the declaration received notice of the cancellation under sub-section (3); or
(b)if the person requests a statement of reasons for the decision under the Victorian Civil and Administrative Tribunal Act 1998, the 28th day after the day on which the statement is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given; or
(c)if the person applies to the Victorian Civil and Administrative Tribunal for a review of the decision, the date that the Tribunal affirms the decision of the Secretary to cancel the registration.
(5)If—
(a)the Secretary cancels the registration of an ongoing declaration; and
(b)gives notice of the cancellation within the period of suspension; and
(c)the period of suspension of the registration expires before the cancellation takes effect under sub-section (4)—
the suspension is to be treated as continuing to have effect until the day the cancellation takes effect. ".
19.Insertion of new Part 4A
After Part 4 of the Stock (Seller Liability and Declarations) Act 1993 insert—
"Part 4A—Review by Victorian Civil and Administrative Tribunal
22A.Review by VCAT
(1)A person whose interests are affected by the relevant decision may apply to the Victorian Civil and Administrative Tribunal established under the Victorian Civil and Administrative Tribunal Act 1998 for review of—
(a)a decision to refuse to register an ongoing declaration; or
(b)a decision to suspend the registration of an ongoing declaration; or
(c)a decision to cancel the registration of an ongoing declaration.
(2)An application for review under sub-section (1) must be made within 28 days—
(a)of the day on which the Secretary gives notice of the decision to the person; or
(b)if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, of the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.".
20.Other declarations as to quality of stock
For section 18A(1)(b) of the Stock (Seller Liability and Declarations) Act 1993 substitute—
"(b)that relates to the—
(i)treatment of that stock; or
(ii)feed of that stock; or
(iii)husbandry of that stock; or
(iv)pasturing of that stock; or
(v)health status of that stock, including whether or not it is free from disease; or
(vi)testing of that stock for the presence of disease; and".
21.Amendment to regulation-making powers
In section 38(1) of the Stock (Seller Liability and Declarations) Act 1993—
(a)in paragraph (g), for "conditions and characteristics" substitute "conditions, diseases and other characteristics";
(b)in paragraph (i), after "not having, a" insert "disease or other";
(c)in paragraph (j), for "condition or characteristic" substitute "condition, disease or other characteristic".
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Part 8—The Australian Food Industry Science Centre
22.Definitions
In this Part—
"Centre" means the Australian Food Industry Science Centre established by section 5 of the Australian Food Industry Science Centre Act 1995;
"Centre land" means the land shown cross-hatched on the plan in the Schedule to the repealed Act;
"commencement day" means the day on which section 23 comes into operation;
"Board" means the board of directors of the Centre;
"repealed Act" means the Australian Food Industry Science Centre Act 1995 repealed by section 23.
23.Repeal of Australian Food Industry Science Centre Act 1995
The Australian Food Industry Science Centre Act 1995 is repealed.
24.Abolition of Centre, Board and committees
On the commencement day—
(a) the Centre is abolished;
(b)the Board is abolished and the directors of the Board go out of office;
(c)any advisory committee established by the Board under section 22 of the repealed Act is abolished and any member of such a committee ceases to be a member of that committee;
(d)the Office of the Chief Executive Officer of the Centre appointed under section 21 of the repealed Act is abolished and the person holding that office goes out of office.
25.Money in Fund vests in Trust Account
On the commencement day, any money standing to the credit of the Australian Food Industry Science Centre Fund established by section 24 of the repealed Act vests in the Trust Account established under section 19 of the Financial Management Act 1994 and known as the Primary Industries Project Trust Account.
26.State to be successor in law to Centre
(1)On the commencement day—
(a)all rights, property and assets (including records and documents) that immediately before that day were vested in the Centre are, by force of this sub-section, vested in the State;
(b)all debts, liabilities and obligations of the Centre existing immediately before that day become, by force of this sub-section, debts, liabilities and obligations of the State;
(c)the State is, by force of this sub-section, substituted as a party to any arrangement, agreement or contract or lease over land entered into by or on behalf of the Centre as a party and in force immediately before that day;
(d)the State is, by force of this sub-section, substituted as a party to any proceeding pending in any court or tribunal to which the Centre was a party immediately before that day.
(2)On and after the commencement day, unless a contrary intention appears, a reference to the Centre or to the Board in any document whatsoever (other than this Act) is deemed to be a reference to the State.
27.Certain leases deemed to be granted in accordance with the repealed Act
(1)The lease granted or purported to be granted by the Chief Executive Officer of the Centre on behalf of the Centre to Eureka! AgResearch Pty Ltd ACN 086 194 738 on 2 September 2002 over the Centre land described in that lease as being—
(a)part of the building known as the Gilbert Chandler Centre situated in Sneydes Road Werribee; and
(b)part of the building known as the Resource Centre Building situated in Dairy Road Werribee; and
(c)part of the area known as the Resource Centre compound situated in Dairy Road Werribee—
is deemed to have been granted by the Centre in accordance with section 7(2)(g) of the repealed Act.
(2)The lease granted or purported to be granted under section 7(2)(g) of the repealed Act to the University of Melbourne (Institute of Land and Food Resources) ABN 84 002 705 224 on 18 September 1997 in respect of the Centre land described in that lease as being part of the building known as the Gilbert Chandler Centre situated in Sneydes Road Werribee is deemed to have been granted by the Centre in accordance with that section with the approval of the Minister who was at that time responsible for the repealed Act.
28.Continuation of reservation of Centre land
Despite the repeal of section 27 of the repealed Act, the Centre land continues to be temporarily reserved in accordance with section 27(2)(b) of that Act.
29.Amendment to the Borrowing and Investment Powers Act 1987
Item 36 in Schedule 1 to the Borrowing and Investment Powers Act 1987 is repealed.
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EndnoteS
Minister's second reading speech—
Legislative Assembly: 21 April 2004
Legislative Council: 6 May 2004
The long title for the Bill for this Act was "to amend the Agricultural and Veterinary Chemicals (Control of Use) Act 1992, the Dairy Act 2000, the Fisheries Act 1995, the Fisheries (Further Amendment) Act 2003, the Plant Health and Plant Products Act 1995 and the Stock (Seller Liability and Declarations) Act 1993 and to repeal the Australian Food Industry Science Centre Act 1995 and for other purposes."
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 21 April 2004
Legislative Council: 6 May 2004
Absolute majorities:
Legislative Assembly: 5 May 2004
Legislative Council: 11 May 2004
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