The Biosecurity Act 2015 was recently assented to and once it commences it will mean more important changes for local government. The new legislation significantly reforms the management of pests, diseases, weeds and contaminants in NSW. Importantly for local government, the Biosecurity Act repeals the Noxious Weeds Act 1993 which established local councils (or in some areas, county councils) as Local Control Authorities (LCAs). LCAs will continue to be responsible under the new legislation for ensuring the control of noxious weeds on private land by its owners and occupiers, on land that the LCA itself owns or manages, and on certain roads, rivers, watercourses and inland waters.
LCAs will have power to appoint “Authorised Officers” in respect of weed management only. However, the Secretary of the Department of Industry has power to give broader powers to an Authorised Officer appointed by a LCA whereby these officers could be authorised to assist with, for example, emergencies or where a LCA wishes to participate in pest management such as to control wild dogs, cane toads or bees. A LCAs Authorised Officer/s could be appointed with such broader powers by the Secretary, or this power to appoint could be delegated by the Secretary to a LCA. It is also possible for two or more LCAs to enter into an arrangement whereby an Authorised Officer of one LCA is authorised to exercise functions in relation to land of another LCA.
The Biosecurity Act contains savings provisions which provide that an Inspector appointed by a LCA under the Noxious Weeds Act before its repeal is taken to be appointed as an Authorised Officer under the Biosecurity Act. An Instrument of Authority issued under the Noxious Weeds Act is taken to be sufficient evidence of authority as an Authorised Officer under the Biosecurity Act.
One of the key powers of Authorised Officers is to give a Biosecurity notice (or alternatively, accept a written undertaking):
- to direct a person how to comply with obligations under the Biosecurity Act • requiring a person to take, or refrain from taking, action, in order to prevent, eliminate or minimise biosecurity risks or suspected biosecurity risks.
- to ensure a person discharges his or her general biosecurity duty and to prevent, eliminate or minimise a biosecurity risk or suspected biosecurity risk.
The Biosecurity Act 2015 introduces several key concepts, including:
general biosecurity duty provides that any person who deals with biosecurity matter or a carrier and who knows, or ought reasonably to know, the biosecurity risk posed or likely to be posed by the biosecurity matter, carrier or dealing has a biosecurity duty to ensure that, so far as is reasonably practicable, the biosecurity risk is prevented, eliminated or minimised.
biosecurity risk means the risk of a biosecurity impact occurring.
biosecurity impact means an adverse effect on the economy, the environment or the community that arises, or has the potential to arise, from biosecurity matter, a carrier or dealing with biosecurity matter or a carrier, being an adverse effect that is related to:
(a) the introduction, presence, spread or increase of a disease or disease agent into or within the State or any part of the State, or
(b) the introduction, presence, spread or increase of a pest into or within the State or any part of the State, or
(c) stock food or fertilisers, or
(d) animals, plants or animal products becoming chemically affected, or
(e) public nuisance caused by bees, or
(f) a risk to public safety caused by bees or non-indigenous animals, or
(g) any thing declared by the regulations to be a biosecurity impact.
biosecurity matter means:
(a) any living thing, other than a human, or
(b) any part of an animal, plant or living thing, other than a human, or
(c) a product of a living thing, other than a human, or
(d) a disease, or
(e) a prion, or
(f) a contaminant, or
(g) a disease agent that can cause disease in a living thing (other than a human) or that can cause disease in a human via transmission from a non-human host to a human, or
(h) any thing declared by the regulations to be biosecurity matter.
The Biosecurity Act 2015 has been passed and assented to however none of its provisions are as yet in force. Before the new legislation can commence, supporting Regulations, instruments and policies and procedures will need to be made.
Local Government Legal’s Delegations Database and Legislative Compliance Database will be updated once relevant provisions come into force.
Note: This information is not to be relied upon as legal advice.