Federal Register of Legislation - Australian Government

Primary content

Biosecurity Bill 2012

  • - C2012B00222
A Bill for an Act relating to diseases and pests that may cause harm to human, animal or plant health or the environment, and for related purposes
Administered by: Agriculture, Fisheries and Forestry
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 30 Nov 2012
Introduced Senate 28 Nov 2012

2010‑2011‑2012

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

Biosecurity Bill 2012

 

No.      , 2012

 

(Agriculture, Fisheries and Forestry)

 

 

 

A Bill for an Act relating to diseases and pests that may cause harm to human, animal or plant health or the environment, and for related purposes

  

  

  


Contents

Chapter 1—Preliminary                                                                                         1

Part 1—Preliminary                                                                                                             1

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 2

3............ Guide to this Act................................................................................. 2

4............ Objects of this Act.............................................................................. 5

5............ Appropriate Level of Protection (ALOP) for Australia against biosecurity risks     6

6............ Act binds the Crown........................................................................... 6

7............ Extension of Act to Christmas Island, Cocos (Keeling) Islands and other prescribed external Territories               6

8............ Concurrent operation of State and Territory laws................................ 6

Part 2—Definitions                                                                                                                8

9............ Definitions.......................................................................................... 8

10.......... Meaning of approved arrangement.................................................. 28

11.......... Meaning of Australian territory........................................................ 28

12.......... Meaning of biosecurity entry point................................................... 29

13.......... Meaning of biosecurity industry participant and covered by............ 29

14.......... Meaning of commercial‑in‑confidence.............................................. 30

15.......... Meaning of conveyance..................................................................... 30

16.......... Meaning of exposed to...................................................................... 31

17.......... Meaning of first point of entry.......................................................... 31

18.......... Meaning of goods............................................................................. 32

19.......... Meaning of installation..................................................................... 32

20.......... Meaning of operator of a conveyance.............................................. 33

21.......... Meaning of person in charge............................................................ 33

Part 3—Constitutional and international law provisions                            35

Division 1—Introduction                                                                                          35

22.......... Guide to this Part.............................................................................. 35

Division 2—Constitutional and international law provisions                36

23.......... Severability....................................................................................... 36

24.......... Application of this Act in relation to pests that are quarantine risks or invasive pests              38

25.......... Application of this Act in relation to invasive pests.......................... 38

26.......... Compensation for acquisition of property......................................... 39

27.......... Freedom of interstate trade, commerce and intercourse..................... 39

28.......... Commonwealth not to give preference.............................................. 40

29.......... Application of this Act to foreign aircraft and vessels....................... 40

Part 4—Principles affecting decisions to exercise certain powers          41

30.......... Guide to this Part.............................................................................. 41

31.......... The principles.................................................................................... 41

Chapter 2—Managing biosecurity risks: human health    44

Part 1—General protections and listing human diseases                             44

Division 1—Introduction                                                                                          44

32.......... Guide to this Part.............................................................................. 44

Division 2—Protections                                                                                             45

Subdivision A—General protections                                                                   45

33.......... The principles.................................................................................... 45

34.......... No interference with urgent or life‑threatening medical needs........... 46

Subdivision B—Protections for children or incapable persons                   46

35.......... Child or incapable person may be accompanied................................ 46

36.......... Officer to contact parent, guardian or next of kin of unaccompanied child or incapable person               46

37.......... Requirement to comply with direction............................................... 47

38.......... Parent, guardian or next of kin may authorise person to accompany child or incapable person                48

39.......... Giving consent.................................................................................. 48

40.......... Exception for requiring an individual to remain at a place................. 48

Division 3—Listing human diseases                                                                    49

41.......... Listing human diseases..................................................................... 49

Part 2—Preventing risks to human health                                                           50

Division 1—Introduction                                                                                          50

42.......... Guide to this Part.............................................................................. 50

Division 2—Entry and exit requirements                                                        51

43.......... Entry requirements............................................................................ 51

44.......... Exit requirements.............................................................................. 52

45.......... Civil penalties for failing to comply with certain entry and exit requirements           54

Division 3—Contact information for operators                                           56

46.......... Requirements for operators to provide 24/7 contact information....... 56

Division 4—Pratique                                                                                                   57

47.......... Positive pratique................................................................................ 57

48.......... Negative pratique.............................................................................. 57

49.......... Pre‑departure reporting..................................................................... 58

Division 5—Preventative biosecurity measures                                           60

50.......... Determining preventative biosecurity measures................................ 60

51.......... Civil penalty for failing to comply with a preventative biosecurity measure             61

Division 6—Information gathering powers                                                    62

52.......... Who may ask questions and require written information.................. 62

53.......... Asking questions and requiring answers from particular individuals 62

54.......... Asking questions and requiring answers from any individual.......... 63

55.......... Requiring an individual to provide written information..................... 64

56.......... Offence for failing to comply with a requirement.............................. 64

Part 3—Managing risks to human health: human biosecurity control orders     65

Division 1—Introduction                                                                                          65

57.......... Guide to this Part.............................................................................. 65

Division 2—Imposing human biosecurity control orders on individuals               66

Subdivision A—Imposing, varying and revoking human biosecurity control orders  66

58.......... Imposing a human biosecurity control order on an individual........... 66

59.......... Contents of a human biosecurity control order.................................. 67

60.......... Form of a human biosecurity control order....................................... 68

61.......... Giving a human biosecurity control order to an individual................ 68

62.......... Varying a human biosecurity control order....................................... 69

63.......... Giving notice of a variation of a human biosecurity control order..... 69

64.......... Revoking a human biosecurity control order..................................... 70

65.......... Notifying Director of Human Biosecurity of imposition, variation or revocation of human biosecurity control order.......................................................................................................... 70

Subdivision B—Powers if officer intends to impose human biosecurity control order               71

66.......... Requiring an individual to remain at a place...................................... 71

67.......... Providing contact information........................................................... 71

68.......... Requirement for an individual to notify changes to contact information 72

Subdivision C—When an individual is required to comply with a biosecurity measure             72

69.......... Consenting to a biosecurity measure................................................. 72

70.......... Director of Human Biosecurity may give direction requiring compliance                73

71.......... When direction to comply with biosecurity measure ceases to be in force                75

72.......... When individual is required to comply with a biosecurity measure... 76

Subdivision D—AAT review of isolation and traveller movement measures 78

73.......... Obligation on Director of Human Biosecurity relating to Administrative Appeals Tribunal application  78

74.......... Applications...................................................................................... 79

75.......... Reasons and documents.................................................................... 80

76.......... Time period for making a decision.................................................... 81

77.......... Limitation on Administrative Appeals Tribunal power to stay etc. decisions           82

Subdivision E—Other provisions relating to external review of isolation and traveller movement measures     82

78.......... Time period for making applications under the Administrative Decisions (Judicial Review) Act 1977     82

79.......... Judicial review of isolation and traveller movement measures.......... 83

Division 3—Biosecurity measures that may be included in a human biosecurity control order              84

Subdivision A—General provisions relating to including biosecurity measures in a human biosecurity control order                                                                                                         84

80.......... Who can include a biosecurity measure in a human biosecurity control order          84

81.......... Informing individual of risks............................................................ 84

82.......... Test for including a biosecurity measure in a human biosecurity control order        85

Subdivision B—Biosecurity measures that may be included in a human biosecurity control order        85

83.......... Managing contacts............................................................................ 85

84.......... Contacting officer with health status................................................. 85

85.......... Restricting behaviour........................................................................ 86

86.......... Risk minimisation interventions........................................................ 86

87.......... Decontamination............................................................................... 87

88.......... Undergoing an examination.............................................................. 87

89.......... Requiring body samples for diagnosis.............................................. 87

90.......... Receiving a vaccination or treatment................................................. 88

91.......... Receiving medication........................................................................ 88

92.......... Appropriate medical or other standards to be applied........................ 89

93.......... No use of force to require compliance with certain biosecurity measures 89

94.......... Traveller movement measure............................................................. 89

95.......... Isolation measure.............................................................................. 90

Subdivision C—Provisions relating to traveller movement measures       90

96.......... Traveller movement measure alert..................................................... 90

97.......... Content of traveller movement measure alert..................................... 92

98.......... Destruction of traveller movement measure alert............................... 92

99.......... Prevention from leaving Australian territory..................................... 92

Division 4—Other provisions relating to human biosecurity control orders     94

Subdivision A—Consular assistance                                                                   94

100........ Consular assistance........................................................................... 94

Subdivision B—Detention                                                                                      95

101........ Detention........................................................................................... 95

102........ Rules relating to detention................................................................. 96

103........ Release from detention...................................................................... 97

104........ Offence for escaping from detention................................................. 97

Subdivision C—Miscellaneous                                                                              98

105........ Offence for failing to comply with a human biosecurity control order 98

106........ Expenses incurred in complying with human biosecurity control orders  98

Part 4—Managing risks to human health: other biosecurity measures 99

Division 1—Introduction                                                                                          99

107........ Guide to this Part.............................................................................. 99

Division 2—Managing deceased individuals                                                100

108........ Human remains brought into Australian territory............................ 100

109........ Officer may give directions for managing human remains.............. 101

110........ Individuals who have died in transit or on arrival........................... 101

Division 3—Human health response zones                                                   103

111........ Determining human health response zones..................................... 103

112........ Consultation requirements............................................................... 104

113........ Notification requirements................................................................ 104

114........ Civil penalty for failing to comply with a requirement of a human health response zone determination   105

Chapter 3—Managing biosecurity risks: goods                        106

Part 1—Goods brought into Australian territory                                          106

Division 1—Introduction                                                                                        106

115........ Guide to this Part............................................................................ 106

116........ Objects of this Part.......................................................................... 107

Division 2—Goods are subject to biosecurity control                            108

117........ Goods brought into Australian territory are subject to biosecurity control               108

Division 3—Notice of goods to be unloaded in Australian territory 109

118........ Notice must be given of goods to be unloaded in Australian territory 109

119........ Notice of goods to be unloaded in Australian territory—requirement to give additional or corrected information   111

Division 4—Assessment of level of biosecurity risk                                 113

120........ Biosecurity risk assessment powers................................................ 113

121........ Direction to secure goods................................................................ 113

122........ Inspecting goods and taking samples.............................................. 113

123........ Asking questions about goods........................................................ 114

124........ Requiring documents relating to goods to be produced................... 114

125........ Movement of goods........................................................................ 115

126........ Biosecurity control notice may be affixed to goods or given to person in charge of goods      116

127........ Unauthorised persons must not move etc. goods in relation to which direction has been given or notice has been affixed........................................................................................................ 117

Division 5—Biosecurity measures to manage unacceptable level of biosecurity risk    118

128........ Biosecurity measures may be required in relation to goods............. 118

129........ Movement of goods........................................................................ 118

130........ Treatment of goods......................................................................... 118

131........ Treatment that may damage goods.................................................. 119

132........ Export of goods.............................................................................. 121

133........ Destruction of goods....................................................................... 121

134........ Regulations may provide for other biosecurity measures................ 122

135........ Powers of biosecurity officer if biosecurity measures are required. 123

136........ Biosecurity officer may affix notice to goods.................................. 124

137........ Person must comply with direction to take biosecurity measures.... 125

138........ Unauthorised persons must not move etc. goods to which notice has been affixed  126

Division 6—Unloading goods at landing places or ports                       127

139........ Application of this Division............................................................ 127

140........ Person in charge may allow goods to be unloaded from aircraft or vessel subject to direction etc.          127

141........ Person may unload goods from aircraft or vessel subject to direction etc.                128

142........ Goods must not be unloaded except at first point of entry for those goods or with permission               129

143........ Permission to unload goods at landing place or port other than first point of entry for those goods        130

144........ Goods must be brought to biosecurity entry point for those goods at first point of entry         132

145........ Permission to bring goods to alternative biosecurity entry point..... 134

146........ Unauthorised persons must not move etc. goods that have been unloaded from aircraft or vessel           135

147........ Receiving or possessing goods unloaded from aircraft or vessel in contravention of this Division         136

Division 7—Unloading goods from aircraft or vessel displaying prescribed quarantine signal              138

148........ Application of this Division............................................................ 138

149........ Unloading goods from aircraft or vessel displaying prescribed quarantine signal    138

150........ Receiving or possessing goods unloaded from aircraft or vessel displaying prescribed quarantine signal               139

Division 8—Reporting biosecurity incidents                                                141

151........ Application of this Division............................................................ 141

152........ Director of Biosecurity may determine acts, omissions or events to be reportable biosecurity incidents  141

153........ Reporting by person in charge of aircraft or vessel carrying goods 141

154........ Reporting by person in charge of goods......................................... 142

155........ How reports must be made............................................................. 143

Division 9—Goods exposed to goods that are subject to biosecurity control    144

156........ Application of this Division............................................................ 144

157........ Assessment and management of biosecurity risk associated with exposed goods    144

158........ Exposed goods orders..................................................................... 145

159........ Effect of exposed goods order........................................................ 145

Division 10—Release of goods from biosecurity control                      147

160........ When goods brought into Australian territory are released from biosecurity control                147

161........ Notice releasing goods from biosecurity control............................. 148

Part 2—Biosecurity Import Risk Analyses                                                         149

Division 1—Introduction                                                                                        149

162........ Guide to this Part............................................................................ 149

Division 2—Biosecurity Import Risk Analyses                                           150

163........ What is a Biosecurity Import Risk Analysis (BIRA)...................... 150

164........ Director of Biosecurity may conduct a BIRA................................. 150

165........ Agriculture Minister may direct Director of Biosecurity to commence a BIRA       150

166........ Process for conducting a BIRA...................................................... 151

167........ Reports............................................................................................ 151

Part 3—Prohibited goods etc.                                                                                     153

Division 1—Introduction                                                                                        153

168........ Guide to this Part............................................................................ 153

169........ Exclusion of State and Territory laws............................................. 154

Division 2—Prohibited goods and conditionally non‑prohibited goods 155

170........ Prohibited goods............................................................................. 155

171........ Conditionally non‑prohibited goods................................................ 156

172........ Security may be required in relation to conditionally non‑prohibited goods             157

Division 3—Permits to bring or import goods into Australian territory              158

173........ Application of this Division............................................................ 158

174........ Person may apply for permit........................................................... 158

175........ Director of Biosecurity may grant permit........................................ 158

176........ Conditions of permit....................................................................... 159

177........ Variation, suspension or revocation of permit................................. 160

Division 4—Suspended goods                                                                               162

178........ Director of Biosecurity may suspend bringing or importation of goods into Australian territory for a period         162

179........ Variation of determination suspending bringing or importation of goods into Australian territory          163

180........ Effect on permit of suspended goods determination........................ 163

Division 5—Forfeiture of prohibited goods etc.                                         165

181........ Prohibited goods etc. may be forfeited to the Commonwealth........ 165

Division 6—Offences and civil penalty provisions                                    167

182........ Bringing or importing prohibited goods etc. into Australian territory 167

183........ Bringing or importing prohibited goods etc. into Australian territory and obtaining commercial advantage             167

184........ Bringing or importing prohibited goods etc. into Australian territory and causing harm to the environment or economic consequences.................................................................................. 168

185........ Contravening conditions applying to conditionally non‑prohibited goods brought or imported into Australian territory........................................................................................................ 168

186........ Contravening conditions applying to conditionally non‑prohibited goods brought or imported into Australian territory and obtaining commercial advantage............................................... 169

187........ Contravening conditions of a permit............................................... 170

188........ Receiving or possessing prohibited goods etc. brought or imported into Australian territory  172

Chapter 4—Managing biosecurity risks: conveyances      173

Part 1—Introduction                                                                                                        173

189........ Objects of this Chapter.................................................................... 173

Part 2—Conveyances entering Australian territory etc.                            174

Division 1—Introduction                                                                                        174

190........ Guide to this Part............................................................................ 174

Division 2—Conveyances that are subject to biosecurity control    176

191........ Aircraft and vessels entering Australian territory............................ 176

192........ Conveyances exposed to other conveyances that are subject to biosecurity control  177

Division 3—Pre‑arrival reporting etc.                                                            179

193........ Pre‑arrival reporting........................................................................ 179

194........ Pre‑arrival reporting—requirement to give additional or corrected information        180

195........ Persons on incoming aircraft or vessel may be required to provide information to assess biosecurity risk              182

Division 4—Assessment of level of biosecurity risk                                 183

196........ Biosecurity risk assessment powers................................................ 183

197........ Securing conveyance....................................................................... 183

198........ Inspecting conveyance.................................................................... 183

199........ Asking questions about conveyance............................................... 183

200........ Requiring documents relating to conveyance to be produced.......... 184

201........ Movement of conveyance............................................................... 185

202........ Biosecurity control notice may be affixed to conveyance or given to person in charge of conveyance     185

203........ Unauthorised persons must not move etc. conveyance in relation to which direction has been given      186

Division 5—Biosecurity measures to manage unacceptable level of biosecurity risk    188

204........ Biosecurity measures may be required in relation to conveyance.... 188

205........ Movement of certain aircraft and vessels........................................ 188

206........ Movement of exposed conveyances................................................ 189

207........ Treatment of conveyance................................................................. 189

208........ Treatment that may damage conveyance.......................................... 190

209........ Destruction of conveyance.............................................................. 192

210........ Conveyance must not be destroyed during review period............... 194

211........ Regulations may provide for other biosecurity measures................ 195

212........ Powers of biosecurity officer if biosecurity measures are required. 196

213........ Biosecurity officer may affix notice to conveyance......................... 197

214........ Person must comply with direction to take biosecurity measures.... 198

215........ Unauthorised persons must not move etc. conveyance in relation to which biosecurity measures have been required........................................................................................................ 199

Division 6—Boarding and leaving conveyances                                        201

216........ Application of this Division............................................................ 201

217........ Unauthorised persons must not board conveyance......................... 201

218........ Person in charge must not allow unauthorised persons to board conveyance           202

219........ Operator must not allow unauthorised persons to board conveyance 204

220........ Person in charge of conveyance may leave conveyance unless directed not to do so               205

Division 7—Release of conveyances from biosecurity control          207

221........ When conveyance is released from biosecurity control................... 207

Division 8—Miscellaneous                                                                                     208

222........ Information about biosecurity requirements must be given to persons on board incoming aircraft or vessels          208

223........ Quarantine signal............................................................................ 208

Part 3—First points of entry and biosecurity entry points                       209

Division 1—Introduction                                                                                        209

224........ Guide to this Part............................................................................ 209

Division 2—First points of entry and biosecurity entry points for incoming aircraft and goods            210

225........ Determination of landing places that are first points of entry for aircraft or goods that are subject to biosecurity control........................................................................................................ 210

226........ Biosecurity entry points for aircraft and goods that are subject to biosecurity control              210

227........ Determination may be subject to conditions.................................... 211

228........ Determination may have effect for specified period........................ 211

229........ Variation and revocation of determination etc................................. 211

230........ Determination is a legislative instrument......................................... 212

Division 3—First points of entry and biosecurity entry points for incoming vessels and goods              213

231........ Determination of ports that are first points of entry for vessels or goods that are subject to biosecurity control      213

232........ Biosecurity entry points for vessels and goods that are subject to biosecurity control              213

233........ Determination may be subject to conditions.................................... 214

234........ Determination may have effect for specified period........................ 214

235........ Variation and revocation of determination etc................................. 214

236........ Determination is a legislative instrument......................................... 215

Part 4—Entry points for incoming aircraft and vessels                             216

Division 1—Introduction                                                                                        216

237........ Guide to this Part............................................................................ 216

Division 2—Entry points for aircraft that intend to land in Australian territory           217

238........ Application of this Division............................................................ 217

239........ Aircraft must land at first point of entry.......................................... 217

240........ Aircraft must be brought to relevant biosecurity entry point (if any) at first point of entry       219

241........ Permission for aircraft to land at landing place that is not first point of entry for aircraft         220

242........ Direction requiring aircraft to land, or not to land, at specified landing place           222

243........ Direction requiring aircraft not to land at any landing place in Australian territory   223

244........ Direction requiring aircraft to land, or not to land, at specified landing place—management of human health risks 224

245........ Person who is given direction must comply with it......................... 225

Division 3—Entry points for vessels that intend to be moored in Australian territory                226

246........ Application of this Division............................................................ 226

247........ Vessel must be moored at first point of entry.................................. 226

248........ Vessel must be brought to relevant biosecurity entry point (if any) at first point of entry        228

249........ Permission for vessel to be moored at port that is not first point of entry for vessel                229

250........ Direction requiring vessel to be moored, or not to be moored, at specified port       231

251........ Direction requiring vessel not to be moored at any port in Australian territory        232

252........ Direction requiring vessel to be moored, or not to be moored, at specified port—management of human health risks........................................................................................................ 233

253........ Person who is given direction must comply with it......................... 234

Division 4—Miscellaneous                                                                                     235

254........ Biosecurity officer etc. may enter landing places or ports............... 235

Part 5—Ship sanitation                                                                                                   236

Division 1—Introduction                                                                                        236

255........ Guide to this Part............................................................................ 236

Division 2—Ship sanitation                                                                                    237

256........ Application of this Division............................................................ 237

257........ Regulations may prescribe scheme in relation to ship sanitation..... 237

258........ Declaring ports at which vessels may be inspected for the purposes of the scheme 238

259........ Assessing and managing sanitation health risks.............................. 238

Chapter 5—Ballast water and sediment                                            240

Part 1—Application and interpretation                                                               240

Division 1—Introduction                                                                                        240

260........ Guide to this Part............................................................................ 240

Division 2—Application and interpretation                                                  241

261........ Extension of Chapter to every external Territory............................. 241

262........ Vessels in dry dock in Australia..................................................... 241

263........ Foreign vessels in waters adjacent to Australian Antarctic Territory 241

264........ References to the person in charge of a vessel do not include persons exercising certain powers            241

265........ Permanent ballast water in sealed tanks not subject to this Chapter. 241

266........ Relationship with other Commonwealth laws................................. 241

267........ Relationship with State and Territory laws...................................... 242

Part 2—Management of discharge of ballast water                                     243

Division 1—Introduction                                                                                        243

268........ Guide to this Part............................................................................ 243

Division 2—Offence of discharging ballast water                                     244

269........ Offence—discharging ballast water in Australian seas................... 244

Division 3—Exceptions: ballast water management                                245

Subdivision A—Exception                                                                                   245

270........ Exception—ballast water has been managed for discharge............. 245

Subdivision B—Methods of ballast water management                               245

271........ Approved method of ballast water management.............................. 245

272........ Method of ballast water management—application for approval..... 246

273........ Method of ballast water management—approval of method approved by foreign country       247

274........ Prescribing matters by reference to other instruments..................... 247

Subdivision C—Ballast water exchange                                                           247

275........ Management by ballast water exchange.......................................... 247

Division 4—Exception: discharge as part of acceptable ballast water exchange            249

276........ Exception—discharge as part of acceptable ballast water exchange 249

Division 5—Exception: approved discharge to ballast water reception facility               250

277........ Exception—approved discharge to ballast water reception facility.. 250

278........ Discharge to ballast water reception facility—application for approval 250

Division 6—Exception: discharge covered by exemption                     252

279........ Exception—discharge covered by exemption.................................. 252

280........ Director of Biosecurity may grant exemptions................................ 252

281........ Variation and revocation of exemption............................................ 253

Division 7—Exception: taking up and discharging ballast water at same place               254

282........ Exception—taking up and discharging ballast water at same place. 254

Division 8—Exceptions and reporting requirements relating to safety, accidents and pollution            255

283........ Exceptions—safety, accidents and pollution................................... 255

284........ Report of discharge relating to safety, accident or pollution............ 256

Part 3—Ballast water management plans and ballast water management certificates   258

Division 1—Introduction                                                                                        258

285........ Guide to this Part............................................................................ 258

Division 2—Ballast water management plans                                             259

286........ Ballast water management plan....................................................... 259

287........ Approval of ballast water management plan for Australian vessel.. 259

Division 3—Ballast water management certificates                                260

288........ Ballast water management certificate............................................... 260

289........ Director of Biosecurity may authorise person to be survey authority 261

290........ Issue or endorsement etc. of ballast water management certificate on behalf of the Commonwealth        261

Part 4—Ballast water records                                                                                    263

Division 1—Introduction                                                                                        263

291........ Guide to this Part............................................................................ 263

Division 2—Australian vessels                                                                             264

292........ Australian vessel must have ballast water record system................ 264

293........ Recording ballast water operations and disposal of sediment.......... 264

294........ Records must be retained................................................................ 265

295........ Appropriate ballast water records for Australian vessel.................. 266

Division 3—Foreign vessels                                                                                   267

296........ Appropriate ballast water records for foreign vessel....................... 267

Part 5—Offence of disposing of sediment                                                           268

Division 1—Introduction                                                                                        268

297........ Guide to this Part............................................................................ 268

Division 2—Offence of disposing of sediment                                              269

298........ Offence—disposing of sediment in Australian seas........................ 269

299........ Exceptions—safety, accidents and pollution................................... 269

Part 6—Compliance and enforcement                                                                  271

Division 1—Introduction                                                                                        271

300........ Guide to this Part............................................................................ 271

Division 2—Power to require owner of Australian vessel to provide ballast water records     272

301........ Power to require owner of Australian vessel to provide ballast water records         272

Division 3—Directions powers                                                                            273

302........ Directions not to discharge ballast water......................................... 273

303........ Directions about movement of vessel.............................................. 273

304........ Directions about movement of vessel—variation or revocation...... 274

305........ Offence—contravening a direction.................................................. 275

306........ Manner of giving directions etc....................................................... 276

Part 7—Miscellaneous                                                                                                     277

307........ Compensation for undue detention or delay of vessel..................... 277

Chapter 6—Managing biosecurity risks: monitoring, control and response      278

Part 1—Introduction                                                                                                        278

308........ Guide to this Part............................................................................ 278

309........ Modified meaning of biosecurity risk............................................. 278

310........ Objects of this Chapter.................................................................... 279

311........ Application of this Chapter............................................................. 280

Part 2—Assessment of level of biosecurity risk                                               281

Division 1—Introduction                                                                                        281

312........ Guide to this Part............................................................................ 281

Division 2—Circumstances in which biosecurity risk assessment powers may be exercised     283

313........ Reasonable suspicion that disease or pest may pose unacceptable level of biosecurity risk      283

314........ Exercise of biosecurity risk assessment powers in premises........... 283

Division 3—Biosecurity risk assessment powers                                       285

315........ Application of this Division............................................................ 285

316........ Direction to secure goods or conveyance........................................ 285

317........ Inspections and taking samples of goods or premises..................... 285

318........ Asking questions about goods or premises..................................... 286

319........ Requiring documents relating to goods or premises to be produced 287

320........ Movement of goods or conveyance................................................ 288

321........ Biosecurity officer may affix notice to goods or conveyance.......... 289

322........ Unauthorised persons must not move etc. goods or conveyance to which notice has been affixed          290

323........ Operating electronic equipment on premises................................... 291

324........ Expert assistance to operate electronic equipment........................... 292

Division 4—Offences                                                                                                 294

325........ Contravention of direction............................................................... 294

326........ Contravention of requirement to answer questions etc.................... 294

327........ Contravention of requirement to produce documents...................... 295

328........ Unauthorised persons must not move etc. goods or conveyance to which notice has been affixed          295

Part 3—Biosecurity measures to manage unacceptable level of biosecurity risk                297

Division 1—Introduction                                                                                        297

329........ Guide to this Part............................................................................ 297

Division 2—Powers that may be exercised: general                                299

Subdivision A—Circumstances in which powers may be exercised          299

330........ Circumstances in which powers set out in this Division may be exercised              299

Subdivision B—Powers relating to entry to and exit from premises        299

331........ Entry and exit etc. requirements—persons...................................... 299

332........ Entry and exit etc. requirements—goods and conveyances............. 301

Subdivision C—Powers relating to treatment of goods, conveyances and other premises          302

333........ Treatment of goods......................................................................... 302

334........ Treatment that may damage goods.................................................. 302

335........ Treatment of conveyance................................................................. 304

336........ Treatment that may damage conveyance.......................................... 304

337........ Treatment of premises (other than a conveyance)............................ 306

338........ Treatment that may damage premises (other than a conveyance)..... 306

339........ Dealing with premises (other than a conveyance) if owner does not agree to treatment etc.     308

Subdivision D—Powers relating to destruction of goods, conveyances and other premises       309

340........ Destruction of goods....................................................................... 309

341........ Destruction of conveyance.............................................................. 310

342........ Destruction of premises.................................................................. 312

343........ High‑value goods, conveyances or premises must not be destroyed during review period      313

Division 3—Powers provided by regulations                                               316

344........ Regulations may provide for other biosecurity measures................ 316

Division 4—Other powers                                                                                      318

345........ Powers of biosecurity officer if biosecurity measures are required. 318

346........ Biosecurity officer may affix notice to goods or premises.............. 319

Division 5—Offences and civil penalty provisions                                    321

347........ Contravention of requirement relating to entering or leaving etc. premises               321

348........ Person must comply with direction................................................. 321

349........ Unauthorised persons must not move etc. goods or conveyance to which notice has been affixed          322

Part 4—Biosecurity control orders                                                                          324

Division 1—Introduction                                                                                        324

350........ Guide to this Part............................................................................ 324

Division 2—Making, varying and revoking biosecurity control orders                325

351........ Director of Biosecurity may make biosecurity control order to manage unacceptable level of biosecurity risk        325

352........ Content of a biosecurity control order............................................. 325

353........ Form of biosecurity control order................................................... 327

354........ Biosecurity control order to be given to person in charge etc. of goods or premises or affixed to goods or premises........................................................................................................ 327

355........ Circumstances in which biosecurity control order ceases to be in force 328

356........ Variation of biosecurity control order............................................. 328

357........ Revocation of biosecurity control order.......................................... 330

Division 3—Powers that may be exercised under biosecurity control order     332

358........ Powers that may be exercised—general.......................................... 332

359........ Exercise of powers in premises....................................................... 332

360........ Power to secure goods or premises to deal with another disease or pest  333

Division 4—Civil penalty provision                                                                  335

361........ Unauthorised persons must not interfere with etc. biosecurity control order affixed to goods or premises              335

Part 5—Biosecurity response zones                                                                        336

Division 1—Introduction                                                                                        336

362........ Guide to this Part............................................................................ 336

Division 2—Biosecurity response zone determinations                          337

363........ Director of Biosecurity may determine biosecurity response zone.. 337

364........ Content of a biosecurity response zone determination..................... 338

365........ Additional powers that may be specified in a biosecurity response zone determination           339

366........ Consultation requirements............................................................... 340

367........ Notification requirements................................................................ 340

Division 3—Powers that may be exercised in biosecurity response zones           341

368........ Powers that may be exercised—general.......................................... 341

369........ Exercise of powers in premises....................................................... 341

370........ Power to secure goods or premises to deal with another disease or pest  342

Division 4—Offences and civil penalty provisions                                    344

371........ Unauthorised persons must not interfere with etc. notices or markings identifying biosecurity response zone        344

372........ Unauthorised persons must not interfere with etc. notices or markings identifying goods or premises in a biosecurity response zone.................................................................................. 345

373........ Person must comply with direction................................................. 345

374........ Unauthorised persons must not interfere with etc. equipment etc. set up in biosecurity response zone    346

Part 6—Biosecurity monitoring zones                                                                   348

Division 1—Introduction                                                                                        348

375........ Guide to this Part............................................................................ 348

Division 2—Permanent biosecurity monitoring zones                            350

Subdivision A—Areas that are permanent biosecurity monitoring zones 350

376........ Permanent biosecurity monitoring zones......................................... 350

Subdivision B—Powers that may be exercised in permanent biosecurity monitoring zones      350

377........ Powers that may be exercised—general.......................................... 350

378........ Exercise of powers in premises....................................................... 352

Subdivision C—Civil penalty provisions                                                         352

379........ Unauthorised persons must not interfere with etc. notices or markings identifying permanent biosecurity monitoring zone........................................................................................................ 353

380........ Unauthorised persons must not interfere with etc. notices or markings identifying goods or premises in a permanent biosecurity monitoring zone............................................................ 353

381........ Unauthorised persons must not interfere with etc. equipment etc. set up in permanent biosecurity monitoring zone........................................................................................................ 354

Division 3—Temporary biosecurity monitoring zones                           356

Subdivision A—Temporary biosecurity monitoring zone determinations 356

382........ Director of Biosecurity may determine temporary biosecurity monitoring zone       356

383........ Content of a temporary biosecurity monitoring zone determination 356

384........ Additional powers that may be specified in a temporary biosecurity monitoring zone determination       358

385........ Consultation requirements............................................................... 359

386........ Notification requirements................................................................ 359

Subdivision B—Powers that may be exercised in temporary biosecurity monitoring zones      359

387........ Powers that may be exercised—general.......................................... 359

388........ Exercise of powers in premises....................................................... 360

Subdivision C—Civil penalty provisions                                                         361

389........ Unauthorised persons must not interfere with etc. notices or markings identifying temporary biosecurity monitoring zone........................................................................................................ 361

390........ Unauthorised persons must not interfere with etc. notices or markings identifying goods or premises in temporary biosecurity monitoring zone............................................................ 362

391........ Unauthorised persons must not interfere with etc. equipment etc. set up in temporary biosecurity monitoring zone........................................................................................................ 363

Part 7—Biosecurity activity zones                                                                            364

Division 1—Introduction                                                                                        364

392........ Guide to this Part............................................................................ 364

Division 2—Biosecurity activity zone determinations                            365

393........ Director of Biosecurity may determine biosecurity activity zone..... 365

394........ Consultation requirements............................................................... 366

395........ Notification requirements................................................................ 366

396........ Revocation of biosecurity activity zone determination..................... 366

Division 3—Powers that may be exercised in biosecurity activity zones              367

397........ Powers that may be exercised......................................................... 367

398........ Use of force.................................................................................... 368

Division 4—Offences and civil penalty provisions                                    369

399........ Unauthorised persons must not interfere with etc. notices or markings identifying biosecurity activity zone           369

400........ Unauthorised persons must not interfere with etc. notices or markings identifying goods or premises in a biosecurity activity zone.................................................................................... 369

401........ Person must comply with direction................................................. 370

Chapter 7—Approved arrangements                                                   372

Part 1—Introduction                                                                                                        372

402........ Guide to this Chapter...................................................................... 372

Part 2—Approval of proposed arrangement                                                    374

403........ Person may apply to relevant Director for approval of proposed arrangement to carry out biosecurity activities     374

404........ Relevant Director must decide whether or not to approve proposed arrangement    374

405........ Proposed arrangement may be approved subject to condition requiring security to be given   375

406........ Notice of decision........................................................................... 376

407........ Period of effect of approved arrangement....................................... 376

408........ Restrictions on applications for approval of proposed arrangements etc. 376

409........ Transfer of approved arrangement.................................................. 378

Part 3—Variation of approved arrangement                                                   379

Division 1—Application by biosecurity industry participant              379

410........ Application for approval of varied arrangement.............................. 379

Division 2—Variation required by relevant Director                             380

411........ Relevant Director may vary or require variation of approved arrangement               380

412........ Notice varying conditions of approved arrangement....................... 380

413........ Date of effect of variation of conditions of approved arrangement.. 381

414........ Notice requiring approved arrangement to be varied....................... 381

Part 4—Suspension of approved arrangement                                               382

Division 1—Suspension requested by biosecurity industry participant 382

415........ Biosecurity industry participant may request relevant Director to suspend all or part of approved arrangement      382

Division 2—Suspension by relevant Director                                              384

416........ Relevant Director may suspend approved arrangement................... 384

417........ Notice of suspension....................................................................... 385

418........ Period of suspension....................................................................... 386

419........ Management of biosecurity risks during suspension period........... 386

Part 5—Revocation of approved arrangement                                               388

Division 1—Revocation requested by biosecurity industry participant                388

420........ Biosecurity industry participant may request relevant Director to revoke approved arrangement             388

Division 2—Revocation by relevant Director                                             389

421........ Relevant Director may revoke approved arrangement..................... 389

422........ Notice of revocation........................................................................ 390

423........ Date of effect of revocation............................................................. 390

424........ Management of biosecurity risks after revocation........................... 391

Part 6—Powers and obligations of biosecurity industry participants 393

Division 1—General                                                                                                  393

425........ Authorisation to carry out biosecurity activities in accordance with approved arrangement     393

426........ Biosecurity industry participant must carry out biosecurity activities in accordance with approved arrangement etc......................................................................................................... 393

427........ Biosecurity officer may give direction to biosecurity industry participant to manage biosecurity risks    394

428........ Biosecurity industry participant may charge fee in relation to biosecurity activities carried out                395

Division 2—Biosecurity incidents                                                                       396

429........ Reporting biosecurity incidents....................................................... 396

430........ Costs of dealing with biosecurity incidents..................................... 397

Part 7—Other provisions                                                                                               399

Division 1—Applications for approval                                                            399

431........ Applications to which this Division applies.................................... 399

432........ Requirements for applications......................................................... 399

433........ Dealing with applications................................................................ 399

Division 2—Audit powers                                                                                       401

434........ Relevant Director may require audit to be carried out...................... 401

435........ Powers of auditors.......................................................................... 402

Division 3—Miscellaneous                                                                                     404

436........ Giving false or misleading information to a biosecurity industry participant            404

437........ Giving false or misleading documents to a biosecurity industry participant             405

438........ Obstruction or hindrance of person acting in accordance with approved arrangement             406

439........ Protection from civil proceedings.................................................... 406

Chapter 8—Biosecurity emergencies and human biosecurity emergencies           408

Part 1—Biosecurity emergencies                                                                              408

Division 1—Introduction                                                                                        408

440........ Guide to this Part............................................................................ 408

Division 2—Declaration of biosecurity emergency                                  409

441........ Governor‑General may declare that a biosecurity emergency exists 409

442........ Governor‑General may extend biosecurity emergency period......... 410

Division 3—Emergency requirements, directions and actions           412

443........ Agriculture Minister may determine emergency requirements during biosecurity emergencies                412

444........ Agriculture Minister may give directions and take actions during biosecurity emergencies     413

445........ Limits on power to give directions and take actions........................ 415

446........ Limit on requiring individuals to be subject to certain biosecurity measures            415

447........ Person must comply with emergency requirements and directions. 416

448........ Asking questions relating to biosecurity emergencies..................... 417

449........ Requiring documents relating to biosecurity emergencies............... 418

Division 4—National response agencies                                                         420

450........ Agriculture Minister may declare national response agency............ 420

451........ Agriculture Minister may delegate certain emergency powers........ 420

452........ Executive head of national response agency may subdelegate certain emergency powers        421

453........ Delegation does not limit other powers........................................... 422

454........ Notice may be affixed to goods or a conveyance............................ 422

455........ Moving or interfering with goods or conveyance........................... 423

Division 5—Exercise of powers during biosecurity emergencies     426

456........ Modification of this Act during biosecurity emergencies................ 426

457........ Biosecurity risk assessment powers................................................ 426

458........ Application of offences during emergencies................................... 427

459........ Biosecurity control orders—making orders.................................... 428

460........ Biosecurity control orders—varying orders.................................... 429

461........ Biosecurity control orders—revoking orders.................................. 430

462........ Modification of Part 4 of Chapter 6 in relation to biosecurity control orders            431

463........ Biosecurity response zones............................................................. 431

464........ Setting traps and setting up equipment and other structures............ 432

465........ Notice requirements during biosecurity emergencies...................... 432

466........ Other biosecurity measures during biosecurity emergencies........... 434

467........ Merits review during biosecurity emergencies................................ 434

Division 6—Entry to premises without warrant or consent during biosecurity emergencies   435

468........ Entry to premises without warrant or consent during biosecurity emergencies        435

469........ Modification of Chapter 6............................................................... 437

470........ Entry to adjacent premises without warrant or consent during biosecurity emergencies           437

Part 2—Human biosecurity emergencies                                                             439

471........ Guide to this Part............................................................................ 439

472........ Health Minister to exercise human biosecurity emergency powers personally         439

473........ Governor‑General may declare that a human biosecurity emergency exists             439

474........ Governor‑General may extend a human biosecurity emergency period 441

475........ Health Minister may determine emergency requirements during human biosecurity emergency period   441

476........ Health Minister may give directions during human biosecurity emergency period   443

477........ Person must comply with emergency requirements and directions. 445

Chapter 9—Powers and other provisions related to ensuring compliance with this Act                                                                                                                       446

Part 1—Monitoring                                                                                                           446

Division 1—Introduction                                                                                        446

478........ Guide to this Part............................................................................ 446

Division 2—Monitoring powers                                                                          447

479........ Biosecurity enforcement officer may enter premises by consent or under a warrant                447

480........ Monitoring powers of biosecurity enforcement officers................. 447

481........ Operating electronic equipment....................................................... 448

482........ Expert assistance to operate electronic equipment........................... 449

483........ Securing evidence of the contravention of a related provision......... 451

Part 2—Investigation                                                                                                       453

Division 1—Introduction                                                                                        453

484........ Guide to this Part............................................................................ 453

Division 2—Investigation powers                                                                      454

485........ Biosecurity enforcement officer may enter premises by consent or under a warrant                454

486........ Investigation powers of biosecurity enforcement officers............... 454

487........ Operating electronic equipment....................................................... 455

488........ Expert assistance to operate electronic equipment........................... 457

489........ Seizing evidence of related provisions............................................ 458

Division 3—General provisions relating to seizure                                  460

490........ Copies of seized things to be provided............................................ 460

491........ Receipts for seized things................................................................ 460

492........ Return of seized things.................................................................... 460

493........ Issuing officer may permit a thing to be retained............................. 461

494........ Disposal of things........................................................................... 462

Part 3—General provisions relating to monitoring and investigation 464

495........ Biosecurity enforcement officer may ask questions and seek production of documents           464

496........ When warrants can be executed on aircraft and vessels.................. 465

Part 4—Monitoring, searching and accessing certain premises            466

Division 1—Introduction                                                                                        466

497........ Guide to this Part............................................................................ 466

Division 2—Monitoring and searching certain premises                      467

498........ Meaning of relevant premises......................................................... 467

499........ Monitoring premises....................................................................... 467

500........ Offence‑related searches and seizures............................................. 468

Division 3—Entering adjacent premises to gain access to other premises          469

501........ Meaning of premises...................................................................... 469

502........ Entering adjacent premises to gain access to other premises........... 469

503........ Entry under adjacent premises warrants.......................................... 469

Part 5—Miscellaneous                                                                                                     471

Division 1—Introduction                                                                                        471

504........ Guide to this Part............................................................................ 471

Division 2—Fit and proper person test                                                           472

505........ Fit and proper person test................................................................ 472

Division 3—Personal information for applications                                  474

506........ Personal information for applications.............................................. 474

Division 4—Civil penalty provisions for false or misleading information or documents             475

507........ Civil penalty provision for false or misleading information............ 475

508........ Civil penalty provision for false or misleading documents.............. 476

Chapter 10—Entry to premises and warrants                            477

Part 1—Introduction                                                                                                        477

509........ Guide to this Chapter...................................................................... 477

Part 2—Issue of warrants                                                                                             478

Division 1—Ordinary issue of warrants                                                        478

510........ Application and issue of warrant..................................................... 478

511........ Test to be satisfied for issue of warrant........................................... 479

512........ Content of warrant.......................................................................... 482

Division 2—Issue of certain warrants by telephone, fax etc.              487

513........ Application of this Division to certain warrants.............................. 487

514........ Issue of certain warrants by telephone, fax etc................................ 487

515........ Authority of warrant....................................................................... 489

516........ Fault‑based offence relating to warrants by telephone, fax etc........ 489

Part 3—Entering premises with a warrant or consent, and taking possession with a warrant 491

Division 1—Obligations and powers of biosecurity enforcement officers            491

Subdivision A—Obligations of biosecurity enforcement officers             491

517........ Consent........................................................................................... 491

518........ Announcement before execution of warrant.................................... 492

519........ Biosecurity enforcement officer to be in possession of warrant...... 493

520........ Details of warrant etc. to be provided.............................................. 494

Subdivision B—Use of force                                                                                494

521........ Use of force in executing a warrant................................................. 494

Subdivision C—Completing execution of investigation warrants             495

522........ Completing execution of an investigation warrant after temporary cessation            495

523........ Completing execution of an investigation warrant stopped by court order               496

Division 2—Appropriate person’s rights and responsibilities in relation to warrants  497

524........ Appropriate person’s right to observe execution of warrant........... 497

525........ Appropriate person to provide facilities and assistance................... 497

Part 4—Entering premises without a warrant or consent                        498

Division 1—Application of this Part                                                                 498

526........ Application of this Part................................................................... 498

Division 2—Obligations and powers of biosecurity enforcement officers in entering premises               499

527........ Announcement before entry............................................................ 499

528........ Use of force in entering premises.................................................... 499

Division 3—Appropriate person’s rights and responsibilities on entry 500

529........ Appropriate person is entitled to observe exercise of powers......... 500

530........ Appropriate person to provide officers etc. with facilities and assistance 500

Part 5—General provisions                                                                                          501

531........ Persons assisting biosecurity officers or biosecurity enforcement officers               501

532........ Powers of issuing officers.............................................................. 503

533........ Compensation for damage to electronic equipment......................... 503

Chapter 11—Enforcement                                                                               505

Part 1—Civil penalty provisions                                                                               505

Division 1—Introduction                                                                                        505

534........ Guide to this Part............................................................................ 505

Division 2—Obtaining a civil penalty order                                                 506

535........ Civil penalty orders......................................................................... 506

536........ Civil enforcement of penalty........................................................... 507

537........ Conduct contravening more than one civil penalty provision.......... 507

538........ Multiple contraventions................................................................... 507

539........ Proceedings may be heard together................................................. 507

540........ Civil evidence and procedure rules for civil penalty orders............. 508

541........ Contravening a civil penalty provision is not an offence................. 508

Division 3—Civil proceedings and criminal proceedings                      509

542........ Other enforcement action after criminal proceedings....................... 509

543........ Other enforcement action during civil proceedings......................... 509

544........ Other enforcement action after civil proceedings............................. 510

545........ Evidence given in civil proceedings not admissible in criminal proceedings            510

Division 4—Miscellaneous                                                                                     511

546........ Ancillary contravention of civil penalty provisions......................... 511

547........ Continuing contraventions of civil penalty provisions.................... 511

548........ Mistake of fact................................................................................ 512

549........ Sudden or extraordinary emergency................................................ 512

550........ State of mind................................................................................... 513

551........ Omissions....................................................................................... 513

552........ Burden of proof for exceptions etc. to civil penalty provisions....... 514

553........ Civil penalties for executive officers of bodies corporate................ 514

554........ Reasonable steps to prevent contravention...................................... 515

Part 2—Infringement notices                                                                                      516

Division 1—Introduction                                                                                        516

555........ Guide to this Part............................................................................ 516

556........ Infringement notice provisions........................................................ 516

Division 2—Infringement notices                                                                       517

557........ When an infringement notice may be given..................................... 517

558........ Matters to be included in an infringement notice............................. 518

559........ Extension of time to pay amount..................................................... 520

560........ Withdrawal of an infringement notice............................................. 520

561........ Effect of payment of amount........................................................... 522

562........ Effect of this Part............................................................................ 523

563........ Further provision by regulation....................................................... 523

Part 3—Enforceable undertakings                                                                         524

Division 1—Introduction                                                                                        524

564........ Guide to this Part............................................................................ 524

Division 2—Accepting and enforcing undertakings                                 525

565........ Acceptance of undertakings............................................................ 525

566........ Enforcement of undertakings.......................................................... 525

Part 4—Injunctions                                                                                                           527

Division 1—Introduction                                                                                        527

567........ Guide to this Part............................................................................ 527

Division 2—Injunctions                                                                                           528

568........ Grant of injunctions........................................................................ 528

569........ Interim injunctions.......................................................................... 529

570........ Discharging or varying injunctions................................................. 529

571........ Certain limits on granting injunctions not to apply.......................... 529

572........ Other powers of a relevant court unaffected.................................... 530

573........ Judicial review................................................................................ 530

Part 5—Miscellaneous                                                                                                     531

Division 1—Introduction                                                                                        531

574........ Guide to this Part............................................................................ 531

Division 2—Miscellaneous                                                                                     532

575........ Physical elements of offences......................................................... 532

576........ Contravening offence and civil penalty provisions.......................... 532

Chapter 12—Governance and officials                                              533

Part 1—Introduction                                                                                                        533

577........ Guide to this Chapter...................................................................... 533

Part 2—Director of Biosecurity                                                                                 534

578........ Director of Biosecurity.................................................................... 534

579........ Functions and powers of Director of Biosecurity........................... 534

580........ Delegation and subdelegation.......................................................... 535

581........ Agriculture Minister may give general directions to Director of Biosecurity            538

Part 3—Director of Human Biosecurity                                                              539

582........ Director of Human Biosecurity....................................................... 539

Part 4—Biosecurity officers and biosecurity enforcement officers     540

Division 1—Authorisation                                                                                      540

Subdivision A—Authorisation by Director of Biosecurity                          540

583........ Authorisation by Director of Biosecurity of persons as biosecurity officers            540

584........ Authorisation by Director of Biosecurity of persons as biosecurity enforcement officers        541

585........ Arrangements for State or Territory officers or employees to be biosecurity officers or biosecurity enforcement officers........................................................................................................ 541

Subdivision B—Authorisation by Director of Human Biosecurity           542

586........ Authorisation by Director of Human Biosecurity of persons as biosecurity enforcement officers           542

587........ Arrangements for State or Territory officers or employees to be biosecurity enforcement officers          543

Division 2—Functions and powers                                                                    544

Subdivision A—General                                                                                       544

588........ Functions and powers of biosecurity officers................................. 544

589........ Functions and powers of biosecurity enforcement officers............. 544

590........ Directions to assist persons performing functions etc. under this Act 544

591........ Biosecurity officers and biosecurity enforcement officers may be assisted by animals            546

592........ Carrying out tests on samples......................................................... 547

593........ Biosecurity officer may direct person in charge of conveyance to permit biosecurity officer to board     547

594........ Powers that may be exercised by biosecurity officer after boarding a conveyance   549

595........ Biosecurity officer may give permission to engage in certain conduct 549

Subdivision B—Decontamination                                                                      550

596........ Decontaminating an individual........................................................ 550

597........ Direction to individual to be decontaminated................................... 551

598........ Decontaminating clothing and personal effects............................... 553

599........ Other protections in relation to decontamination............................. 554

Part 5—Chief human biosecurity officers and human biosecurity officers           555

Division 1—Authorisation                                                                                      555

600........ Authorisation of chief human biosecurity officers.......................... 555

601........ Authorisation of human biosecurity officers................................... 555

602........ Arrangements for State or Territory officers or employees to be chief human biosecurity officers or human biosecurity officers............................................................................................ 556

Division 2—Functions and powers                                                                    557

603........ Functions and powers of chief human biosecurity officers............. 557

604........ Functions and powers of human biosecurity officers...................... 557

Part 6—Miscellaneous                                                                                                     558

605........ Identity cards—biosecurity officers etc........................................... 558

606........ Identity cards—human biosecurity officers etc............................... 558

607........ Offence—failure to return identity card........................................... 558

608........ General provisions relating to directions......................................... 559

Chapter 13—Miscellaneous                                                                             560

Part 1—Review of decisions                                                                                        560

Division 1—Introduction                                                                                        560

609........ Guide to this Part............................................................................ 560

Division 2—Review of decisions                                                                         561

610........ Reviewable decisions...................................................................... 561

611........ Notice of decision........................................................................... 566

612........ Internal review of reviewable decisions.......................................... 566

613........ Director of Biosecurity may require further information from applicants 568

614........ Review by the Administrative Appeals Tribunal............................. 568

Part 2—Confidentiality of information                                                                569

Division 1—Introduction                                                                                        569

615........ Guide to this Part............................................................................ 569

Division 2—Confidentiality of information                                                   570

616........ Disclosure of protected information................................................ 570

617........ Use in accordance with section 616 does not contravene laws etc.. 571

618........ Authorisation to use information for purposes of proceedings....... 572

619........ Authorisation to use information that is also received from another source, and use of information by prescribed agencies........................................................................................................ 572

620........ Authorisation to use information required by another law.............. 574

621........ Offence relating to protected information........................................ 575

622........ Exception for use of information in good faith................................ 575

623........ Exception for person who does not know that information is commercial‑in‑confidence         575

624........ Exception for disclosing to the person to whom information relates, or if the person to whom information relates consents.......................................................................................... 576

625........ Exception for disclosure to person who provided the information.. 577

626........ Annual report.................................................................................. 577

Part 3—Cost recovery                                                                                                     578

Division 1—Introduction                                                                                        578

627........ Guide to this Part............................................................................ 578

Division 2—Fees                                                                                                          579

628........ Fees................................................................................................. 579

629........ Notional payments by the Commonwealth...................................... 579

Division 3—Unpaid fees                                                                                          581

Subdivision A—General                                                                                       581

630........ Late payment fee............................................................................. 581

631........ Recovery of fees............................................................................. 581

632........ Suspending or revoking permits etc. because of unpaid fees.......... 581

Subdivision B—Dealing with goods to recover unpaid fees                        582

633........ Fee is a charge on goods................................................................. 582

634........ Effect of charge on goods............................................................... 583

635........ Biosecurity officer may withhold goods that are subject to charge.. 583

636........ Moving or interfering with withheld goods.................................... 584

637........ When goods stop being withheld.................................................... 585

638........ Sale of withheld goods.................................................................... 586

Subdivision C—Dealing with a conveyance to recover unpaid fees relating to the conveyance                586

639........ Fee is a charge on conveyance........................................................ 586

640........ Effect of charge on conveyance....................................................... 587

641........ Director of Biosecurity may detain conveyance that is subject to charge  587

642........ Moving or interfering with detained conveyance............................ 589

643........ Release of detained conveyance...................................................... 589

644........ Sale of detained conveyance............................................................ 590

Division 4—Power to sell goods and conveyances                                    592

645........ Sale of goods and conveyances....................................................... 592

646........ Dealing with the proceeds of sale.................................................... 592

Division 5—Miscellaneous                                                                                     594

647........ Providing sustenance for animals and plants................................... 594

648........ Agriculture Minister may remit or refund fees................................ 595

Part 4—Exemptions from and modifications of this Act                           596

Division 1—Introduction                                                                                        596

649........ Guide to this Part............................................................................ 596

Division 2—Exemptions from and modifications of this Act               597

650........ Exemptions from and modifications of this Act.............................. 597

651........ Exemptions for Torres Strait Treaty................................................ 597

Part 5—Miscellaneous                                                                                                     600

Division 1—Introduction                                                                                        600

652........ Guide to this Part............................................................................ 600

Division 2—Abandoned or forfeited goods and conveyances             601

653........ Abandoned goods........................................................................... 601

654........ Forfeited goods............................................................................... 602

655........ Abandoned conveyances................................................................. 603

656........ Forfeited conveyances..................................................................... 604

Division 3—Damaged and destroyed goods etc.                                        606

657........ Person complying with direction or request must not damage or destroy goods      606

658........ Compensation for damaged goods.................................................. 607

659........ Compensation for destroyed goods, conveyances or other premises 607

660........ Claims for, and amount of, compensation....................................... 609

Division 4—Miscellaneous                                                                                     611

661........ Privilege against self‑incrimination................................................. 611

662........ Offence—hindering compliance with the Act etc............................ 612

663........ Certificates given by analyst............................................................ 613

664........ Admission of analyst’s certificate in proceedings........................... 613

665........ Power or requirement to do or cause a thing to be done.................. 615

666........ Treatment of partnerships................................................................ 615

667........ Treatment of unincorporated associations....................................... 616

668........ Arrangements with States and Territories to assist in carrying out this Act              616

669........ Delegation of powers by Agriculture Minister................................ 617

670........ Protection from civil proceedings.................................................... 618

671........ Regulations..................................................................................... 619

 


A Bill for an Act relating to diseases and pests that may cause harm to human, animal or plant health or the environment, and for related purposes

The Parliament of Australia enacts:

Chapter 1Preliminary

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the Biosecurity Act 2012.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 and 2 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Sections 3 to 671

A single day to be fixed by Proclamation.

However, if the provision(s) do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Guide to this Act

This Act is about managing diseases and pests that may cause harm to human, animal or plant health or the environment.

This Chapter includes preliminary provisions (such as the extension of this Act to external Territories, and the relationship of this Act with other Australian laws). It also includes the definitions for this Act, provisions that relate to the Constitution and international law, and principles affecting decisions to exercise certain powers under this Act.

Chapter 2 deals with managing risks to human health. That Chapter only deals with diseases (listed human diseases) that are listed in a legislative instrument. The main method of managing risks to human health is by imposing a human biosecurity control order on an individual who may have a listed human disease. However, Chapter 2 also includes requirements in relation to persons entering or leaving Australian territory, and rules relating to managing deceased individuals.

Chapter 3 deals with managing biosecurity risks in relation to goods that are brought into Australian territory from outside Australian territory. These goods become subject to biosecurity control when the aircraft or vessel carrying the goods enters Australian territory. Powers may be exercised to assess the level of biosecurity risk associated with the goods, and biosecurity measures may be required to reduce that risk if it is considered to be unacceptable. Chapter 3 also provides a mechanism for prohibiting certain goods from being brought or imported into Australian territory, either absolutely or subject to conditions, and includes provisions dealing with biosecurity import risk analyses and import permits.

Chapter 4 deals with managing biosecurity risks in relation to aircraft and vessels that enter Australian territory from outside Australian territory, including by controlling the places where they can land or be moored and their movement while they are in Australian territory. These conveyances become subject to biosecurity control when they enter Australian territory. Powers may be exercised to assess the level of biosecurity risk associated with them, and biosecurity measures may be required to reduce that risk if it is considered to be unacceptable. Chapter 4 also provides for a scheme to deal with ship sanitation for the purposes of the International Health Regulations.

Chapter 5 deals with the ballast water and sediment of certain vessels. It includes an offence of discharging ballast water in Australian seas, with a range of exceptions, and an offence of disposing of sediment. It also includes provisions for ballast water management plans and certificates, record‑keeping obligations and powers to ensure compliance.

Chapter 6 deals with managing biosecurity risks (other than those covered by Chapter 3 or 4) posed by diseases or pests that may be in or on goods or premises in Australian territory. The Chapter provides for powers to be exercised to monitor, respond to and control those risks.

Chapter 7 provides for arrangements to be approved authorising and requiring biosecurity industry participants to carry out biosecurity activities to manage biosecurity risks associated with goods, premises or other things for the purposes of this Act.

Chapter 8 provides for the Governor‑General to declare biosecurity emergencies and human biosecurity emergencies. Part 1 gives the Agriculture Minister special powers to deal with biosecurity emergencies and provides for certain powers to be delegated to national response agencies. Part 1 also includes other modifications of the Act that apply during biosecurity emergencies. Part 2 gives the Health Minister special powers to deal with human biosecurity emergencies, including by giving effect to recommendations of the World Health Organization.

Chapter 9 gives officers powers to ensure people are complying with this Act, such as warrants which allow officers to enter premises to either monitor compliance with this Act (monitoring warrants) or seize evidence of a contravention of this Act (investigation warrants). Chapter 9 also allows officers to enter premises in other cases (with or without a warrant). The Chapter includes other provisions which are relevant to ensuring compliance with this Act, such as how to determine whether a person is a fit and proper person.

Chapter 10 includes the procedure for obtaining a warrant under this Act. It also includes the obligations on biosecurity enforcement officers, and others, when premises are entered (with or without a warrant or consent), and when a warrant is executed.

Chapter 11 includes rules for enforcing this Act. The methods of enforcement include obtaining civil penalty orders for breaches of civil penalty provisions in this Act, issuing infringement notices, allowing enforceable undertakings to be given, and issuing injunctions.

Chapter 12 deals with matters relating to governance and officials. It includes provisions relating to the functions and powers of the Director of Biosecurity, the Director of Human Biosecurity, biosecurity officers, biosecurity enforcement officers, chief human biosecurity officers and human biosecurity officers.

Chapter 13 includes miscellaneous provisions, including provisions dealing with review of reviewable decisions under this Act, the confidentiality of information obtained under this Act, fees to be charged, and methods for recovering costs, under this Act, abandoned or forfeited goods and conveyances, and the ability for regulations to modify the operation of this Act.

4  Objects of this Act

                   The objects of this Act are the following:

                     (a)  to provide for managing the following:

                              (i)  biosecurity risks;

                             (ii)  the risk of contagion of a listed human disease;

                            (iii)  the risk of listed human diseases entering Australian territory or a part of Australian territory, or emerging, establishing themselves or spreading in Australian territory or a part of Australian territory;

                            (iv)  risks related to ballast water;

                             (v)  biosecurity emergencies and human biosecurity emergencies;

                     (b)  to give effect to Australia’s international rights and obligations, including under the International Health Regulations, the SPS Agreement and the Biodiversity Convention.

Note:          The expression biosecurity risk referred to in subparagraph (a)(i) has different meanings depending on whether it is for the purposes of Chapter 6 (managing biosecurity risks: monitoring, control and response) or another part of this Act (see sections 9 and 309).

5  Appropriate Level of Protection (ALOP) for Australia against biosecurity risks

                   The Appropriate Level of Protection (or ALOP) for Australia is a high level of sanitary and phytosanitary protection aimed at reducing biosecurity risks to a very low level, but not to zero.

Note 1:       This section is in accordance with Australia’s rights and obligations under the SPS Agreement.

Note 2:       The ALOP for Australia must be applied in conducting a BIRA (see subsection 164(2)) or a risk assessment for the purpose of deciding whether particular goods, or a particular class of goods, can be brought or imported into Australian territory (see subsections 170(4), 171(3), 175(3) and 178(4)).

6  Act binds the Crown

             (1)  This Act binds the Crown in each of its capacities.

             (2)  This Act does not make the Crown liable to be:

                     (a)  prosecuted for an offence; or

                     (b)  subject to civil proceedings for a civil penalty order; or

                     (c)  given an infringement notice.

7  Extension of Act to Christmas Island, Cocos (Keeling) Islands and other prescribed external Territories

             (1)  This Act extends to Christmas Island and Cocos (Keeling) Islands.

             (2)  The regulations may extend this Act or any provisions of this Act, other than Chapter 5 (ballast water), to any other external Territory that is prescribed by the regulations.

Note:          Chapter 5 extends to all the external Territories (see section 261).

8  Concurrent operation of State and Territory laws

             (1)  This Act does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act (except as referred to in subsection (2)).

             (2)  Subsection (1) is subject to the following provisions:

                     (a)  section 169 (prohibited goods);

                     (b)  section 267 (ballast water);

                     (c)  subsections 443(4), 444(4), 475(5) and 476(4) (biosecurity emergencies and human biosecurity emergencies).

             (3)  Without limiting subsection (1), this Act does not exclude or limit the concurrent operation of a law of a State or Territory to the extent that:

                     (a)  the law makes an act or omission:

                              (i)  an offence; or

                             (ii)  subject to a civil penalty; and

                     (b)  that (or any similar) act or omission is also:

                              (i)  an offence against a provision of this Act; or

                             (ii)  subject to a civil penalty under this Act.

             (4)  Subsection (3) applies even if the law of the State or Territory does any one or more of the following, in relation to the offence or civil penalty:

                     (a)  provides for a penalty that differs from the penalty provided for in this Act;

                     (b)  provides for fault elements that differ from the fault elements applicable to the offence or civil penalty provision created by this Act;

                     (c)  provides for defences or exceptions that differ from the defences or exceptions applicable to the offence or civil penalty provision created by this Act.

Part 2Definitions

  

9  Definitions

                   In this Act:

acceptable ballast water exchange has the meaning given by section 275.

accompanying person for a child or incapable person means:

                     (a)  a parent, guardian or next of kin of the child or incapable person; or

                     (b)  a person authorised by a parent, guardian or next of kin of the child or incapable person under section 38.

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

adjacent premises warrant means a warrant issued as a result of the test in table item 7 of the table in section 511 being met.

Administration of a vessel has the same meaning as in the Ballast Water Convention.

Agriculture Department means the Department administered by the Agriculture Minister.

Agriculture Minister means the Minister administering the Primary Industries Levies and Charges Collection Act 1991.

Agriculture Secretary means the Secretary of the Agriculture Department.

aircraft means any machine or craft that can derive support in the atmosphere from the reactions of the air, other than the reactions of the air against the earth’s surface.

Note:          For the purposes of this Act, a reference to an aircraft does not include a reference to an aircraft that is being carried on board another conveyance (see paragraph 15(2)(b)). An aircraft that is being carried on board another conveyance is generally treated as goods for the purposes of this Act (see subsection 18(2)).

ALOP (short for Appropriate Level of Protection) has the meaning given by section 5.

animal includes a dead animal and any part of an animal.

appropriate ballast water records:

                     (a)  for an Australian vessel—has the meaning given by section 295; or

                     (b)  for a foreign vessel—has the meaning given by section 296.

appropriate person means:

                     (a)  for premises to which an entry warrant or a premises possession warrant relates, or premises entered under a provision referred to in section 526—the occupier of the premises, or another person who apparently represents the occupier; or

                     (b)  for a conveyance to which a conveyance possession warrant relates—the person responsible for the conveyance, or another person who apparently represents the person responsible for the conveyance.

Note:          If an entry warrant relates to a conveyance, the appropriate person is the person occupying the conveyance, or another person who apparently represents that person (see paragraph (a) of the definition of premises in this section).

approved arrangement has the meaning given by section 10.

Australian law means a law of the Commonwealth, or of a State or Territory.

Australian seas means the waters (including the internal waters of Australia) within the outer limits of the territorial sea of Australia (including every external Territory).

Note:          This definition is affected by sections 262 (vessels in dry dock) and 263 (foreign vessels near the Australian Antarctic Territory).

Australian territory has the meaning given by section 11.

Australian vessel means a vessel that:

                     (a)  has Australian nationality under section 29 of the Shipping Registration Act 1981; or

                     (b)  is a vessel whose Administration is the Commonwealth.

baggage means goods:

                     (a)  that are carried on a conveyance by or for a person who is on board the conveyance (including the person in charge and members of the crew of the conveyance); or

                     (b)  that a person intended to be so carried.

ballast water has the same meaning as Ballast Water has in the Ballast Water Convention.

Note:          Chapter 5 (ballast water) does not generally apply to permanent ballast water in sealed tanks (see section 265).

Ballast Water Convention means the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, done at London on 13 February 2004.

Note 1:       The Ballast Water Convention includes the Annex to the Ballast Water Convention.

Note 2:       In 2012, the text of the Convention was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

ballast water exchange means a process involving:

                     (a)  the discharge of ballast water from a tank on a vessel; and

                     (b)  the uptake of water into the tank simultaneously with, or immediately after, the discharge.

ballast water management has the same meaning as Ballast Water Management has in the Ballast Water Convention.

ballast water management certificate has the meaning given by section 288.

ballast water management plan has the meaning given by section 286.

ballast water operation means:

                     (a)  taking up ballast water into a vessel (whether deliberately, accidentally or as part of a ballast water exchange); or

                     (b)  discharging ballast water from a vessel (whether deliberately, accidentally or as part of a ballast water exchange); or

                     (c)  treating or circulating ballast water on a vessel for the purposes of ballast water management.

ballast water reception facility means a facility (including a vessel) for receiving ballast water from vessels for treatment or disposal.

ballast water record system for a vessel means a system for making and keeping records about the vessel’s ballast water and ballast water operations.

Biodiversity Convention means the Convention on Biological Diversity, done at Rio de Janeiro on 5 June 1992, as in force for Australia from time to time.

Note:          The text of the Convention is set out in Australian Treaty Series 1993 No. 32 ([1993] ATS 32). In 2012, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

biosecurity activities, in relation to an approved arrangement, has the meaning given by section 403.

biosecurity activity zone has the meaning given by subsection 393(1).

biosecurity activity zone determination means a determination made under subsection 393(1).

biosecurity control notice, in relation to goods that are subject to biosecurity control or a conveyance that is subject to biosecurity control, means a notice in the form approved by the Director of Biosecurity that states that the goods or conveyance is subject to biosecurity control.

Note:          See sections 126 and 202.

biosecurity control order means an order made under section 351.

biosecurity control order warrant means a warrant issued as a result of the test in table item 2 of the table in section 511 being met.

biosecurity emergency means a biosecurity emergency that is declared to exist under subsection 441(1).

biosecurity emergency declaration means a declaration made under subsection 441(1).

biosecurity emergency period means the period specified under paragraph 441(3)(c) in a biosecurity emergency declaration as the period during which the declaration is in force.

biosecurity enforcement officer means a person who is authorised under section 584 or 586 to be a biosecurity enforcement officer under this Act.

biosecurity entry point has the meaning given by section 12.

biosecurity industry participant has the meaning given by section 13.

biosecurity measures means measures to manage any of the following:

                     (a)  biosecurity risks;

                     (b)  the risk of contagion of a listed human disease;

                     (c)  the risk of listed human diseases:

                              (i)  entering Australian territory or a part of Australian territory; or

                             (ii)  emerging, establishing themselves or spreading in Australian territory or a part of Australian territory;

                     (d)  biosecurity emergencies and human biosecurity emergencies.

biosecurity monitoring zone means:

                     (a)  a permanent biosecurity monitoring zone; or

                     (b)  a temporary biosecurity monitoring zone.

biosecurity monitoring zone warrant means a warrant issued as a result of the test in table item 4 of the table in section 511 being met.

biosecurity officer means a person who is authorised under section 583 to be a biosecurity officer under this Act.

biosecurity official means any of the following:

                     (a)  a biosecurity officer;

                     (b)  a biosecurity enforcement officer;

                     (c)  the Director of Biosecurity.

biosecurity response zone has the meaning given by subsection 363(1).

Note:          An area may be determined to be a biosecurity response zone under Part 5 of Chapter 6 during a biosecurity emergency period (see section 463).

biosecurity response zone determination means a determination made under subsection 363(1).

biosecurity response zone warrant means a warrant issued as a result of the test in table item 3 of the table in section 511 being met.

biosecurity risk means (except as provided by section 309):

                     (a)  the likelihood of a disease or pest:

                              (i)  entering Australian territory or a part of Australian territory; or

                             (ii)  establishing itself or spreading in Australian territory or a part of Australian territory; and

                     (b)  the potential for any of the following:

                              (i)  the disease or pest to cause harm to human, animal or plant health;

                             (ii)  the disease or pest to cause harm to the environment;

                            (iii)  economic consequences associated with the entry, establishment or spread of the disease or pest.

Note:          Section 309 provides a modified meaning of biosecurity risk in relation to Chapter 6 (managing biosecurity risks: monitoring, control and response).

biosecurity risk assessment warrant means a warrant issued as a result of the test in table item 1 of the table in section 511 being met.

BIRA (short for Biosecurity Import Risk Analysis) has the meaning given by section 163.

chargeable activity has the meaning given by subsection 628(1).

chief human biosecurity officer for a State or Territory means a person who is authorised under section 600 to be a chief human biosecurity officer for the State or Territory.

child means a person who is less than 18 years old.

Christmas Island means the Territory of Christmas Island.

civil penalty order has the meaning given by subsection 535(4).

civil penalty provision: a provision of this Act is a civil penalty provision if:

                     (a)  the provision sets out at its foot a pecuniary penalty, or penalties, indicated by the words “Civil penalty”; and

                     (b)  the provision is one of the following:

                              (i)  a subsection, or a section that is not divided into subsections;

                             (ii)  a subregulation, or a regulation that is not divided into subregulations.

Note:          The reference to this Act includes a reference to regulations made under this Act (see the definition of this Act in this section).

coastal sea of Australia or an external Territory has the same meaning as in subsection 15B(4) of the Acts Interpretation Act 1901.

Cocos (Keeling) Islands means the Territory of Cocos (Keeling) Islands.

commercial‑in‑confidence has the meaning given by section 14.

Commonwealth body includes a Department of State, or an authority, of the Commonwealth.

competent authority has the meaning given by the International Health Regulations.

conditionally non‑prohibited goods has the meaning given by subsection 171(2).

constitutional trade and commerce means the following:

                     (a)  trade or commerce between Australia and places outside Australia;

                     (b)  trade or commerce among the States;

                     (c)  trade or commerce within a Territory, between a State and a Territory or between 2 Territories.

conveyance has the meaning given by section 15.

conveyance possession warrant means a warrant issued as a result of the test in table item 8 of the table in section 511 being met.

covered by, in relation to an approved arrangement, has the meaning given by section 13.

damage, in relation to data, includes damage by erasure of data or addition of other data.

declaration disease or pest, in relation to a biosecurity emergency declaration and a biosecurity emergency period, means the disease or pest specified under paragraph 441(3)(a) in the biosecurity emergency declaration that specifies the biosecurity emergency period.

declaration listed human disease, in relation to a human biosecurity emergency declaration and a human biosecurity emergency period, means the listed human disease specified under paragraph 473(3)(a) in the human biosecurity emergency declaration that specifies the human biosecurity emergency period.

Director of Biosecurity means the Director of Biosecurity referred to in section 578.

Director of Human Biosecurity means the Director of Human Biosecurity referred to in subsection 582(1).

disease means:

                     (a)  the signs or symptoms of an illness or infection caused by a disease agent; or

                     (b)  a collection of signs or symptoms that is clinically defined, for which the causal agent is unknown; or

                     (c)  a disease agent that has the potential to cause, either directly or indirectly, an illness or infection.

disease agent includes, but is not limited to, a microorganism, an infectious agent and a parasite.

enactment means:

                     (a)  an Act of the Commonwealth, a State or a Territory; or

                     (b)  an instrument (including rules, regulations and by‑laws) made under an Act of the Commonwealth, a State or a Territory.

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

entry warrant means any of the following warrants authorising entry to premises:

                     (a)  a biosecurity risk assessment warrant;

                     (b)  a biosecurity control order warrant;

                     (c)  a biosecurity response zone warrant;

                     (d)  a biosecurity monitoring zone warrant;

                     (e)  a monitoring warrant;

                      (f)  an investigation warrant;

                     (g)  an adjacent premises warrant.

environment includes:

                     (a)  ecosystems and their constituent parts; and

                     (b)  natural and physical resources.

evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

evidential material means a thing in relation to which any of the following conditions are met:

                     (a)  an offence against this Act, or an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act, has been committed or is suspected, on reasonable grounds, to have been committed with respect to the thing;

                     (b)  a civil penalty provision in this Act has been contravened or is suspected, on reasonable grounds, of having been contravened with respect to the thing;

                     (c)  there are reasonable grounds for suspecting that the thing will afford evidence of:

                              (i)  the commission of an offence against this Act or an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act; or

                             (ii)  the contravention of a civil penalty provision in this Act;

                     (d)  there are reasonable grounds for suspecting that the thing is intended to be used for the purpose of:

                              (i)  committing an offence against this Act or an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act; or

                             (ii)  contravening a civil penalty provision in this Act.

exposed conveyance means an exposed conveyance within the meaning of subsection 192(2) or (3).

exposed goods has the meaning given by subsection 156(3).

exposed goods order means an order made under subsection 157(3).

exposed to has the meaning given by section 16.

Federal Circuit Court means the Federal Circuit Court of Australia.

Federal Court means the Federal Court of Australia.

Finance Minister means the Minister administering the Financial Management and Accountability Act 1997.

first point of entry has the meaning given by section 17.

Foreign Affairs Department means the Department administered by the Minister administering the Diplomatic Privileges and Immunities Act 1967.

foreign vessel means a vessel that is not an Australian vessel.

goods has the meaning given by section 18.

harbour means a natural or artificial harbour, and includes:

                     (a)  a navigable estuary, river, creek or channel; and

                     (b)  a haven, roadstead, dock, pier or jetty; and

                     (c)  any other place in or at which vessels can obtain shelter or load and unload goods or embark and disembark passengers.

Health Department means the Department administered by the Health Minister.

Health Minister means the Minister administering the National Health Act 1953.

Health Secretary means the Secretary of the Health Department.

high‑value conveyance means a conveyance of a value that is greater than the amount prescribed by the regulations for the purposes of this definition.

high‑value goods means goods of a value that is greater than the amount prescribed by the regulations for the purposes of this definition.

human biosecurity control order means an order imposed on an individual under section 58.

human biosecurity emergency means a human biosecurity emergency that is declared to exist under subsection 473(1).

human biosecurity emergency declaration means a declaration made under subsection 473(1).

human biosecurity emergency period means the period specified under paragraph 473(3)(c) in a human biosecurity emergency declaration as the period during which the declaration is in force.

human biosecurity officer means a person who is authorised under section 601 to be a human biosecurity officer under this Act.

human disease means a disease that has the potential:

                     (a)  to enter Australian territory or a part of Australian territory, or to emerge, establish itself or spread in Australian territory or a part of Australian territory; and

                     (b)  to cause harm to human health.

human health response zone has the meaning given by section 111.

human health risk means:

                     (a)  the likelihood of a disease or pest:

                              (i)  entering Australian territory or a part of Australian territory; or

                             (ii)  emerging, establishing itself or spreading in Australian territory or a part of Australian territory; and

                     (b)  the potential for either of the following:

                              (i)  the disease or pest to cause harm to human health;

                             (ii)  economic consequences associated with the entry, emergence, establishment or spread of the disease or pest, to the extent that the disease or pest has the potential to cause harm to human health.

human remains means the remains of all or any part of a deceased human’s body, other than the cremated remains of a deceased human’s body.

Immigration Department means the Department administered by the Minister administering the Migration Act 1958.

import, in relation to goods, does not include unloading the goods for temporary purposes only (for example, to unload other goods).

incapable person means a person who:

                     (a)  is, or is more than, 18 years old; and

                     (b)  either:

                              (i)  is incapable (whether permanently or temporarily) of understanding the general nature and effect of, and purposes of carrying out, a biosecurity measure; or

                             (ii)  is incapable (whether permanently or temporarily) of indicating whether he or she consents or does not consent to a biosecurity measure.

incoming aircraft or vessel means an aircraft or vessel:

                     (a)  that has entered Australian territory during a flight or voyage that commenced outside Australian territory; and

                     (b)  that intends to arrive, or has arrived, at a landing place or port in Australian territory in accordance with Part 4 of Chapter 4 (managing biosecurity risks: conveyances).

incoming passenger aircraft or vessel means an incoming aircraft or vessel that is a passenger aircraft or a passenger vessel.

infringement notice provision has the meaning given by section 556.

installation has the meaning given by section 19.

internal waters of Australia has the same meaning as in section 10 of the Seas and Submerged Lands Act 1973 and, to avoid doubt, includes waters within the limits of a State.

International Health Regulations means the International Health Regulations (2005), done at Geneva on 23 May 2005, as in force for Australia from time to time.

Note:          The text of the Regulations is set out in Australian Treaty Series 2007 No. 29 ([2007] ATS 29). In 2012, the text of Regulations in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

international mail centre means a place approved by the Chief Executive Officer of Customs under paragraph (f) of the definition of Customs place in subsection 183UA(1) of the Customs Act 1901.

invasive pest means a pest that:

                     (a)  is an alien species (within the meaning of the Biodiversity Convention); but

                     (b)  is not capable of:

                              (i)  infesting humans, animals or plants; or

                             (ii)  acting as a vector for a disease; or

                            (iii)  causing disease in any other way.

investigation powers has the meaning given by sections 486, 487 and 489.

investigation warrant means a warrant issued as a result of the test in table item 6 of the table in section 511 being met.

isolation measure means the biosecurity measure included in a human biosecurity control order under section 95.

issuing officer means:

                     (a)  a magistrate; or

                     (b)  a Judge of the Federal Court or the Federal Circuit Court.

Note:          For conferral of powers on an issuing officer, see section 532.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

landing place, in relation to an aircraft, means any place where the aircraft can land, including:

                     (a)  an area of land or water; and

                     (b)  an area on a building or a vessel.

late payment fee has the meaning given by section 630.

life‑threatening situation, in relation to the execution of an investigation warrant in relation to premises, means a situation that the biosecurity enforcement officer or biosecurity officer believes, on reasonable grounds, involves a serious and imminent threat to a person’s life, health or safety that requires the officer to leave the premises.

listed human disease has the meaning given by section 41.

managed for discharge, in relation to ballast water, has the meaning given by sections 271 and 275.

medical facility includes a facility (whether permanent or temporary) where medical assessments of individuals are conducted.

monitoring powers has the meaning given by sections 480, 481 and 483.

monitoring warrant means a warrant issued as a result of the test in table item 5 of the table in section 511 being met.

National Focal Point has the meaning given by section 9 of the National Health Security Act 2007.

national response agency means:

                     (a)  the Agriculture Department and all biosecurity officers and biosecurity enforcement officers; or

                     (b)  a body declared under section 450 to be a national response agency.

officer of Customs has the same meaning as in the Customs Act 1901.

operator of a conveyance has the meaning given by section 20.

outgoing aircraft or vessel means an aircraft or vessel that intends to leave Australian territory from a landing place or port in Australian territory.

outgoing passenger aircraft or vessel means an outgoing aircraft or vessel that is a passenger aircraft or a passenger vessel.

passenger of an aircraft or vessel means a person who is lawfully entitled to be on board the aircraft or vessel, other than a person who is on board the aircraft or vessel for the purpose of performing functions as the person in charge or as a member of the crew of the aircraft or vessel.

passenger aircraft means an aircraft that has the capacity to carry 6 or more passengers.

passenger vessel means a vessel that has the capacity to carry 12 or more passengers.

permanent biosecurity monitoring zone has the meaning given by section 376.

permissible distance means 400 metres or such greater distance as is prescribed by regulations for the purposes of this definition.

permissible purpose means a purpose of promoting the objects of this Act.

personal information has the same meaning as in the Privacy Act 1988.

person assisting has the meaning given by section 531.

person in charge has the meaning given by section 21.

person responsible for a conveyance means:

                     (a)  the owner of the conveyance; or

                     (b)  the person in charge of the conveyance; or

                     (c)  the operator of the conveyance.

pest means a species, strain or biotype of a plant or animal, or a disease agent, that has the potential to cause, either directly or indirectly, harm to:

                     (a)  human, animal or plant health; or

                     (b)  the environment.

Note:          For the application of this Act in relation to pests, see sections 24 and 25.

plant includes a dead plant and any part of a plant.

port includes a harbour.

possession warrant means a premises possession warrant or a conveyance possession warrant authorising the taking of possession of premises or a conveyance.

PPSA security interest means a security interest within the meaning of the Personal Property Securities Act 2009 and to which that Act applies, other than a transitional security interest within the meaning of that Act.

Note 1:       The Personal Property Securities Act 2009 applies to certain security interests in personal property. See the following provisions of that Act:

(a)    section 8 (interests to which the Act does not apply);

(b)    section 12 (meaning of security interest);

(c)    Chapter 9 (transitional provisions).

Note 2:       For the meaning of transitional security interest, see section 308 of the Personal Property Securities Act 2009.

premises includes the following:

                     (a)  a structure, building or conveyance;

                     (b)  a place (whether or not enclosed or built on), including a place situated underground or under water;

                     (c)  a part of a thing referred to in paragraph (a) or (b).

Note:          Premises does not include a conveyance in certain parts of this Act (see sections 254, 470 and 501).

premises possession warrant means a warrant issued as a result of the test in table item 9 of the table in section 511 being met.

prescribed contact information means:

                     (a)  in relation to section 46—the contact information prescribed by the regulations for the purposes of that section; and

                     (b)  in relation to section 67—the contact information prescribed by the regulations for the purposes of that section; and

                     (c)  in relation to section 83—the contact information prescribed by the regulations for the purposes of that section.

prescribed quarantine signal means the signal prescribed for the purposes of subsection 223(2).

prohibited goods has the meaning given by subsection 170(2).

protected information means personal information, or information that is commercial‑in‑confidence, that:

                     (a)  is obtained under, or in accordance with, this Act; or

                     (b)  is derived from a record of personal information, or information that is commercial‑in‑confidence, that was made under, or in accordance with, this Act; or

                     (c)  is derived from a disclosure or use of personal information, or information that is commercial‑in‑confidence, that was made under, or in accordance with, this Act.

Note:          For the meaning of commercial‑in‑confidence, see section 14.

protected person has the meaning given by subsection 670(6).

protected zone has the meaning given by section 651.

protected zone area has the meaning given by section 651.

protected zone vessel has the meaning given by section 651.

related provision means the following:

                     (a)  an offence against this Act;

                     (b)  a civil penalty provision in this Act;

                     (c)  an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.

release from biosecurity control:

                     (a)  in relation to goods that are subject to biosecurity control—means release from biosecurity control under section 160; and

                     (b)  in relation to a conveyance that is subject to biosecurity control—means release from biosecurity control under section 221.

relevant court means:

                     (a)  the Federal Court; or

                     (b)  the Federal Circuit Court; or

                     (c)  a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.

relevant Director, in relation to an approved arrangement or a proposed approved arrangement, means:

                     (a)  if the arrangement provides for biosecurity activities to be carried out relating only to human health risks—the Director of Human Biosecurity; or

                     (b)  in any other case—the Director of Biosecurity.

relevant person for a reviewable decision means:

                     (a)  for a reviewable decision referred to in column 1 of the table in subsection 610(1)—the person referred to in column 3 of that table in relation to that decision; and

                     (b)  for a reviewable decision prescribed under regulations made for the purposes of subsection 610(2)—the person specified by the regulations as the relevant person for that decision.

relevant premises has the meaning given by section 498.

reportable biosecurity incident:

                     (a)  in relation to goods that are subject to biosecurity control—means an act, omission or event that is determined to be a reportable biosecurity incident under section 152; and

                     (b)  in relation to an approved arrangement—has the meaning given by subsection 429(1).

reviewable decision has the meaning given by subsections 610(1) and (2).

sanitation health risk has the meaning prescribed for the purposes of paragraph 257(1)(a).

sediment has the same meaning as Sediments has in the Ballast Water Convention.

sediment reception facility means a facility in Australian territory for receiving sediment from vessels for treatment or disposal in a way authorised under:

                     (a)  a law of the Commonwealth; or

                     (b)  if the facility is in a State or Territory—a law of the State or Territory.

ship’s pilot, in relation to a vessel, means a person who does not belong to, but has the conduct of, the vessel.

SPS Agreement means the Agreement on the Application of Sanitary and Phytosanitary Measures set out in Annex 1A to the World Trade Organization Agreement, as in force for Australia from time to time.

State or Territory body includes a Department of State, or an authority, of a State or Territory.

subject to biosecurity control:

                     (a)  in relation to goods—means subject to biosecurity control because of subsection 117(2) or (4); and

                     (b)  in relation to a conveyance—means subject to biosecurity control because of subsection 191(2) or (4) or 192(2), (3) or (5).

survey authority means a person authorised by the Director of Biosecurity under section 289 to be a survey authority.

suspended goods has the meaning given by subsection 178(2).

tank includes space or compartment.

temporary biosecurity monitoring zone has the meaning given by subsection 382(1).

temporary biosecurity monitoring zone determination means a determination made under subsection 382(1).

this Act includes instruments made under this Act.

Torres Strait Treaty has the meaning given by section 651.

traditional activities has the meaning given by section 651.

traditional inhabitant has the meaning given by section 651.

traveller movement measure means the biosecurity measure included in a human biosecurity control order under section 94.

unduly detained or delayed has the same meaning as in the Ballast Water Convention.

United Nations Convention on the Law of the Sea means the United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982, as in force for Australia from time to time.

Note:          The text of the Convention is set out in Australian Treaty Series 1994 No. 31 ([1994] ATS 31). In 2012, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

vessel:

                     (a)  means any kind of vessel used in navigation by water, however propelled or moved, including the following:

                              (i)  a barge, lighter or other floating craft;

                             (ii)  an air‑cushion vehicle, or other similar craft, used wholly or primarily in navigation by water; and

                     (b)  includes:

                              (i)  an installation; and

                             (ii)  any floating structure.

Note:          For the purposes of this Act, a reference to a vessel does not include a reference to a vessel that is being carried on board another conveyance (except in Chapter 5 (ballast water) and any provision of this Act to the extent that it relates to that Chapter) (see paragraph 15(2)(c)). A vessel that is being carried on board another conveyance is generally treated as goods for the purposes of this Act (see subsection 18(2)).

warrant means any warrant issued under section 510 or 514.

World Trade Organization Agreement means the Marrakesh Agreement establishing the World Trade Organization, done at Marrakesh on 15 April 1994.

Note:          The text of the Agreement is set out in Australian Treaty Series 1995 No. 8 ([1995] ATS 8). In 2012, the text of an Agreement in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

10  Meaning of approved arrangement

                   An approved arrangement is an arrangement for which an approval is in force under paragraph 404(1)(a) (including a varied arrangement for which an approval is in force under that paragraph as it applies because of subsection 410(3)).

11  Meaning of Australian territory

                   A reference in a provision of this Act to Australian territory is a reference to:

                     (a)  Australia, Christmas Island, Cocos (Keeling) Islands and any external Territory to which that provision extends; and

                     (b)  the airspace over an area covered by paragraph (a); and

                     (c)  the coastal sea of Australia, of Christmas Island, of Cocos (Keeling) Islands and of any other external Territory to which that provision extends.

Note 1:       Under subsection 7(2), the regulations may extend this Act, or any provisions of this Act, to external Territories.

Note 2:       The definition of coastal sea of Australia or an external Territory in subsection 15B(4) of the Acts Interpretation Act 1901 includes the airspace over Australia or the external Territory.

12  Meaning of biosecurity entry point

Biosecurity entry point for an aircraft

             (1)  A biosecurity entry point for an aircraft that is subject to biosecurity control is an area of a landing place that is designated, under paragraph 226(a), as a biosecurity entry point for that aircraft or a class of aircraft that includes that aircraft.

Biosecurity entry point for a vessel

             (2)  A biosecurity entry point for a vessel that is subject to biosecurity control is an area of a port that is designated, under paragraph 232(a), as a biosecurity entry point for that vessel or a class of vessels that includes that vessel.

Biosecurity entry point for goods

             (3)  A biosecurity entry point for goods that are subject to biosecurity control, or exposed goods in relation to which a biosecurity control order is in force, is:

                     (a)  an area of a landing place that is designated, under paragraph 226(b), as a biosecurity entry point for those goods or a class of goods that includes those goods; or

                     (b)  an area of a port that is designated, under paragraph 232(b), as a biosecurity entry point for those goods or a class of goods that includes those goods.

13  Meaning of biosecurity industry participant and covered by

                   A person who is the holder of the approval of an approved arrangement (including a person to whom an approved arrangement has been transferred in the circumstances prescribed by regulations made for the purposes of section 409):

                     (a)  is a biosecurity industry participant; and

                     (b)  is covered by the approved arrangement.

Note:          If an approved arrangement is revoked under Part 5 of Chapter 7 (approved arrangements), then, for the purposes of this Act, the arrangement ceases to be an approved arrangement and the person who held the approval of the arrangement ceases to be a biosecurity industry participant covered by the arrangement.

14  Meaning of commercial‑in‑confidence

                   Information is commercial‑in‑confidence if a person demonstrates to the Director of Biosecurity that:

                     (a)  release of the information would cause competitive detriment to the person; and

                     (b)  the information is not in the public domain; and

                     (c)  the information is not required to be disclosed under another Australian law; and

                     (d)  the information is not readily discoverable.

15  Meaning of conveyance

             (1)  Conveyance means any of the following:

                     (a)  an aircraft;

                     (b)  a vessel;

                     (c)  a vehicle;

                     (d)  a train (including railway rolling stock);

                     (e)  any other means of transport prescribed by the regulations.

             (2)  However, for the purposes of this Act:

                     (a)  a reference to a conveyance does not include a reference to a conveyance that is being carried on board another conveyance (except in Part 3 of Chapter 13 (cost recovery) and any provision of this Act to the extent that it relates to that Part); and

                     (b)  a reference to an aircraft does not include a reference to an aircraft that is being carried on board another conveyance; and

                     (c)  a reference to a vessel does not include a reference to a vessel that is being carried on board another conveyance (except in Chapter 5 (ballast water) and any provision of this Act to the extent that it relates to that Chapter).

Note 1:       Examples of conveyances that may be carried on board another conveyance include a lifeboat being carried on a vessel and a vehicle being carried on another vehicle or a train.

Note 2:       Except in the provisions referred to in paragraphs (2)(a) and (c), a conveyance that is being carried on board another conveyance is treated as goods for the purposes of this Act (see section 18).

16  Meaning of exposed to

             (1)  A person or thing is taken to have been exposed to another person or thing if the first‑mentioned person or thing has been, or is likely to have been:

                     (a)  in physical contact with; or

                     (b)  in close proximity to; or

                     (c)  exposed to contamination, infestation or infection from;

the other person or thing.

             (2)  In this section:

thing includes goods, a conveyance and premises.

17  Meaning of first point of entry

First point of entry for an aircraft

             (1)  A first point of entry for an aircraft that is subject to biosecurity control is a landing place that is determined, under paragraph 225(1)(a), to be a first point of entry for that aircraft or a class of aircraft that includes that aircraft.

First point of entry for a vessel

             (2)  A first point of entry for a vessel that is subject to biosecurity control is a port that is determined, under paragraph 231(1)(a), to be a first point of entry for that vessel or a class of vessels that includes that vessel.

First point of entry for goods

             (3)  A first point of entry for goods that are subject to biosecurity control, or exposed goods in relation to which an exposed goods order is in force, is:

                     (a)  a landing place that is determined, under paragraph 225(1)(b), to be a first point of entry for those goods or a class of goods that includes those goods; or

                     (b)  a port that is determined, under paragraph 231(1)(b), to be a first point of entry for those goods or a class of goods that includes those goods.

18  Meaning of goods

             (1)  Goods includes the following:

                     (a)  an animal;

                     (b)  a plant (whether moveable or not);

                     (c)  a sample or specimen of a disease agent;

                     (d)  a pest;

                     (e)  mail;

                      (f)  any other article, substance or thing (including, but not limited to, any kind of moveable property).

             (2)  Goods also includes a conveyance that is being carried on board another conveyance (except in Part 3 of Chapter 13 (cost recovery) and any provision of this Act to the extent that it relates to that Part).

Note:          Conveyances that would be included as goods under this subsection include, for example, a lifeboat being carried on a vessel and a vehicle being carried on another vehicle or a train.

             (3)  However, goods does not include:

                     (a)  ballast water; or

                     (b)  human remains; or

                     (c)  except as provided in subsection (2), a conveyance.

19  Meaning of installation

                   An installation is a structure that:

                     (a)  is able:

                              (i)  to float or to be floated; and

                             (ii)  to move, or to be moved, as an entity from one place to another; and

                     (b)  is, or is to be, used wholly or principally in:

                              (i)  exploring or exploiting natural resources (such as fish or minerals) with equipment on, or forming part of, the structure; or

                             (ii)  operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (i) of this paragraph; and

                     (c)  either:

                              (i)  is attached to, or resting on, the seabed; or

                             (ii)  is attached semipermanently or permanently to a structure that is attached to, or resting on, the seabed.

Note:          An installation is a vessel for the purposes of this Act (see paragraph (b) of the definition of vessel in section 9).

20  Meaning of operator of a conveyance

             (1)  Subject to subsection (2), the operator of a conveyance is:

                     (a)  if there is a body corporate or an unincorporated body responsible for the operation of the conveyance—that body; and

                     (b)  in any other case—the person in charge of the conveyance.

             (2)  In Chapter 5 (ballast water), and any other provision of this Act to the extent that it relates to that Chapter, the operator of a vessel has the same meaning as Company has in the Annex to the Ballast Water Convention.

21  Meaning of person in charge

             (1)  Person in charge of goods:

                     (a)  means:

                              (i)  the owner of the goods; or

                             (ii)  a person (other than a biosecurity officer or a biosecurity enforcement officer) who is in possession or control of the goods; and

                     (b)  includes a biosecurity industry participant who is in possession or control of the goods as authorised by an approved arrangement covering the biosecurity industry participant.

Note:          Person in charge of goods does not include a biosecurity industry participant in certain provisions of this Act (see subsections 131(7), 181(7), 334(6) and 653(5)).

             (2)  Person in charge of a conveyance means the person in charge or command of the conveyance, but does not include a ship’s pilot.

Note:          A conveyance includes an aircraft and a vessel (see section 15).


 

Part 3Constitutional and international law provisions

Division 1Introduction

22  Guide to this Part

This Part contains provisions that relate to the Constitution, such as:

               (a)     the constitutional powers relied on for this Act; and

              (b)     the application of this Act in relation to pests; and

               (c)     provisions relating to protections in the Constitution (for example, compensation for any acquisition of property).

This Part also ensures that this Act is consistent with the rights that foreign aircraft and vessels have under the United Nations Convention on the Law of the Sea.


 

Division 2Constitutional and international law provisions

23  Severability

             (1)  Without limiting the effect of this Act apart from this section, this Act also has effect as provided by this section.

             (2)  To avoid doubt, no subsection of this section limits the operation of any other subsection of this section.

Quarantine power

             (3)  This Act has the effect it would have if its operation were expressly confined to exercising a power, performing a function, conferring a right, or imposing an obligation, in relation to quarantine (within the meaning of paragraph 51(ix) of the Constitution).

External affairs power

             (4)  This Act has the effect it would have if its operation were expressly confined to give effect to Australia’s rights and obligations under an agreement with one or more countries.

Note:          This subsection is subject to section 25 (application of this Act in relation to invasive pests).

             (5)  This Act has the effect it would have if its operation were expressly confined to acts or omissions that occur beyond the limits of the States and Territories.

             (6)  This Act has the effect it would have if its operation were expressly confined to matters that are of international concern.

Trade and commerce power

             (7)  This Act has the effect it would have if its operation were expressly confined to acts or omissions occurring in the course of constitutional trade and commerce.

             (8)  This Act has the effect it would have if references to goods and conveyances were expressly confined to references to goods and conveyances involved in constitutional trade and commerce.

Fisheries power

             (9)  This Act has the effect it would have if its operation were expressly confined to exercising a power, performing a function, conferring a right, or imposing an obligation, that affects fisheries in Australian waters beyond territorial limits (within the meaning of paragraph 51(x) of the Constitution).

Aliens power

           (10)  This Act has the effect it would have if its operation were expressly confined to:

                     (a)  exercising a power or performing a function that affects an alien (within the meaning of paragraph 51(xix) of the Constitution); or

                     (b)  conferring a right or imposing an obligation on such an alien.

Corporations power

           (11)  This Act has the effect it would have if its operation were expressly confined to:

                     (a)  exercising a power or performing a function that affects a person that is a corporation to which paragraph 51(xx) of the Constitution applies; or

                     (b)  conferring a right or imposing an obligation on such a person.

Territories and Commonwealth places power

           (12)  This Act has the effect it would have if its operation were expressly confined to exercising a power, performing a function, conferring a right, or imposing an obligation, in relation to a person or thing in:

                     (a)  a Territory; or

                     (b)  a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970).

Postal power

           (13)  This Act has the effect it would have if its operation were expressly confined to acts using postal, telegraphic, telephonic, and other like services (within the meaning of paragraph 51(v) of the Constitution).

Sickness benefits power

           (14)  This Act has the effect it would have if its operation were expressly confined to the provision of sickness and hospital benefits, and medical services (but not so as to authorise any form of civil conscription) (within the meaning of paragraph 51(xxiiiA) of the Constitution).

Census and statistics power

           (15)  This Act has the effect it would have if its operation were expressly confined to a requirement to answer a question or provide information (whether in a notice, a report or otherwise) for purposes relating to census and statistics (within the meaning of paragraph 51(xi) of the Constitution).

24  Application of this Act in relation to pests that are quarantine risks or invasive pests

             (1)  This Act (other than Part 1 of Chapter 8 (biosecurity emergencies)) applies in relation to a pest only if:

                     (a)  the pest is capable of:

                              (i)  infesting humans, animals or plants; or

                             (ii)  acting as a vector for a disease; or

                            (iii)  causing disease in any other way; or

                     (b)  the pest is an invasive pest.

Note:          For the application of this Act in relation to invasive pests, see section 25.

             (2)  Part 1 of Chapter 8 applies only in relation to a pest that is referred to in paragraph (1)(a).

25  Application of this Act in relation to invasive pests

             (1)  This section applies to the extent that:

                     (a)  a provision of this Act:

                              (i)  confers a power, function or right; or

                             (ii)  imposes an obligation;

                            in relation to an invasive pest; and

                     (b)  the provision would (apart from this section) exceed the legislative power of the Commonwealth if Australia were not a party to the Biodiversity Convention.

             (2)  The power, function or right is conferred, or the obligation is imposed, only to the extent that the conferral or imposition:

                     (a)  is for the purpose of preventing the introduction of, or controlling or eradicating, those invasive pests which threaten ecosystems, habitats or species; and

                     (b)  is reasonably capable of being considered appropriate and adapted to give effect to Australia’s rights and obligations under Article 7 or 8 of the Biodiversity Convention.

             (3)  This section limits the effect that this Act has apart from this section.

26  Compensation for acquisition of property

             (1)  If the operation of this Act would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

Note:          For the definitions of acquisition of property and just terms, see section 9.

             (2)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a relevant court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

27  Freedom of interstate trade, commerce and intercourse

                   A power or function conferred by this Act must not be exercised or performed in such a way as to contravene:

                     (a)  section 92 of the Constitution (trade and commerce among the States to be free); or

                     (b)  section 69 of the Australian Capital Territory (Self‑Government) Act 1988; or

                     (c)  section 49 of the Northern Territory (Self‑Government) Act 1978.

28  Commonwealth not to give preference

                   A power or function conferred by this Act must not be exercised or performed in such a way as to give preference to one State or any part of a State in contravention of section 99 of the Constitution.

29  Application of this Act to foreign aircraft and vessels

                   This Act does not apply to the extent that its application would be inconsistent with the exercise of rights of foreign aircraft or vessels, in accordance with the United Nations Convention on the Law of the Sea, above or in any of the following:

                     (a)  the territorial sea of Australia;

                     (b)  the exclusive economic zone;

                     (c)  waters of the continental shelf.


 

Part 4Principles affecting decisions to exercise certain powers

  

30  Guide to this Part

A biosecurity official who is making a decision to exercise a power under certain provisions of this Act must first consider the principles set out in this Part.

The principles aim to ensure that the power is exercised only if exercising the power is likely to be effective in, or to contribute to, achieving the purpose for which the power is to be exercised, is appropriate and adapted for its purpose, and is no more restrictive or intrusive than is required.

If the power is to be exercised in relation to a conveyance, the biosecurity official must consider the impact of the exercise of the power on the health and safety of any persons on board the conveyance.

31  The principles

             (1)  This section applies (subject to subsection (4)) to a biosecurity official who is making a decision to exercise a power in accordance with a provision of this Act referred to in the following table or an instrument in force under such a provision.

 

Provisions to which decision‑making principles apply

Item

Power

Provision

1

Power of Director of Biosecurity to give approval for a direction requiring an aircraft or vessel to be moved to a place outside Australian territory

Paragraph 205(3)(a)

2

Power of Director of Biosecurity to give approval to cause an aircraft or vessel to be moved to a place outside Australian territory

Paragraph 205(3)(b)

3

Power of Director of Biosecurity to give approval for a conveyance to be removed from Australian territory, destroyed or otherwise disposed of

Paragraph 208(5)(d)

4

Power of Director of Biosecurity to give approval for a conveyance to be destroyed

Subsection 209(2) and paragraph 209(5)(d)

5

Power of Director of Biosecurity to give approval for a direction requiring an aircraft not to land at any landing place in Australian territory

Subsection 243(2)

6

Power of Director of Biosecurity to give approval for a direction requiring a vessel not to be moored at any port in Australian territory

Subsection 251(2)

7

Power of biosecurity officer or biosecurity enforcement officer to enter premises at a landing place or port in Australian territory

Subsection 254(2)

8

Power of Director of Biosecurity to give a direction about movement of a vessel that may have been involved in the commission of an offence against Chapter 5 (ballast water and sediment)

Section 303

9

Any power that may be exercised by a biosecurity official

Chapter 6 (managing biosecurity risks: monitoring, control and response)

10

Any power that may be exercised by a biosecurity official

Divisions 5 and 6 of Part 1 of Chapter 8 (biosecurity emergencies)

11

Any power that may be exercised by a biosecurity official

Subdivision B of Division 2 of Part 4 of Chapter 12 (decontamination)

12

Power of Director of Biosecurity to deal with an abandoned conveyance

Section 655

13

Power of Director of Biosecurity to deal with a forfeited conveyance

Section 656

Principles affecting decision‑making

             (2)  Before the biosecurity official makes the decision, the biosecurity official must be satisfied of all of the following:

                     (a)  that exercising the power is likely to be effective in, or to contribute to, achieving the purpose for which the power is to be exercised;

                     (b)  that exercising the power is appropriate and adapted to achieve that purpose;

                     (c)  that the manner in which the power is to be exercised is no more restrictive or intrusive than is required in the circumstances;

                     (d)  if the power is to be exercised in relation to an individual—that the power is no more restrictive or intrusive than is required in the circumstances;

                     (e)  if the power is to be exercised during a period—that the period is only as long as is necessary.

Powers that are to be exercised in relation to a conveyance

             (3)  If the power is to be exercised in relation to a conveyance, the biosecurity official must consider the impact of the exercise of the power on the health and safety of any persons on board the conveyance.

Exceptions to application of the principles

             (4)  Subsection (2) does not apply in relation to the making of a biosecurity control order or the making of a legislative instrument under Chapter 6 (including a biosecurity control order or a legislative instrument made under that Chapter in accordance with Division 5 or 6 of Part 1 of Chapter 8 (biosecurity emergencies)).

Note:          For principles affecting the exercise of a power under Chapter 2 (managing biosecurity risks: human health), see section 33.

Chapter 2Managing biosecurity risks: human health

Part 1General protections and listing human diseases

Division 1Introduction

32  Guide to this Part

Division 2 contains protections for individuals in relation to whom powers are exercised under this Chapter.

Any person who exercises a power, or imposes a biosecurity measure, under this Chapter must first consider the principles set out in Division 2. The principles aim to ensure that a power is exercised, or biosecurity measure imposed, only when circumstances are sufficiently serious to justify it, and only if it would be effective, it is appropriate and adapted for its purpose, and it is no more restrictive or intrusive than is required. Division 2 also ensures that the requirements of this Chapter do not interfere with an individual’s urgent or life‑threatening medical needs, and sets out the protections that this Chapter provides for a child or incapable person who is subject to a requirement under this Chapter.

Powers in this Chapter are exercised only in relation to human diseases that cause significant harm to human health. Those diseases must be listed in a legislative instrument that is made by the Director of Human Biosecurity under Division 3.


 

Division 2Protections

Subdivision AGeneral protections

33  The principles

             (1)  This section applies (subject to subsections (3) and (4)) to a person who is making a decision to exercise a power in relation to, or impose a biosecurity measure on, an individual under this Chapter, in order to manage the risk of:

                     (a)  contagion of a listed human disease; or

                     (b)  a listed human disease entering, or emerging, establishing itself or spreading in, Australian territory or a part of Australian territory.

Note:          A person may exercise a power in relation to, or impose a biosecurity measure on, an individual under this Chapter during a human biosecurity emergency (see Part 2 of Chapter 8).

Principles affecting decision‑making

             (2)  Before the person makes the decision, the person must be satisfied of all of the following:

                     (a)  that exercising the power, or imposing the biosecurity measure, is likely to be effective in, or to contribute to, managing the risk;

                     (b)  that exercising the power, or imposing the biosecurity measure, is appropriate and adapted to manage the risk;

                     (c)  that the circumstances are sufficiently serious to justify exercising the power, or imposing the biosecurity measure;

                     (d)  that the power, or the biosecurity measure, is no more restrictive or intrusive than is required in the circumstances;

                     (e)  that the manner in which the power is to be exercised, or the biosecurity measure is to be imposed, is no more restrictive or intrusive than is required in the circumstances;

                      (f)  if the power is to be exercised or the biosecurity measure imposed during a period—that the period is only as long as is necessary.

             (3)  Subsection (2) does not apply in relation to the making of a legislative instrument under this Chapter in relation to a class of individuals.

             (4)  Subsection (2) does not apply in relation to the making of a decision to require answers to questions or written information under Division 6 of Part 2.

34  No interference with urgent or life‑threatening medical needs

                   The exercise of a power, or the imposition of a biosecurity measure, in relation to an individual under this Chapter must not interfere with any urgent or life‑threatening medical needs of the individual.

Subdivision BProtections for children or incapable persons

35  Child or incapable person may be accompanied

                   A child or incapable person who is subject to a requirement under this Chapter may be accompanied by an accompanying person for the child or incapable person.

Note:          This subsection is subject to section 40 (exception for requirement to remain at a place).

36  Officer to contact parent, guardian or next of kin of unaccompanied child or incapable person

                 (1)   A child or incapable person who is not accompanied by an accompanying person must not be subject to a requirement under this Chapter unless a biosecurity officer, human biosecurity officer or chief human biosecurity officer has taken reasonable steps to contact a parent, guardian or next of kin of the child or incapable person.

Note:          This subsection is subject to subsection (2) and section 40 (exception for requirement to remain at a place).

             (2)  If the child or incapable person has urgent or life‑threatening medical needs, the officer must meet those needs first. However, the officer must take reasonable steps to contact the parent, guardian or next of kin of the child or incapable person as soon as possible after those needs have been met.

Requirements when contacting parent, guardian or next of kin

             (3)   On contacting the parent, guardian or next of kin, the officer must:

                            (a)   explain the effects of sections 35 and 38; and

                            (b)   allow an accompanying person to accompany the child or incapable person.

                 (4)   If a parent, guardian or next of kin indicates that he or she wishes the child or incapable person to be accompanied, the child or incapable person must not be subject to a requirement under this Chapter until an accompanying person for the child or incapable person accompanies the child or incapable person.

37  Requirement to comply with direction

             (1)  A biosecurity officer, human biosecurity officer or chief human biosecurity officer may give a direction to an accompanying person for a child or incapable person.

Note:          See also section 608 (general provisions relating to directions).

             (2)  The direction must be for the purpose of ensuring the child’s or incapable person’s compliance with a requirement under this Chapter.

             (3)  An accompanying person who is given a direction under subsection (1) must comply with the direction.

Fault‑based offence

             (4)  A person commits an offence if:

                     (a)  the person is an accompanying person; and

                     (b)  the person is given a direction under this section; and

                     (c)  the person fails to comply with the direction.

Penalty:  Imprisonment for 5 years or 300 penalty units, or both.

38  Parent, guardian or next of kin may authorise person to accompany child or incapable person

                         A parent, guardian or next of kin of a child or incapable person may authorise another person to be an accompanying person for the child or incapable person for the purposes of this Chapter.

39  Giving consent

             (1)  An accompanying person for a child or incapable person may give consent on behalf of the child or incapable person for the purposes of Part 3 of this Chapter (human biosecurity control orders).

             (2)  If the accompanying person gives his or her consent, then, for the purposes of that Part, the child or incapable person is taken to have given his or her consent.

             (3)  If the accompanying person does not give his or her consent, then, for the purposes of that Part, the child or incapable person is taken to have refused to give his or her consent.

40  Exception for requiring an individual to remain at a place

                   Despite section 35 and subsections 36(1) and (4), a child or incapable person may be required to remain at a place under section 66 without:

                     (a)  being accompanied by an accompanying person; or

                     (b)  an officer taking reasonable steps to contact a parent, guardian or next of kin in accordance with section 36.


 

Division 3Listing human diseases

41  Listing human diseases

             (1)  The Director of Human Biosecurity may, in writing, determine that a human disease is a listed human disease if the Director considers that the disease may:

                     (a)  be communicable; and

                     (b)  cause significant harm to human health.

             (2)  Before making a determination under this section, the Director of Human Biosecurity must consult with:

                     (a)  the chief health officer (however described) for each State and Territory; and

                     (b)  the Director of Biosecurity.

             (3)  A determination made under this section is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the instrument.


 

Part 2Preventing risks to human health

Division 1Introduction

42  Guide to this Part

Division 2 allows the Health Minister to prescribe requirements in relation to individuals, and operators of certain aircraft or vessels, that are entering or leaving Australian territory.

Division 3 requires operators of incoming and outgoing passenger aircraft and vessels to provide 24/7 contact information.

Pratique is granted under Division 4 for incoming aircraft and vessels. Pratique allows things to be unloaded from, and persons to disembark from, aircraft or vessels. Pratique can be granted by force of this Act (positive pratique) or by a biosecurity officer (negative pratique).

Under Division 5, the Health Minister may determine certain biosecurity measures for the purposes of preventing a specified behaviour or practice that causes, or contributes to, the entry into, or the emergence, establishment or spread in, Australian territory or a part of Australian territory of a specified listed human disease.

Certain officers and other persons can ask questions and require documents to be provided under Division 6 for various health‑related purposes.


 

Division 2Entry and exit requirements

43  Entry requirements

             (1)  This section applies for the purpose of preventing a listed human disease from entering, or establishing itself or spreading in, Australian territory or a part of Australian territory.

             (2)  The Health Minister may determine one or more requirements for individuals who are entering Australian territory at a landing place or port in accordance with Division 2 or 3 of Part 4 of Chapter 4.

Note:          An individual who fails to comply with a requirement may contravene a civil penalty provision (see section 45).

             (3)  A determination made under subsection (2) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the instrument.

Where requirements apply

             (4)  The determination must specify where the requirements apply.

Kinds of determinations that may be specified

             (5)  Without limiting subsection (2), the determination may specify:

                     (a)  requirements for all individuals, or classes of individuals; and

                     (b)  specific requirements in relation to specified listed human diseases; and

                     (c)  general requirements in relation to listed human diseases generally; and

                     (d)  requirements relating to the manner in which an individual must comply with a requirement.

             (6)  Without limiting subsection (2), the determination may specify one or more of the following requirements:

                     (a)  a requirement for an individual to provide a declaration or evidence that the individual has received a specified vaccination or other prophylaxis within a specified previous period;

                     (b)  a requirement for an individual to complete a questionnaire on his or her health, which may include confirmation of whether the individual is undergoing or has undergone specified treatment within a specified previous period;

                     (c)  a requirement for an individual to provide a declaration in relation to a specified listed human disease;

                     (d)  a requirement for an individual to provide a declaration or evidence of where the individual has been before entering Australian territory;

                     (e)  a requirement for an individual to be screened (whether by requiring the individual to be screened by equipment, by providing a declaration, or in any other way).

Note 1:       An officer has certain powers in relation to an individual who fails to comply with a requirement in subsection (6) (see section 58 (imposing a human biosecurity control order on an individual)).

Note 2:       A person may commit an offence or contravene a civil penalty provision if the person provides false or misleading information or documents (see sections 137.1 and 137.2 of the Criminal Code and sections 507 and 508 of this Act).

Note 3:       This section is not subject to the privilege against self‑incrimination (see section 661).

             (7)  A determination must not specify as a requirement a biosecurity measure described in Subdivision B of Division 3 of Part 3 (biosecurity measures that may be included in a human biosecurity control order).

44  Exit requirements

             (1)  This section applies for the following purposes:

                     (a)  preventing a listed human disease from spreading to another country;

                     (b)  if a recommendation has been made to the Health Minister by the World Health Organization under Part III of the International Health Regulations—purposes relating to that recommendation.

             (2)  The Health Minister may determine one or more requirements:

                     (a)  for individuals who are leaving Australian territory; or

                     (b)  for operators of outgoing passenger aircraft or vessels.

Note:          A person who fails to comply with a requirement may contravene a civil penalty provision (see section 45).

             (3)  A determination made under subsection (2) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the instrument.

Where requirements apply

             (4)  The determination must specify where the requirements apply.

Kinds of determinations that may be specified

             (5)  Without limiting subsection (2), the determination may specify:

                     (a)  requirements for all individuals or operators, or classes of individuals or operators; and

                     (b)  specific requirements in relation to specified listed human diseases; and

                     (c)  general requirements in relation to listed human diseases generally; and

                     (d)  requirements relating to the manner in which an individual or operator must comply with a requirement.

             (6)  Without limiting subsection (2), the determination may specify one or more of the following requirements:

                     (a)  a requirement for an operator of an outgoing passenger aircraft or vessel to provide to passengers, who are intending to leave Australian territory on the operator’s aircraft or vessel, specified information about the risks to human health associated with travelling;

                     (b)  a requirement for an operator of an outgoing passenger aircraft or vessel to report to a human biosecurity officer or a chief human biosecurity officer if the operator observes that any passenger intending to leave Australian territory on the operator’s aircraft or vessel has signs or symptoms of a listed human disease;

                     (c)  a requirement for an operator of an outgoing passenger aircraft or vessel to treat the aircraft or vessel in a specified manner;

                     (d)  a requirement for an individual to provide a declaration or evidence that the individual has received a specified vaccination or other prophylaxis within a specified previous period;

                     (e)  a requirement for an individual to complete a questionnaire on his or her health, which may include confirmation as to whether the individual is undergoing, or has undergone, specified treatment within a specified previous period;

                      (f)  a requirement for an individual to provide a declaration in relation to a specified listed human disease;

                     (g)  a requirement for an individual to provide a declaration or evidence of where the individual has been before leaving Australian territory;

                     (h)  a requirement for an individual to be screened (whether by requiring the individual to be screened by equipment, by providing a declaration, or in any other way).

Note 1:       A person may commit an offence or contravene a civil penalty provision if the person provides false or misleading information or documents (see sections 137.1 and 137.2 of the Criminal Code and sections 507 and 508 of this Act).

Note 2:       This section is not subject to the privilege against self‑incrimination (see section 661).

             (7)  A determination must not specify as a requirement a biosecurity measure described in Subdivision B of Division 3 of Part 3 (biosecurity measures that may be included in a human biosecurity control order).

45  Civil penalties for failing to comply with certain entry and exit requirements

Civil penalty for failing to comply with entry requirement

             (1)  An individual to whom a requirement determined under section 43 (entry requirements) applies must comply with the requirement.

Civil penalty:          30 penalty units.

Civil penalty for failing to comply with exit requirements

             (2)  An operator of an outgoing passenger aircraft or vessel to whom a requirement under paragraph 44(6)(c) (manner of treating aircraft or vessel) applies must comply with the requirement.

Civil penalty:          30 penalty units.

             (3)  An individual to whom a requirement under paragraph 44(6)(d), (e), (f), (g) or (h) (exit requirements) applies must comply with the requirement.

Civil penalty:          30 penalty units.

Contraventions by individuals who are not able to comply

             (4)  To avoid doubt, an individual may contravene subsection (1) or (3) of this section even if the individual is not able to comply with the requirement.

Example:    An individual who has not received a specified vaccination may contravene subsection (1) or (3) because the individual is not able to comply with a requirement to provide a declaration or evidence that the individual has received that vaccination.


 

Division 3Contact information for operators

46  Requirements for operators to provide 24/7 contact information

             (1)  This section applies for the purposes of:

                     (a)  preventing a listed human disease from entering, or establishing itself or spreading in, Australian territory or a part of Australian territory; or

                     (b)  preventing a listed human disease from spreading to another country.

             (2)  The operator of an incoming passenger aircraft or vessel, or an outgoing passenger aircraft or vessel, must provide the Director of Human Biosecurity with the prescribed contact information for an individual nominated by the operator.

Civil penalty:          120 penalty units.

             (3)  The individual whose contact information is provided under subsection (2) must be reasonably able to be contacted at any time.

             (4)  The operator must ensure that the contact information provided is kept up‑to‑date.

Civil penalty:          120 penalty units.

             (5)  The contact information must be provided in the manner prescribed by the regulations (if any).

Civil penalty:          120 penalty units.


 

Division 4Pratique

47  Positive pratique

                 (1)   An operator of an incoming aircraft or vessel that arrives at a landing place or port in Australian territory in accordance with Division 2 or 3 of Part 4 of Chapter 4 must not allow:

                     (a)  any thing to be unloaded from or loaded onto the aircraft or vessel; nor

                     (b)  any person to disembark from or embark onto the aircraft or vessel;

unless pratique has been granted under subsection (2) or 48(4) in relation to the aircraft or vessel.

Civil penalty:          120 penalty units.

Note:          Even if pratique has been granted, a person may still be prevented from unloading goods under Division 6 of Part 1 of Chapter 3.

                 (2)   Pratique is granted in relation to an incoming aircraft or vessel by force of this subsection at the time the aircraft or vessel arrives at a landing place or port in Australian territory, unless the aircraft or vessel is in a class of aircraft or vessels specified for the purposes of paragraph 48(1)(a).

48  Negative pratique

                  (1)   The Director of Human Biosecurity may specify, in writing:

                            (a)   classes of incoming aircraft or vessels in relation to which pratique is to be granted by a biosecurity officer; and

                            (b)   the requirements with which an incoming aircraft or vessel in that class must comply for pratique to be granted by a biosecurity officer.

             (2)  An instrument made under subsection (1) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the instrument.

             (3)  Requirements specified for the purposes of paragraph (1)(b) must be consistent with Articles 28.2 and 43 of the International Health Regulations.

                  (4)   A biosecurity officer may grant pratique, in writing, in relation to an incoming aircraft or vessel in a particular class of incoming aircraft or vessel if the aircraft or vessel complies with the requirements specified for the purposes of paragraph (1)(b) for that class of aircraft or vessel.

             (5)  An instrument made under subsection (4) is not a legislative instrument.

49  Pre‑departure reporting

                  (1)   The Director of Human Biosecurity may, in writing, specify information that is required to be provided by operators of specified outgoing aircraft or vessels.

Note:          For reporting in relation to incoming aircraft or vessels, see section 193.

             (2)  An instrument made under subsection (1) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the instrument.

                  (3)   The Director of Human Biosecurity may specify in the legislative instrument the manner in which, and the period during which, the information is required to be provided.

Incomplete or incorrect information

                  (4)   If the operator or the person in charge of an aircraft or vessel becomes aware that:

                     (a)  information was required to be provided under this section in relation to the aircraft or vessel; and

                     (b)  either:

                              (i)  the information provided in relation to the aircraft or vessel is incomplete or incorrect; or

                             (ii)  no information was provided;

the operator must provide the additional or correct information in the manner specified under subsection (3) as soon as reasonably practicable.

Civil penalty

                  (5)   An operator who is required to provide information in accordance with this section must comply with the requirement.

Civil penalty:          120 penalty units.


 

Division 5Preventative biosecurity measures

50  Determining preventative biosecurity measures

             (1)  This section applies for the purposes of preventing a behaviour or practice that:

                     (a)  may cause a listed human disease to enter, or emerge, establish itself or spread in, Australian territory or a part of Australian territory; or

                     (b)  may contribute to a listed human disease entering, or emerging, establishing itself or spreading in, Australian territory or a part of Australian territory.

             (2)  The Health Minister may make a determination that specifies any one or more of the following biosecurity measures to be taken by specified classes of persons:

                     (a)  banning or restricting a behaviour or practice;

                     (b)  requiring a behaviour or practice;

                     (c)  requiring a specified person to provide a specified report or keep specified records;

                     (d)  conducting specified tests on specified goods.

Note 1:       A person who fails to comply with a biosecurity measure may contravene a civil penalty provision (see section 51).

Note 2:       The Director of Human Biosecurity may authorise State or Territory officers or employees to be biosecurity enforcement officers for the purposes of ensuring compliance with biosecurity measures that are specified (see sections 586 and 587).

             (3)  The determination must specify the behaviour or practice, and the listed human disease, referred to in subsection (1).

             (4)  A determination made under subsection (2) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the instrument.

             (5)  A biosecurity measure must not be specified in a determination unless the Health Minister is satisfied that the biosecurity measure is appropriate and adapted to prevent, or reduce the risk of, the disease entering, or emerging, establishing itself or spreading in, Australian territory or a part of Australian territory.

Period of determination

             (6)  A determination must specify the period during which it is in force, which must not be more than 1 year.

Consultations before making determination

             (7)  Before making a determination, the Health Minister must consult with:

                     (a)  the Minister of each State and Territory with responsibility for human health; and

                     (b)  the Director of Biosecurity.

51  Civil penalty for failing to comply with a preventative biosecurity measure

                   A person to whom a biosecurity measure specified in accordance with subsection 50(2) applies must comply with the biosecurity measure.

Civil penalty:          120 penalty units.


 

Division 6Information gathering powers

52  Who may ask questions and require written information

             (1)  The following persons may require answers to questions, or written information, under this Division:

                     (a)  the Director of Human Biosecurity;

                     (b)  a chief human biosecurity officer;

                     (c)  a human biosecurity officer;

                     (d)  a biosecurity officer;

                     (e)  a person referred to in subsection 101(3) (detention).

Note 1:       An individual who fails to comply with a requirement under this Division may commit an offence (see section 56).

Note 2:       Before exercising a power under this Division, a person must be satisfied of the matters referred to in section 33 (the principles).

Note 3:       This Division is not subject to the privilege against self‑incrimination (see section 661).

Note 4:       This Division constitutes an authorisation for the purposes of other laws, such as the Privacy Act 1988.

             (2)  A person referred to in subsection (1) is taken to be an officer for the purposes of this Division.

53  Asking questions and requiring answers from particular individuals

             (1)  An officer may require an individual to answer questions, or provide written information, if:

                     (a)  a human biosecurity control order is in force in relation to the individual; or

                     (b)  the individual is in a human health response zone.

Note 1:       If written information is required, see section 55.

Note 2:       A person may commit an offence or contravene a civil penalty provision if the person provides false or misleading information or documents (see sections 137.1 and 137.2 of the Criminal Code and sections 507 and 508 of this Act).

             (2)  The requirement under subsection (1) must be for the purposes of determining the level of risk to human health associated with the individual.

54  Asking questions and requiring answers from any individual

             (1)  An officer may require any individual to answer questions, or provide written information, if:

                     (a)  the officer is satisfied that an individual (the relevant individual) has one or more signs or symptoms of a listed human disease; or

                     (b)  the officer is satisfied that an individual (also the relevant individual) has been exposed to:

                              (i)  a listed human disease; or

                             (ii)  another individual who has one or more signs or symptoms of a listed human disease; or

                     (c)  the questions asked or information sought relates to:

                              (i)  human remains; or

                             (ii)  an individual who died in transit before arriving in Australian territory; or

                            (iii)  an individual who died on arrival in Australian territory.

Note 1:       If written information is required, see section 55.

Note 2:       A person may commit an offence or contravene a civil penalty provision if the person provides false or misleading information or documents (see sections 137.1 and 137.2 of the Criminal Code and sections 507 and 508 of this Act).

             (2)  The requirement under subsection (1) must be for the purposes of:

                     (a)  preventing a listed human disease from entering, or emerging, establishing itself or spreading in, Australian territory or a part of Australian territory; or

                     (b)  preventing a listed human disease from spreading to another country; or

                     (c)  if paragraph (1)(a) or (b) applies—determining the level of risk to human health associated with the relevant individual.

55  Requiring an individual to provide written information

             (1)  An officer may require an individual to provide written information under this Division:

                     (a)  by giving the individual a notice that requires the individual to provide the written information; or

                     (b)  by asking the individual orally to provide the written information.

             (2)  An officer may require written information under this Division to be provided within a specified period or immediately.

56  Offence for failing to comply with a requirement

                   A person commits an offence of strict liability if:

                     (a)  the person is required to answer a question, or provide written information, under this Division; and

                     (b)  the person fails to answer the question or provide the information as required.

Penalty:  60 penalty units.

Note:          For offences of strict liability, see section 6.1 of the Criminal Code.


 

Part 3Managing risks to human health: human biosecurity control orders

Division 1Introduction

57  Guide to this Part

Under Division 2, a human biosecurity control order can be imposed on an individual if the individual may have a listed human disease.

A human biosecurity control order that is in force in relation to an individual may require the individual to comply with certain biosecurity measures. Division 3 sets out what those measures are, and they include vaccination, restricting the individual’s behaviour and ordering the individual to remain isolated.

An individual may consent to a biosecurity measure included in a human biosecurity control order that is in force in relation to the individual.

An individual who refuses to consent to such a measure (other than an isolation measure or traveller movement measure) is not required to comply unless a direction has been given by the Director of Human Biosecurity requiring the individual to do so. An individual must comply with an isolation measure or a traveller movement measure for the first 72 hours while a direction from the Director of Human Biosecurity is being sought. After that time, the individual is required to comply with the measure only if a direction is given by the Director.

Biosecurity measures that are included in a human biosecurity control order are treated in one of 2 ways. For some biosecurity measures, an individual who is given a direction from the Director of Human Biosecurity to comply with the measure must do so immediately. For other biosecurity measures, an individual is given a period to apply for judicial review before being required to comply with the measure.

Division 2Imposing human biosecurity control orders on individuals

Subdivision AImposing, varying and revoking human biosecurity control orders

58  Imposing a human biosecurity control order on an individual

             (1)  The following officers may impose a human biosecurity control order on an individual:

                     (a)  a chief human biosecurity officer;

                     (b)  a human biosecurity officer;

                     (c)  a biosecurity officer.

Note 1:       An officer who intends to impose a human biosecurity control order on an individual has certain powers under sections 66 and 67.

Note 2:       Before imposing a human biosecurity control order, an officer must be satisfied of the matters referred to in section 33 (the principles).

Note 3:       The Director of Human Biosecurity must be notified of the imposition of a human biosecurity control order (see section 65).

             (2)  A human biosecurity control order may be imposed on an individual only if the officer is satisfied that:

                     (a)  the individual has one or more signs or symptoms of a listed human disease; or

                     (b)  the individual has been exposed to:

                              (i)  a listed human disease; or

                             (ii)  another individual who has one or more signs or symptoms of a listed human disease; or

                     (c)  the individual has failed to comply with an entry requirement in subsection 43(6) in relation to a listed human disease.

             (3)  To avoid doubt, an individual may fail to comply with an entry requirement in subsection 43(6) even if the individual is not able to comply with the requirement.

Example:    An individual who has not received a specified vaccination will not be able to comply with a requirement to provide a declaration or evidence that the individual has received that vaccination.

             (4)  An officer may include one or more biosecurity measures specified in Subdivision B of Division 3 in a human biosecurity control order.

Note:          For the biosecurity measures that each kind of officer can impose, see section 80.

59  Contents of a human biosecurity control order

             (1)  A human biosecurity control order that is in force in relation to an individual must specify the following:

                     (a)  the ground in subsection 58(2) under which the order is imposed on the individual;

                     (b)  the listed human disease in relation to which the order is imposed on the individual;

                     (c)  any signs or symptoms of the listed human disease;

                     (d)  the prescribed contact information provided by the individual under section 67 or 68 (as the case requires);

                     (e)  a unique identifier for the order;

                      (f)  each biosecurity measure (specified in Subdivision B of Division 3) with which the individual must comply, and an explanation of:

                              (i)  why each biosecurity measure is required; and

                             (ii)  in relation to a biosecurity measure included under section 87 (decontamination), 88 (examination), 89 (body samples) or 90 (vaccination or treatment)—how the biosecurity measure is to be undertaken;

                     (g)  any information required to be included in the order by Subdivision B of Division 3;

                     (h)  the period during which the order is in force, which must not be more than 3 months;

                      (i)  the following:

                              (i)  the effect of section 68 (requirement to notify of changes to contact information);

                             (ii)  the effect of section 72 (when an individual is required to comply with a biosecurity measure);

                            (iii)  the rights of review in relation to the human biosecurity control order under this Act, the Administrative Appeals Tribunal Act 1975 and the Administrative Decisions (Judicial Review) Act 1977;

                            (iv)  the effect of section 105 (offence for failing to comply with an order);

                      (j)  details of a chief human biosecurity officer who can be contacted for information and support in relation to the order;

                     (k)  any other information that the officer imposing the order considers appropriate;

                      (l)  any other information required by the regulations.

Note:          Despite paragraph (1)(h), an individual might be required to comply with a biosecurity measure for a more limited period of time (see for example section 94 (traveller movement measure)).

             (2)  If a human biosecurity control order ceases to be in force, paragraph (1)(h) does not prevent another human biosecurity control order from being imposed on the same individual.

             (3)  To avoid doubt, a human biosecurity control order that is varied must comply with subsection (1).

60  Form of a human biosecurity control order

             (1)  A human biosecurity control order must be in the form approved, in writing, by the Director of Human Biosecurity.

             (2)  A human biosecurity control order is not a legislative instrument.

61  Giving a human biosecurity control order to an individual

             (1)  An officer who imposes a human biosecurity control order on an individual must cause the individual to be given a copy of the order as soon as reasonably practicable.

             (2)  The officer who imposes the order on the individual must ensure that the contents of the order are read out to the individual.

             (3)  The order ceases to be in force if:

                     (a)  a copy of the order is not given to the individual within 24 hours of the order beginning to be in force; or

                     (b)  the contents of the order are not read out in accordance with subsection (2).

62  Varying a human biosecurity control order

Who may vary a human biosecurity control order

             (1)  The following officers may vary a human biosecurity control order in accordance with this section:

                     (a)  a chief human biosecurity officer;

                     (b)  a human biosecurity officer;

                     (c)  a biosecurity officer (subject to subsection 80(2)).

Note 1:       Before varying a human biosecurity control order, an officer must be satisfied of the matters referred to in section 33 (the principles).

Note 2:       The Director of Human Biosecurity must be notified of a variation of a human biosecurity control order (see section 65).

Test for varying human biosecurity control order

             (2)  An officer may vary a human biosecurity control order only if the officer is satisfied that:

                     (a)  the variation contributes to reducing the risk of:

                              (i)  contagion of a listed human disease; or

                             (ii)  a listed human disease entering, or emerging, establishing itself or spreading in, Australian territory or a part of Australian territory; or

                     (b)  the variation removes or varies a provision that no longer contributes to reducing such a risk; or

                     (c)  the variation is of a minor technical nature.

When variation takes effect

             (3)  A variation of a human biosecurity control order takes effect immediately after the variation is made.

63  Giving notice of a variation of a human biosecurity control order

             (1)  An officer who varies a human biosecurity control order that is in force in relation to an individual must cause the individual to be given a copy of the varied order as soon as reasonably practicable.

             (2)  The officer who varies the order must ensure that the variations of the order are read out to the individual.

             (3)  The order ceases to be in force if:

                     (a)  a copy of the varied order is not given to the individual within 24 hours of the variation taking effect; or

                     (b)  the variations of the order are not read out in accordance with subsection (2).

64  Revoking a human biosecurity control order

             (1)  A chief human biosecurity officer or a human biosecurity officer may, by notice, revoke a human biosecurity control order that is in force in relation to an individual only if the officer is satisfied that:

                     (a)  the individual is not at risk of contagion; or

                     (b)  the order no longer contributes to reducing the risk of a listed human disease entering, or emerging, establishing itself or spreading in, Australian territory or a part of Australian territory.

Note:          The Director of Human Biosecurity must be notified of a revocation of a human biosecurity control order (see section 65).

             (2)  A revocation takes effect immediately.

Giving notice of revocation

             (3)  An officer who revokes a human biosecurity control order that is in force in relation to an individual must cause the individual to be given a copy of the notice revoking the order.

65  Notifying Director of Human Biosecurity of imposition, variation or revocation of human biosecurity control order

                   An officer must notify the Director of Human Biosecurity, as soon as reasonably practicable, if the officer:

                     (a)  imposes a human biosecurity control order on an individual; or

                     (b)  varies or revokes a human biosecurity control order.

Subdivision BPowers if officer intends to impose human biosecurity control order

66  Requiring an individual to remain at a place

             (1)  An officer who intends to impose a human biosecurity control order on an individual may require the individual to remain, for a period of no more than 6 hours, at the place where the individual was when the officer became satisfied that a human biosecurity control order should be imposed on the individual.

Note 1:       A non‑Australian citizen who is required to remain at a place is entitled to consular assistance under section 100.

Note 2:       A person who does not comply with the requirement to remain at a place may be detained under Subdivision B of Division 4.

             (2)  Once the period has ended, the individual must not be required under subsection (1) to remain at that place any longer.

Note:          However, the individual may be required under subsection 72(4) to remain at that place in order to comply with an isolation measure.

67  Providing contact information

             (1)  An officer who intends to impose a human biosecurity control order on an individual may require the individual to provide the officer with prescribed contact information for the individual.

             (2)  The individual must comply with the requirement immediately.

Note 1:       A person may commit an offence or contravene a civil penalty provision if the person provides false or misleading information or documents (see sections 137.1 and 137.2 of the Criminal Code and sections 507 and 508 of this Act).

Note 2:       This section is not subject to the privilege against self‑incrimination (see section 661).

Offence

             (3)  An individual commits an offence if:

                     (a)  the individual is required to provide an officer with contact information under this section; and

                     (b)  the individual fails to comply with the requirement.

Penalty:  Imprisonment for 12 months or 60 penalty units, or both.

68  Requirement for an individual to notify changes to contact information

             (1)  An individual in relation to whom a human biosecurity control order is in force must, as soon as reasonably practicable, notify the chief human biosecurity officer referred to in paragraph 59(1)(j) if any of the prescribed contact information provided by the individual under section 67 changes.

Note 1:       A person may commit an offence or contravene a civil penalty provision if the person provides false or misleading information or documents (see sections 137.1 and 137.2 of the Criminal Code and sections 507 and 508 of this Act).

Note 2:       This section is not subject to the privilege against self‑incrimination (see section 661).

Offence

             (2)  An individual commits an offence if:

                     (a)  the individual is required to notify a chief human biosecurity officer of a change under subsection (1); and

                     (b)  the individual fails to notify the officer of the change.

Penalty:  Imprisonment for 12 months or 60 penalty units, or both.

Subdivision CWhen an individual is required to comply with a biosecurity measure

69  Consenting to a biosecurity measure

             (1)  This section applies in relation to a biosecurity measure that is included in a human biosecurity control order that is in force in relation to an individual.

Consent

             (2)  The individual may consent to the measure. If it is practicable to do so, the consent must be recorded in writing on the human biosecurity control order.

Note:          An accompanying person may give consent for a child or incapable person (see section 39).

Refusal to consent

             (3)  If the individual refuses to consent to the measure (including by withdrawing his or her consent), a chief human biosecurity officer, human biosecurity officer or biosecurity officer may request the Director of Human Biosecurity to give a direction in accordance with paragraph 70(5)(a) for the individual to comply with the measure.

Note:          For when the individual is required to comply with the measure, see section 72.

70  Director of Human Biosecurity may give direction requiring compliance

             (1)  This section applies if:

                     (a)  an officer requests, under subsection 69(3), the Director of Human Biosecurity to give a direction in accordance with paragraph (5)(a) of this section for an individual to comply with a biosecurity measure included in a human biosecurity control order; or

                     (b)  all of the following apply:

                              (i)  the Director of Human Biosecurity gives a direction in accordance with paragraph (5)(a) of this section for an individual to comply with a biosecurity measure included in a human biosecurity control order under section 84 (contacting officer with health status), 85 (restricting behaviour), 86 (risk minimisation interventions), 91 (medication) or 95 (isolation measure);

                             (ii)  at the end of 25 days after the day the direction is given, the direction is still in force (see section 71);

                            (iii)  the individual still refuses to consent to the biosecurity measure.

Review of measure

             (2)  The Director of Human Biosecurity must review the following matters:

                     (a)  the diagnosis (if any) of the listed human disease specified in the human biosecurity control order;

                     (b)  the inclusion (or, in the case of paragraph (1)(b), the continued inclusion) of the biosecurity measure in the human biosecurity control order.

             (3)  In conducting the review, the Director of Human Biosecurity:

                     (a)  must take into account:

                              (i)  any reason the individual gives for refusing to consent to the measure; and

                             (ii)  any factors that may affect the health of the individual; and

                     (b)  may take into account any other matter that the Director of Human Biosecurity considers relevant.

Test for giving direction

             (4)  The Director of Human Biosecurity may give a direction for an individual to comply with a biosecurity measure only if the Director is satisfied, on reasonable grounds, that the biosecurity measure contributes to reducing the risk of:

                     (a)  contagion of the listed human disease; or

                     (b)  the listed human disease entering, or emerging, establishing itself or spreading in, Australian territory or a part of Australian territory.

Note 1:       Before giving a direction, the Director must be satisfied of the matters referred to in section 33 (the principles).

Note 2:       If an individual refuses to comply with a direction given under this section, the Director of Human Biosecurity may be able to apply for an injunction under Part 4 of Chapter 11.

Giving notice of outcome of review

             (5)  Within 72 hours of the time referred to in subsection (6), the Director must cause a notice to be given to the individual that:

                     (a)  directs the individual to comply with the measure; or

                     (b)  informs the individual that he or she is not required to comply with the measure.

Note 1:       An individual may be able to apply for merits or judicial review of a decision to give a direction in accordance with paragraph (5)(a) (see section 74 of this Act and the Administrative Decisions (Judicial Review) Act 1977).

Note 2:       After giving a direction in accordance with paragraph (5)(a), the Director of Human Biosecurity has certain obligations under section 73 in relation to an individual’s right to apply to the Administrative Appeals Tribunal for review of the decision to give the direction.

             (6)  For the purposes of subsection (5), the time is:

                     (a)  if paragraph (1)(a) applies (other than in relation to an isolation measure or a traveller movement measure)—the time when the request is made; or

                     (b)  if paragraph (1)(a) applies in relation to an isolation measure or a traveller movement measure—the time when the individual refuses to consent to the measure; or

                     (c)  if paragraph (1)(b) applies—12 am on the 26th day (whether or not that day is a business day) after the day the direction is given.

Note:          For the definition of business day, see section 2B of the Acts Interpretation Act 1901.

             (7)  The notice must include:

                     (a)  the time and the day the notice is given; and

                     (b)  the reasons for the decision to give the notice.

71  When direction to comply with biosecurity measure ceases to be in force

                   A direction given in accordance with paragraph 70(5)(a) for an individual to comply with a biosecurity measure included in a human biosecurity control order ceases to be in force if:

                     (a)  the period of 28 days after the day the direction was given ends; or

                     (b)  a new notice is given to the individual in accordance with either paragraph 70(5)(a) or (b); or

                     (c)  the measure is removed from the human biosecurity control order; or

                     (d)  the individual makes an application under the Administrative Decisions (Judicial Review) Act 1977 for an order of review of a decision to give a direction in accordance with paragraph 70(5)(a), the application is finally determined, and as a result of the order made in relation to the application the individual is not required to comply with the measure; or

                     (e)  in relation to an isolation measure or a traveller movement measure—the decision to give the direction is set aside by the Administrative Appeals Tribunal; or

                      (f)  in relation to a traveller movement measure—the measure ceases to be in force; or

                     (g)  in any case—the human biosecurity control order ceases to be in force.

72  When individual is required to comply with a biosecurity measure

Biosecurity measures where compliance is not required before review period has ended

             (1)  Subsection (2) sets out when an individual is required to comply with a biosecurity measure included, under one of the following sections, in a human biosecurity control order that is in force in relation to the individual:

                     (a)  section 83 (managing contacts);

                     (b)  section 87 (decontamination);

                     (c)  section 88 (examination);

                     (d)  section 89 (body samples);

                     (e)  section 90 (vaccination or treatment).

             (2)  The individual is required to comply with the measure only if:

                     (a)  the individual consents to the measure; or

                     (b)  the Director of Human Biosecurity has given a direction for the individual to comply with the measure in accordance with paragraph 70(5)(a), and either:

                              (i)  the period of 7 business days referred to in section 78 has ended, and the individual has not made an application under the Administrative Decisions (Judicial Review) Act 1977; or

                             (ii)  the individual has made an application in accordance with section 78 for an order of review of the decision to give the direction, the application has been finally determined, and as a result of the order made in relation to the application the individual is required to comply with the measure.

Note 1:       A person who fails to comply with a biosecurity measure that the person is required to comply with may commit an offence (see section 105).

Note 2:       For expenses incurred in complying with a human biosecurity control order, see section 106.

Note 3:       Generally, force must not be used to require compliance with a biosecurity measure (see section 93).

Biosecurity measures where compliance is required without review

             (3)  Subsection (4) sets out when an individual is required to comply with a biosecurity measure included, under one of the following sections, in a human biosecurity control order that is in force in relation to the individual:

                     (a)  section 84 (contacting officer with health status);

                     (b)  section 85 (restricting behaviour);

                     (c)  section 86 (risk minimisation interventions);

                     (d)  section 91 (medication);

                     (e)  section 94 (traveller movement measure);

                      (f)  section 95 (isolation measure).

             (4)  The individual is required to comply with the measure only if:

                     (a)  the individual consents to the measure; or

                     (b)  both of the following apply:

                              (i)  the Director of Human Biosecurity has given a direction for the individual to comply with the measure in accordance with paragraph 70(5)(a);

                             (ii)  the direction is still in force (see section 71); or

                     (c)  if the measure is an isolation measure or a traveller movement measure—the individual refuses to consent to the measure, and the period of 72 hours from the time when the individual refused to consent to the measure has not yet ended.

Note 1:       A person who fails to comply with a biosecurity measure that the person is required to comply with may commit an offence (see section 105).

Note 2:       An individual who has applied for merits or judicial review of a decision to give a direction requiring the individual to comply with a biosecurity measure referred to in subsection (3) must comply with the direction while the review is occurring.

Note 3:       A person who does not comply with an isolation measure that the person is required to comply with may be detained under Subdivision B of Division 4.

Subdivision DAAT review of isolation and traveller movement measures

73  Obligation on Director of Human Biosecurity relating to Administrative Appeals Tribunal application

             (1)  As soon as possible after the Director of Human Biosecurity gives a direction in accordance with paragraph 70(5)(a) for an individual to comply with an isolation measure, the Director must:

                     (a)  inform the individual of the individual’s right to apply under section 74 to the Administrative Appeals Tribunal for review of the decision to give the direction; and

                     (b)  inform the individual that the individual may communicate, or attempt to communicate, with anyone in relation to that right; and

                     (c)  if the individual wishes to apply to the Tribunal for review of the decision, or to communicate in relation to that right—ensure that the individual is provided with reasonable facilities to enable him or her to do so.

             (2)  If the individual makes an application under section 74 for review of the decision to give the direction, the Director of Human Biosecurity must ensure that the individual is also given reasonable facilities to enable the individual to participate in the proceeding.

74  Applications

             (1)  An application may be made to the Administrative Appeals Tribunal for review of a decision of the Director of Human Biosecurity to give a direction in accordance with paragraph 70(5)(a) for an individual to comply with an isolation measure or a traveller movement measure (whether or not the direction is still in force).

Note:          For when the direction ceases to be in force, see section 71.

             (2)  Despite paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975, the application must be made within 7 business days from the day the decision is made.

Applications to cover later decisions

             (3)  Subsection (4) applies if:

                     (a)  an application is made under subsection (1) in relation to a decision (the first decision) of the Director of Human Biosecurity to give a direction to an individual in accordance with paragraph 70(5)(a); and

                     (b)  while the Administrative Appeals Tribunal is reviewing the first decision, the Director of Human Biosecurity makes a decision (the later decision) to give another direction to the individual in accordance with that paragraph; and

                     (c)  the Tribunal does not give the individual a notice under subsection (5).

             (4)  The application that relates to the first decision is also taken to have been made in relation to the later decision for the following purposes:

                     (a)  the purposes of this Subdivision, other than subsections 75(2) and 76(1);

                     (b)  the purposes of the Administrative Appeals Tribunal Act 1975.

             (5)  The Administrative Appeals Tribunal may give a notice to the individual requiring the individual to make a separate application in relation to the later decision if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

75  Reasons and documents

             (1)  Section 28 (obtaining reasons for decision) of the Administrative Appeals Tribunal Act 1975 does not apply in relation to a decision to which an application under subsection 74(1) relates.

Note:          Under subsection 74(4), an application under subsection 74(1) may be taken to also relate to a later decision.

Notification of application

             (2)  The Director of Human Biosecurity must be notified under subsection 29(11) of the Administrative Appeals Tribunal Act 1975 of an application for review of a decision referred to in subsection 74(1) of this Act as soon as possible after the application is received by the Administrative Appeals Tribunal.

Notification of later decision

             (3)  The Director of Human Biosecurity must notify the Administrative Appeals Tribunal as soon as practicable after making a later decision referred to in paragraph 74(3)(b).

Requirement to lodge documents

             (4)  The Director of Human Biosecurity must lodge with the Administrative Appeals Tribunal and the individual to whom the direction is given:

                     (a)  the reasons for a decision to which an application under subsection 74(1) relates; and

                     (b)  every other document or part of a document that is:

                              (i)  in the Director’s possession or under his or her control; and

                             (ii)  relevant to the review of the decision by the Tribunal.

Note:          The decision referred to in paragraph (3)(a) of this section may be either:

(a)    the decision in relation to which the application was made under subsection 74(1); or

(b)    a later decision referred to in paragraph 74(3)(b) to which the application relates.

             (5)  Reasons and documents, or parts of documents, must be lodged under subsection (4):

                     (a)  as soon as possible after the following time (as the case requires):

                              (i)  the time when the Director of Human Biosecurity is notified of an application for review of a decision referred to in subsection 74(1);

                             (ii)  the time when the Director of Human Biosecurity makes a later decision referred to in paragraph 74(3)(b); and

                     (b)  in any case:

                              (i)  before the end of the second business day after that time; or

                             (ii)  within any further period as the Tribunal determines (whether orally or in writing).

76  Time period for making a decision

             (1)  Within 7 days after receiving an application under subsection 74(1) for review of a decision, the Administrative Appeals Tribunal must (subject to this section) make a decision on the review.

Extending the time period

             (2)  Before the end of that 7‑day period, the Administrative Appeals Tribunal may extend the period for making the decision on the review if the Tribunal is satisfied that it is reasonable in all the circumstances to do so. The Tribunal may only extend the period once.

             (3)  If the Administrative Appeals Tribunal extends the period under subsection (2) in relation to an application, the Tribunal must make a decision on the review to which the application relates by the end of the period as extended.

Note:          Under subsection 74(4), the application may be taken to also relate to a later decision. The Tribunal must make a decision on the review in relation to all decisions to which the application relates by the end of the period as extended.

Deemed decision

             (4)  If the Administrative Appeals Tribunal does not make a decision in accordance with subsection (1) or (3) (as the case requires), the Tribunal is taken, at the end of the period referred to in that subsection, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 to affirm the decision under review.

No time period for making decision if direction has ceased to be in force

             (5)  The Administrative Appeals Tribunal is not required to make a decision within any specified time period, and is not taken to have made a decision under subsection (4) of this section, if:

                     (a)  an application under subsection 74(1) relates to a decision to give a direction to an individual; and

                     (b)  the direction has ceased to be in force; and

                     (c)  there is no other direction referred to in paragraph 74(3)(b) given to the individual that is still in force.

Note:          For when a direction ceases to be in force, see section 71.

77  Limitation on Administrative Appeals Tribunal power to stay etc. decisions

                   Despite subsections 41(2) to (6) of the Administrative Appeals Tribunal Act 1975, the Administrative Appeals Tribunal may not make any order staying or otherwise affecting the operation or implementation of a decision to give a direction in accordance with paragraph 70(5)(a).

Subdivision EOther provisions relating to external review of isolation and traveller movement measures

78  Time period for making applications under the Administrative Decisions (Judicial Review) Act 1977

             (1)  An application may be made under the Administrative Decisions (Judicial Review) Act 1977, for an order of review of a decision to give a direction in accordance with paragraph 70(5)(a) of this Act, within:

                     (a)  7 business days from the day the decision is made; or

                     (b)  any further period as the court concerned allows (whether before or after the end of the period referred to in paragraph (a) of this subsection).

             (2)  This section applies despite section 11 of the Administrative Decisions (Judicial Review) Act 1977.

79  Judicial review of isolation and traveller movement measures

             (1)  If judicial review is sought in relation to an isolation measure or traveller movement measure, the measure remains in force (subject to this Division) unless a court finally determines the validity of the decision in relation to which review is sought.

             (2)  This section has effect despite any other law.


 

Division 3Biosecurity measures that may be included in a human biosecurity control order

Subdivision AGeneral provisions relating to including biosecurity measures in a human biosecurity control order

80  Who can include a biosecurity measure in a human biosecurity control order

Chief human biosecurity officers and human biosecurity officers

             (1)  A chief human biosecurity officer or human biosecurity officer may include any biosecurity measure set out in Subdivision B of this Division in a human biosecurity control order.

Note:          Under Division 6 of Part 2 of this Chapter, an officer may ask questions, or require written information, of an individual in relation to whom a human biosecurity control order is in force.

Biosecurity officers

             (2)  A biosecurity officer may include in a human biosecurity control order either of the biosecurity measures set out in the following provisions:

                     (a)  section 83 (managing contacts);

                     (b)  section 86 (risk minimisation interventions).

81  Informing individual of risks

             (1)  Before an officer includes one or more biosecurity measures in a human biosecurity control order that is or is to be in force in relation to an individual, the officer must take reasonable steps to inform the individual of the risk posed by the listed human disease specified in the order to:

                     (a)  the individual’s health; and

                     (b)  the health of the public.

             (2)  To avoid doubt, an officer must comply with subsection (1):

                     (a)  at the time of imposing the order; and

                     (b)  if the officer later varies the order to include a new biosecurity measure.

82  Test for including a biosecurity measure in a human biosecurity control order

                   An officer may include a biosecurity measure in a human biosecurity control order only if the officer is satisfied that the biosecurity measure contributes to managing the risk of:

                     (a)  contagion of a listed human disease; or

                     (b)  a listed human disease entering, or emerging, establishing itself or spreading in, Australian territory or a part of Australian territory.

Note 1:       Before including a biosecurity measure in a human biosecurity control order, an officer must be satisfied of the matters referred to in section 33 (the principles).

Note 2:       For when an individual is required to comply with a biosecurity measure included in a human biosecurity control order, see Subdivision C of Division 2.

Subdivision BBiosecurity measures that may be included in a human biosecurity control order

83  Managing contacts

                   An individual may be required by a human biosecurity control order to provide to a specified biosecurity officer, human biosecurity officer or chief human biosecurity officer the prescribed contact information for any individual with whom the individual has been, or will be, in close proximity.

Note 1:       This section constitutes an authorisation for the purposes of the Privacy Act 1988 and other laws.

Note 2:       This section is not subject to the privilege against self‑incrimination (see section 661).

84  Contacting officer with health status

             (1)  An individual may be required by a human biosecurity control order to contact a specified human biosecurity officer or chief human biosecurity officer during a specified period to advise the officer of the individual’s health.

             (2)  The order:

                     (a)  must require the individual to report specified signs or symptoms of the listed human disease; and

                     (b)  may require the individual to report if specified signs or symptoms disappear.

85  Restricting behaviour

             (1)  An individual may be required by a human biosecurity control order to go to, and remain at, the individual’s intended place of residence for a specified period.

             (2)  Without limiting subsection (1), if an individual does not reside in Australian territory, the individual’s intended place of residence includes a place at which the individual intends to stay while in Australian territory.

             (3)  An individual may be required by a human biosecurity control order not to do either or both of the following for a specified period:

                     (a)  visit a specified place, or class of place, where there is an increased risk of contagion of the listed human disease;

                     (b)  come into close proximity with a specified class of individuals, where there is an increased risk that the individuals in that class might contract the listed human disease.

86  Risk minimisation interventions

             (1)  An individual may be required by a human biosecurity control order to wear either or both specified clothing and equipment that is designed to prevent a disease from emerging, establishing itself or spreading.

             (2)  The order must specify the following:

                     (a)  the circumstances in which the individual is required to wear the clothing and equipment;

                     (b)  the period during which, or the times at which, the individual is required to wear the clothing and equipment;

                     (c)  instructions for wearing the clothing and equipment.

87  Decontamination

             (1)  An individual may be required by a human biosecurity control order to be decontaminated.

             (2)  An individual may be required by a human biosecurity control order to allow the individual’s clothing, and any personal effects that the individual has with him or her, to be decontaminated.

             (3)  Without limiting subsection (2), an individual’s personal effects include any baggage that the individual has with him or her that remained under the individual’s immediate physical control while the individual was on any aircraft, vessel or other conveyance.

             (4)  The order must specify the following:

                     (a)  where and when the decontamination is to take place;

                     (b)  who is to conduct the decontamination.

88  Undergoing an examination

                   An individual may be required by a human biosecurity control order to undergo, at a specified medical facility, a specified kind of examination relating to determining the presence in the individual of:

                     (a)  the listed human disease specified in the order; and

                     (b)  any other listed human disease.

Note:          For the manner in which this biosecurity measure must be carried out, see section 92.

89  Requiring body samples for diagnosis

             (1)  This section applies if an individual has undergone an examination under section 88.

             (2)  The individual may be required by a human biosecurity control order to provide, at a specified medical facility, specified body samples for the purpose of determining the presence in the individual of:

                     (a)  the listed human disease specified in the order; and

                     (b)  any other listed human disease.

Note:          For the manner in which this biosecurity measure must be carried out, see section 92.

Requirements for samples

             (3)  The regulations must prescribe requirements for taking, storing, transporting, labelling and using body samples provided under subsection (2).

Note:          The regulations may prescribe offences and civil penalties in relation to a failure to comply with a prescribed requirement (see subsection 671(2)).

Giving samples to the World Health Organization

             (4)  The Minister may, at the request of the World Health Organization, give all or part of a sample provided under subsection (2) to the Organization for the purposes of detecting, assessing or responding to a listed human disease.

90  Receiving a vaccination or treatment

                   An individual may be required by a human biosecurity control order to receive, at a specified medical facility:

                     (a)  a specified vaccination; or

                     (b)  a specified form of treatment;

in order to manage the listed human disease specified in the order, and any other listed human disease.

Note:          For the manner in which this biosecurity measure must be carried out, see section 92.

91  Receiving medication

             (1)  An individual may be required by a human biosecurity control order to receive specified medication in order to manage the listed human disease specified in the order, and any other listed human disease.

Note:          For the manner in which this biosecurity measure must be carried out, see section 92.

             (2)  The order must specify:

                     (a)  how much medication is to be taken; and

                     (b)  how long the medication is to be taken for.

92  Appropriate medical or other standards to be applied

                   A biosecurity measure set out in section 88 (examination), 89 (body samples), 90 (vaccination or treatment) or 91 (medication) must be carried out in a manner consistent with either or both of the following (as the case requires):

                     (a)  appropriate medical standards;

                     (b)  appropriate other relevant professional standards.

93  No use of force to require compliance with certain biosecurity measures

                   Force must not be used against an individual to require the individual to comply with a biosecurity measure imposed under any of sections 83 to 91.

Note:          Force may be used in preventing an individual leaving Australian territory in contravention of a traveller movement measure (see section 99) or in detaining a person who fails to comply with an isolation measure (see section 102).

94  Traveller movement measure

             (1)  An individual may, for a specified period of no more than 28 days, be required by a human biosecurity control order not to leave Australian territory on an outgoing passenger aircraft or vessel.

Note:          For provisions relating to traveller movement measures, see Subdivision C.

Traveller movement measure ceasing to be in force before human biosecurity control order

             (2)  If a traveller movement measure ceases to be in force, subsection (1) does not prevent another traveller movement measure from being included in the same human biosecurity control order.

When traveller movement measure ceases to be in force

                  (3)   A traveller movement measure ceases to be in force at the earliest of the following times:

                     (a)  at the end of the period specified under subsection (1);

                     (b)  the time when the human biosecurity control order ceases to be in force;

                     (c)  the time when the order is varied to remove the measure;

                     (d)  the time when the order is revoked.

95  Isolation measure

             (1)  An individual may be required by a human biosecurity control order to remain isolated at a specified medical facility.

Note 1:       A non‑Australian citizen who is required to remain isolated is entitled to consular assistance under section 100.

Note 2:       A person who does not comply with an isolation measure that the person is required to comply with may be detained under Subdivision B of Division 4.

             (2)  An isolation measure included in a human biosecurity control order under subsection (1) may be made conditional on a person refusing to consent to another biosecurity measure included in the human biosecurity control order.

Subdivision CProvisions relating to traveller movement measures

96  Traveller movement measure alert

Who Director of Human Biosecurity must notify

                  (1)   The Director of Human Biosecurity must notify the following if a traveller movement measure is included in a human biosecurity control order:

                            (a)   the Agriculture Department;

                            (b)   the Immigration Department;

                            (c)   the Foreign Affairs Department;

                            (d)   the Australian Customs and Border Protection Service;

                            (e)   the National Focal Point.

Note:          For the content of the notification, see section 97.

                  (2)   A failure to notify a person, body or agency under subsection (1) does not affect the validity of the human biosecurity control order, or the traveller movement measure.

Who Director of Human Biosecurity may notify

                  (3)   The Director of Human Biosecurity may (if he or she considers it appropriate) also notify any one or more of the following if a traveller movement measure is included in a human biosecurity control order:

                            (a)   any one or more operators of outgoing passenger aircraft or vessels;

                            (b)   any State or Territory body responsible for the administration of health services in the State or Territory;

                            (c)   any State Party’s National IHR Focal Point (within the meaning of the International Health Regulations).

Requirement for notification

                  (4)   A notification under subsection (1) or (3):

                            (a)   must be in writing; and

                            (b)   must be made within 24 hours of including the traveller movement measure in the human biosecurity control order.

Legislative instruments

             (5)  A notification under subsection (1) or (3) is not a legislative instrument.

Notification of cessation of measure

                  (6)   If a person, body or agency was notified under subsection (1) or (3) of the inclusion of a traveller movement measure, the Director of Human Biosecurity must further notify the person, body or agency if the measure ceases to be in force.

Note 1:       For when a traveller movement measure ceases to be in force, see subsection 94(3).

Note 2:       The original notification of the traveller movement measure must be destroyed in accordance with section 98.

97  Content of traveller movement measure alert

                         A notification under section 96 must include the following:

                            (a)   the name of the individual in relation to whom the traveller movement measure is in force, and his or her passport number;

                            (b)   a statement that:

                                       (i)   a traveller movement measure is in force in relation to the individual; and

                                      (ii)   the individual must not board an outgoing passenger aircraft or vessel while the measure is in force;

                            (c)   the period during which the measure is in force;

                            (d)   any known travel details of the individual;

                            (e)   details of a chief human biosecurity officer who can be contacted for information in relation to the measure;

                             (f)   any other information prescribed by the regulations.

Note:          Information disclosed under this section must be dealt with in accordance with the Privacy Act 1988.

98  Destruction of traveller movement measure alert

                   A person who is notified of a traveller movement measure under section 96 must destroy the notification within 6 months of being further notified that the measure has ceased to be in force.

Civil penalty:          120 penalty units.

99  Prevention from leaving Australian territory

             (1)  An officer of Customs may prevent an individual from boarding an outgoing passenger aircraft or vessel if:

                     (a)  a traveller movement measure is in force in relation to the individual; and

                     (b)  the individual would contravene the measure if the individual boarded the aircraft or vessel and left Australian territory.

Note:          For the definition of officer of Customs, see section 9.

Use of force in detaining person

             (2)  An officer of Customs must not use more force, or subject the person to greater indignity, than is necessary and reasonable to prevent the individual from boarding the aircraft or vessel.


 

Division 4Other provisions relating to human biosecurity control orders

Subdivision AConsular assistance

100  Consular assistance

             (1)  This section sets out requirements that must be complied with if:

                     (a)  either of the following events occurs:

                              (i)  an officer requires an individual to remain at a place under section 66;

                             (ii)  an officer includes an isolation measure in a human biosecurity control order, requiring an individual to remain isolated; and

                     (b)  the individual is not an Australian citizen.

             (2)  As soon as practicable after the event referred to in paragraph (1)(a) occurs, the officer must do the following:

                     (a)  inform the individual that he or she may request that the consular office of the following country be notified that the event has occurred:

                              (i)  the country of which he or she is a citizen;

                             (ii)  the country to which he or she claims a special connection;

                     (b)  if the individual so requests—notify that consular office;

                     (c)  inform the individual that he or she may communicate, or attempt to communicate, with that consular office;

                     (d)  give the individual reasonable facilities to do so;

                     (e)  forward any written communication from the individual to that consular office;

                      (f)  allow the individual a reasonable time to communicate, or attempt to communicate, with that consular office.

Subdivision BDetention

101  Detention

                  (1)   An individual may be detained by a person referred to in subsection (3) of this section if:

                     (a)  either:

                              (i)  the individual fails to comply with a requirement to remain at a place under section 66; or

                             (ii)  the individual fails to comply with an isolation measure that the individual is required to comply with under subsection 72(4); and

                     (b)  a human biosecurity officer or chief human biosecurity officer is satisfied:

                              (i)  of the matters in paragraphs 33(2)(a) to (f) (the principles); and

                             (ii)  that the detention is necessary because, without detention, the individual may pose a significant risk of contagion.

Note:          For when an individual must be released from detention, see section 103.

             (2)  An individual who is detained for failing to comply with an isolation measure may be detained only for the purpose of taking the individual to the medical facility referred to in section 95.

Who may detain an individual

                  (3)   The individual may be detained by:

                            (a)   a member or special member of the Australian Federal Police; or

                            (b)   a member of the police force of a State or Territory; or

                            (c)   a protective services officer (within the meaning of the Australian Federal Police Act 1979).

Agreement of State or Territory required

             (4)  A member of the police force of a State or Territory must not exercise a power under this section unless the exercise of the power is in accordance with an agreement between the Commonwealth and the State or Territory concerned.

102  Rules relating to detention

Use of force in detaining person

             (1)  A person (the officer) referred to in subsection 101(3) must not use more force, or subject an individual (the detainee) to greater indignity, than is necessary and reasonable to detain the detainee or prevent the detainee from escaping.

Place of detention

             (2)  The officer who detains a detainee must take the detainee, as soon as possible, to a place that:

                     (a)  in the officer’s opinion, affords adequate personal privacy to the detainee; and

                     (b)  either:

                              (i)  if the detainee was detained for failing to comply with a requirement to remain at a place under section 66—is at the place where the detainee was when the officer referred to in that section became satisfied that a human biosecurity control order should be imposed on the detainee; or

                             (ii)  if the detainee was detained for failing to comply with an isolation measure—is at the medical facility specified in the human biosecurity control order that is in force in relation to the detainee.

Note:          For when an individual must be released from detention, see section 103.

Right to communicate

             (3)  As soon as possible after detaining a detainee, the officer who detains the detainee must inform the detainee that the detainee may communicate, or attempt to communicate, with any person.

             (4)  If the detainee wishes to communicate with any person, the officer must, as soon as possible, give the detainee reasonable facilities to enable the detainee to do so.

103  Release from detention

Release from detention after failure to comply with requirement to remain at a place

             (1)  An individual who has been detained under section 101 for failing to comply with a requirement to remain at a place under section 66 must be released at the end of the 6‑hour period referred to in section 66.

Release from detention after failure to comply with isolation measure

                  (2)   An individual who has been detained under section 101 for failing to comply with an isolation measure must be released from detention at the earlier of the following times:

                     (a)  the time when the person has been taken to a place, in accordance with subsection 102(2), at the medical facility specified in the human biosecurity control order that is in force in relation to the individual;

                     (b)  the time when the individual is no longer required to comply with an isolation measure under subsection 72(4).

Note:          An individual is required to comply with an isolation measure for only 72 hours, unless the Director of Human Biosecurity gives a direction under section 70 (see subsection 72(4)).

             (3)  To avoid doubt, an individual may be required to remain isolated at the medical facility even after the individual has been released from detention.

104  Offence for escaping from detention

                         An individual commits an offence if the individual escapes from detention under section 101.

Penalty:  Imprisonment for 5 years or 300 penalty units, or both.

Subdivision CMiscellaneous

105  Offence for failing to comply with a human biosecurity control order

                   An individual commits an offence if:

                     (a)  a human biosecurity control order is in force in relation to the individual; and

                     (b)  the individual engages in conduct; and

                     (c)  the conduct results in the person failing to comply with a biosecurity measure included in the human biosecurity control order; and

                     (d)  the individual is required to comply with the measure under subsection 72(2) or (4).

Penalty:  Imprisonment for 5 years or 300 penalty units, or both.

106  Expenses incurred in complying with human biosecurity control orders

                   The Commonwealth is liable to pay for reasonable expenses incurred by an individual in complying with a biosecurity measure included in a human biosecurity control order.


 

Part 4Managing risks to human health: other biosecurity measures

Division 1Introduction

107  Guide to this Part

Division 2 allows human remains to be brought into Australian territory. Sometimes, requirements may be specified or directions given in relation to human remains.

Division 3 allows the Director of Human Biosecurity to determine human health response zones to which entry and exit requirements apply.


 

Division 2Managing deceased individuals

108  Human remains brought into Australian territory

                  (1)   Human remains may be brought into Australian territory.

Note 1:       In some cases, requirements are specified for bringing human remains into Australian territory (see subsection (2)).

Note 2:       Human remains are not goods (see the definition of goods in section 18).

                  (2)   The Director of Human Biosecurity may specify, in writing:

                            (a)   classes of human remains; and

                            (b)   requirements for:

                                       (i)   bringing human remains into Australian territory; or

                                      (ii)   managing human remains in those classes after bringing them into Australian territory.

             (3)  An instrument made under subsection (2) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the instrument.

             (4)  A requirement specified for the purposes of paragraph (2)(b) must relate to preventing, or reducing the risk of, a listed human disease entering, or emerging, establishing itself, or spreading in, Australian territory or a part of Australian territory.

                  (5)   This section does not apply to the human remains of an individual who dies:

                     (a)  in transit before arriving in Australian territory; or

                     (b)  on arrival in Australian territory.

Note:          For individuals who have died in transit or on arrival, see section 110.

Civil penalty provision

             (6)  A person to whom a requirement under subsection (2) applies must comply with the requirement.

Civil penalty:          30 penalty units.

109  Officer may give directions for managing human remains

                 (1)   A biosecurity officer, human biosecurity officer, or chief human biosecurity officer, may give a direction for managing specified human remains if:

                     (a)  the officer is satisfied that those remains are likely to be infected with a listed human disease (whether the remains were brought into Australian territory as mentioned in section 108, or were already in Australian territory); or

                     (b)  a person did not comply with a requirement specified under subsection 108(2) in relation to those remains.

             (2)   The officer must give a written direction to the person who is responsible for the human remains.

Note:          See also section 608 (general provisions relating to directions).

Civil penalty provision

                 (3)   A person to whom a direction is given under this section must comply with the direction.

Civil penalty:          30 penalty units.

110  Individuals who have died in transit or on arrival

                  (1)   The Director of Human Biosecurity may specify, in writing, requirements for classes of persons who bring into Australian territory, or who manage, the bodies of deceased individuals who die:

                            (a)   in transit before arriving in Australian territory; or

                            (b)   on arrival in Australian territory.

             (2)  A requirement specified for the purposes of subsection (1) must relate to preventing, or reducing the risk of, a listed human disease entering, or emerging, establishing itself, or spreading in, Australian territory or a part of Australian territory.

             (3)  An instrument made under subsection (1) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the instrument.

Civil penalty provision

             (4)  A person to whom a requirement under subsection (1) applies must comply with the requirement.

Civil penalty:          30 penalty units.


 

Division 3Human health response zones

111  Determining human health response zones

             (1)  The Director of Human Biosecurity may determine that a specified area within a State or Territory is a human health response zone if the Director is satisfied that it is necessary to do so for the purposes of preventing, or reducing the risk of, a listed human disease emerging, establishing itself or spreading in Australian territory or a part of Australian territory.

Note 1:       For consultation and notification requirements, see sections 112 and 113.

Note 2:       Under Division 6 of Part 2 of this Chapter, an officer may ask questions, or require written information, of an individual who is in a human health response zone.

             (2)  Without limiting subsection (1), a specified area may consist of the whole or a part of a specified building.

Contents of a determination

             (3)  The determination must also specify:

                     (a)  the listed human disease to which the determination relates; and

                     (b)  either or both of the following:

                              (i)  any requirements for individuals who are entering or leaving the zone;

                             (ii)  a requirement that specified classes of individuals must not enter the zone; and

                     (c)  the period during which the determination is in force, which must not be more than 3 months.

Note:          A person who does not comply with a requirement of a human health response zone determination might contravene a civil penalty provision (see section 114).

             (4)  A requirement must not be specified in a determination unless the Director of Human Biosecurity is satisfied that the requirement is appropriate and adapted to prevent, or reduce the risk of, the specified listed human disease emerging, establishing itself or spreading in Australian territory or a part of Australian territory.

             (5)  A determination must not specify as a requirement a biosecurity measure described in Subdivision B of Division 3 of Part 3 of this Chapter (biosecurity measures that may be included in a human biosecurity control order).

Period of determination

             (6)  If a determination ceases to be in force, the Director of Human Biosecurity may make another determination specifying the same area covered by the previous determination.

Determination not subject to disallowance

             (7)  A determination made under subsection (1) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the determination.

112  Consultation requirements

                   Before making a determination under section 111, the Director of Human Biosecurity must consult with:

                     (a)  the chief health officer (however described) for the State or Territory in which the human health response zone will lie; and

                     (b)  the Director of Biosecurity.

113  Notification requirements

             (1)  In addition to the requirement under the Legislative Instruments Act 2003 for the determination to be registered, the Director of Human Biosecurity must ensure that the determination is made public, in any other way he or she thinks fit.

             (2)  A failure to comply with subsection (1) of this section does not affect the validity of the determination.

114  Civil penalty for failing to comply with a requirement of a human health response zone determination

                   A person to whom a requirement in a determination made under section 111 (human health response zone) applies must comply with the requirement.

Civil penalty:          30 penalty units.


 

Chapter 3Managing biosecurity risks: goods

Part 1Goods brought into Australian territory

Division 1Introduction

115  Guide to this Part

This Part deals with goods that are brought or imported into Australian territory from outside Australian territory.

Division 2 provides that the goods become subject to biosecurity control when they enter Australian territory.

Division 3 provides for notice to be given of goods that are, or are intended to be, brought into Australian territory and unloaded at a landing place or port.

Division 4 sets out powers that may be exercised to assess the level of biosecurity risk associated with goods that are subject to biosecurity control.

Division 5 provides for biosecurity measures to be taken in relation to goods that are subject to biosecurity control if the level of biosecurity risk associated with the goods is considered to be unacceptable.

Division 6 deals with unloading goods that are subject to biosecurity control at landing places or ports in Australian territory.

Division 7 deals with unloading goods that are subject to biosecurity control from an aircraft or vessel that is displaying the prescribed quarantine signal.

Division 8 requires biosecurity incidents in relation to goods that are subject to biosecurity control to be reported to a biosecurity officer or the Director of Biosecurity.

Division 9 provides for the assessment and management of the level of biosecurity risk associated with goods that are exposed to goods that are subject to biosecurity control.

Division 10 deals with releasing goods from biosecurity control.

116  Objects of this Part

                   The main objects of this Part are:

                     (a)  to provide for the assessment of the level of biosecurity risk associated with goods brought into Australian territory; and

                     (b)  to provide for biosecurity measures to be taken in relation to those goods if the level of biosecurity risk associated with them is considered to be unacceptable.

Note:          In this Chapter, goods includes a conveyance that is being carried on board another conveyance (for example a lifeboat being carried on a vessel) (see section 18).


 

Division 2Goods are subject to biosecurity control

117  Goods brought into Australian territory are subject to biosecurity control

             (1)  This section applies in relation to goods that are brought into Australian territory on an aircraft or vessel that has entered Australian territory during a flight or voyage that commenced outside Australian territory.

Note:          Goods that are brought into Australian territory include goods brought into Australian territory with the intention of being imported into Australian territory.

             (2)  The goods become subject to biosecurity control when the aircraft or vessel carrying the goods enters Australian territory.

             (3)  The goods remain subject to biosecurity control until they are released from biosecurity control under Division 10.

             (4)  If the goods are released from biosecurity control under paragraph 160(1)(e) by leaving Australian territory on an aircraft or vessel that is on a flight or voyage between places in Australian territory, the goods become subject to biosecurity control again when the aircraft or vessel re‑enters Australian territory during that flight or voyage.

Note:          Goods are released from biosecurity control under paragraph 160(1)(e) if they leave Australian territory.


 

Division 3Notice of goods to be unloaded in Australian territory

118  Notice must be given of goods to be unloaded in Australian territory

             (1)  A notice must be given of goods that are, or are intended to be:

                     (a)  brought into Australian territory; and

                     (b)  unloaded at a landing place or port in Australian territory;

other than goods originating in Australian territory that leave temporarily for the purpose of travelling between landing places or ports in Australian territory.

Note 1:       A person may commit an offence or contravene a civil penalty provision if the person provides false or misleading information or documents (see sections 137.1 and 137.2 of the Criminal Code and sections 507 and 508 of this Act).

Note 2:       The obligation in this subsection applies whether or not the person who is required to give the notice is in Australian territory when the notice is required to be given or when the goods are unloaded (see subsection (8) of this section).

             (2)  The notice must be given by a person prescribed by the regulations in relation to the goods.

             (3)  The notice must:

                     (a)  include the information in relation to the goods that is prescribed by the regulations; and

                     (b)  be given in the manner, and to the person, prescribed by the regulations; and

                     (c)  be given at a time, or during the period, prescribed by the regulations (which may be before or after the goods are unloaded as referred to in subsection (1)); and

                     (d)  be in a form or forms approved by the Director of Biosecurity.

Note:          The regulations may prescribe different requirements for notices for different classes of goods (see subsection 33(3A) of the Acts Interpretation Act 1901).

             (4)  The regulations may prescribe exceptions to the requirement to give a notice under this section.

Note:          A defendant bears an evidential burden in relation to any exception prescribed for the purposes of this subsection (see subsection 13.3(3) of the Criminal Code and section 552 of this Act).

Failure to give notice

             (5)  A person contravenes this subsection if:

                     (a)  goods are unloaded as referred to in subsection (1); and

                     (b)  the person is a person prescribed for the purposes of subsection (2) in relation to the goods; and

                     (c)  the person does not give a notice in relation to the goods in accordance with subsection (3); and

                     (d)  no other person gives a notice in relation to the goods in accordance with that subsection.

Fault‑based offence

             (6)  A person commits an offence if the person contravenes subsection (5).

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

Note:          See section 575 in relation to the physical elements of an offence.

Civil penalty provision

             (7)  A person is liable to a civil penalty if the person contravenes subsection (5).

Civil penalty:          120 penalty units.

Application to persons within and outside Australian territory

             (8)  Subsections (5), (6) and (7) apply whether or not the person is in Australian territory when the notice is required to be given or when the goods are unloaded.

Note:          This section is not subject to the privilege against self‑incrimination (see section 661).

119  Notice of goods to be unloaded in Australian territory—requirement to give additional or corrected information

             (1)  If:

                     (a)  a person gives a notice in relation to goods under section 118; and

                     (b)  after giving the notice, the person becomes aware that the information included in the notice was incomplete or incorrect;

the person must give the additional or corrected information to a biosecurity officer as soon as practicable.

Note 1:       A person may commit an offence or contravene a civil penalty provision if the person provides false or misleading information or documents (see sections 137.1 and 137.2 of the Criminal Code and sections 507 and 508 of this Act).

Note 2:       The obligation in this subsection applies whether or not the person is in Australian territory when the person becomes aware that the information included in a notice given under section 118 was incomplete or incorrect (see subsection (5) of this section).

Note 3:       See also Division 8 which deals with reporting biosecurity incidents.

             (2)  A person contravenes this subsection if:

                     (a)  the person is required to give information to a biosecurity officer under subsection (1); and

                     (b)  the person does not give the information to a biosecurity officer as required by that subsection.

Fault‑based offence

             (3)  A person commits an offence if the person contravenes subsection (2).

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

Note:          See section 575 in relation to the physical elements of an offence.

Civil penalty provision

             (4)  A person is liable to a civil penalty if the person contravenes subsection (2).

Civil penalty:          120 penalty units.

Application to persons within and outside Australian territory

             (5)  Subsections (2), (3) and (4) apply whether or not the person is in Australian territory when the person is required to give the information.

Note:          This section is not subject to the privilege against self‑incrimination (see section 661).


 

Division 4Assessment of level of biosecurity risk

120  Biosecurity risk assessment powers

                   This Division sets out powers that may be exercised for the purpose of assessing the level of biosecurity risk associated with goods that are subject to biosecurity control.

Note:          The powers in this Division may also be exercised in relation to exposed goods and goods in relation to which an exposed goods order is in force (see Division 9).

121  Direction to secure goods

             (1)  A biosecurity officer may direct a person in charge of the goods to secure the goods in a manner specified by the biosecurity officer.

Civil penalty provision

             (2)  A person who is given a direction under subsection (1) must comply with the direction.

Civil penalty:          120 penalty units.

Note 1:       If judicial review is sought in relation to a direction given under subsection (1), the direction remains in force unless a court finally determines the validity of the decision to give the direction (see section 573).

Note 2:       A person may contravene a civil penalty provision for moving, dealing with or interfering with goods that have been secured in accordance with a direction given under subsection (1) (see section 127).

Note 3:       See also section 608 (general provisions relating to directions).

122  Inspecting goods and taking samples

             (1)  A biosecurity officer may inspect the goods.

             (2)  A biosecurity officer may:

                     (a)  take samples of the goods; or

                     (b)  direct a person in charge of the goods to deliver to the biosecurity officer samples of such of those goods as are specified in the direction; or

                     (c)  arrange for another person, with appropriate qualifications or expertise, to take samples of the goods.

             (3)  A biosecurity officer may:

                     (a)  carry out tests on any samples taken or delivered under subsection (2); or

                     (b)  arrange for another person, with appropriate qualifications or expertise, to carry out tests on any of those samples.

Note:          See also section 592 (carrying out tests on samples).

Civil penalty provision

             (4)  A person who is given a direction under paragraph (2)(b) must comply with the direction.

Civil penalty:          120 penalty units.

123  Asking questions about goods

             (1)  A biosecurity officer may require a person who the biosecurity officer suspects, on reasonable grounds, has information in relation to the goods to answer questions, or provide information in writing, in relation to the goods.

Note:          A person may commit an offence or contravene a civil penalty provision if the person provides false or misleading information (see section 137.1 of the Criminal Code and section 507 of this Act).

Civil penalty provision

             (2)  A person who is required to answer questions, or provide information in writing, under subsection (1) must comply with the requirement.

Civil penalty:          120 penalty units.

Note:          This section is not subject to the privilege against self‑incrimination (see section 661).

124  Requiring documents relating to goods to be produced

             (1)  A biosecurity officer may require a person who the biosecurity officer suspects, on reasonable grounds, has the custody or control of documents in relation to the goods to produce to the biosecurity officer such of those documents as are specified by the biosecurity officer.

Note:          A person may commit an offence or contravene a civil penalty provision if the person provides false or misleading documents (see section 137.2 of the Criminal Code and section 508 of this Act).

             (2)  A biosecurity officer:

                     (a)  may make copies of, or take extracts from, a document produced under subsection (1); and

                     (b)  for that purpose, may remove the document from the place at which it was produced.

Civil penalty provision

             (3)  A person who is required to produce documents under subsection (1) must comply with the requirement.

Civil penalty:          120 penalty units.

Note:          This section is not subject to the privilege against self‑incrimination (see section 661).

125  Movement of goods

             (1)  A biosecurity officer may:

                     (a)  give any of the following directions to a person in charge of the goods:

                              (i)  a direction not to move, deal with or interfere with the goods;

                             (ii)  a direction to move the goods, as soon as practicable, to a place specified by the biosecurity officer;

                            (iii)  any other direction relating to the movement of the goods; or

                     (b)  cause the goods to be moved to another place.

Civil penalty provision

             (2)  A person who is given a direction under paragraph (1)(a) must comply with the direction.

Civil penalty:          120 penalty units.

Note:          A person may contravene a civil penalty provision for moving, dealing with or interfering with goods in relation to which a direction relating to movement has been given under paragraph (1)(a) or that have been moved under paragraph (1)(b) (see section 127).

126  Biosecurity control notice may be affixed to goods or given to person in charge of goods

             (1)  A biosecurity officer may:

                     (a)  affix a biosecurity control notice to, or as near as reasonably practicable to, the goods; or

                     (b)  give a biosecurity control notice to a person in charge of the goods.

Civil penalty provision

             (2)  A person is liable to a civil penalty if:

                     (a)  a biosecurity control notice is affixed to, or as near as reasonably practicable to, goods under paragraph (1)(a); and

                     (b)  the person interferes with, removes or defaces the notice; and

                     (c)  none of the following applies:

                              (i)  the person is authorised to engage in the conduct referred to in paragraph (b) in accordance with an approved arrangement;

                             (ii)  the person needs to engage in that conduct to comply with a direction given under another provision of this Act by a biosecurity official;

                            (iii)  the person has been given permission to engage in that conduct under section 595.

Civil penalty:          120 penalty units.

             (3)  Subsection (2) does not apply if the person is authorised to engage in the conduct referred to in paragraph (2)(b) under this Act or under another Australian law.

Note 1:       A defendant bears an evidential burden in relation to the matter in this subsection (see section 552).

Note 2:       A person may contravene a civil penalty provision for moving, dealing with or interfering with goods in relation to which a biosecurity control notice has been affixed under paragraph (1)(a) (see section 127).

127  Unauthorised persons must not move etc. goods in relation to which direction has been given or notice has been affixed

             (1)  This section applies in relation to:

                     (a)  goods that have been secured in accordance with a direction given under subsection 121(1); or

                     (b)  goods in relation to which a direction relating to movement has been given under paragraph 125(1)(a); or

                     (c)  goods that have been moved under paragraph 125(1)(b); or

                     (d)  goods in relation to which a biosecurity control notice has been affixed under paragraph 126(1)(a).

Civil penalty provision

             (2)  A person is liable to a civil penalty if:

                     (a)  the person moves, deals with or interferes with goods in relation to which this section applies; and

                     (b)  none of the following applies:

                              (i)  the person is authorised to engage in the conduct referred to in paragraph (a) in accordance with an approved arrangement;

                             (ii)  the person needs to engage in that conduct to comply with a direction given under another provision of this Act by a biosecurity official;

                            (iii)  the person has been given permission to engage in that conduct under section 595.

Civil penalty:          120 penalty units.

             (3)  Subsection (2) does not apply if the person is authorised to engage in the conduct referred to in paragraph (2)(a) under this Act or under another Australian law.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see section 552).


 

Division 5Biosecurity measures to manage unacceptable level of biosecurity risk

128  Biosecurity measures may be required in relation to goods

                   If a biosecurity officer suspects, on reasonable grounds, that the level of biosecurity risk associated with goods that are subject to biosecurity control is unacceptable, a biosecurity officer may require biosecurity measures to be taken in relation to the goods as set out in this Division.

Note 1:       This Division also applies in relation to exposed goods in relation to which an exposed goods order is in force. This Division applies to those goods as if they were subject to biosecurity control (see subsection 159(1)).

Note 2:       Sections 653 and 654 deal with abandoned and forfeited goods in relation to which biosecurity measures have been required under this Division.

129  Movement of goods

                   A biosecurity officer may:

                     (a)  require the goods to be moved to a specified place, as soon as practicable; or

                     (b)  require the goods to be left at a specified place in a specified manner and for a specified period; or

                     (c)  require any other action to be taken in relation to the movement of the goods.

130  Treatment of goods

             (1)  A biosecurity officer may, subject to subsection (2), require the goods to be treated in a manner specified by the biosecurity officer.

Note:          If the treatment might damage the goods, a person in charge of the goods must be asked to agree to the treatment (see section 131).

             (2)  A biosecurity officer must not require high‑value goods to be treated in a manner that the biosecurity officer suspects, on reasonable grounds, is likely to damage the goods, without the written approval of the Director of Biosecurity.

131  Treatment that may damage goods

             (1)  This section applies if:

                     (a)  a biosecurity officer requires goods to be treated in a specified manner under section 130; and

                     (b)  a biosecurity officer suspects, on reasonable grounds, that treatment of the goods in that manner is likely to damage the goods.

Notice must be given that treatment is likely to damage goods

             (2)  Before any treatment is carried out on the goods, a biosecurity officer must, by notice in writing or orally:

                     (a)  inform a person in charge of the goods that:

                              (i)  the goods are required to be treated in a specified manner; and

                             (ii)  the treatment is likely to damage the goods; and

                     (b)  request the person to agree to the treatment of the goods.

Note:          The meaning of person in charge of goods in this subsection is affected by subsection (7).

             (3)  However, the goods may be treated in the specified manner without notice having been given under subsection (2) if:

                     (a)  a biosecurity officer suspects, on reasonable grounds, that there is a high level of biosecurity risk associated with the goods; and

                     (b)  the biosecurity officer is satisfied that the goods need to be treated as soon as practicable to reduce that risk to an acceptable level.

Dealing with goods if person in charge does not agree to treatment

             (4)  If:

                     (a)  a notice in writing is given to a person in charge of the goods under subsection (2); and

                     (b)  a person in charge of the goods does not, within 30 days after receiving the notice, notify a biosecurity officer in writing that the person agrees to the treatment of the goods as specified in the notice;

a biosecurity officer may, in writing, request a person in charge of the goods to arrange for the goods:

                     (c)  to be dealt with, or destroyed, in a manner specified in the request; or

                     (d)  to be exported from Australian territory;

within the period specified in the request.

Note:          The meaning of person in charge of goods in paragraphs (4)(a) and (b) is affected by subsection (7).

             (5)  If:

                     (a)  notice is given orally to a person in charge of the goods under subsection (2); and

                     (b)  a person in charge of the goods informs a biosecurity officer that the person does not agree to the treatment of the goods in the specified manner;

a biosecurity officer may, in writing or orally, request a person in charge of the goods to arrange for the goods:

                     (c)  to be dealt with, or destroyed, in a manner specified in the request; or

                     (d)  to be exported from Australian territory;

within the period specified in the request.

Note:          The meaning of person in charge of goods in paragraphs (5)(a) and (b) is affected by subsection (7).

             (6)  If:

                     (a)  a request is made under subsection (4) or (5) in relation to the goods; and

                     (b)  the goods are not, within the period specified in the request:

                              (i)  dealt with, or destroyed, in a manner specified in the request; or

                             (ii)  exported from Australian territory;

a biosecurity officer may take possession of the goods and cause them to be exported from Australian territory, destroyed or otherwise disposed of.

Modified meaning of person in charge of goods

             (7)  In subsection (2) and paragraphs (4)(a) and (b) and (5)(a) and (b), person in charge of goods does not include a biosecurity industry participant who is in possession or control of the goods only because of a direction given to the biosecurity industry participant by a biosecurity officer.

132  Export of goods

             (1)  A biosecurity officer may require the goods to be exported from Australian territory.

             (2)  For the purposes of subsection (1), a biosecurity officer may:

                     (a)  arrange for the goods to be exported from Australian territory; or

                     (b)  direct a person in charge of the goods to arrange for the goods to be exported from Australian territory.

Note:          A person who is given a direction under paragraph (2)(b) may commit an offence or contravene a civil penalty provision for failing to comply with the direction (see section 137).

133  Destruction of goods

             (1)  If a biosecurity officer considers, on reasonable grounds, that the goods cannot be effectively treated, a biosecurity officer may, subject to subsections (2) and (3), require the goods to be destroyed.

             (2)  A biosecurity officer must not require high‑value goods to be destroyed without the written approval of the Director of Biosecurity.

Note:          A decision to give approval for high‑value goods to be destroyed is a reviewable decision (see Part 1 of Chapter 13).

             (3)  A biosecurity officer must not cause high‑value goods to be destroyed until:

                     (a)  after the period in which an application may be made for review (including merits or judicial review) of the decision to require the goods to be destroyed; or

                     (b)  if an application referred to in paragraph (a) is made—after the review or any related proceeding (including any appeal) have been completed.

             (4)  However, subsection (3) does not apply in relation to high‑value goods if a biosecurity officer is satisfied that:

                     (a)  there is a high level of biosecurity risk associated with the goods; and

                     (b)  the biosecurity risk cannot be managed for long enough to allow a review of the decision to require the goods to be destroyed, and any related proceeding (including any appeal), to be finally determined.

             (5)  If:

                     (a)  in accordance with subsection (4), a biosecurity officer causes the goods to be destroyed before the end of the period referred to in paragraph (3)(a); and

                     (b)  no application for review of the decision to require the goods to be destroyed had been made before the goods were destroyed;

an application for review of the decision to require the goods to be destroyed must not be made.

             (6)  If:

                     (a)  an application referred to in paragraph (3)(a) has been made in relation to the decision to require the goods to be destroyed; and

                     (b)  in accordance with subsection (4), a biosecurity officer causes the goods to be destroyed before the review or any related proceeding (including any appeal) has been finally determined;

the review or related proceeding (including any appeal) is taken to be discontinued when the goods are destroyed.

134  Regulations may provide for other biosecurity measures

             (1)  The regulations may provide that a biosecurity officer may require a specified kind of biosecurity measure (a prescribed biosecurity measure) to be taken in relation to the goods.

             (2)  Regulations made for the purposes of this section must not provide for a biosecurity officer to require any of the following kinds of biosecurity measures to be taken in relation to the goods:

                     (a)  a biosecurity measure of a kind set out in Division 4 of this Part (assessment of level of biosecurity risk);

                     (b)  a biosecurity measure of a kind set out in another provision of this Division (biosecurity measures to manage unacceptable level of biosecurity risk);

                     (c)  a biosecurity measure of a kind referred to in Subdivision B of Division 2 of Part 4 of Chapter 12 (decontamination).

             (3)  Regulations made for the purposes of this section may also provide for, or in relation to, other matters relating to a prescribed biosecurity measure.

             (4)  Without limiting subsection (3), regulations made for the purposes of this section may do any of the following:

                     (a)  provide for persons to be notified, and the circumstances in which the persons must be notified, that a prescribed biosecurity measure is required to be taken in relation to goods;

                     (b)  if regulations made for the purposes of subsection 610(2) provide that the decision to require a prescribed biosecurity measure to be taken in relation to the goods is a reviewable decision—provide that, except in the circumstances (if any) prescribed, the prescribed biosecurity measure must not be taken during the period in which a review of that decision, or any related proceeding (including any appeal), has been finally determined.

135  Powers of biosecurity officer if biosecurity measures are required

             (1)  If a biosecurity officer requires a biosecurity measure to be taken in relation to goods under section 129 (movement), section 130 (treatment), section 133 (destruction) or a regulation made for the purposes of section 134, a biosecurity officer may:

                     (a)  direct a person in charge of the goods to carry out the biosecurity measure; or

                     (b)  carry out the biosecurity measure; or

                     (c)  arrange for another person with appropriate qualifications or expertise to carry out the biosecurity measure.

Note 1:       A person who is given a direction under paragraph (1)(a) of this section may commit an offence or contravene a civil penalty provision for failing to comply with the direction (see section 137).

Note 2:       See also section 608 (general provisions relating to directions).

             (2)  If, under this section, a biosecurity officer:

                     (a)  gives a direction to a person to carry out a biosecurity measure; or

                     (b)  arranges for another person with appropriate qualifications or expertise to carry out a biosecurity measure;

a biosecurity officer may supervise the taking of the biosecurity measure.

136  Biosecurity officer may affix notice to goods

             (1)  A biosecurity officer may affix a notice to, or as near as reasonably practicable to, goods in relation to which biosecurity measures have been required under:

                     (a)  this Division; or

                     (b)  a regulation made for the purposes of section 134.

             (2)  The notice must state:

                     (a)  that the level of biosecurity risk associated with the goods is unacceptable; and

                     (b)  that biosecurity measures have been required in relation to the goods, in accordance with this Chapter, for the purpose of managing that biosecurity risk; and

                     (c)  the effect of subsections (3) and (4) of this section and section 138.

Civil penalty provision

             (3)  A person is liable to a civil penalty if:

                     (a)  a notice is affixed to, or as near as reasonably practicable to, goods under subsection (1); and

                     (b)  the person interferes with, removes or defaces the notice; and

                     (c)  none of the following applies:

                              (i)  the person is authorised to engage in the conduct referred to in paragraph (b) in accordance with an approved arrangement;

                             (ii)  the person needs to engage in that conduct to comply with a direction given under another provision of this Act by a biosecurity official;

                            (iii)  the person has been given permission to engage in that conduct under section 595.

Civil penalty:          120 penalty units.

             (4)  Subsection (3) does not apply if the person is authorised to engage in the conduct referred to in paragraph (3)(b) under this Act or under another Australian law.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see section 552).

137  Person must comply with direction to take biosecurity measures

             (1)  A person who is given a direction under paragraph 132(2)(b) or 135(1)(a) must comply with the direction.

Fault‑based offence

             (2)  A person commits an offence if:

                     (a)  the person is given a direction under paragraph 132(2)(b) or 135(1)(a); and

                     (b)  the person engages in conduct; and

                     (c)  the conduct contravenes the direction.

Penalty:  Imprisonment for 5 years or 300 penalty units, or both.

Civil penalty provision

             (3)  A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:          120 penalty units.

138  Unauthorised persons must not move etc. goods to which notice has been affixed

             (1)  A person contravenes this subsection if:

                     (a)  a notice has been affixed to, or as near as reasonably practicable to, goods under subsection 136(1); and

                     (b)  the person moves, deals with or interferes with the goods; and

                     (c)  none of the following applies:

                              (i)  the person is authorised to engage in the conduct referred to in paragraph (b) in accordance with an approved arrangement;

                             (ii)  the person needs to engage in that conduct to comply with a direction given under another provision of this Act by a biosecurity official;

                            (iii)  the person has been given permission to engage in that conduct under section 595.

             (2)  Subsection (1) does not apply if the person is authorised to engage in the conduct referred to in paragraph (1)(b) under this Act or under another Australian law.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code and section 552 of this Act).

Fault‑based offence

             (3)  A person commits an offence if the person contravenes subsection (1).

Penalty:  Imprisonment for 5 years or 300 penalty units, or both.

Note:          See section 575 in relation to the physical elements of an offence.

Civil penalty provision

             (4)  A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:          120 penalty units.

Division 6Unloading goods at landing places or ports

139  Application of this Division

                   This Division applies in relation to goods that:

                     (a)  are, or will become, subject to biosecurity control; and

                     (b)  are intended to be unloaded from an aircraft or vessel at a landing place or port in Australian territory.

Note:          This Division also applies in relation to exposed goods in relation to which an exposed goods order is in force. This Division applies to those goods as if they were subject to biosecurity control (see subsection 159(1)).

140  Person in charge may allow goods to be unloaded from aircraft or vessel subject to direction etc.

             (1)  The person in charge of the aircraft or vessel may allow the goods to be unloaded from the aircraft or vessel at the landing place or port at which the aircraft or vessel has arrived.

Note 1:       Nothing may be unloaded from the aircraft or vessel unless pratique has been granted in relation to the aircraft or vessel (see sections 47 and 48).

Note 2:       A person may commit an offence or contravene a civil penalty provision if the person moves, deals with or interferes with goods that have been unloaded from the aircraft or vessel (see section 146).

             (2)  Subsection (1) has effect subject to:

                     (a)  sections 142, 143, 144, 145 and 149; and

                     (b)  any direction given under subsection (3) of this section.

             (3)  A biosecurity officer may give the person in charge of the aircraft or vessel a direction relating to the unloading of the goods from the aircraft or vessel (including a direction not to allow some or all of the goods to be unloaded from the aircraft or vessel).

Note:          See also section 608 (general provisions relating to directions).

             (4)  A person who is given a direction under subsection (3) must comply with the direction.

Fault‑based offence

             (5)  A person commits an offence if:

                     (a)  the person is given a direction under subsection (3); and

                     (b)  the person engages in conduct; and

                     (c)  the conduct contravenes the direction.

Penalty:  Imprisonment for 5 years or 300 penalty units, or both.

Civil penalty provision

             (6)  A person is liable to a civil penalty if the person contravenes subsection (4).

Civil penalty:          120 penalty units.

             (7)  Subsections (5) and (6) do not apply if:

                     (a)  the person in charge of the aircraft or vessel gave another person a direction (the person in charge’s direction) under subsection 141(4); and

                     (b)  the person in charge’s direction was in the same terms as the direction given under subsection (3) of this section; and

                     (c)  the other person did not comply with the person in charge’s direction.

Note:          A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code and section 552 of this Act).

141  Person may unload goods from aircraft or vessel subject to direction etc.

             (1)  A person may unload the goods from the aircraft or vessel at the landing place or port at which the aircraft or vessel has arrived.

Note 1:       Nothing may be unloaded from the aircraft or vessel unless pratique has been granted in relation to the aircraft or vessel (see sections 47 and 48).

Note 2:       A person may commit an offence or contravene a civil penalty provision if the person moves, deals with or interferes with goods that have been unloaded from the aircraft or vessel (see section 146).

             (2)  Subsection (1) has effect subject to:

                     (a)  sections 142, 143, 144, 145 and 149; and

                     (b)  any direction given under subsection (3) or (4) of this section.

             (3)  A biosecurity officer may give a person a direction relating to the unloading of the goods from the aircraft or vessel (including a direction not to unload some or all of the goods from the aircraft or vessel).

Note:          See also section 608 (general provisions relating to directions).

             (4)  If the person in charge of the aircraft or vessel has been given a direction under subsection 140(3), the person in charge may, for the purpose of giving effect to that direction, give another person a direction relating to the unloading of the goods from the aircraft or vessel (including a direction not to unload some or all of the goods from the aircraft or vessel).

             (5)  A person who is given a direction under subsection (3) or (4) must comply with the direction.

Fault‑based offence

             (6)  A person commits an offence if:

                     (a)  the person is given a direction under subsection (3) or (4); and

                     (b)  the person engages in conduct; and

                     (c)  the conduct contravenes the direction.

Penalty:  Imprisonment for 5 years or 300 penalty units, or both.

Civil penalty provision

             (7)  A person is liable to a civil penalty if the person contravenes subsection (5).

Civil penalty:          120 penalty units.

142  Goods must not be unloaded except at first point of entry for those goods or with permission

             (1)  The person in charge of the aircraft or vessel must not allow the goods to be unloaded from the aircraft or vessel at a landing place or port that is not a first point of entry for those goods, unless permission has been given under subsection 143(2) for the goods to be unloaded at that landing place or port.

Fault‑based offence

             (2)  The person in charge of an aircraft or vessel commits an offence if:

                     (a)  the person allows goods to be unloaded from the aircraft or vessel at a landing place or port in Australian territory; and

                     (b)  the goods are subject to biosecurity control; and

                     (c)  the landing place or port is not a first point of entry for those goods; and

                     (d)  permission has not been given under subsection 143(2) for the goods to be unloaded at that landing place or port.

Penalty:  Imprisonment for 5 years or 300 penalty units, or both.

Civil penalty provision

             (3)  A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:          120 penalty units.

143  Permission to unload goods at landing place or port other than first point of entry for those goods

             (1)  The person in charge or the operator of the aircraft or vessel may, in writing, request the Director of Biosecurity to give permission for the goods to be unloaded at a landing place or port that is not a first point of entry for those goods.

Note:          A request under this subsection may be made at the same time as a request under section 241 or 249 is made for permission to arrive at a landing place or port that is not a first point of entry for the aircraft or vessel.

             (2)  If the Director of Biosecurity receives a request under subsection (1), the Director may, by notice in writing to the person in charge or the operator of the aircraft or vessel, give permission for the goods to be unloaded from the aircraft or vessel at the landing place or port specified in the request.

             (3)  The Director of Biosecurity may give permission under subsection (2) subject to any conditions specified in the notice giving the permission.

Fault‑based offences

             (4)  A person commits an offence if:

                     (a)  the person is the person in charge or the operator of an aircraft or vessel; and

                     (b)  the person has been given a permission under subsection (2); and

                     (c)  the permission is subject to conditions; and

                     (d)  the person engages in conduct; and

                     (e)  the conduct contravenes the conditions.

Penalty:  Imprisonment for 5 years or 300 penalty units, or both.

             (5)  The person in charge of an aircraft or vessel commits an offence if:

                     (a)  the operator of the aircraft or vessel has been given a permission under subsection (2); and

                     (b)  the permission is subject to conditions; and

                     (c)  the conditions are not complied with.

Penalty:  Imprisonment for 5 years or 300 penalty units, or both.

             (6)  The operator of an aircraft or vessel commits an offence if:

                     (a)  the person in charge of the aircraft or vessel has been given a permission under subsection (2); and

                     (b)  the permission is subject to conditions; and

                     (c)  the conditions are not complied with.

Penalty:  Imprisonment for 5 years or 300 penalty units, or both.

Civil penalty provision

             (7)  The person in charge and the operator of an aircraft or vessel are each liable to a civil penalty if:

                     (a)  the person in charge or the operator of the aircraft or vessel has been given a permission under subsection (2); and

                     (b)  the permission is subject to conditions; and

                     (c)  the conditions are not complied with.

Civil penalty:          120 penalty units.

144  Goods must be brought to biosecurity entry point for those goods at first point of entry

             (1)  This section applies if:

                     (a)  the aircraft or vessel has arrived at a first point of entry for the aircraft or vessel; and

                     (b)  there is a biosecurity entry point at the first point of entry for goods that are to be unloaded from the aircraft or vessel.

Civil penalty provision

             (2)  The person in charge of the aircraft or vessel must ensure that goods that are to be unloaded from the aircraft or vessel are brought to the biosecurity entry point for those goods as soon as practicable, unless:

                     (a)  a biosecurity officer has given a direction under subsection (3) to the person in charge or the operator of the aircraft or vessel to bring the goods to an alternative biosecurity entry point at the first point of entry; or

                     (b)  permission has been given under subsection 145(2) for the goods to be brought to an alternative biosecurity entry point at the first point of entry.

Civil penalty:          120 penalty units.

Note 1:       Nothing may be unloaded from the aircraft or vessel unless pratique has been granted in relation to the aircraft or vessel (see sections 47 and 48).

Note 2:       Goods must not be unloaded from the aircraft or vessel if:

(a)    a direction has been given under subsection 140(3) or 141(3) or (4) not to unload the goods from the aircraft or vessel; or

(b)    the aircraft or vessel is displaying the prescribed quarantine signal (see section 149).

             (3)  A biosecurity officer may give the person in charge or the operator of the aircraft or vessel a direction requiring goods that are to be unloaded from the aircraft or vessel to be brought to a biosecurity entry point that is not a biosecurity entry point for those goods.

Note:          See also section 608 (general provisions relating to directions).

Fault‑based offences

             (4)  A person commits an offence if:

                     (a)  the person is the person in charge or the operator of an aircraft or vessel; and

                     (b)  the person has been given a direction under subsection (3); and

                     (c)  the person engages in conduct; and

                     (d)  the conduct contravenes the direction.

Penalty:  Imprisonment for 5 years or 300 penalty units, or both.

             (5)  The person in charge of an aircraft or vessel commits an offence if:

                     (a)  the operator of the aircraft or vessel has been given a direction under subsection (3); and

                     (b)  the direction is not complied with.

Penalty:  Imprisonment for 5 years or 300 penalty units, or both.

             (6)  The operator of an aircraft or vessel commits an offence if:

                     (a)  the person in charge of the aircraft or vessel has been given a direction under subsection (3); and

                     (b)  the direction is not complied with.

Penalty:  Imprisonment for 5 years or 300 penalty units, or both.

Civil penalty provision

             (7)  The person in charge and the operator of an aircraft or vessel are each liable to a civil penalty if:

                     (a)  the person in charge or the operator of the aircraft or vessel has been given a direction under subsection (3); and

                     (b)  the direction is not complied with.

Civil penalty:          120 penalty units.

145  Permission to bring goods to alternative biosecurity entry point

             (1)  The person in charge or the operator of the aircraft or vessel may, in writing, request the Director of Biosecurity to give permission to bring the goods to a biosecurity entry point (the alternative biosecurity entry point) that is not a biosecurity entry point for those goods.

             (2)  If the Director of Biosecurity receives a request under subsection (1), the Director may, by notice in writing to the person in charge or the operator of the aircraft or vessel, give permission for the goods to be brought to the alternative biosecurity entry point.

             (3)  The Director of Biosecurity may give permission under subsection (2) subject to any conditions specified in the notice giving the permission.

Fault‑based offences

             (4)  A person commits an offence if:

                     (a)  the person is the person in charge or the operator of an aircraft or vessel; and

                     (b)  the person has been given a permission under subsection (2); and

                     (c)  the permission is subject to conditions; and

                     (d)  the person engages in conduct; and

                     (e)  the conduct contravenes the conditions.

Penalty:  Imprisonment for 5 years or 300 penalty units, or both.

             (5)  The person in charge of an aircraft or vessel commits an offence if:

                     (a)  the operator of the aircraft or vessel has been given a permission under subsection (2); and

                     (b)  the permission is subject to conditions; and

                     (c)  the conditions are not complied with.

Penalty:  Imprisonment for 5 years or 300 penalty units, or both.

             (6)  The operator of an aircraft or vessel commits an offence if:

                     (a)  the person in charge of the aircraft or vessel has been given a permission under subsection (2); and

                     (b)  the permission is subject to conditions; and

                     (c)  the conditions are not complied with.

Penalty:  Imprisonment for 5 years or 300 penalty units, or both.

Civil penalty provision

             (7)  The person in charge and the operator of an aircraft or vessel are each liable to a civil penalty if:

                     (a)  the person in charge or the operator of the aircraft or vessel has been given a permission under subsection (2); and

                     (b)  the permission is subject to conditions; and

                     (c)  the conditions are not complied with.

Civil penalty:          120 penalty units.

146  Unauthorised persons must not move etc. goods that have been unloaded from aircraft or vessel

             (1)  A person contravenes this subsection if:

                     (a)  goods have been unloaded from an aircraft or vessel; and

                     (b)  the goods are subject to biosecurity control; and

                     (c)  the person moves, deals with or interferes with the goods; and

                     (d)  none of the following applies:

                              (i)  the person is authorised to engage in the conduct referred to in paragraph (c) in accordance with an approved arrangement;

                             (ii)  the person needs to engage in that conduct to comply with a direction given under another provision of this Act by a biosecurity official;

                            (iii)  the person has been given permission to engage in that conduct under section 595.

             (2)  Subsection (1) does not apply if:

                     (a)  the person is authorised to engage in the conduct referred to in paragraph (1)(c) under this Act or under another Australian law; or

                     (b)  the person engages in that conduct in circumstances prescribed by regulations made under subsection (3) for the purposes of this paragraph.

Note:          A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code and section 552 of this Act).

             (3)  The regulations may prescribe circumstances for the purposes of paragraph (2)(b).

Fault‑based offence

             (4)  A person commits an offence if the person contravenes subsection (1).

Penalty:  Imprisonment for 5 years or 300 penalty units, or both.

Note:          See section 575 in relation to the physical elements of an offence.

Civil penalty provision

             (5)  A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:          120 penalty units.

147  Receiving or possessing goods unloaded from aircraft or vessel in contravention of this Division

Civil penalty provision

             (1)  A person contravenes this subsection if:

                     (a)  the person receives, or has in the person’s possession, goods that have been unloaded from an aircraft or vessel in Australian territory; and

                     (b)  any of the following applies in relation to the goods:

                              (i)  the goods were unloaded from the aircraft or vessel in contravention of a direction given under subsection 140(3), 141(3) or (4) or 144(3);

                             (ii)  the goods were unloaded from the aircraft or vessel in contravention of subsection 142(1);

                            (iii)  a condition imposed under subsection 143(3) or 145(3) in relation to the goods was contravened;

                            (iv)  subsection 144(2) was contravened.

Civil penalty:          120 penalty units.

             (2)  Subsection (1) does not apply if the person did not know, and could not reasonably be expected to have known, that:

                     (a)  the goods were unloaded from the aircraft or vessel in contravention of a direction given under subsection 140(3), 141(3) or (4) or 144(3); or

                     (b)  the goods were unloaded from the aircraft or vessel in contravention of subsection 142(1); or

                     (c)  a condition imposed under subsection 143(3) or 145(3) in relation to the goods was contravened; or

                     (d)  subsection 144(2) was contravened;

as the case may be.

Note:          A defendant bears an evidential burden in relation to the matters in this subsection (see section 552 of this Act).


 

Division 7Unloading goods from aircraft or vessel displaying prescribed quarantine signal

148  Application of this Division

                   This Division applies in relation to goods that:

                     (a)  are subject to biosecurity control; and

                     (b)  are unloaded from an aircraft or vessel that is displaying the prescribed quarantine signal.

Note:          This Division also applies in relation to exposed goods in relation to which an exposed goods order is in force. This Division applies to those goods as if they were subject to biosecurity control (see subsection 159(1)).

149  Unloading goods from aircraft or vessel displaying prescribed quarantine signal

             (1)  A person contravenes this subsection if:

                     (a)  the person unloads goods from an aircraft or vessel in Australian territory; and

                     (b)  the goods are subject to biosecurity control; and

                     (c)  the aircraft or vessel is displaying the prescribed quarantine signal; and

                     (d)  none of the following applies:

                              (i)  the person is authorised to engage in the conduct referred to in paragraph (a) in accordance with an approved arrangement;

                             (ii)  the person needs to engage in that conduct to comply with a direction given under another provision of this Act by a biosecurity official;

                            (iii)  the person has been given permission to engage in that conduct under section 595.

Note:          See section 223 in relation to when an aircraft or vessel must display the prescribed quarantine signal.

             (2)  Subsection (1) does not apply if the person is authorised to engage in the conduct referred to in paragraph (1)(a) under this Act or under another Australian law.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code and section 552 of this Act).

Fault‑based offence

             (3)  A person commits an offence if the person contravenes subsection (1).

Penalty:  Imprisonment for 5 years or 300 penalty units, or both.

Note:          See section 575 in relation to the physical elements of an offence.

Civil penalty provision

             (4)  A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:          120 penalty units.

150  Receiving or possessing goods unloaded from aircraft or vessel displaying prescribed quarantine signal

             (1)  A person contravenes this subsection if:

                     (a)  the person receives, or has in the person’s possession, goods; and

                     (b)  the goods were unloaded from an aircraft or vessel in Australian territory; and

                     (c)  the goods are subject to biosecurity control; and

                     (d)  the aircraft or vessel was displaying the prescribed quarantine signal when the goods were unloaded; and

                     (e)  none of the following applies:

                              (i)  the person is authorised to engage in the conduct referred to in paragraph (a) in accordance with an approved arrangement;

..                           (ii)  the person needs to engage in that conduct to comply with a direction given under another provision of this Act by a biosecurity official;

                            (iii)  the person has been given permission to engage in that conduct under section 595.

Note:          See section 223 in relation to when an aircraft or vessel must display the prescribed quarantine signal.

             (2)  Subsection (1) does not apply if:

                     (a)  the person is authorised to engage in the conduct referred to in paragraph (1)(a) under this Act or under another Australian law; or

                     (b)  the person did not know, and could not reasonably be expected to have known, that the aircraft or vessel was displaying the prescribed quarantine signal when the goods were unloaded.

Note:          A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code and section 552 of this Act).

Fault‑based offence

             (3)  A person commits an offence if the person contravenes subsection (1).

Penalty:  Imprisonment for 5 years or 300 penalty units, or both.

Note:          See section 575 in relation to the physical elements of an offence.

Civil penalty provision

             (4)  A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:          120 penalty units.


 

Division 8Reporting biosecurity incidents

151  Application of this Division

                   This Division applies in relation to goods that are subject to biosecurity control.

Note:          This Division also applies in relation to exposed goods in relation to which an exposed goods order is in force. This Division applies to those goods as if they were subject to biosecurity control (see subsection 159(1)).

152  Director of Biosecurity may determine acts, omissions or events to be reportable biosecurity incidents

                   The Director of Biosecurity may, by legislative instrument, determine that an act, omission or event is a reportable biosecurity incident in relation to goods that are subject to biosecurity control.

Note:          For variation and revocation of a determination made under this section, see subsection 33(3) of the Acts Interpretation Act 1901.

153  Reporting by person in charge of aircraft or vessel carrying goods

             (1)  If:

                     (a)  the goods are, or were, on board an aircraft or vessel; and

                     (b)  the person in charge of the aircraft or vessel becomes aware of a reportable biosecurity incident in relation to the goods;

the person must, as soon as practicable after becoming aware of the incident, report the incident to a biosecurity officer or the Director of Biosecurity.

Note:          The obligation in this subsection applies whether or not the person is in Australian territory when the person becomes aware of the reportable biosecurity incident (see subsection (4)).

Fault‑based offence

             (2)  The person in charge of an aircraft or vessel commits an offence if:

                     (a)  the aircraft or vessel is, or was, carrying goods that are subject to biosecurity control; and

                     (b)  the person becomes aware of a reportable biosecurity incident in relation to the goods; and

                     (c)  the person fails to report the incident as required by subsection (1).

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

Civil penalty provision

             (3)  A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:          120 penalty units.

Application to persons within and outside Australian territory

             (4)  Subsections (2) and (3) apply whether or not the person is in Australian territory when the person becomes aware of the reportable biosecurity incident.

154  Reporting by person in charge of goods

             (1)  If a person in charge of the goods becomes aware of a reportable biosecurity incident in relation to the goods, the person must, as soon as practicable after becoming aware of the incident, report the incident to a biosecurity officer or the Director of Biosecurity.

Note:          The obligation in this subsection applies whether or not the person is in Australian territory when the person becomes aware of the reportable biosecurity incident (see subsection (4)).

Fault‑based offence

             (2)  A person in charge of goods that are subject to biosecurity control commits an offence if:

                     (a)  the person becomes aware of a reportable biosecurity incident in relation to the goods; and

                     (b)  the person fails to report the incident as required by subsection (1).

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

Civil penalty provision

             (3)  A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:          120 penalty units.

Application to persons within and outside Australian territory

             (4)  Subsections (2) and (3) apply whether or not the person is in Australian territory when the person becomes aware of the reportable biosecurity incident.

155  How reports must be made

             (1)  The Director of Biosecurity may, by legislative instrument, determine either or both of the following:

                     (a)  information that must be included in a report required by subsection 153(1) or 154(1);

                     (b)  the way in which the report must be made.

             (2)  If a report of a reportable biosecurity incident does not comply with any requirements in a determination in force under subsection (1), the report is taken, for the purposes of this Division, not to have been made.


 

Division 9Goods exposed to goods that are subject to biosecurity control

156  Application of this Division

             (1)  This Division applies in relation to goods (other than goods that are subject to biosecurity control) if a biosecurity officer suspects, on reasonable grounds, that the goods have been exposed to:

                     (a)  goods that are subject to biosecurity control; or

                     (b)  a conveyance that is subject to biosecurity control.

             (2)  This Division also applies in relation to goods (other than goods that are subject to biosecurity control) if a biosecurity officer suspects, on reasonable grounds, that the goods have been exposed to other exposed goods.

             (3)  Goods to which this Division applies are exposed goods.

Note:          See section 16 for the meaning of exposed to.

157  Assessment and management of biosecurity risk associated with exposed goods

             (1)  A biosecurity officer may, subject to subsection (4), exercise the powers in Division 4 (biosecurity risk assessment powers) for the purpose of identifying and assessing the level of biosecurity risk associated with exposed goods.

             (2)  For the purposes of subsection (1), the powers in Division 4 may be exercised in relation to exposed goods as if they were subject to biosecurity control.

             (3)  If a biosecurity officer suspects, on reasonable grounds, that the level of biosecurity risk associated with exposed goods is unacceptable, a biosecurity officer may, subject to subsection (4), make an exposed goods order in relation to the goods.

             (4)  A biosecurity officer must not exercise the powers in Division 4 (as applied by subsections (1) and (2)), or make an exposed goods order, in relation to exposed goods unless the goods:

                     (a)  are within the precincts of a landing place or port; or

                     (b)  are on board a conveyance that is subject to biosecurity control; or

                     (c)  are on premises owned or controlled by the Commonwealth where biosecurity measures can be taken for the purpose of managing biosecurity risks; or

                     (d)  are on premises where biosecurity activities are carried out by a biosecurity industry participant in accordance with an approved arrangement covering the biosecurity industry participant.

158  Exposed goods orders

             (1)  An exposed goods order must:

                     (a)  be in writing; and

                     (b)  specify the exposed goods to which the order relates; and

                     (c)  specify the period during which the order is to be in force.

             (2)  An exposed goods order is not a legislative instrument.

             (3)  A biosecurity officer must give a copy of an exposed goods order to a person in charge of the exposed goods to which the order relates, if it is practicable to do so.

159  Effect of exposed goods order

             (1)  If an exposed goods order is in force in relation to exposed goods, the following provisions (to the extent that they are applicable) apply in relation to the goods as if they were subject to biosecurity control:

                     (a)  Division 4 (biosecurity risk assessment powers);

                     (b)  Division 5 (biosecurity measures to manage unacceptable level of biosecurity risk);

                     (c)  Divisions 6 and 7 (unloading goods);

                     (d)  Division 8 (reporting biosecurity incidents);

                     (e)  Division 10 (release of goods from biosecurity control).

             (2)  An exposed goods order ceases to be in force in relation to exposed goods if any of the following occurs:

                     (a)  the order expires;

                     (b)  the order is revoked;

                     (c)  subject to subsection (3), the goods are released from biosecurity control under Division 10.

             (3)  If:

                     (a)  goods to which an exposed goods order is in force are released from biosecurity control under paragraph 160(1)(e) by leaving Australian territory on a conveyance that is on a journey between places in Australian territory; and

                     (b)  the exposed goods order has not expired and has not been revoked when the conveyance re‑enters Australian territory during that journey;

the exposed goods order takes effect again when the conveyance re‑enters Australian territory during that journey.

Note:          Goods are released from biosecurity control under paragraph 160(1)(e) if they leave Australian territory.


 

Division 10Release of goods from biosecurity control

160  When goods brought into Australian territory are released from biosecurity control

             (1)  Goods that are subject to biosecurity control are released from biosecurity control if:

                     (a)  a biosecurity officer notifies a person in charge of the goods, under section 161, that the goods are released from biosecurity control; or

                     (b)  a written notice releasing the goods from biosecurity control is given to a person in charge of the goods by a biosecurity industry participant who is authorised to release the goods in accordance with an approved arrangement covering the biosecurity industry participant; or

                     (c)  the goods are prescribed goods and the goods leave a designated biosecurity control release area at a first point of entry or an international mail centre; or

                     (d)  the goods are destroyed; or

                     (e)  the goods leave Australian territory.

Note 1:       This Division also applies in relation to exposed goods in relation to which an exposed goods order is in force. This section applies to those goods as if they were subject to biosecurity control (see subsection 159(1)).

Note 2:       If goods are released from biosecurity control under paragraph (1)(e) by leaving Australian territory on a conveyance that is on a journey between places in Australian territory, the goods become subject to biosecurity control again when the conveyance re‑enters Australian territory during that journey (see subsection 117(4)). See also subsection 159(3), which deals with exposed goods in relation to which an exposed goods order is in force.

Note 3:       A biosecurity officer may refuse to release goods from biosecurity control if the goods are withheld under section 635 because a fee has not been paid (see subsection 635(4)).

             (2)  Neither of the following is a legislative instrument:

                     (a)  a notification that is given in writing under paragraph (1)(a);

                     (b)  a notice referred to in paragraph (1)(b).

             (3)  The regulations may provide that a specified area at a first point of entry or an international mail centre is a designated biosecurity control release area for the purposes of paragraph (1)(c).

161  Notice releasing goods from biosecurity control

             (1)  For the purposes of paragraph 160(1)(a), a notice releasing goods from biosecurity control may be given:

                     (a)  in writing (including by an automated electronic system); or

                     (b)  orally.

             (2)  An automated electronic system that is used to produce notices (automated release notices) releasing goods from biosecurity control for the purposes of paragraph 160(1)(a) must comply with the requirements prescribed by the regulations.

             (3)  An automated release notice is taken to have been given by a biosecurity officer.

             (4)  An automated release notice in relation to goods is of no effect to the extent that it is inconsistent with an earlier direction given in relation to the goods by a biosecurity officer under this Act.


 

Part 2Biosecurity Import Risk Analyses

Division 1Introduction

162  Guide to this Part

This Part provides for the Director of Biosecurity to conduct Biosecurity Import Risk Analyses (BIRAs) in relation to particular goods, or a particular class of goods, that may be imported, or are proposed to be imported, into Australian territory.

A BIRA is an evaluation of the level of biosecurity risk associated with the goods or the class of goods.

A BIRA may identify conditions that must be met to manage the level of biosecurity risk associated with the goods, or the class of goods, to a level that achieves the ALOP for Australia.


 

Division 2Biosecurity Import Risk Analyses

163  What is a Biosecurity Import Risk Analysis (BIRA)

                   A Biosecurity Import Risk Analysis (or BIRA) is an evaluation of the level of biosecurity risk associated with particular goods, or a particular class of goods, that may be imported, or are proposed to be imported, into Australian territory, including, if necessary, the identification of conditions that must be met to manage the level of biosecurity risk associated with the goods, or the class of goods, to a level that achieves the ALOP for Australia.

164  Director of Biosecurity may conduct a BIRA

             (1)  The Director of Biosecurity may conduct a BIRA in relation to particular goods or a particular class of goods.

             (2)  The Director of Biosecurity must apply the ALOP for Australia in conducting a BIRA.

             (3)  The Director of Biosecurity may determine the order in which BIRAs are to be conducted.

             (4)  Subsection (3) has effect subject to any direction given to the Director of Biosecurity under subsection 165(1).

165  Agriculture Minister may direct Director of Biosecurity to commence a BIRA

             (1)  The Agriculture Minister may direct the Director of Biosecurity to commence a BIRA in relation to particular goods, or a particular class of goods, if the Agriculture Minister is satisfied that the BIRA should be commenced.

             (2)  A direction under subsection (1) must:

                     (a)  be in writing; and

                     (b)  set out the reasons for the direction.

             (3)  A direction under subsection (1) must be tabled in each House of the Parliament no later than 15 sitting days of that House after it is given.

             (4)  A direction under subsection (1) is not a legislative instrument.

             (5)  Except as provided in subsection (1), the Director of Biosecurity is not subject to direction by or on behalf of the Commonwealth Government in relation to the conduct, findings or outcome of a BIRA.

Note:          See also subsection 581(3) (directions the Agriculture Minister must not give).

166  Process for conducting a BIRA

             (1)  A BIRA must be conducted:

                     (a)  in accordance with a process prescribed in the regulations; and

                     (b)  taking into account the matters set out in the guidelines (if any) made by the Director of Biosecurity under subsection (2).

             (2)  The Director of Biosecurity may, in writing, make guidelines setting out matters to be taken into account in conducting a BIRA.

             (3)  Guidelines made under subsection (2) must be published on the Agriculture Department’s website.

             (4)  Guidelines made under subsection (2) are not legislative instruments.

             (5)  For the purpose of conducting a BIRA in relation to goods, or a class of goods, the Director of Biosecurity may request the Director of Human Biosecurity to prepare a statement of the human health risks associated with the goods or the class of goods.

167  Reports

             (1)  The regulations must require the Director of Biosecurity to prepare the following reports as part of the process of conducting a BIRA:

                     (a)  a draft BIRA report;

                     (b)  a provisional BIRA report;

                     (c)  a final BIRA report.

             (2)  A report referred to in subsection (1) must:

                     (a)  include the information prescribed by the regulations; and

                     (b)  be published in accordance with the regulations.


 

Part 3Prohibited goods etc.

Division 1Introduction

168  Guide to this Part

This Part deals with bringing or importing goods into Australian territory.

This Part applies to the exclusion of State and Territory laws to the extent that the laws purport to prohibit or restrict the bringing or importation of particular goods into Australian territory, or into a part of Australian territory, from outside Australian territory for the purpose of managing biosecurity risks associated with the goods.

Certain goods (prohibited goods) must not be brought or imported into Australian territory at all.

Certain goods (conditionally non‑prohibited goods) may be brought or imported into Australian territory subject to conditions.

Division 2 provides for the Director of Biosecurity and the Director of Human Biosecurity to jointly determine that certain goods are prohibited goods or conditionally non‑prohibited goods.

Division 3 deals with permits to bring or import certain conditionally non‑prohibited goods into Australian territory.

Division 4 provides for the Director of Biosecurity to determine that certain goods (suspended goods) must not be brought or imported into Australian territory for a period of up to 6 months.

Division 5 provides that goods may be forfeited to the Commonwealth if they have been brought or imported into Australian territory in contravention of a determination in force under this Part or a condition of a permit applying to the goods.

Division 6 sets out offences and civil penalty provisions.

169  Exclusion of State and Territory laws

                   This Part applies to the exclusion of a law, or a provision of a law, of a State or Territory to the extent that the law or provision purports to prohibit or restrict the bringing or importation of particular goods into Australian territory, or into a part of Australian territory, from outside Australian territory for the purpose of managing biosecurity risks associated with the goods.


 

Division 2Prohibited goods and conditionally non‑prohibited goods

170  Prohibited goods

             (1)  The Director of Biosecurity and the Director of Human Biosecurity may jointly determine that specified goods, or a specified class of goods, must not be brought or imported into Australian territory.

             (2)  Goods specified in a determination in force under subsection (1), or goods included in a class of goods specified in a determination in force under that subsection, are prohibited goods.

             (3)  The Director of Biosecurity and the Director of Human Biosecurity may make a determination under subsection (1) in relation to specified goods, or a specified class of goods, only if each Director is satisfied that:

                     (a)  the level of biosecurity risk associated with the goods, or the class of goods, is unacceptable; and

                     (b)  biosecurity measures would not be able to be taken to reduce that level of biosecurity risk to an acceptable level.

             (4)  The Director of Biosecurity and the Director of Human Biosecurity must apply the ALOP for Australia in conducting a risk assessment for the purpose of deciding whether to make a determination under subsection (1) specifying particular goods or a particular class of goods.

             (5)  A determination under subsection (1) is a legislative instrument, but neither section 42 (disallowance) nor Part 6 (sunsetting) of the Legislative Instruments Act 2003 applies to the determination.

Note 1:       For variation and revocation of a determination made under subsection (1), see subsection 33(3) of the Acts Interpretation Act 1901.

Note 2:       Prohibited goods that are brought or imported into Australian territory may be forfeited to the Commonwealth (see Division 5).

Note 3:       Division 6 sets out offences and civil penalty provisions relating to bringing or importing prohibited goods into Australian territory.

171  Conditionally non‑prohibited goods

             (1)  The Director of Biosecurity and the Director of Human Biosecurity may jointly determine that specified classes of goods must not be brought or imported into Australian territory unless specified conditions (including conditions for administrative purposes) are complied with.

             (2)  Goods included in a class of goods specified in a determination in force under subsection (1) are conditionally non‑prohibited goods.

             (3)  The Director of Biosecurity and the Director of Human Biosecurity must apply the ALOP for Australia in conducting a risk assessment for the purpose of deciding whether to make a determination under subsection (1) specifying a particular class of goods.

             (4)  Without limiting subsection (1), a determination under that subsection may specify either, or both, of the following in relation to a class of goods specified in the determination:

                     (a)  a condition that goods included in that class must not be brought or imported into Australian territory unless a permit authorising the goods to be brought or imported into Australian territory has been granted under Division 3;

                     (b)  a condition relating to the use of goods included in that class.

Note:          A permit may be granted under Division 3 subject to conditions (see section 176).

             (5)  A determination under subsection (1) is a legislative instrument, but neither section 42 (disallowance) nor Part 6 (sunsetting) of the Legislative Instruments Act 2003 applies to the determination.

Note 1:       For variation and revocation of a determination made under subsection (1), see subsection 33(3) of the Acts Interpretation Act 1901.

Note 2:       The Director of Biosecurity may determine that conditionally non‑prohibited goods (suspended goods) must not be brought or imported into Australian territory for a period of up to 6 months (see Division 4).

Note 3:       Conditionally non‑prohibited goods that are brought or imported into Australian territory may be forfeited to the Commonwealth if a condition applying to the goods has not been complied with (see Division 5).

Note 4:       Division 6 sets out offences and civil penalty provisions relating to bringing or importing conditionally non‑prohibited goods into Australian territory.

172  Security may be required in relation to conditionally non‑prohibited goods

             (1)  The Director of Biosecurity may, if he or she considers it appropriate having regard to the criteria (if any) prescribed by the regulations for the purposes of subsection (2), require a security to be given in relation to conditionally non‑prohibited goods that are, or are intended to be, brought or imported into Australian territory.

             (2)  The regulations may:

                     (a)  prescribe criteria to which the Director of Biosecurity must have regard in considering whether to require a security to be given in relation to conditionally non‑prohibited goods that are, or are intended to be, brought or imported into Australian territory; and

                     (b)  make provision for, or in relation to, any security that may be required.

             (3)  Without limiting paragraph (2)(b), regulations made for the purposes of that paragraph may deal with any or all of the following:

                     (a)  the form of the security;

                     (b)  the amount of the security;

                     (c)  who must give the security;

                     (d)  when the security must be given;

                     (e)  the circumstances in which the security may be retained;

                      (f)  the circumstances in which the security, or any part of the security, must be repaid.

Note:          If a permit to bring or import conditionally non‑prohibited goods into Australian territory is required under this Act, the Director of Biosecurity may refuse to consider the application for the permit until the security is given (see subsection 175(5)).


 

Division 3Permits to bring or import goods into Australian territory

173  Application of this Division

                   This Division applies in relation to conditionally non‑prohibited goods that must not be brought or imported into Australian territory unless the Director of Biosecurity has granted a permit authorising the goods to be brought or imported into Australian territory.

Note:          A condition specified in a determination under subsection 171(1) in relation to conditionally non‑prohibited goods may require a permit to be granted under this Division authorising the goods to be brought or imported into Australian territory.

174  Person may apply for permit

             (1)  A person may apply to the Director of Biosecurity for a permit authorising, for the purposes of this Act, the person, or a person acting on behalf of the person, to bring or import particular goods to which this Division applies into Australian territory.

             (2)  An application must:

                     (a)  be in the form approved by the Director of Biosecurity; and

                     (b)  include the information prescribed by the regulations.

Note 1:       Personal information may also be required to be provided with the application (see subsection 506(1)). If personal information is required to be provided with the application and the information is not provided, the application is taken not to have been made (see subsection 506(2)).

Note 2:       An application fee may be required (see paragraph 628(4)(e)).

175  Director of Biosecurity may grant permit

             (1)  The Director of Biosecurity may, on application by a person under section 174 for a permit in relation to particular goods, grant the permit.

Note 1:       The Director of Biosecurity is not subject to direction by the Agriculture Minister in relation to a decision relating to an application for a permit (see subsection 581(3)).

Note 2:       A decision not to grant a permit is a reviewable decision (see Part 1 of Chapter 13).

             (2)  In deciding whether to grant the permit in relation to the goods, the Director of Biosecurity must consider:

                     (a)  the level of biosecurity risk associated with the goods; and

                     (b)  whether it would be necessary to impose conditions on the permit to reduce the level of biosecurity risk associated with the goods to an acceptable level; and

                     (c)  any personal information that is required to be provided with the application for the permit under section 506.

             (3)  The Director of Biosecurity must apply the ALOP for Australia in conducting a risk assessment for the purpose of deciding whether to grant the permit in relation to the goods.

             (4)  In deciding whether to grant the permit in relation to the goods, the Director of Biosecurity may also consider:

                     (a)  whether the applicant is a fit and proper person (having regard to the matters referred to in section 505); and

                     (b)  any other matters relating to the goods or the applicant that the Director considers relevant.

             (5)  If a security in relation to the goods is required under section 172, the Director of Biosecurity may refuse to consider the appl