2022

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

THE SENATE

BIOSECURITY AMENDMENT (STRENGTHENING BIOSECURITY) BILL 2022

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the Minister for Agriculture, Fisheries and Forestry,

Senator the Hon. Murray Watt)

 

BIOSECURITY AMENDMENT (STRENGTHENING BIOSECURITY) BILL 2022

 

GENERAL OUTLINE

 

The Biosecurity Amendment (Strengthening Biosecurity) Bill 2022 (Bill) would amend the Biosecurity Act 2015 (the Biosecurity Act) to enhance Australia’s ability to manage the risk of pests and diseases entering, emerging, establishing or spreading in Australian territory and causing harm to animal, plant and human health, the environment and the economy. It would strengthen the management of biosecurity risks posed by goods and by maritime and aviation traveller arrivals. This includes risks arising from Foot and Mouth Disease (FMD) which could be introduced to Australia through contaminated clothing, footwear and other goods of incoming travellers. It will also improve the efficiency and effectiveness of the administration of the Biosecurity Act, and increase a range of civil and criminal penalties to deter non-compliance and provide penalties proportionate to the potential harm caused by non-compliance.

 

The Biosecurity Act provides the regulatory framework for managing the risk of pests and diseases entering Australian territory and gives effect to Australia’s relevant international rights and obligations.

 

Australia’s biosecurity system is a central pillar of our defence against current and emerging biosecurity threats, including those posed by exotic pests and diseases such as FMD, Lumpy Skin Disease and infectious diseases posing a significant risk to human health such as COVID-19. This Bill would enhance the biosecurity framework to ensure Australia’s biosecurity system effectively and efficiently protects Australia’s human, plant and animal health, environment, and economy against these potentially devasting threats.

 

The Bill would amend the Biosecurity Act to:

 

• Provide for measures to be implemented that manage the biosecurity risk arising from travellers, including to respond to and manage the risk of FMD being introduced into Australia from the footwear and clothing of travellers;

 

• Strengthen pratique and pre-arrival requirements by:
• expanding pre-arrival reporting requirements for aircraft and vessels; and
• strengthening penalties for non-compliance with negative pratique requirements;

 

• Enable more effective sharing of information with government agencies and other bodies, while ensuring appropriate safeguards for protected information;

 

• Increase civil and criminal penalties for contraventions of Chapters 3 and 4 of the Biosecurity Act, which deal with managing the biosecurity risks relating to goods and conveyances;

 

• Streamline the process for making certain determinations specifying prohibited, conditionally non-prohibited and suspended goods or granting permits based on risk assessments;

 

• Increase efficiency and ensure transparency of expenditure on biosecurity‑related programs and activities by permitting the Agriculture Minister and Health Minister to authorise the expenditure directly through the Biosecurity Act; and

 

• Improve the operation of provisions relating to approved arrangements and compensation.

 

As evidenced by the amplified threat of FMD and the spread of COVID-19, both the number of biosecurity threats and the speed with which they travel continues to increase. The increased volume and complexity of trade, the effects of climate change, and increasing pest and disease spread all contribute to an increasingly complicated biosecurity risk environment. To meet these challenges, the biosecurity system must be able to adapt and respond to the evolving risk environment in which it operates. Early identification and assessment of biosecurity risk is a key component in the responsive and effective management of biosecurity risk. This Bill would support this by facilitating entry requirements of individuals entering Australia and preventative measures necessary for the purposes of preventing, or reducing the risk of, a disease or pest that is considered to pose an unacceptable level of biosecurity risk entering, or establishing itself or spreading in, Australian territory.

 

International vessels at Australia’s borders have emerged as a key risk pathway for the entry of infectious diseases into Australian territory, including COVID-19 cases on cruise passenger ships and commercial vessels. The Inspector-General of Biosecurity’s report Confidence testing for at-border delivery of critical human biosecurity functions – Ruby Princess cruise ship incident (Inspector-General’s Report) examined the management of this risk. This Bill would strengthen the legislative framework for international arrivals via these key maritime and aviation pathways and would contribute to the ability to effectively respond to and manage Australia’s biosecurity preparedness and response at the border. New requirements for pratique and pre-arrival reporting aim to specifically support the safe recovery of tourism and related industries.

 

A stronger penalty regime is necessary to address the evolving biosecurity risk environment and to ensure that Australia has in place an effective deterrent against non-compliance, particularly in a regulatory environment where non-compliance with current penalties may be seen as ‘a cost of doing business’. Increases to penalty amounts in this Bill would ensure that the civil and criminal penalty units more appropriately reflect the impact the contraventions may have on Australia’s biosecurity status, market access and economy than is currently the case.

 

To support the management of biosecurity risks and the effective administration of the Biosecurity Act, it is also necessary to improve the operation of the information management provisions. These amendments would provide for specific authorisations for the use and disclosure of relevant information, while ensuring that protected information is afforded appropriate safeguards.

 

The Bill would increase transparency around the process for conducting risk assessments for the purposes of making a determination to prohibit or restrict the bringing or importation of particular goods into Australian territory where the goods present an unacceptable level of biosecurity risk, or for granting an import permit. These determinations and permits play a central role in enabling the Australian Government to manage biosecurity risks. This Bill would provide greater clarity to stakeholders around the process to make a determination or grant an import permit. The amendments would identify the matters the decision-makers must be satisfied of, while maintaining the requirement to apply the Appropriate Level of Protection (ALOP) for Australia to manage biosecurity risk.

 

The Bill would also ensure that the process required to authorise expenditure for biosecurity-related programs and activities will appropriately fall within the Biosecurity Act, such as surveillance programs for pests and diseases including Avian influenza, and the National Citrus Canker Eradication Program. Biosecurity programs and activities are vital in protecting Australia’s favourable biosecurity status, and a more efficient process would support timely implementation and a responsive biosecurity framework to effectively protect the health of Australia’s people, animals, plants, environment, and economy.

 

Another important aspect of the biosecurity framework involves the work of biosecurity industry participants, who are authorised to carry out certain biosecurity activities under approved arrangements to manage biosecurity risks associated with specified goods, premises or other things. The Bill would also streamline and improve the operation of a number of provisions relating to approved arrangements and compensation under the Biosecurity Act.

 

The majority of the amendments will commence on the day after the Bill receives the Royal Assent. The amendments to strengthen pratique and pre-arrival reporting requirements, and to streamline information sharing provisions, will commence on a single day to be fixed by Proclamation, or on the day after the end of the period of 6 months beginning on the day the Bill receives the Royal Assent, if not proclaimed earlier.

 

Consultation has been undertaken with Commonwealth agencies including the Department of Health and Aged Care, the Department of the Prime Minister and Cabinet, the Attorney-General’s Department, the Department of Finance, the Department of Foreign Affairs and Trade, the Department of Home Affairs, the Department of Infrastructure, Transport, Regional Development, Communications and the Arts, the Australian Public Service Commission and the Australian Maritime Safety Authority. Consultation has also been undertaken with State and Territory health departments, through the cross-jurisdictional Chief Human Biosecurity Officer Forum chaired by the Commonwealth’s Chief Medical Officer.

 

FINANCIAL IMPACT STATEMENT

 

The Bill would have no financial impact on the Australian Government Budget.

 

REGULATION IMPACT STATEMENT

 

The Regulation Impact Statement is attached to this explanatory memorandum
(Attachment A).

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

The full statement of compatibility with human rights for the Bill is included in this explanatory memorandum (Attachment B).

BIOSECURITY AMENDMENT (STRENGTHENING BIOSECURITY) BILL 2022

 

NOTES ON CLAUSES

 

Section 1    Short title

 

1.             Section 1 would provide for the short title of the proposed Act to be the Biosecurity Amendment (Strengthening Biosecurity) Act 2022 (the proposed Act).

 

Section 2    Commencement

 

2.             Subsection 2(1) would provide that each provision of the proposed Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table.

 

3.             Table item 1 would provide that sections 1 to 3, and anything in the proposed Act not elsewhere covered by the table, would commence on the day the proposed Act receives the Royal Assent.

 

4.             Table item 2 would provide that Schedule 1 to the proposed Act would commence on the day after the proposed Act receives the Royal Assent.

 

5.             Table items 3 and 4 would provide that Schedules 2 and 3 to the proposed Act would commence on a single day to be fixed by Proclamation, or on the day after the end of the period of 6 months beginning on the day the proposed Act receives the Royal Assent, if not proclaimed earlier.

 

6.             Table item 5 would provide that Schedules 4 to 7 to the proposed Act would commence on the day after the proposed Act receives the Royal Assent.

 

7.             Subsection 2(2) would provide that any information in column 3 of the table is not part of the proposed Act. It would clarify that information may be inserted in column 3 of the table, or information in it may be edited, in any published version of the proposed Act.

 

Section 3    Schedules

 

8.             Section 3 would provide that legislation specified in a Schedule to the proposed Act is amended or repealed as set out in the applicable items of the Schedule, and any other item in a Schedule has effect according to its terms.

 

 

SCHEDULE 1—INCREASING PROTECTION FROM DISEASES AND PESTS

 

Background

 

9.             Schedule 1 to the Bill would amend the Biosecurity Act 2015 (the Biosecurity Act) to insert new measures to provide for increased protection from diseases or pests that pose an unacceptable biosecurity risk entering, emerging, establishing themselves or spreading in Australian territory.

 

10.         Australia’s biosecurity system is a central pillar of the nation’s defence against current and emerging biosecurity threats, including those posed by exotic pests and diseases such as Foot and Mouth Disease (FMD), African Swine Fever, Lumpy Skin Disease and Xylella fastidiosa.  It is vital that legislation keeps pace with such threats and provides appropriate and adequate powers to manage the significant and potentially devastating effects that these pests and diseases could have on Australia. For example, if FMD were to enter and establish itself in Australia, it is estimated that the direct impact on the Australian agricultural sector alone would be around $80 billion. Similarly, other diseases or pests entering Australia would also have significant impacts on agriculture and other industries, such as the estimated $7.9 billion cost of Xylella fastidiosa to our grape and wine industries.

 

11.         To this end, the measures in this Schedule would significantly enhance the biosecurity framework by creating new, vital powers aimed at preventing, or reducing the risk that, these diseases enter Australia, and to combat the devastating effect that these diseases would pose to plant and animal health, the environment, and the economy. These measures are a crucial new tool to maintain Australia’s unique biosecurity status and to protect the nation’s animals, plants, environment and related industries.

 

12.         In particular, the first measure provides that the Agriculture Minister may determine requirements for individuals or classes of individuals who are entering Australian territory for the purposes of preventing, or reducing the risk of, a disease or pest that is considered to pose an unacceptable level of biosecurity risk entering, or establishing itself or spreading in, Australian territory or a part of Australian territory. Such requirements may include:

 

·        Requirements on persons to provide information as to whether they have been in specified high biosecurity risk environments or undertaken specified high biosecurity risk activities overseas. This information will allow for the effective and efficient triaging of persons entering Australia, and inform decisions as to whether additional biosecurity assessment, screening and/or treatment measures may be appropriate for persons presenting as higher biosecurity risk;

·        Requirements on persons to provide information as to a person’s intended destination and work in Australia so that effective and appropriate biosecurity assessment and screening can be undertaken at the border;

·        Requirements to require persons to go to a particular location in an airport or port so that they and their goods or baggage may be assessed for biosecurity risk. This requirement would ensure that persons, perhaps arriving from high risk locations, would have their goods and baggage assessed for biosecurity risk in one location and appropriately managed so as to contain any potential risk that may be detected as part of this process. Appropriate management may include treatment under existing powers in the Biosecurity Act; and

·        Requirements that persons may be screened by equipment or by other methods.

 

13.         The second measure provides that the Agriculture 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 disease (other than a listed human disease), or pest, that is considered to pose an unacceptable level of biosecurity risk. Biosecurity measures may include:

 

·        Banning or restricting a behaviour or practice;

·        Requiring a behaviour or practice;

·        Requiring a specified person to provide a specified report or keep specified records; and

·        Conducting specified tests on specified goods or specified conveyances.

 

14.         Both measures create new civil penalty provisions for persons who fail to comply with, respectively, an entry requirement or a preventative biosecurity measures. This reflects the seriousness of non-compliance with the new measures. Non-compliance may pose a significant risk to Australia’s biosecurity status; particularly with diseases or pests that pose significant and potentially devastating threats to animal and plant health, the environment and the economy of Australia, such as FMD or African Swine Fever.

 

15.         This Schedule would commence on the day after the proposed Act receives the Royal Assent. The civil penalty provisions created by this Schedule would have prospective application.

 

Part 1—Entry requirements

 

Biosecurity Act 2015

 

Item 1        Section 3 (paragraph dealing with Chapter 4)

 

16.         Section 3 of the Biosecurity Act sets out a simplified outline of the Biosecurity Act. This item would amend the simplified outline by inserting the words “Requirements may also be determined for persons entering Australian territory on an incoming conveyance, in connection with diseases and pests that are considered to pose an unacceptable level of biosecurity risk” after the words “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”.

 

17.         This item ensures that the simplified outline of the Biosecurity Act accurately reflects the new provisions which item 3 of this Schedule would insert into Chapter 4 of the Biosecurity Act.

 

Item 2        Subsection 25(1)

 

18.         This item amends subsection 25(1) to omit the words “(other than Part 1 of Chapter 8 (biosecurity emergencies)) applies in relation to a pest”, and substitute them with “applies in relation to a pest (subject to subsection (2))”.

 

Item 3        Subsection 25(2)

 

19.         This item repeals subsection 25(2) and replaces it with a revised version of the subsection which provides that the following provisions of the Biosecurity Act apply only in relation to a pest that is referred to in paragraph 25(1)(a):

 

·        Division 3A of Part 2 of Chapter 4 (entry requirements: persons entering Australian territory on board conveyances);

·        Part 1 of Chapter 8 (biosecurity emergencies).

 

20.         The effect of the amendments to section 25 is that Part 1 of Chapter 8 of the Biosecurity Act and new Division 3A of Part 2 of Chapter 4 of the Biosecurity Act, as inserted by item 5 below, will not apply to invasive pests.

 

21.         Invasive pests are defined in section 9 of the Biosecurity Act as being an alien species (with the meaning of the Biodiversity Convention) that is not capable of infesting humans, plants or animals, or acting as a vector for a disease; or causing disease in any other way.

 

22.         The previous section 25(1) already provided that Part 1 of Chapter 8 of the Biosecurity Act did not apply to invasive pests, so the revised subsection 25(2) reflects the existing arrangements for that Part. The reason for excluding invasive pests from the application of new Division 3A of Part 2 of Chapter 4 of the Biosecurity Act is because this new Division is aimed at preventing, or reducing the risk of, diseases and pests which pose an unacceptable biosecurity risk entering, establishing themselves or spreading in Australia. It is intended that the new Division will therefore only apply to pests to the extent they are capable of infesting humans, plants or animals, or acting as a vector for a disease; or causing disease in any other way (for example, Xylella fastidiosa).

 

Item 4        Section 190 (after the paragraph dealing with Division 3)

 

23.         Section 190 of the Biosecurity Act sets out a simplified outline of Part 2 of Chapter 4 which relates to managing biosecurity risks related to conveyances entering Australian territory.

 

24.         This item would amend the simplified outline set out in section 190 by inserting the words “Division 3A allows the Agriculture Minister to determine requirements for persons entering Australian territory on an incoming aircraft or vessel, in connection with diseases and pests that are considered to pose an unacceptable level of biosecurity risk” after the paragraph dealing with Division 3 of Part 2 of Chapter 4.

 

25.         This item ensures that the simplified outline of Part 2 of Chapter 4 of the Biosecurity Act accurately reflects the new provisions which item 5 of this Schedule would insert into Chapter 4.

 

Item 5        After Division 3 of Part 2 of Chapter 4

 

26.         This item would insert new Division 3A of Part 2 of Chapter 4 (titled: Entry requirements: persons entering Australian territory on board conveyances) after Division 3 of Part 2 of Chapter 4 of the Biosecurity Act. New Division 3A of Part 2 of Chapter 4 would deal with entry requirements relating to diseases or pests for persons entering Australian territory on an incoming aircraft or vessel.

 

Section 196A – Persons on incoming aircraft or vessel may be subject to requirement relating to diseases or pests

 

27.         New section 196A would create a power for the Agriculture Minister to determine certain entry requirements relating to diseases or pests for persons on incoming aircraft or vessels.

 

28.         New subsection 196A(1) would provide that section 196A applies for the purposes of preventing, or reducing the risk of, a disease or pest that is considered to pose an unacceptable level of biosecurity risk entering, or establishing itself or spreading in, Australian territory or a part of Australian territory.

 

29.         The note following new subsection 196A(1) would refer the reader to the subsection 25(2), as inserted by item 2 of this Schedule 1 above, to ensure that the reader is aware that new Division 3A does not apply to invasive pests.

 

30.         New subsection 196A(2) would allow the Agriculture Minister to 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 of the Biosecurity Act.

 

31.         The note following new subsection 196A(2) would explain that an individual who fails to comply with a requirement may contravene a civil penalty and would direct the reader to new subsection 196C of the Biosecurity Act (as inserted by this item).

 

32.         New subsection 196A(1) sets out the purposes to which section 196A applies. Those purposes are to prevent, or reduce the risk of, a disease or pest that is considered to pose an unacceptable level of biosecurity risk entering, or establishing itself or spreading in, Australian territory or a part of Australian territory. Taken together with the determination-making power of the Agriculture Minister in new subsection 196A(2), the effect of these two new provisions is that the Agriculture Minister may only make a determination specifying entry requirements for the purposes set out in new subsection 196A(1). As such, this provides that reasonable parameters encompass the exercise of this power.

 

33.         It is also noted that the structure of new subsections 196A(1) and (2) reflects that of subsections 44(1) and (2) of the Biosecurity Act, which deal with determining entry requirements for preventing a listed human disease from entering Australia. As such, new subsections 196A(1) and (2) are consistent with similar existing provisions in the Biosecurity Act which were relied upon as part of the response to the COVID-19 pandemic.

 

34.         New subsection 196A(3) would require the determination made under new subsection 196A(2) to specify the disease or pest referred to in new subsection 196A(1). This ensures transparency as to the identity of the disease or pest, including for persons who may be obliged to comply with requirements made under the determination. It also ensures that any assessment of whether the determination is appropriate and adapted for the purposes of new section 196A (for which, see below the discussion on new subsection 196A(5)) is carried out within the context of a specific and named pest or disease. It is noted that a determination may specify more than one disease or pest.

 

35.         New subsection 196A(4) would provide that a determination made under new subsection 196A(2) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 (the Legislation Act) does not apply to the instrument.

 

36.         Any decisions by the Agriculture Minister to make a determination under new subsection 196A(2) would be informed and underpinned by subject matter, and scientific and technical expertise in order to protect Australia’s biosecurity status from diseases or pests that pose an unacceptable level of biosecurity risk. Section 643 of the Biosecurity Act provides that the Agriculture Minister may, by writing, delegate any or all of their powers or functions under the Biosecurity Act (except for those under sections 543 and 642) to the Director of Biosecurity or an SES employee, or acting SES employee, in the Agriculture Department. 

 

37.         In particular, it is noted that new subsection 196A(5) (as described in more detail below) provides that, before specifying a requirement in a determination, the Agriculture Minister must be satisfied that:

 

·        The disease or pest poses an unacceptable level of biosecurity risk; and

·        The requirement is appropriate and adapted to prevent, or reduce the risk of, the disease or pest entering, or establishing itself or spreading in, Australian territory or a part of Australian territory.

 

38.         The effect of this is that the Agriculture Minister’s satisfaction will be informed and underpinned by scientific and technical expertise as to whether the disease or pest does pose an unacceptable biosecurity risk and whether each requirement in the determination is appropriate and adapted to the purpose for which the determination is made – that is, preventing, or reducing the risk of, the disease or pest entering, or establishing itself or spreading in, Australian territory or a part of Australian territory. This ensures that decisions to make a determination and include a requirement in that determination are based on impartial, scientific and technical expertise and advice.

 

39.         This exemption from disallowance is similar in nature to a number of other determinations that can already be made under the Biosecurity Act, such as those made under section 44 relating to entry requirements for the purpose of preventing a listed human disease from entering, or establishing itself or spreading in, Australian territory or part of Australian territory, and those made under section 51 of the Biosecurity Act relating to biosecurity measures for the purpose of preventing a behaviour or practice that may cause or contribute to, a listed human disease entering, emerging, establishing itself or spreading in Australia.

 

40.         Similar to these provisions, potential disallowance of a determination made under new subsection 196A(2) would have a significant impact on technical and scientifically based decision-making, risk management processes and the broader management of biosecurity risks, particularly where those risks arise quickly and could have devastating impacts on Australia, like FMD or Xylella fastidiosa. A determination made under new subsection 196A(2) would be critical to preventing or reducing the risk of dangerous diseases or pests entering, or establishing themselves or spreading in, Australian territory and, as such, should not be subject to disallowance.

 

41.         It is also noted that other reasonable parameters encompass the Agriculture Minister’s power in new section 196A. As noted above, the Agriculture Minister may only make a determination for the specified purposes in new subsection 196A(1). Further, and as described in more detail below, before making a determination, the Agriculture Minister must consult with the Director of Biosecurity, the Director of Human Biosecurity and the head (however described) of the State and Territory body that is responsible for the administration of matters relating to biosecurity in each State and Territory.

 

42.         New subsection 196A(5) would provide that a requirement must not be specified in a determination unless the Agriculture Minister is satisfied that the disease or pest poses an unacceptable level of biosecurity risk, and the requirement is appropriate and adapted to prevent, or reduce the risk of, the disease or pest entering, or establishing itself or spreading in, Australian territory or a part of Australian territory.

 

43.         The effect of this is that no requirement can be included in a determination unless the disease or pest does in fact pose an unacceptable biosecurity risk and the requirement is appropriate and adapted of the purposes specified in new subsection 196A(1). This means that each requirement must serve a legitimate purpose and must be necessary to meet that purpose. Requirements that seek to prevent or reduce the risk of a disease or pest entering, or establishing itself or spreading in, Australian territory or a part of Australian territory would serve a legitimate purpose and would be tailored so as to prevent or reduce such risk. This is particularly so in circumstances where a disease or pest could have a potentially devastating impact on Australia’s animal and plant health, the environment and the economy.

 

44.         New subsection 196A(6) would provide that the determination must specify where the requirements apply. For example, the determination may specify all or only certain airports or ports that receive international travellers, depending on the relevant risk.

 

45.         New subsections 196A(7) and (8) would set out examples the of kinds of requirements that may be specified in a determination. New subsection 196A(7) would provide that without limiting new subsection 196A(2), the determination may specify:

 

·        Requirements for all individuals, or classes of individuals; and

·        Requirements in relation to particular diseases or pests or classes of diseases or pests; and

·        General requirements in relation to all specified diseases or pests; and

·        Requirements relating to the manner in which an individual must comply with a requirement.

 

46.         New subsection 196A(7) ensures that requirements may specify requirements not only for individuals and particular diseases or pests, but also classes of individuals and classes of diseases or pests. It also clarifies that requirements may be specified for more than one disease or pest. This provision ensures flexibility and agility in how to manage current and emerging biosecurity threats, and provides future ready solutions to future incursions of diseases or pests which are yet to emerge.

 

47.         New subsection 196A(8) would provide that without limiting subsection 196A(2), the determination may specify one or more of the following requirements:

 

·        A requirement for an individual to provide a declaration or evidence as to whether the individual has been exposed to goods, conveyances, premises or other things specified in the determination;

·        A requirement for an individual to provide a declaration or evidence as to where the individual has been before entering Australian territory;

·        A requirement for an individual to provide a declaration or evidence as to whether the individual has undertaken specified activities during a specified period before entering Australian territory, and, if so, specified details about those activities;

·        A requirement for an individual to provide a declaration as to the individual’s intended destination or destinations in Australian territory during a specified period after entering Australian territory;

·        A requirement for an individual to provide a declaration as to the individual’s intended work (whether paid or unpaid) or occupation during a specified period after entering Australian territory;

·        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);

·        A requirement for an individual to move to a place, at the landing place or port, directed by a biosecurity officer that is at the landing place or port, for the purpose of a biosecurity officer (whether the direction is in relation to the individual or a class that includes the individual) for the purpose of a biosecurity officer assessing the level of biosecurity risk associated with either or both of the following:

o   the individual;

o   any goods the individual is bringing with them into Australian territory at the landing place or port.

 

48.         The first note following new subsection 196A(8) would explain that a person may commit an offence or contravene a civil penalty provision if the person provides false or misleading information or documents and would direct the reader to sections 137.1 and 137.2 of the Criminal Code and sections 532 and 533 of the Biosecurity Act.

 

49.         The second note following new subsection 196A(8) would explain that new section 196A is not subject to the privilege against self-incrimination and would direct the reader to section 635 of the Biosecurity Act.

 

50.         The requirements set out in paragraphs 196A(8)(a)-(e) allow for the gathering of information about an individual’s location and activities whilst overseas, and their intended destinations, and work or occupation in Australia. Requirements to collect these types of information will be critical in triaging persons at the airport or port at which they arrive in Australia according to their respective biosecurity risk as it relates to the disease(s) or pest(s) specified in the determination. This will allow biosecurity officers at the airport or port to intervene with persons whose provided information places them in particular biosecurity risk categories and may lead to further assessment of their goods or baggage, or appropriate treatment of their goods or baggage to manage the risk appropriately.

 

51.         Further, information provided as to a person’s intended destination and/or work or occupation in Australia will be critical to monitor any emerging risks, particularly in vulnerable or high risk areas such as farms, national parks, abattoirs or veterinary clinics, that may not have been detected at the airport or port and allow for appropriate intervention to manage such risks.

 

52.         The requirement set out in paragraph 196A(8)(f) allows for the screening of persons which will provide a vital power to ensure that all goods being brought into Australia, even those which are person may have on their person or in their baggage may be identified and assessed for biosecurity risk as appropriate under existing powers in the Biosecurity Act.

 

53.         The requirement set out in paragraph 196A(8)(g) allows for the persons and classes of persons to be moved to a place at the airport or port where they arrive in Australia as directed by a biosecurity officer for the purpose of a biosecurity officer assessing the level of biosecurity risk associated with either or both of the following:

 

·        The individual;

·        Any goods the individual is bringing with them into Australian territory at the landing place or port.

 

54.         This ensures that persons, where appropriate (such as perhaps arriving from the same high risk location), would have their goods and baggage assessed for biosecurity risk in one location so as to manage and contain any potential risk that may be detected as part of this process. Such a process would strengthen the ability to manage potentially high biosecurity risks in a controlled and discrete area, which may be crucial to prevent the further spread of certain diseases or pests that pose considerable threats to Australia’s biosecurity systems. It is intended that persons will only remain at the location until the assessment of biosecurity risk has been completed and any appropriate treatment measures have been identified and, depending on the type of treatment, completed. Whilst this may cause mild inconvenience for some persons arriving in Australia, it is justified given the significant and devastating impact on Australia and its unique biosecurity status that would occur should a disease or pest posing unacceptable biosecurity risk, like FMD, enter Australia.

 

55.         Lastly, it is necessary for the specific requirements to be set out in the determination rather than the Biosecurity Act because the nature of each individual disease or pest that may pose an unacceptable biosecurity risk will vary from case to case, meaning that the requirements specified to manage the relevant biosecurity risk will also vary from case to case. In order to protect Australia’s unique biosecurity status and to protect it from diseases or pests that may pose unacceptable biosecurity risks, it is therefore necessary to specify the exact requirements in the determination. That said, it is noted that new subsection 196A(8) provides a long list of the types of requirements that may be included. As noted above, a requirement in a determination must be appropriate and adapted to its purpose. It is also noted that this structure is consistent with the existing section 44 of the Biosecurity Act.

 

56.         New subsection 196A(9) would provide that before making the determination, the Agriculture Minister must consult with the Director of Biosecurity, the Director of Human Biosecurity, and the head (however described) of the State or Territory body that is responsible for the administration of matters relating to biosecurity in each State and Territory.

 

57.         New subsection 196A(10) would provide that a failure by the Agriculture Minister to comply with new subsection 196A(9) does not affect the validity of the determination.

 

58.         Before making a determination, the Agriculture Minister will consult with the Director of Biosecurity, the Director of Human Biosecurity, and the head of each State or Territory body that is responsible for the administration of biosecurity matters. The importance and value of consultation is acknowledged and accepted. However the validity of a determination made under new subsection 196A(2) would not be affected if the Agriculture Minister fails to comply with these consultation requirements.

 

Section 196B – Varying and revoking requirements

 

59.         New section 196B would provide for the mandatory variation and revocation of a determination made under new section 196A in certain circumstances.

 

60.         New subsection 196B(1) would provide that the Agriculture minister must vary or revoke a determination in force under new section 196A in relation to a disease or pest if the Agriculture Minister is satisfied that:

 

·        The disease or pest no longer poses an unacceptable biosecurity risk; or

·        A requirement determined in relation to the disease or pest is no longer appropriate and adapted to prevent, or reduce the risk of, the disease or pest entering, or establishing itself or spreading in, Australian territory or part of Australian territory.

 

61.         The purpose of this provision is to require the Agriculture Minister to vary or revoke a determination in certain circumstances. This provides a reasonable constraint of the exercise of power and ensures that any determination made under new section 196A is for the purposes set out in new subsection 196A(1) and satisfies the terms of new subsection 196A(5).

 

62.         The effect of new subsection 196B(1) is as follows:

 

·        If new paragraph 196B(1)(a) is satisfied in relation to a particular disease or pest specified in the determination, but not others specified in the determination, then the determination would have to be varied to remove reference to that disease or pest;

·        If new paragraph 196B(1)(b) is satisfied in relation to a particular disease or pest specified in the determination but not others specified in the determination, then the determination would have to be varied to remove the requirement, to specify one or more alternative requirements that satisfy new subsection196A(5) or to remove reference to the disease or pest if no alternative requirements that satisfy new subsection196A(5) are able to be specified;

·        In the case where none of the diseases or pests specified in the determination pose an unacceptable biosecurity risk, or there are no alternative requirements that could be determined in relation to any disease or pest specified in the determination because of the operation of new subsection196A(5), then the determination would need to be revoked.

 

63.         It is further noted that new subsection 196A(5) will apply in relation to any variation or revocation of a determination due to subsections 33(3) and (3AA) of the Acts Interpretation Act 1901 (the Acts Interpretation Act).

 

64.         New subsection 196B(2) would provide that an instrument that varies or revokes a determination made under new section 196A is a legislative instrument, but section 42 (disallowance) of the Legislation Act does not apply to the instrument. The justification for such an instrument being non-disallowable is discussed above.

 

65.         New subsection 196B(3) would provide that new section 196B does not limit the application of subsection 33(3) of the Acts Interpretation Act in relation to a determination in force under new section 196A. Under subsection 33(3) of the Acts Interpretation Act, the power to make an instrument shall be construed as including the power to vary or revoke any such instrument. The effect of this provision is that the Agriculture Minister may vary or revoke a determination made under new section 196A, and does not need to rely solely on the powers of variation and revocation under new section 196B.

 

Section 196C – Civil penalty for failing to comply with requirement

 

66.         New section 196C would provide that an individual to whom a requirement determined under new section 196A applies must comply with the requirement. If an individual does not comply with the requirement, they are liable to a maximum civil penalty of 120 penalty units.

 

67.         The note following new section 196C would explain that new section 196C is not subject to the privilege against self-incrimination and would direct the reader to section 635 of the Biosecurity Act.

 

68.         The civil penalty is intended to reflect the seriousness of non-compliance with requirements determined under new section 196A. Non-compliance may pose a significant risk to Australia’s biosecurity status, particularly so with diseases or pests that pose significant and potentially devastating threats to the animal and plant health, the environment and the economy of Australia, such as FMD, African Swine Fever and Xlyella fastidiosa.

 

69.         New section 196C would not be subject to the privilege against self-incrimination (see section 635 of the Biosecurity Act as proposed to be amended by item 9 of Schedule 1 to the Bill). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as imposing the requirements determined under new section 196A would prevent or reduce the risk of a disease or pest that is considered to pose an unacceptable level of biosecurity risk, from entering, or establishing itself or spreading in, Australian territory or part of Australian territory.

 

70.         Allowing a person to use the privilege in refusing to comply with requirements, could result in significant and irreparable damage to Australia’s environment, economy, plant and animal health. It is critical for the management of biosecurity risks that information required to be shared by a determination that would be made under new section 196A, can be sought in a timely manner.

 

71.         While the privilege against self-incrimination would be abrogated in relation to new section 196C, the Biosecurity Act provides individuals with the protection that self-incriminatory disclosure cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person, except proceedings under section 137.1 or 137.2 of the Criminal Code or section 532 or 533 of the Biosecurity Act (providing false or misleading information and documents) (see subsection 635(2) of the Biosecurity Act).

 

Item 6        Division 4 of Part 2 of Chapter 4 (at the end of the heading)

 

72.         This item adds the words “associated with conveyances” at the end of the title of Division 4, “Division 4 – Assessment of level of biosecurity risk.” This minor amendment clarifies what Division 4 deals with, as specified in section 197, that is – powers that may be exercised for the purpose of assessing the level of biosecurity risk associated with a conveyance that is subject to biosecurity control.

 

Item 7        Division 5 of Part 2 of Chapter 4 (at the end of the heading)

 

73.         This item adds the words “associated with conveyances” at the end of the title of Division 5, “Division 5 – Biosecurity measures to manage unacceptable level of biosecurity risk.” This minor amendment clarifies what Division 5 deals with.

 

Item 8        Subsection 523(1) (after table item 10)

 

74.         The table in subsection 523(1) of the Biosecurity Act sets out the provisions that are subject to infringement notices under Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act). Part 5 of the Regulatory Powers Act creates a framework for the use of infringement notices where an infringement officer reasonably believes that a provision has been contravened.

 

75.         This item would amend the table in subsection 523(1) to insert new item 10A after item 10. This would have the effect that new section 196C would be subject to an infringement notice under Part 5 of the Regulatory Powers Act. The ability to issue an infringement notice for contravention of new subsection 196C would allow the notice with the stated amount to be issued immediately and to be effective in managing alleged non-compliance with requirements set out in a determination made under new section 196A.

 

Item 9        Paragraph 635(1)(c)

 

76.         Section 635 of the Biosecurity Act sets out the provisions that are not subject to the privilege against self-incrimination.

 

77.         This item would amend paragraph 635(1)(c) by inserting “196C,” after “196, ”. This amendment would have the effect that new section 196C would not be subject to the privilege against self-incrimination. A person would not be excused from the requirement under new section 196C to answer a question, provide information or produce documents pursuant to a determination under new section 196A, on the ground that the answer, the information or the production of the document might tend to incriminate the person or make the person liable to a penalty.

 

78.         It is important that biosecurity officials can effectively obtain answers, information or documents from persons as required under a determination made under new subsection 196A(1) as required by new section 196C (as proposed to be inserted by item 5 of Schedule 1 to the Bill) to properly manage biosecurity risks relating to diseases or pests that pose an unacceptable level of biosecurity risk. Given the potential seriousness of the biosecurity risk, biosecurity officials require timely access to information and documents to ensure that appropriate measures are in place to manage this risk. Upholding the privilege against self-incrimination in relation to individuals who have information regarding a potential biosecurity risk (such as a risk relating to FMD) could have significant consequences to plant and animal health, the environment and the economy, including potentially devastating effects on the agriculture and other industries.  In addition, a disease outbreak has the potential to cause long term damage to the reputation of Australian industries and the reputation of Australia as a trading nation. Abrogating the privilege against self-incrimination in relation to these provisions would allow officers to effectively manage biosecurity risks posed by pests and diseases to plant and animal health, the environment, and the economy of Australia.

 

79.         It is noted that subsection 635(2) of the Biosecurity Act provides that the answers, information or documents obtained under section 196C are not admissible in evidence against the individual in any criminal or civil proceedings, except proceedings under section 137.1 or 137.2 of the Criminal Code or section 532 or 533 of the Biosecurity Act (providing false or misleading information and documents), in relation to answering the question, providing information or producing the document.

 

Part 2—Preventative biosecurity measures

 

Biosecurity Act 2015

 

Item 10      After paragraph 311(d)

 

80.         New paragraph 311(e) would provide that an object of Chapter 6 of the Biosecurity Act is to provide for biosecurity measures to be taken for the purposes of preventing behaviours or practices that may cause, or contribute to, the entry into, or the emergence, establishment or spread in, Australian territory or a part of Australian territory of diseases (other than listed human diseases), or pests, that are considered to pose an unacceptable level of biosecurity risk.

 

81.         This item ensures that the objects of Chapter 6 of the Biosecurity Act accurately reflect the new provisions which item 11 of this Schedule would insert into Chapter 6 of the Biosecurity Act.

 

Item 11      After Part 6 of Chapter 6

 

82.         This item would insert new Part 6A of Chapter 6 after Part 6 of Chapter 6 of the Biosecurity Act. New Part 6A of Chapter 6 would deal with preventative biosecurity measures relating to diseases (other than listed human diseases) or pests that may pose an unacceptable level of biosecurity risk.

 

Division 1 – Introduction

 

Section 393A – Simplified outline of this Part

 

83.         New section 393A would provide a simplified outline to new Part 6A of Chapter 6 of the Biosecurity Act (preventative biosecurity measures). The outline is not intended to be comprehensive and has been included to assist readers to understand the substantive provisions of the Part 6A of Chapter 6. It is intended that readers will rely on the substantive provisions of the Part.

 

Division 2 – Preventative biosecurity measures

 

Section 393B – Determining preventative biosecurity measures

 

84.         New section 393B would create a power for the Agriculture Minister to determine certain biosecurity preventative measures relating to diseases (other than listed human diseases) or pests that pose an unacceptable level of biosecurity risk.

 

85.         New subsection 393B(1) would provide that new section 393B applies for the purposes of preventing a behaviour or practice that:

 

·        May cause a disease (other than a listed human disease), or pest, that is considered to pose an unacceptable level of biosecurity risk to enter, or emerge, establish itself or spread in, Australian territory or a part of Australian territory; or

·        May contribute to a disease or pest in relation to which paragraph (a) applies entering, or emerging, establishing itself or spreading in, Australian territory or a part of Australian territory.

 

86.         The note following new subsection 393B(1) would direct the reader to section 51 of the Biosecurity Act for preventative biosecurity measures relating to listed human diseases.

 

87.         New subsection 393B(2) would provide that the Agriculture Minister may make a determination that specifies any one or more of the following biosecurity measures to be taken by specified classes of persons:

 

·        Banning or restricting a behaviour or practice;

·        Requiring a behaviour or practice;

·        Requiring a specified person to provide a specified report or keep specified records;

·        Conducting specified tests on specified goods or specified conveyances.

 

88.         The note following new subsection 393B(2) would explain that a person who fails to comply with a biosecurity measure may contravene a civil penalty provision and would direct the reader to new subsection 393C of the Biosecurity Act (as inserted by this item of Schedule 2 to the Bill).

 

89.         It is necessary for the specific biosecurity measures to be set out in the determination rather than the Biosecurity Act because the nature of each individual disease or pest that may pose an unacceptable biosecurity risk will vary from case to case, meaning that the biosecurity measures specified to manage the relevant biosecurity risk will also vary from case to case. In order to protect Australia’s unique biosecurity status and to protect it from diseases or pests that may pose unacceptable biosecurity risks, it is therefore necessary to specify the exact biosecurity measures in the determination. That said, it is noted that new subsection 393B(2) provides a list of the types of biosecurity measures that may be included. As discussed in detail below, a biosecurity measure in a determination must be appropriate and adapted to its purpose. It is also noted that this structure is consistent with the existing section 51 of the Biosecurity Act.

 

90.         New subsection 393B(1) sets out the purposes to which new section 393B applies. Those purposes are to prevent a behaviour or practice that:

 

·        May cause a disease (other than a listed human disease), or pest, that is considered to pose an unacceptable level of biosecurity risk to enter, or emerge, establish itself or spread in, Australian territory or a part of Australian territory; or

·        May contribute to a disease or pest in relation to which paragraph (a) applies entering, or emerging, establishing itself or spreading in, Australian territory or a part of Australian territory.

 

91.         Taken together with the determination-making power of the Agriculture Minister in new subsection 393B(2), the effect of these two new provisions is that the Agriculture Minister may only make a determination specifying biosecurity measures for the purposes set out in new subsection 393B(1). As such, reasonable parameters encompass the exercise of this power.

 

92.         It is also noted that the structure of new subsections 393B(1) and (2) reflects that of subsections 51(1) and (2) of the Biosecurity Act, which deal with determining biosecurity measures to prevent behaviours or practices that may cause or contribute to a listed human disease entering, emerging, or establishing itself or spreading in Australia. As such, new subsections 393B(1) and (2) are consistent with similar existing provisions in the Biosecurity Act which were relied on in part of the response to manage the COVID-19 pandemic.

 

93.         New subsection 393B(3) would provide that the determination made under new subsection 393B(2) must specify the behaviour or practice, and the disease or pest, referred to in new subsection 393B(1). This ensures transparency as to the identity of the disease or pest and the behaviour or practice, including for persons who may be obliged to comply with biosecurity measures made under the determination. It also ensures that any assessment of whether the determination is appropriate and adapted for the purposes of new section 393B (for which, see below the discussion on new subsection 393B(5)) is carried out within the context of a specific and named pest or disease. It is noted that a determination may specify more than one disease or pest.

 

94.         New subsection 393B(4) would provide that a determination made under new subsection 393B(2) is a legislative instrument, but section 42 (disallowance) of the Legislation Act does not apply to the instrument.

 

95.         Decisions that would be made by the Agriculture Minister to make a determination under new subsection 393B(2) would be informed and underpinned by subject matter, and scientific and technical expertise in order to protect Australia’s biosecurity status from diseases or pests that pose an unacceptable level of biosecurity risk.

 

96.         In particular, it is noted that new subsection 393B(5) (as described in more detail below) provides that, before specifying a biosecurity measures in a determination, the Agriculture Minister must be satisfied that:

 

·        The disease or pest does indeed pose an unacceptable biosecurity risk; and

·        The biosecurity measure is appropriate and adapted to prevent, or reduce the risk of, the disease or pest entering, emerging, or establishing itself or spreading in, Australian territory or a part of Australian territory.

 

97.         The effect of this is that the Agriculture Minister’s satisfaction will be informed and underpinned by scientific and technical expertise as to whether the disease or pest does pose an unacceptable biosecurity risk and whether each biosecurity measure in the determination is appropriate and adapted to the purpose for which the determination is made – that is, preventing, or reducing the risk of, the disease or pest entering, emerging, or establishing itself or spreading in, Australian territory or a part of Australian territory. This ensures that decisions to make a determination and include a biosecurity measure in that determination are based on impartial, scientific and technical expertise and advice.

 

98.         This exemption from disallowance is similar in nature to a number of other determinations that can already be made under the Biosecurity Act, such as those made under section 44 relating to entry requirements for the purpose of preventing a listed human disease from entering, or establishing itself or spreading in, Australian territory or part of Australian territory, and those made under section 51 of the Biosecurity Act relating to biosecurity measures for the purpose of preventing a behaviour or practice that may cause or contribute to, a listed human disease entering, emerging, establishing itself or spreading in Australia.

 

99.         Similar to these provisions, potential disallowance of a determination made under new subsection 393B(2) would have a significant impact on technical and scientifically based decision-making, risk management processes and the broader management of biosecurity risks, particularly where those risks arise quickly or unexpectedly and could have devastating impacts on Australia, like FMD or Xylella fastidiosa. A determination made under new subsection 393B(2) would be critical to preventing or reducing the risk of dangerous diseases or pests entering, emerging, or establishing themselves or spreading in, Australian territory and, as such, should not be subject to disallowance.

 

100.     It is also noted that other reasonable parameters encompass the Agriculture Minister’s power in new section 393B. As noted above, the Agriculture Minister may only make a determination for the specified purposes in new subsection 393B(1). Further, and as described in more detail below, before making a determination, the Agriculture Minister must consult with the Director of Biosecurity, the Director of Human Biosecurity and the head (however described) of the State and Territory body that is responsible for the administration of matters relating to biosecurity in each State and Territory.

 

101.     New subsection 393B(5) would provide that a biosecurity measure must not be specified in a determination made under new subsection 393B(2) unless the Agriculture Minister is satisfied that:

 

·        The disease or pest poses an unacceptable level of biosecurity risk; and

·        The biosecurity measure is appropriate and adapted to prevent, or reduce the risk of, the disease or pest entering, or emerging, establishing itself or spreading in, Australian territory or a part of Australian territory.

 

102.     The effect of this is that no biosecurity measure can be included in a determination unless the disease or pest does in fact pose an unacceptable biosecurity risk and the biosecurity measure is appropriate and adapted to the purposes specified in new subsection 393B(1). This means that each biosecurity measure must serve a legitimate purpose and must be necessary to meet that purpose. Biosecurity measures that seek to prevent or reduce the risk of a disease or pest entering, emerging, or establishing itself or spreading in, Australian territory or a part of Australian territory would serve a legitimate purpose and would be tailored so as to prevent or reduce such risk. This is particularly so in circumstances where a disease or pest could have a potentially devastating impact on Australia’s animal and plant health, the environment and the economy.

 

103.     New subsection 393B(6) would require a determination made under new subsection 393B(2) to specify the period during which it is in force, which must not be more than 1 year. The purpose of this provision is to ensure that any determination made under new section 393B will limited in time. This provides a further reasonable constraint on the exercise of this power.

 

104.     New subsection 393B(7) would require the Agriculture Minister, before making a determination under new subsection 393B(2), to consult with:

 

·        The Director of Biosecurity; and

·        The Director of Human Biosecurity; and

·        The head (however described) of the State or Territory body that is responsible for the administration of matters relating to biosecurity in each State and Territory.

 

105.     New subsection 393B(8) would provide that a failure by the Agriculture Minister to comply with the consultation requirements in new subsection 393B(7) does not affect the validity of the determination.

 

106.     Before making a determination, the Agriculture Minister will consult with the Director of Biosecurity, the Director of Human Biosecurity, and the head of each State or Territory body that is responsible for the administration of biosecurity matters. The importance and value of consultation is acknowledged and accepted. However the validity of a determination made under new subsection 393B(2) would not be affected if the Agriculture Minister fails to comply with these consultation requirements.

 

Section 393C – Civil penalty for failing to comply with a preventative biosecurity measure

 

107.     New section 393C would provide that a person to whom a biosecurity measure specified in accordance with new subsection 393B(2) applies must comply with the biosecurity measure. A person who does not comply with the biosecurity measure may be liable to a maximum civil penalty of 120 penalty units.

 

108.     The civil penalty is intended to reflect the seriousness of non-compliance with biosecurity measures determined under new subsection 393B. Non-compliance may pose a significant risk to Australia’s biosecurity status, particularly so with diseases or pests that pose significant and potentially devastating threats to the animal and plant health, the environment and the economy of Australia, such as FMD, African Swine Fever and Xlyella fastidiosa.

 

Item 12      Subsection 523(1) (after table item 37)

 

109.     The table in subsection 523(1) of the Biosecurity Act sets out the provisions that are subject to infringement notices under Part 5 of the Regulatory Powers Act. Part 5 of the Regulatory Powers Act creates a framework for the use of infringement notices where an infringement officer reasonably believes that a provision has been contravened.

 

110.     This item would amend the table in subsection 523(1) to insert new item 37A after item 37. This would have the effect that new section 393C would be subject to an infringement notice under Part 5 of the Regulatory Powers Act. The ability to issue an infringement notice for contravention of new subsection 393C would allow the notice with the stated amount to be issued immediately and to be effective in managing alleged non-compliance with biosecurity measures set out in a determination made under new section 393A.

 

 

 

 

 

SCHEDULE 2—PRATIQUE AND PRE-ARRIVAL REPORTING

 

Background

 

111.     Schedule 2 to the Bill would amend provisions relating to pratique and pre-arrival reporting requirements in the Biosecurity Act.

 

112.     The emergence and global spread of COVID-19 has tested Australia’s biosecurity systems and public health responses in an unprecedented way. International maritime vessels continue to represent a significant risk pathway for infectious disease entry to Australian territory, including incidents of COVID-19 infections on cruise passenger ships and commercial vessels.

 

113.     This Schedule to the Bill would strengthen the legislative framework under the Biosecurity Act for responding to biosecurity risks arising from incoming aircraft and vessels in Australian territory. In helping manage the ongoing risks in relation to maritime and aviation pathways, the amendments would contribute to Australia’s improved biosecurity risk preparedness and response at the border. New requirements for pratique and pre-arrival reporting specifically aim to ensure the safe recovery of tourism and related industries. The measures in this Bill would also provide a flexible framework for responding to new and emerging biosecurity risks through enhanced reporting by aircraft and vessels.

 

114.     The Commonwealth departments with joint portfolio responsibility for the Biosecurity Act, the Department of Health and Aged Care and the Department of Agriculture, Fisheries and Forestry, have identified the measures in this Schedule concerning pratique and pre-arrival reporting requirements as key legislative reforms.

 

115.     This Schedule would commence by Proclamation, or on the day after the period of 6 months beginning on the day the proposed Act receives the Royal Assent, if not proclaimed earlier. The amendments made to the pratique and pre-arrival reporting requirements by this Schedule would not have effect until that day.

 

Part 1—Pratique

 

Biosecurity Act 2015

 

Item 1        Subsection 48(1)

 

116.     Subsection 48(1) of the Biosecurity Act currently provides that an operator of an incoming aircraft or vessel that arrives at a landing place or port in Australian territory is liable to a civil penalty if the operator contravenes the requirement not to unload or load any thing or disembark or embark any persons, unless pratique has been granted under subsection 48(2) or subsection 49(4) of the Biosecurity Act.

 

117.     This item would amend subsection 48(1) by inserting the words “, or the person in charge of an incoming aircraft or vessel” after “An operator of an incoming aircraft or vessel”. Amended subsection 48(1) would extend the scope of the civil penalty provision, such that a person in charge of an incoming aircraft or vessel would, in addition to the operator of the aircraft or vessel, also be liable to a civil penalty if the pratique requirements are not complied with. This amendment is intended to address the disjuncture between the practical and legal responsibility for compliance with pratique requirements under the Biosecurity Act. This was recognised by the Inspector‑General, who recommended that the Biosecurity Act should be amended to “[…] make the ‘person in charge’ (and operator) of a conveyance […] also responsible for any non-compliance with negative pratique”. This amendment would strengthen the regulatory framework by providing that both the operator and the person in charge of the incoming aircraft or vessel should be liable to a civil penalty for non‑compliance with subsection 48(1).

 

Item 2        Subsection 48(1) (penalty)

 

118.     Subsection 48(1) of the Biosecurity Act currently provides that an operator of an incoming aircraft or vessel that arrives at a landing place or port in Australian territory is liable to a civil penalty if the operator contravenes the requirement not to unload or load any thing or disembark or embark any persons, unless pratique has been granted under subsection 48(2) or subsection 49(4) of the Biosecurity Act. The maximum civil penalty for contravention of subsection 48(1) is currently 120 penalty units.

 

119.     This item would repeal and substitute the civil penalty in subsection 48(1) to provide that the maximum civil penalty that a court may order against an individual for contravention of subsection 48(1) would be:

 

·        1,000 penalty units for the operator of the aircraft or vessel; or

·        300 penalty units for a person in charge of the aircraft or vessel.

 

If the court orders a civil penalty against a body corporate for a contravention of subsection 48(1), the maximum civil penalty must not be more than 5 times the maximum amount for an individual (see subsection 82(5) of the Regulatory Powers Act, as enabled by section 519 of the Biosecurity Act).

 

120.     The higher civil penalty proposed by this item recognises the serious consequences posed by the potential entry, spread and transmission of a listed human disease in Australian territory. It is appropriate in a commercial context in which a delay in obtaining a grant of pratique is likely to result in significant financial cost and loss of market advantage to an aircraft or vessel, such as a large cruise vessel, that is not permitted to disembark passengers or unload goods. The proposed increase to the civil penalty is intended to be more proportionate to deter those who may consider non-compliance as a cost of doing business.

 

Item 3        Application provision

 

121.     This item would provide that the amendments of section 48 of the Biosecurity Act made by this Part would apply in relation to an incoming aircraft or vessel that arrives at a landing place or port in Australian territory on or after the commencement of this item. This would make clear that the amendments in items 1 and 2 are proposed to have prospective effect.

 

 

Part 2—Pre-arrival reporting

 

Biosecurity Act 2015

 

Item 4        Before subsection 193(1)

 

122.     Subsection 193(1) requires the operator of an aircraft or vessel to give a report in certain circumstances, including if the aircraft or vessel enters, or is intended to enter, Australian territory.

 

123.     This item would insert a subheading titled “Initial report” before subsection 193(1). This would assist readers to distinguish between a report given under subsection 193(1) and other reports given under new subsection 193(1A), as inserted by item 5 of this Schedule.

 

Item 5        After subsection 193(1)

 

124.     Subsection 193(1) requires the operator of an aircraft or vessel to give a report in certain circumstances, including if the aircraft or vessel enters, or is intended to enter, Australian territory.

 

125.     This item would insert new subsection 193(1A), which would provide that the operator must give one or more other reports, as required by the regulations, in relation to the aircraft or vessel, if the aircraft or vessel is included in a class of aircraft or vessels that is prescribed by the regulations, or in the circumstances prescribed by the regulations. The intention is that the other reports prescribed under new subsection 193(1A) would be given in relation to an aircraft or vessel for which a report is required to be given under subsection 193(1).

 

126.     This amendment is intended to allow biosecurity risks to be assessed and managed in an accurate and timely manner by requiring other reports to be provided by the operators of prescribed classes of aircraft or vessels or in the prescribed circumstances. This is necessary as biosecurity officers can use the other reports to determine what risk management activities might be required in relation to the aircraft or vessel. For example, if there are a large number of passengers and crew members on board a cruise vessel, it is possible for there to be significant increases in the number of individuals with a listed human disease or significant changes in the reported signs or symptoms of a listed human disease, after the time at which an initial report was given and before the vessel moors at a port. In such circumstances, the ability for the regulations to prescribe specific classes of aircraft or vessels, or to prescribe additional circumstances in relation to which other reports must be given by the operator provides a further mechanism for the management of biosecurity risks.

 

Item 6        Before subsection 193(2)

 

127.     This item would insert a subheading titled “Requirements for reports” before subsection 193(2). This would provide a useful signpost for readers and assist them to identify that subsection 193(2), as amended by item 7 of this Schedule, contains the requirements for reports given under section 193.

 

Item 7        Subsection 193(2)

 

128.     Subsection 193(2) currently provides requirements for the information to be included in a report given under subsection 193(1). Subsection 193(2) also sets out the manner and form in which the report is to be given, the person to whom it is to be given, and the time at which or period during which it is to be given.

 

129.     This item would omit the words “The report” and substitute “A report under this section” in subsection 193(2). This would have the effect that the requirements in subsection 193(2) would apply to all reports given under section 193, including other reports given under new subsection 193(1A), as inserted by item 5 of this Schedule.

 

Item 8        Paragraph 193(4)(a)

 

130.     Subsection 193(4) currently provides that a person contravenes the provision if they are required to give a report under subsection 193(1) and they do not give the report in accordance with subsection 193(2).

 

131.     This item would insert the words “or (1A)” after the words “subsection (1)” in paragraph 193(4)(a). This would have the effect that, where a person is required to give a report under new subsection 193(1A) and they do not give the report in accordance with subsection 193(2), then they would also contravene subsection 193(4).

 

Item 9        Subsection 193(5) (penalty)

 

132.     When read with the amendments proposed by items 5 and 8 of this Schedule, the operator of an aircraft or vessel contravenes subsection 193(4) if they are required to give an initial report or other reports under subsection 193(1) or (1A), and they do not give the report in accordance with subsection 193(2). Subsection 193(5) provides that the operator commits a fault-based offence if they contravene subsection 193(4).

 

133.     This item would amend subsection 193(5) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 120 penalty units to 1,000 penalty units. Where a body corporate is convicted of the offence, a court may, if the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times this amount (see subsection 4B(3) of the Crimes Act 1901 (Crimes Act)).

 

134.     Initial reports and other reports given under subsections 193(1) and (1A) allow the Commonwealth to gather important information about a conveyance to assist with the accurate and timely assessment and management of biosecurity risk. This may include information about where a conveyance has travelled, information about the people and goods on board, or information about the conveyance itself. Regulated entities, such as an operator of an aircraft or vessel, should take active steps to understand and comply with the requirements under the Biosecurity Act, including in relation to reporting obligations.

 

135.     Failure to provide reports in accordance with the requirements in subsection 193(2) can undermine the ability of biosecurity officers to determine what risk management activities might be necessary when an aircraft or vessel arrives in Australian territory. Depending on the risks posed by the diseases and pests on an aircraft or vessel, this may result in harmful consequences to the Australian environment, economy, agricultural industry, export markets, and the health of individuals in Australian territory.

 

136.     The proposed maximum pecuniary penalty departs from the standard fine to imprisonment ratio in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide). However, this is necessary as the current penalty does not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. The potential consequences of failing to provide reports in accordance with the requirements in subsection 193(2), are such that it is appropriate to set a higher maximum penalty to punish non-compliance. The increased pecuniary penalty also aligns with similar offences in the Biosecurity Act relating to the contravention of importation requirements under sections 185 to 187.

 

137.     In sentencing an offender and determining the level of penalty to impose, a court has regard to a number of factors, including the facts and circumstances of the case; the nature and significance of the offending conduct; and any previous history of non-compliance. The increased criminal penalty is intended to reinforce the retributive effect of the current penalty regime while allowing a court greater capacity to respond meaningfully and proportionately to the worst contraventions of Australia’s biosecurity laws, including where they are committed by bodies corporate.

 

Item 10      Subsection 193(6) (penalty)

 

138.     When read with the amendments proposed by items 5 and 8 of this Schedule, the operator of an aircraft or vessel contravenes subsection 193(4) if they are required to give an initial report or other reports under subsection 193(1) or (1A), and they do not give the report in accordance with subsection 193(2). Subsection 193(6) provides that the operator is liable to a civil penalty if they contravene subsection 193(4).

 

139.     This item would amend subsection 193(6) to increase the maximum penalty that a court may order a person who is an individual to pay where that person contravenes subsection 193(4) from 120 penalty units to 1,000 penalty units. If the person is a body corporate, the maximum penalty must not be more than 5 times this amount (see subsection 82(5) of the Regulatory Powers Act, as enabled by section 519 of the Biosecurity Act).

 

140.     Initial reports and other reports given under subsections 193(1) and (1A) allow the Commonwealth to gather important information about a conveyance to assist with the accurate and timely assessment and management of biosecurity risk. This may include information about where a conveyance has travelled, information about the people and goods on board, or information about the conveyance itself. Regulated entities, such as an operator of an aircraft or vessel, should take active steps to understand and comply with the requirements under the Biosecurity Act, including in relation to reporting obligations.

 

141.     Failure to provide reports in accordance with the requirements in subsection 193(2) can undermine the ability of biosecurity officers to determine what risk management activities might be necessary when an aircraft or vessel arrives in Australian territory. Depending on the risks posed by the diseases and pests on an aircraft or vessel, this may result in harmful consequences to the Australian environment, economy, agricultural industry, export markets and to the health of individuals in Australian territory.

 

142.     The maximum civil penalty proposed by this item is intended to be proportionate to the likely harm that may result and to adequately deter a worst-case scenario that jeopardises Australia’s biosecurity status than the current civil penalty regime. The increased civil penalty also aligns with similar civil penalty provisions in the Biosecurity Act relating to the contravention of importation requirements under sections 185 to 187.

 

Item 11      Section 194 (heading)

 

143.     This item would repeal the heading of section 194 and substitute “Pre-arrival reporting—requirement to give more information”. This would be consequential to the insertion of new subsection 194(1A), as proposed by item 13 of this Schedule.

 

Item 12      Paragraph 194(1)(a)

 

144.     Subsection 194(1) of the Biosecurity Act currently requires the operator of an aircraft or vessel to provide additional or corrected information to a biosecurity officer as soon as practicable, if a report was given under section 193 of the Biosecurity Act and the person in charge or the operator becomes aware that the information included in the report was incomplete or incorrect.

 

145.     This item would omit “section 193” and substitute “subsection 193(1) or (1A)” in paragraph 194(1)(a). This amendment would be consequential to the insertion of new subsection 193(1A), as proposed by item 5 of this Schedule and new subsection 194(1A), as proposed by item 13 of this Schedule.

 

Item 13      After subsection 194(1)

 

146.     Subsection 194(1) of the Biosecurity Act currently requires the operator of an aircraft or vessel to provide additional or corrected information to a biosecurity officer as soon as practicable, if a report was given under section 193 of the Biosecurity Act and the person in charge or the operator becomes aware that the information included in the report was incomplete or incorrect.

 

147.     This item would insert new subsection 194(1A), which would provide that the regulations may prescribe the circumstances in which the operator must give a biosecurity officer further information in relation to a report that has been given under subsection 193(1) or (1A). The regulations may also prescribe the kind of further information and when that information must be given to a biosecurity officer.

 

148.     Note 1 following new subsection 194(1A) draws to the reader’s attention that a person may commit an offence or contravene a civil penalty provision, if the person provides false or misleading information or documents, referring to sections 137.1 and 137.2 of the Criminal Code and sections 532 and 533 of the Biosecurity Act. Note 2 following new subsection 194(1A) explains that the obligation in this subsection applies regardless of whether the operator is in Australian territory when they are required to give the further information, referring to subsection 194(5) (as amended by item 19 of this Schedule).

 

149.     A significant gap in the reporting requirements under the Biosecurity Act is that section 194 in its current form does not create a clear obligation to update information that becomes superseded after the pre-arrival report is submitted.

 

150.     This amendment is intended to allow biosecurity risks to be assessed and managed in an accurate and timely manner by requiring further information to be provided by the operator in the prescribed circumstances. This is necessary as biosecurity officers can use the further information to determine what risk management activities might be required in relation to the aircraft or vessel. For example, the regulations may prescribe that further information is required from the operator where information provided in the report about the numbers of individuals with a listed human disease, or signs or symptoms of a listed human disease, have been superseded by subsequent events. In such circumstances, the ability for the regulations to prescribe that further information must be given by the operator, provides a further mechanism for the management of biosecurity risks.

 

Item 14      After subsection 194(2)

 

151.     New subsection 194(1A), as inserted by item 13 of this Schedule, would provide that the regulations may prescribe the circumstances in which the operator must give a biosecurity officer further information in relation to a report that has been given under subsection 193(1) or (1A).

 

152.     This item would insert a new subsection 194(2A) after subsection 194(2). A person contravenes new subsection 194(2A) if they are required to give information under regulations made for the purposes of new subsection 194(1A) and the person does not give the information to a biosecurity officer as required. A note following new subsection 194(2A) would explain that this subsection sets out the physical elements of an offence against subsection 194(3), referring to section 534.

 

153.     Failure to provide further information in relation to a report in the prescribed circumstances can undermine the ability of biosecurity officers to determine what risk management activities might be necessary when an aircraft or vessel arrives in Australian territory. Depending on the risks posed by the diseases and pests on an aircraft or vessel, this may result in harmful consequences to the Australian environment, economy, agricultural industry, export markets and to the health of individuals in Australian territory.

 

Item 15      Subsection 194(3)

 

154.     Subsection 194(3) currently provides that a person commits a fault-based offence if they contravene subsection 194(2).

 

155.     This item would omit the words “subsection (2)” and substitute “subsection (2) or (2A)” in paragraph 194(3). This would have the effect that, where a person is required to give information under regulations made for the purposes of new subsection 194(1A) and the person does not give the information to a biosecurity officer as required, then they would also contravene subsection 194(3).

 

Item 16      Subsection 194(3) (penalty)

 

156.     When read with the amendment proposed by item 15 of this Schedule, the operator of an aircraft or vessel commits a fault-based offence if they contravene subsection 194(2) or (2A).

 

157.     This item would amend subsection 194(3) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 120 penalty units to 1,000 penalty units. Where a body corporate is convicted of the offence, a court may, if the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times this amount (see subsection 4B(3) of the Crimes Act).

 

158.     Providing further information in relation to reports given under section 193 allows the Commonwealth to gather important and up-to-date information about a conveyance to assist with the accurate and timely assessment and the proportionate management of biosecurity risks. Regulated entities, such as an operator of an aircraft or vessel, should take active steps to understand and comply with the requirements under the Biosecurity Act, including in relation to requests for further information.

 

159.     Failure to provide further information in accordance with the requirements can undermine the ability of biosecurity officers to determine what risk management activities might be necessary when an aircraft or vessel arrives in Australian territory. Depending on the risks posed by the diseases and pests on an aircraft or vessel, this may result in harmful consequences to the Australian environment, economy, agricultural industry, export markets, and the health of individuals in Australian territory.

 

160.     The proposed maximum pecuniary penalty departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalty does not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. The potential consequences of failing to provide further information in accordance with the requirements, are such that it is appropriate to set a higher maximum penalty to punish non-compliance. The increased pecuniary penalty also aligns with similar offences in the Biosecurity Act relating to the contravention of importation requirements under sections 185 to 187.

 

161.     In sentencing an offender and determining the level of penalty to impose, a court has regard to a number of factors, including the facts and circumstances of the case; the nature and significance of the offending conduct; and any previous history of non-compliance. The increased criminal penalty is intended to reinforce the retributive effect of the current penalty regime while allowing a court greater capacity to respond meaningfully and proportionately to the worst contraventions of Australia’s biosecurity laws.

 

Item 17      Subsection 194(4)

 

162.     Subsection 194(4) currently provides that a person is liable to a civil penalty if they contravene subsection 194(2).

 

163.     This item would omit the words “subsection (2)” and substitute “subsection (2) or (2A)” in paragraph 194(4). This would have the effect that, where a person is required to give information under regulations made for the purposes of new subsection 194(1A) and the person does not give the information to a biosecurity officer as required, then they would also contravene subsection 194(4).

 

Item 18      Subsection 194(4) (penalty)

 

164.     When read with the amendment proposed by item 17 of this Schedule, the operator of an aircraft or vessel is liable to a civil penalty if they contravene subsection 194(2) or (2A).

 

165.     This item would amend subsection 194(4) to increase the maximum penalty that a court may order a person who is an individual to pay where that person contravenes subsection 194(2) or (2A) from 120 penalty units to 1,000 penalty units. If the person is a body corporate, the maximum penalty must not be more than 5 times this amount (see subsection 82(5) of the Regulatory Powers Act, as enabled by section 519 of the Biosecurity Act).

 

166.     Providing further information in relation to reports given under section 193 allows the Commonwealth to gather important information about a conveyance to assist with the accurate and timely assessment and management of biosecurity risk. This may include information about where a conveyance has travelled, information about the people and goods on board, or information about the conveyance itself. Regulated entities, such as an operator of an aircraft or vessel, should take active steps to understand and comply with the requirements under the Biosecurity Act, including in relation to requests for further information.

 

167.     Failure to provide further information in accordance with the requirements can undermine the ability of biosecurity officers to determine what risk management activities might be necessary when an aircraft or vessel arrives in Australian territory. Depending on the risks posed by the diseases and pests on an aircraft or vessel, this may result in harmful consequences to the Australian environment, economy, agricultural industry, export markets and to the health of individuals in Australian territory.

 

168.     The maximum civil penalty proposed by this item is intended to be more proportionate to the likely harm that may result and to more adequately deter a worst-case scenario that jeopardises Australia’s biosecurity status than the current civil penalty regime. The increased civil penalty also aligns with similar civil penalty provisions in the Biosecurity Act relating to the contravention of importation requirements under sections 185 to 187.

 

Item 19      Subsection 194(5)

 

169.     Subsection 194(5) currently provides that subsections 194(2), (3) and (4) apply regardless of whether the person is in Australian territory when the person is required to give the information.

 

170.     This item would insert the words “(2A),” after “Subsections (2),” in paragraph 194(5). This would have the effect that new subsection 194(2A) would also apply regardless of whether the person is in Australian territory when the person is required to give the information. This aligns the application of new subsection 194(2A) with subsections 194(2), (3) and (4), ensuring consistency of application across section 194 as it relates to contraventions, offences and civil penalties.

 

Item 20      Subsection 195(1)

 

171.     Subsection 195(1) currently allows a biosecurity officer to exercise certain powers for the purpose of assessing the level of biosecurity risk associated with an aircraft or vessel that is the subject of a report under paragraph 193(1)(a), in certain circumstances.

 

172.     This item would insert the words “, or a report under subsection 193(1A) where paragraph 193(1)(a) applies,” after “193(1)(a)” in paragraph 195(1). This would have the effect that a biosecurity officer may also exercise certain powers for the purpose of assessing the level of biosecurity risk associated with an aircraft or vessel that is the subject of a report under new subsection 193(1A), where paragraph 193(1)(a) applies and where the vessel has not become subject to biosecurity control.

 

Item 21      Application provisions

 

173.     This item would make clear that the amendments in this Part are intended to apply prospectively, in relation to specified circumstances that occur on or after the commencement of this item

 

174.     Subitem 21(1) would provide that new subsection 193(1A), as inserted by this Part, would apply in relation to an aircraft or vessel in relation to which a report is required to be given under subsection 193(1) of the Biosecurity Act on or after the commencement of this item.

 

175.     Subitem 21(2) would provide that the amendments of subsections 193(5) and (6) of the Biosecurity Act made by this Part would apply in relation to a person required to give a report under subsection 193(1) or (1A) on or after the commencement of this item.

 

176.     Subitem 21(3) would provide that the amendments of section 194 of the Biosecurity Act made by this Part would apply in relation to a report given under subsection 193(1) or (1A) on or after the commencement of this item.

 

177.     Subitem 21(4) would provide that the amendment of section 195 of the Biosecurity Act made by this Part would apply in relation to a report given under subsection 193(1A) on or after the commencement of this item.

 

SCHEDULE 3—INFORMATION MANAGEMENT

 

Background

 

178.     Schedule 3 to the Bill would amend the Biosecurity Act to enable more effective management of information obtained or generated under the Biosecurity Act. These amendments would provide for specific authorisations for the use and disclosure of relevant information, while ensuring that protected information is afforded appropriate safeguards. These provisions would support the management of biosecurity risks and the effective administration of the Biosecurity Act.

 

179.     The proposed amendments would introduce the concept of entrusted persons, who would include the Agriculture Minister, the Health Minister as well as certain officers and employees of the Agriculture Department or Health Department. These persons would have specific authorisations in Schedule 3 to deal with relevant information in the following manner:

 

·        Disclosure to manage risks posed by diseases and pests to a State or Territory;

·        Disclosure to foreign governments to manage risks posed by diseases or pests to a foreign country, or to give effect to Australia’s international obligations;

·        Use or disclosure for the purposes of certain Acts administered by the Agriculture Minister or the Health Minister;

·        Disclosure to a Commonwealth entity for the purposes of assisting the entity to perform its functions or duties or exercise its powers;

·        Disclosure to a court or tribunal;

·        Disclosure for the purposes of law enforcement;

·        Use or disclosure for research, policy development or data analysis to assist the Agriculture Department or Health Department to administer the Biosecurity Act;

·        Use or disclosure of statistics;

·        Use or disclosure of publicly available information;

·        Disclosure to the person to whom the information relates;

·        Use or disclosure with consent given by the person to whom the information relates;

·        Disclosure to the person who provided the information.

 

180.     In addition, certain persons (including entrusted persons) would be authorised to use or disclose relevant information in the course of, or for the purposes of, performing functions or duties, or exercising powers under the Biosecurity Act, or assisting another person to perform such functions or duties, or exercise such powers. There would also be a separate authorisation for certain persons (including entrusted persons) to use or disclose relevant information for the purposes of managing risks to human health.

 

181.     The Director of Biosecurity and the Director of Human Biosecurity would have additional authorisations in relation to the disclosure of relevant information to a State or Territory body, or where use or disclosure of such information is necessary to manage certain severe and immediate threats on a nationally significant scale. There would be a separate regulation-making power for the use or disclosure of specific kinds of relevant information to specific classes of persons, for specific purposes.

 

182.     Each of the specific authorisations proposed by this Schedule would be an authorisation for the purposes of the Privacy Act 1988 (the Privacy Act) and other laws. It is intended that the authorisations proposed by this Schedule would not limit each other. In addition, the framework under the Data Availability and Transparency Act 2022 would remain available for the use or disclosure of information.

 

183.     The proposed amendments would also ensure that certain information obtained or generated under the Biosecurity Act, the unauthorised use or disclosure of which might cause harm, would be protected. This includes health information about an individual, There would be an offence provision that would apply where protected information is used or disclosed in a manner that is not required or authorised by a Commonwealth law or prescribed State or Territory law. This would promote greater public confidence that such information will be sufficiently protected by the Commonwealth.

 

184.     This Schedule would commence by Proclamation, or on the day after the period of 6 months beginning on the day the proposed Act receives the Royal Assent, if not proclaimed earlier. The amendments made by this Schedule would not have effect until that day.

 

Biosecurity Act 2015

 

Item 1        Section 3 (paragraph beginning “Chapter 11”)

 

185.     Section 3 of the Biosecurity Act sets out a simplified outline of the Biosecurity Act. This item would amend the simplified outline by omitting the words “the confidentiality of information obtained” and substituting the words “managing information obtained or generated”. This item is consequential to the amendments proposed by items 15 to 27 of this Schedule, which would amend the framework for information management under Part 2 of Chapter 11 of the Biosecurity Act.

 

186.     The simplified outline, and the amendments made by this item, are not intended to be comprehensive and have been included to assist readers to understand the substantive provisions of the Biosecurity Act and the amendments made by this Schedule, rather than to replace those provisions. It is intended that readers would rely on the substantive provisions in the Biosecurity Act and this Schedule.

 

Item 2        Section 9

 

187.     This item would amend section 9 of the Biosecurity Act by inserting “(1)” before the words “In this Act”.

 

188.     This item would create new subsection 9(1) in the Biosecurity Act and is intended to align with the amendments proposed in item 10 of this Schedule, which would insert new subsection 9(2) of the Biosecurity Act.

 

Item 3        Section 9 (definition of commercial-in-confidence)

 

189.     This item would repeal the definition of commercial-in-confidence in section 9 of the Biosecurity Act. This item would be consequential to the amendments proposed by items 7, 11 and 27 of this Schedule, which would amend the framework for the management of protected information under Part 2 of Chapter 11 of the Biosecurity Act, and remove references to commercial-in-confidence.

 

Item 4        Section 9 (definition of Commonwealth body)

 

190.     This item would amend section 9 of the Biosecurity Act to amend the definition of Commonwealth body by inserting the words “or agency” after the words “an authority”.

 

191.     This item ensures that the definition of Commonwealth body in the Biosecurity Act would align with other amendments that this Schedule would propose to make to the Biosecurity Act.

 

Item 5        Section 9

 

192.     This item would amend section 9 of the Biosecurity Act to insert new definitions for Commonwealth entity, de-identified and entrusted person.

 

193.     A Commonwealth entity would be defined as having the same meaning as in the Public Governance, Performance and Accountability Act 2013 (PGPA Act). At the time of introduction of this Bill, Commonwealth entity was defined in the PGPA Act as a Department of State, a Parliamentary Department, a listed entity, a body corporate established by a Commonwealth law or certain body corporates prescribed to be a Commonwealth entity. This new definition would be relevant to the authorisation proposed by new section 587 below (see item 27 of this Schedule).

 

194.     The term de-identified, in relation to personal information, would have the same meaning as in the Privacy Act. At the time of introduction of the Bill, this was defined as information that is no longer about an identifiable individual or an individual who is reasonably identifiable. This new definition would be relevant to the authorisation proposed by new section 590 below (see item 27 of this Schedule).

 

195.     An entrusted person would be defined as any of the following persons:

 

·        The Agriculture Minister or the Health Minister;

·        The Agriculture Secretary or the Health Secretary;

·        The Director of Biosecurity or the Director of Human Biosecurity;

·        An APS employee in the Agriculture Department or Health Department;

·        Any other person employed or engaged by the Commonwealth to provide services to the Commonwealth in connection with the Agriculture Department or Health Department; or

·        Any other person who is employed or engaged by the Commonwealth or a body corporate that is established by a law of the Commonwealth and in a class of persons prescribed by the regulations for the purposes of subparagraph (f)(ii) of this definition.

 

196.     The concept of an entrusted person is relevant to the new framework for information management proposed by items 15 to 27 of this Schedule, as a number of the proposed authorisations to use or disclose relevant information will only be available to entrusted persons. It is considered appropriate for officers and employees of the Agriculture Department and Health Department, as well as certain persons engaged by these departments, to have access to various authorisations to use or disclose information under the Biosecurity Act, as they have a central role in managing biosecurity risks and administering the Biosecurity Act. There may also be situations where it is necessary for the regulations to prescribe other persons who are employed or engaged by the Commonwealth or a body corporate this is established by a law of the Commonwealth as an entrusted person, given the nature of their functions or duties. For example, if a Commonwealth taskforce is established outside of the Agriculture Department or Health Department to draw upon expertise across Commonwealth agencies in managing an emergency situation that is posed by the spread of a disease or pest in Australian territory, then it may be necessary for members of that taskforce to have access to the specific authorisations that are available to entrusted persons.

 

197.     Under section 643 of the Biosecurity Act, the Agriculture Minister would be able to delegate their functions or powers as an entrusted person to the Director of Biosecurity or an SES employee, or acting SES employee, in the Agriculture Department. However, such delegations are unlikely to be made in practice, because such persons are already included in the definition of an entrusted person. To the extent that the Agriculture Minister would be able to delegate certain emergency powers under section 453 of the Biosecurity Act, this would only apply to the functions or powers under sections 445, 446, 450 and 451, and only in very limited emergency situations.

 

198.     Under subsection 542(1) of the Biosecurity Act, the Director of Biosecurity would be able to delegate their functions or powers as an entrusted person to an SES employee, or an acting SES employee, in the Agriculture Department. Such functions or powers may also be subdelegable by the SES employee, or an acting SES employee, to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see subsection 542(2) of the Biosecurity Act). However, new table item 26AB of subsection 542(3) limits certain powers or functions of the Director of Biosecurity as an entrusted person from being subdelegable (see item 14 of this Schedule). Further details relating to the subdelegation of specific authorisations are discussed below.

 

199.     The intention is that the Health Minister, Health Secretary and the Director of Human Biosecurity would not be able to delegate their functions or powers as entrusted persons. To the extent that the Director of Human Biosecurity would be able to delegate their functions or powers under section 544A of the Biosecurity Act, this would only apply to functions or powers under Part 3 of Chapter 2 of the Biosecurity Act (human biosecurity control orders). There are no existing provisions under the Biosecurity Act which provide for a delegation of the functions or powers of the Health Minister or the Health Secretary.

 

Item 6        Section 9 (definition of permissible purpose)

 

200.     This item would repeal the definition of permissible purpose in section 9 of the Biosecurity Act. This item would be consequential to the amendments proposed by items 18 and 27 of this Schedule, which would amend the framework for authorisations under Part 2 of Chapter 11 of the Biosecurity Act and remove references to permissible purpose.

 

Item 7        Section 9 (definition of protected information)

 

201.     This item would amend section 9 of the Biosecurity Act to repeal the existing definition of protected information and substitute a new definition of that term.

 

202.     Protected information would be defined to mean information of any of the following kinds obtained or generated by a person:

 

·        Sensitive information (within the meaning of the Privacy Act);

·        Information (including commercially sensitive information) the disclosure of which could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence;

·        Information the disclosure of which could reasonably be expected to prejudice the prevention, detection, investigation, prosecution or punishment of one or more offences;

·        Information the disclosure of which could reasonably be expected to prejudice the protection of public safety, human health or the environment;

·        Information the disclosure of which could reasonably be expected to prejudice Australia’s security, defence or international relations;

·        Information of a kind prescribed by the regulations for the purposes of paragraph (f) of this definition.

 

203.     The term protected information is used in the civil penalty and offence provisions in new section 580 (see item 18 of this Schedule). New section 580 applies where certain persons have obtained or generated information in the course of, or for the purposes of, performing functions or duties, or exercising powers, under the Biosecurity Act, or assisting another person to perform such functions or duties or exercise such powers. Such information would reflect the definition of relevant information (as inserted by item 8 of this Schedule). However, such information must also be protected information, and the use or disclosure of that information must be unauthorised in order for the civil penalty and offence provisions in new section 580 to be enlivened.

 

204.     This definition of protected information is intended to cover the kinds of information of which an unauthorised use or disclosure would be likely to cause harm. This includes health information about an individual, which is covered by the concept of sensitive information (within the meaning of the Privacy Act).

 

205.     It is necessary to allow the regulations to be able to prescribe additional kinds of protected information, in order to be able to quickly adapt to changing circumstances, technology and, potentially Australia’s international obligations, in the future. However, any additional kinds of protected information to be prescribed by the regulations would need to meet the requirements set out in new subsection 9(2), as proposed by item 10 of this Schedule. This would have the effect that the Agriculture Minister or the Health Minister must firstly be satisfied that the disclosure of a kind of information would or could reasonably prejudice the effective working of the Agriculture Department or the Health Department, or otherwise harm the public interest, before such regulations could be made to prescribe that kind of information as protected information.

 

Item 8        Section 9

 

206.     This item would amend section 9 of the Biosecurity Act to insert a new definition of relevant information. Relevant information would mean information obtained or generated by a person in the course of, or for the purposes of:

 

·        Performing functions or duties, or exercising powers, under this Act;

·        Assisting another person to perform functions or duties, or exercise powers, under this Act.

 

207.     Given that this Act is defined in section 9 to include both the Biosecurity Act and the Regulatory Powers Act as it applies to the Biosecurity Act, it is intended that relevant information would cover information obtained or generated in this broader context. In the interests of brevity, any references to the “Biosecurity Act” that is used elsewhere in this document is intended to refer to the use of the term in this broader context.

 

208.     The concept of relevant information relates to the list of specific authorisations that would be included in the amendments proposed by item 27 of this Schedule (see new sections 582 to 590H). The intention of defining relevant information broadly is to provide clarity on the purposes for which that information, once obtained or generated under the Biosecurity Act, may be used or disclosed under the Biosecurity Act. Only relevant information that is also protected information would be subject to the civil penalty and offence provisions in new section 580 (see item 18 of this Schedule).

 

209.     In particular, relevant information would cover any information obtained or generated by a person (including Commonwealth officers), in the course of, or for the purposes of, performing functions or duties or exercising powers under the Biosecurity Act, or assisting another person to perform such functions or duties or exercise such powers. This means that when State or Territory officials (such as human biosecurity officers) or other third parties (such as biosecurity industry participants) are performing functions or duties or exercising powers under the Biosecurity Act, any information that those persons obtain or generate in the course of, or for the purposes of, performing those functions or duties, or exercising those powers, will be relevant information. This is also intended to extend to information obtained or generated by persons employed or engaged by such State or Territory officials or third parties, to the extent that those persons have obtained or generated the information in the course of, or for the purposes of, assisting another person in their performance of functions or duties or exercise of powers under the Biosecurity Act.

 

210.     It is intended that the reference in the definition of relevant information to assisting another person to perform functions or duties, or exercise powers, under the Biosecurity Act, would have its ordinary meaning. It is not intended to be linked to the separate definition of person assisting which is defined in section 536 of the Biosecurity Act.

 

Item 9        Section 9 (definition of State or Territory body)

 

211.     This item would amend the definition of State or Territory body in section 9 of the Biosecurity Act by inserting the words “or agency” after the words “an authority”.

 

212.     This term is relevant to the authorisations proposed by new sections 584, 589 and 590F below (see item 27 of this Schedule).

 

Item 10      At the end of section 9

 

213.     This item would amend section 9 of the Biosecurity Act to insert new subsection 9(2).

 

214.     New subsection 9(2) would provide that before the Governor-General makes regulations for the purposes of paragraph (f) of the definition of protected information in subsection 9(1) to prescribe a kind of information, the Agriculture Minister or the Health Minister must be satisfied that disclosure of that kind of information would or could reasonably be expected to prejudice the effective working of the Agriculture Department or the Health Department, or otherwise harm the public interest.

 

215.     This amendment would make clear that additional kinds of information may only be prescribed as protected information, where these additional requirements are met. It is necessary to allow the regulations to be able to prescribe additional kinds of protected information, in order to be able to quickly adapt to changing circumstances, technology and potentially Australia’s international obligations in the future. Where the Agriculture Minister or Health Minister is satisfied that disclosure of that kind of information would or could reasonably be expected to prejudice the effective working of the Agriculture Department or the Health Department or otherwise harm the public interest, then this would provide an appropriate basis for such regulations being made.

 

Item 11      Section 15

 

216.     This item would repeal section 15, which currently provides for the definition of commercial-in-confidence. This would be consequential to the amendments proposed by item 7 and 27 of this Schedule, which would amend the framework for the management of protected information under Part 2 of Chapter 11 of the Biosecurity Act and remove references to commercial-in-confidence.

 

Item 12      Paragraph 255(1)(i)

 

217.     Section 255 of the Biosecurity Act allows the regulations to prescribe a scheme to give effect to Australia’s rights and obligations in relation to ship sanitation for the purposes of the International Health Regulations. Paragraph 255(1)(i) allows the regulations to deal with disclosing information obtained under such a scheme to various persons and entities. The regulation-making power in paragraph 255(1)(i) is expressed as not limiting existing section 580 of the Biosecurity Act (which currently provides for limited authorisations to use or disclose information).

 

218.     This item would amend paragraph 255(1)(i) to substitute the existing reference to section 580 with a reference to new Division 3 of Part 2 of Chapter 11. This would have the effect of clarifying that the regulation-making power in paragraph 255(1)(i) does not limit the authorisations in Division 3 of Part 2 of Chapter 11 (new sections 582 to 590H), as proposed by item 27 of this Schedule. This amendment would not change the operation of section 255 of the Biosecurity Act.

 

Item 13      Subsection 523(1) (after table item 45)

 

219.     Subsection 523(1) of the Biosecurity Act sets out the provisions of the Biosecurity Act that are subject to an infringement notice under Part 5 of the Regulatory Powers Act. Part 5 of the Regulatory Powers Act creates a framework for the use of infringement notices where an infringement officer reasonably believes that a provision has been contravened under an Act.

 

220.     This item would amend the table in subsection 523(1) to insert new item 45A. This would have the effect that the strict liability offence in new subsection 580(6) would be subject to an infringement notice under Part 5 of the Regulatory Powers Act. It is considered appropriate that new subsection 580(6) be subject to an infringement notice, as it does not contain a fault element and an infringement officer could easily assess whether there has been an alleged contravention.

 

221.     It is also appropriate to apply the existing modifications of Part 5 of the Regulatory Powers Act, as set out in section 524 of the Biosecurity Act, to the infringement notice given in relation to new subsection 580(6). This is because section 524 contains modifications to ensure that the information that must be included in an infringement notice is appropriate in the context of the biosecurity enforcement scheme. For example, the modifications require the infringement notice to state how a person has power under the Biosecurity Act to issue an infringement notice, to provide the recipient of the notice with a proper understanding of the authority. In addition, the amount payable under an infringement notice given in relation to new subsection 580(6) would be 12 penalty units, or if the regulations prescribe a lower number of penalty units for the purposes of paragraph 524(4)(c) of the Biosecurity Act, that number of penalty units. This modification to the Regulatory Powers Act allows the regulations to prescribe a lower penalty unit for an infringement notice, provides a degree of flexibility in how an amount in an infringement notice can be calculated and takes into consideration the wide range of offences and circumstances.

 

Item 14      Subsection 542(3) (after table item 26AA)

 

222.     Section 542 of the Biosecurity Act provides for the delegation of powers and functions under the Biosecurity Act by the Director of Biosecurity to an SES employee or acting SES employee in the Agriculture Department. Section 542 also provides for the subdelegation of functions and powers from an SES employee or acting SES employee in the Agriculture Department to a biosecurity officer, biosecurity enforcement officer, or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department.

 

223.     The table in subsection 542(3) of the Biosecurity Act sets out the powers and functions under the Biosecurity Act that must not be subdelegated. This item would amend the table in subsection 542(3) by inserting new item 26AB after item 26AA. This would have the effect that the powers and functions under new sections 582 to 590 and 590G (as inserted by item 27 of this Schedule) would not be able to be subdelegated. Further details relating to the subdelegation of each specific authorisation is discussed below.

 

Item 15      Part 2 of Chapter 11 (heading)

 

224.     This item would repeal the existing heading of Part 2 of Chapter 11 of the Biosecurity Act and substitute a new heading. The new heading for Part 2 of Chapter 11 of the Biosecurity Act would be “Part 2—Information management”.

 

Item 16      Section 579

 

225.     This item would repeal and substitute section 579, which sets out a simplified outline of Part 2 of Chapter 11 of the Biosecurity Act.

 

226.     New section 579 would provide a simplified outline of Part 2 of Chapter 11 of the Biosecurity Act (information management). The simplified outline is not intended to be comprehensive and has been included to assist readers to understand the substantive provisions of Part 2 of Chapter 11, rather than to replace those provisions. It is intended that readers would rely on the substantive provisions in Part 2 of Chapter 11 of the Biosecurity Act.

 

227.     The first note following new section 579 would explain that each provision in new Division 3 of Part 2 of Chapter 11 provides an authorisation for the purposes of the Privacy Act and other laws. The policy intention is that if more than one authorisation in Division 3 of Part 2 of Chapter 11 is available for the use or disclosure of relevant information, then a person will be able to rely upon any of those available authorisations. It is intended that the authorisations proposed by this Schedule would not limit each other.

 

228.     The second note following new section 579 would explain that nothing in Part 2 of Chapter 11 prevents the Commonwealth from making agreements or other arrangements to impose conditions on the use or disclosure of relevant information by a person or body who obtains the information as result of a disclosure authorised under new Division 3 of Part 2 of Chapter 11.

 

Item 17      Division 2 of Part 2 of Chapter 11 (heading)

 

229.     This item would repeal the existing heading of Division 2 of Part 2 of Chapter 11 of the Biosecurity Act and substitute a new heading. The new heading for Division 2 of Part 2 of Chapter 11 would be “Division 2—Offences and civil penalties”.

 

Item 18      Section 580

 

230.     This item would repeal existing section 580 and substitute new Subdivision A of Division 2 of Part 2 of Chapter 11 of the Biosecurity Act. The heading for new Subdivision A would be “Subdivision A—Unauthorised use or disclosure of protected information”.

 

231.     Existing section 580 of the Biosecurity Act provides for the use or disclosure of certain information. This provision would be replaced by new authorisations set out in new Division 3 of Part 2 of Chapter 11, which provide for a new framework for information management proposed by this Schedule (see item 27 of this Schedule).

 

New section 580 – Use or disclosure of protected information

 

232.     New section 580 would deal with the use or disclosure of protected information, and would provide a fault-based offence, strict liability offence and a civil penalty provision for the unauthorised use or disclosure of protected information.

 

233.     A person who is, or has been, an entrusted person or a person covered under new subsection 580(2) would contravene new subsection 580(1) in certain circumstances. This would be where:

 

·        The person has obtained or generated information in the course of, or for the purposes of, performing functions or duties, or exercising powers, under the Biosecurity Act, or assisting another person to perform such functions or duties, or exercise such powers. Such information would reflect the definition of relevant information (as inserted by item 8 of this Schedule); and

·        The information is also protected information (as amended by item 7 of this Schedule); and

·        The person uses or discloses the information.

 

234.     It is considered appropriate that the use or disclosure of protected information be strictly regulated, given that the unauthorised use or disclosure of such information (including, for example, health information about an individual) could reasonably be expected to cause harm.

 

235.     It is also intended that the reference in new subsection 580(1) to assisting another person to perform functions or duties, or exercise powers, under the Biosecurity Act would take its ordinary meaning. It is not intended to be linked to the separate definition of person assisting which is defined in section 536 of the Biosecurity Act.

 

236.     The note following new subsection 580(1) would explain that the physical elements of offences against new subsections 580(5) and (6) are set out in new subsection 580(1). The note would also direct the reader to section 534 of the Biosecurity Act, relating to the physical elements of offences.

 

237.     New subsection 580(2) would cover the following persons:

 

·        A person employed or engaged by the Commonwealth or a body corporate that is established by a law of the Commonwealth;

·        A biosecurity official;

·        A chief human biosecurity officer;

·        A human biosecurity officer;

·        A biosecurity industry participant or an officer or employee of a biosecurity industry participant;

·        A survey authority or an officer or employee of a survey authority;

·        A person who has carried out, or is carrying out, an audit under section 436 of the Biosecurity Act.

 

238.     New subsection 580(3) would provide an exception to new subsection 580(1) where the use of disclosure is required or authorised by the Biosecurity Act, another law of the Commonwealth or a law of a State or Territory prescribed by the regulations. This would ensure that authorised uses and disclosures are not subject to the civil penalty and offence provisions.

 

239.     The note following new subsection 580(3) would explain that the defendant bears an evidential burden of proof in relation to the matters in new subsection 580(3), that is, whether the use or disclosure of information was required or authorised by a Commonwealth law or a prescribed State or Territory law. The note would also refer the reader to subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act. The reversal of the burden of proof is justified in this instance as the matter to be proved (that is, that the use or disclosure of protected information was required or authorised by a Commonwealth law or a prescribed State or Territory law) is a matter that would be peculiarly in the knowledge of the defendant. Further, there would be a number of authorised uses and disclosures set out in new Division 3 of Part 2 of Chapter 11 of the Biosecurity Act (as inserted by item 27 of this Schedule), across the laws of the Commonwealth, and where relevant, across the laws of a State or Territory. In the event of criminal or civil proceedings, it would be significantly more difficult and costly for the prosecution to disprove all possible circumstances than it would be for a defendant to establish the existence of one potential circumstance. Consequently, in order to effectively protect information under new section 580, it is reasonable, necessary and proportionate to reverse the evidential burden of proof in this limited situation.

 

240.     New subsection 580(4) would provide an exception to new subsection 580(1) where the person uses or discloses the protected information in good faith in the purported performance of functions or duties, or the purported exercise of powers, under the Biosecurity Act, or in assisting another person in the purported performance of such functions or duties or the purported exercise of such powers.

 

241.     The exception in new subsection 580(4) is intended to cover a situation where a person uses or discloses information in the belief that they were authorised to do so under a provision of the Biosecurity Act. The term ‘in good faith’ is intended to mean without malice, or without an intention to engage in fraudulent behaviour or improper conduct.

 

242.     The note following new subsection 580(4) would explain that the defendant bears an evidential burden of proof in relation to whether the use or disclosure of information was covered by the exception in new subsection 580(4). The note would also refer the reader to subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act. The reversal of the burden of proof is justified in this instance as the matter to be proved (that is, that the use or disclosure of protected information was made in good faith in the purported performance of functions or duties, or the purported exercise of powers, under the Biosecurity Act, or in assisting another person in the purported performance of such functions or duties or the purported exercise of such powers) is a matter that would be peculiarly in the knowledge of the defendant. In the event of criminal or civil proceedings, it would be significantly more difficult and costly for the prosecution to prove that the defendant did not use or disclose the information in good faith in such purported circumstances than it would be for a defendant to establish, on the balance of probabilities, that they did so. Consequently, in order to effectively protect information under new section 580, it is reasonable, necessary and proportionate to reverse the evidential burden of proof in this limited situation.

 

243.     New subsection 580(5) would have the effect that a person who contravenes new subsection 580(1), in circumstances where the exceptions in new subsections 580(3) and (4) do not apply, would be committing a fault-based offence. The maximum penalty for the fault-based offence would be 2 years imprisonment or 120 penalty units, or both.

 

244.     The proposed maximum penalty is consistent with the standard fine to imprisonment ratio in the Guide. This maximum penalty has been set at a level that recognises the significant harm that can occur as a result of unauthorised uses or disclosure of protected information. For the regulatory regime under the Biosecurity Act to be effective, there must be confidence from industry and the general public, that protected information obtained and generated under the Biosecurity Act, will be handled appropriately. The maximum penalty of 2 years imprisonment or 120 penalty units, or both, would also be consistent with other penalties under the Biosecurity Act, including in subsection 636(2) for hindering or preventing the performance of functions or duties, or exercise of powers, under the Biosecurity Act.

 

245.     In sentencing an offender and determining the level of penalty to impose, a court has regard to a number of factors, including the facts and circumstances of the case; the nature and significance of the offending conduct; and any previous history of non-compliance. The criminal penalty in new subsection 580(5) is intended to reinforce the retributive effect of the current penalty regime while allowing a court greater capacity to respond meaningfully and proportionately to particularly egregious offending which falls on the higher end of objective seriousness. A court would still have the discretion to impose a lesser penalty for offending which falls on the lower end of objective seriousness.

 

246.     New subsection 580(6) would have the effect that a person who contravenes new subsection 580(1), in circumstances where the exceptions in new subsections 580(3) and (4) do not apply, would be committing an offence of strict liability. The maximum penalty for the strict liability offence would be 60 penalty units.

 

247.     Strict liability is proposed for this offence having regard to the principles outlined in the Guide. Consistent with the Guide, strict liability is appropriate in these circumstances as:

 

·        The offence in new subsection 580(6) is not punishable by imprisonment;

 

·        The offence in new subsection 580(6) is subject to a maximum penalty of 60 penalty units for an individual;

 

·        The actions which trigger the offence in new subsection 580(6) are simple, readily understood and easily defended. The offence is triggered if certain persons who obtained or generated protected information in the course of, or for the purposes of, performing functions or duties, or exercising powers, under the Biosecurity Act (or assisting another person to perform such functions or duties, or exercise such powers), uses or discloses protected information, and the use or disclosure is not required or authorised by a Commonwealth law or a prescribed State or Territory law (and where the good faith exception in new subsection 580(4) does not apply);

 

·        Offences relating to the unauthorised use or disclosure of protected information need to be dealt with efficiently to ensure industry and community confidence in the regulatory regime, and to reduce the risk of the potentially damaging consequences of unauthorised use or disclosure of protected information;

 

·        The offence in new subsection 580(6) would be subject to an infringement notice (see new table item 45A in subsection 523(1), as proposed by item 13 of this Schedule);

 

·        The absence of strict liability may adversely affect the capacity to prosecute offenders. Whether or not a defendant intentionally, recklessly or negligently used or disclosed protected information without a relevant authorisation is generally a matter that is peculiarly within the knowledge of the defendant alone. Proving the contrary beyond reasonable doubt may require significant and difficult to obtain indirect and circumstantial evidence;

 

·        The use of protected information plays an important role in ensuring that the Biosecurity Act remains an effective and efficient mechanism to both manage biosecurity risks to Australia while facilitating trade and to implement Australia’s obligations under the relevant international treaties. If protected information is used or disclosed without authorisation it may deter other persons from providing such information to the Commonwealth in the future;

 

·        The persons affected by the offence would be entrusted persons, other persons who are employed or engaged by the Commonwealth or a body corporate that is established by a law of the Commonwealth, or other persons who perform certain functions or duties, or exercise certain powers, under the Biosecurity Act. By virtue of their roles and responsibilities, these persons would have been placed on notice to guard against the possibility of contravention, which is likely to significantly enhance the effectiveness of the enforcement regime in deterring the conduct in question.

 

248.     The defence of honest and reasonable mistake of fact is available for strict liability offences (see sections 6.1 and 9.2 of Schedule 1 to the Criminal Code) and the existence of strict liability does not make any other defence unavailable (see subsection 6.1(3) of Schedule 1 to the Criminal Code). For the above reasons, it is appropriate for strict liability to be imposed for the offence under new subsection 580(6).

 

249.     New subsection 580(7) would have the effect of establishing a corresponding civil penalty provision. A person would be liable to a civil penalty if they contravene new subsection 580(1), in circumstances where the exceptions in new subsections 580(3) and (4) do not apply. The maximum civil penalty would be 120 penalty units.

 

250.     The proposed maximum civil penalty is intended to deter unauthorised uses or disclosures of protected information, and to be proportionate to the likely harm that may result. In particular, the unauthorised use or disclosure of protected information can undermine confidence in the integrity of the biosecurity management regime, posing threats to Australia’s trading reputation, animal or plant life or human health and the environment. The maximum civil penalty of 120 penalty units would also be consistent with other penalties under the Biosecurity Act, including in subsection 636(3) for hindering or preventing the performance of functions or duties, or exercise of powers, under the Biosecurity Act.

 

251.     The proposed combination of a fault-based offence, strict liability offence and civil penalty provision would provide an adequate deterrent for persons who use or disclose protected information without authorisation, which has the potential to cause harm. It is also appropriate to include both civil and criminal penalties in order to provide flexibility for the Commonwealth to enforce any contravention of new subsection 580(1) appropriately without always needing to pursue criminal penalties (noting that conviction for a criminal offence carries with it a range of consequences beyond the immediate penalty). It is expected that criminal proceedings would be brought for conduct that contravenes new subsection 580(1) that is at the more serious end of the spectrum or that involves a higher degree of malfeasance.

 

252.     It is not intended that persons would be punished twice for contravention of new subsection 580(1). This is because under subsection 520(1) of the Biosecurity Act, a court may not make a civil penalty order against a person for a contravention of a civil penalty provision in the Biosecurity Act if that person has been convicted of an offence under an Australian law that is constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention.

 

Item 19      Before section 581

 

253.     This item would insert the heading “Subdivision B—Other matters” before section 581.

 

Item 20      Section 581 (heading)

 

254.     This item would amend the heading of section 581 by omitting the words “Use in accordance with section 580 does not contravene laws” and substituting the words “Protection from liability”. This would be consequential to the amendments proposed by items 21 to 26 of this Schedule.

 

Item 21      Subsection 581(1) (heading)

 

255.     This item would amend the heading of subsection 581(1) by inserting the words “or disclosure” after the word “use”. This would be consequential to the amendments to subsection 581(1), proposed by item 22 of this Schedule.

 

Item 22      Subsection 581(1)

 

256.     Existing subsection 581(1) of the Biosecurity Act provides that subject to subsection 581(2), a person does not commit an offence, and is not liable to any penalty, under any other enactment of the Commonwealth, or any enactment of a State or Territory, as a result of the person making a record of, or disclosing or using, information in accordance with existing section 580.

 

257.     This item would amend subsection 581(1) by omitting the words “making a record of, or disclosing or using, information in accordance with section 580” and substituting the words “using or disclosing relevant information in accordance with section 582 or 590G”. This would have the effect that subject to subsection 581(2) of the Biosecurity Act, a person does not commit an offence, and is not liable to any penalty, under any enactment of the Commonwealth, or any enactment of a State or Territory, as a result of the person using or disclosing relevant information in accordance with new section 582 or 590G.

 

258.     New section 582 would replace existing section 580 of the Biosecurity Act (insofar as both provisions authorise the use or disclosure of information for purposes relating to the performance of a person’s functions or duties, or exercise of a person’s powers, under the Biosecurity Act), so the updated reference would be consequential to the amendments proposed by item 27 of this Schedule.

 

259.     New section 590G would be an additional authorisation for the use or disclosure of information to manage severe and immediate threats to human health, animal or plant health or the environment, where such threats have the potential to cause harm on a nationally significant scale. The reference to new section 590G in amended subsection 581(1) would ensure that, in the limited circumstances in which the Director of Biosecurity or the Director of Human Biosecurity is able to use this authorisation to respond to such threats, they are able to do so without committing an offence or being liable to a penalty under another Commonwealth, State or Territory law.

 

260.     The words “making a record” have been removed from subsection 581(1), as the intention is that a person who makes a record of relevant information is also using the information.

 

Item 23      Subsection 581(3) (heading)

 

261.     This item would amend the heading of subsection 581(3) by inserting the words “or disclosure” after the word “use”. This would be consequential to the amendments to subsection 581(3), proposed by item 24 of this Schedule.

 

Item 24      Subsection 581(3)

 

262.     Existing subsection 581(3) of the Biosecurity Act provides that a person is not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of the person making a record of, or disclosing or using, information in accordance with existing section 580.

 

263.     This item would amend subsection 581(3) by omitting the words “making a record of, or disclosing or using, information in accordance with section 580” and substituting the words “using or disclosing relevant information in accordance with Division 3”. This would have the effect that a person would not be liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of the person using or disclosing relevant information in accordance with the authorisations in new Division 3 of Part 2 of Chapter 11. This would be consequential to the amendments proposed by item 27 of this Schedule.

 

264.     The words “making a record” have been removed from subsection 581(3), as the intention is that a person who makes a record of relevant information is also using the information.

 

Item 25      Subsection 581(4) (heading)

 

265.     This item would amend the heading of subsection 581(4) by inserting the words “or disclosure” after the word “use”. This would be consequential to the amendments to subsection 581(4), proposed by item 26 of this Schedule.

 

Item 26      Subsection 581(4)

 

266.     Existing subsection 581(4) of the Biosecurity Act provides that a person does not contravene medical standards, or any other relevant professional standards, as a result of the person making a record of, or disclosing or using, information in accordance with existing section 580.

 

267.     This item would amend subsection 581(4) by omitting the words “making a record of, or disclosing or using, information in accordance with section 580” and substituting the words “using or disclosing relevant information in accordance with Division 3”. This would have the effect that a person would not contravene medical standards, or any other relevant professional standards, as a result of the person using or disclosing relevant information in accordance with the authorisations in new Division 3 of Part 2 of Chapter 11. This would be consequential to the amendments proposed by item 27 of this Schedule.

 

268.     The words “making a record” have been removed from subsection 581(4), as the intention is that a person who makes a record of relevant information is also using the information.

 

Item 27      Sections 582 to 590

 

269.     Existing sections 582 to 590 of the Biosecurity Act provide for a number of provisions in relation to the use or disclosure of certain information. This item repeals existing sections 582 to 590 of the Biosecurity Act, as these provisions are no longer required under the new framework for information management proposed by this Schedule. In particular, existing sections 582 to 584 set out specific authorisations, which are proposed to be replaced by new authorisations in new sections 582 to 590H (discussed below). Existing sections 585 to 589 provide for an offence provision and related exceptions, which are proposed to be replaced by new section 580 (see item 18 of this Schedule).

 

270.     Existing section 590 requires the preparation of an annual report on the use of protected information (as defined in the existing Biosecurity Act) by the Commonwealth. As the new definition of protected information (as proposed by item 7 of this Schedule) would only be used in the civil penalty and offence provisions in new section 580, the reporting of such protected information would no longer be useful in this context. This is because, under new section 580, there are only two possible outcomes relating to the use of protected information. That is, either:

 

·        The person did not contravene new subsection 580(1), as the use of the protected information was required or authorised by a Commonwealth law or a prescribed State or Territory law (new subsection 580(3)), or the good faith exception in new subsection 580(4) applied; or

·        The person contravened new subsection 580(1), as both new subsections 580(3) and (4) did not apply, and therefore, the person was liable to the civil penalty and offence provisions.

 

271.     This item also substitutes new Division 3 of Part 2 of Chapter 11 which deals with authorised uses and disclosures of relevant information. New Division 3 of Part 2 of Chapter 11 of the Biosecurity Act would set out a number of statutory authorisations for the use and disclosure of relevant information. The authorisations are reasonable, necessary and proportionate because they are generally directed at the performance of functions or duties, or the exercise of powers under Commonwealth laws (including the Biosecurity Act), the management of risks to human health or risks posed by diseases or pests to a State or Territory, the administration or enforcement of Australian laws, compliance with Australia’s international obligations or are matters of public interest with a high threshold that must be met in order to rely on them (such as being necessary to manage a severe and immediate threat that has the potential to cause harm on a nationally significant scale).

 

272.     Each provision in new Division 3 of Part 2 of Chapter 11 is intended to constitute an authorisation for the purposes of the Privacy Act, such as Australian Privacy Principle 6.2 (see Schedule 1 to the Privacy Act) and other relevant laws including common law and equitable protections for confidentiality (including the limitations set out by the High Court’s decision in Johns v Australian Securities Commission (1993) 178 CLR 408). This is because the relevant provisions in new Division 3 of Part 2 of Chapter 11 will authorise the use or disclosure of the information by or under an Australian law. The authorisations in new Division 3 of Part 2 of Chapter 11 do not impose an obligation on a person to use or disclose relevant information. Rather, the intention is that the authorisations would be facilitative in nature, by allowing information to be used or disclosed, where appropriate in the circumstances of each case.

 

273.     The policy intention is that if more than one authorisation in new Division 3 of Part 2 of Chapter 11 is available for the use or disclosure of relevant information, then a person will be able to rely upon any of those available authorisations. It is intended that the authorisations proposed by this Schedule would not limit each other.

 

Subdivision A – Authorised uses and disclosures by entrusted person or other persons

 

Section 582 – Use or disclosure for the purposes of this Act

 

274.     New subsection 582(1) would authorise the use or disclosure of relevant information by an entrusted person or person covered by subsection 582(2), in the course of, or for the purposes of, performing functions or duties, or exercising powers under the Biosecurity Act, or assisting another person to perform such functions or duties or exercise such powers.

 

275.     New subsection 582(2) would cover the following persons:

 

·        A person employed or engaged by the Commonwealth or a body corporate that is established by a law of the Commonwealth;

·        A biosecurity official (which is defined in section 9 of the Biosecurity Act to mean a biosecurity officer, a biosecurity enforcement officer, and the Director of Biosecurity);

·        A chief human biosecurity officer (which is defined in section 9, in relation to a State or Territory, to mean a person who is authorised under section 562 of the Biosecurity Act to be a chief human biosecurity officer for the State or Territory);

·        A human biosecurity officer (which is defined in section 9 to mean a person who is authorised under section 563 of the Biosecurity Act to be a human biosecurity officer);

·        A biosecurity industry participant (which, under sections 9 and 14, means the holder of the approval of an approved arrangement) or an officer or employee of a biosecurity industry participant;

·        A survey authority (which is defined in section 9 to mean a person authorised by the Director of Biosecurity under section 290A of the Biosecurity Act) or an officer or employee of a survey authority;

·        A person who has carried out, or is carrying out, an audit under section 436 of the Biosecurity Act;

·        An issuing officer (which is defined in section 9 to mean a magistrate, a judge of a State or Territory court, or a judge of the Federal Court or the Federal Circuit Court and Family Court of Australia (Division 2)).

 

276.     An entrusted person would be defined in section 9 (as inserted by item 5 of this Schedule), and would include the Agriculture Minister, the Health Minister as well as certain officers and employees of the Agriculture Department or Health Department.

 

277.     It is appropriate that the authorisation in new section 582 allows the use or disclosure of information in the course of, or for the purposes of, performing functions or duties or exercising powers under the Biosecurity Act, or assisting another person to perform such functions or duties or exercise such powers. This is because the proper, effective and efficient performance of functions or duties, or the exercise of powers, under the Biosecurity Act will often involve the use or disclosure of relevant information. As such, this authorisation is necessary to ensure that entrusted persons, and persons identified in new subsection 582(2), who are required to use or disclose relevant information in the course of performing their functions or duties, or exercising their powers, under the Biosecurity Act (or in assisting another person with such functions, duties or powers), can do so without contravening the proposed civil penalty and offence provisions in new section 580 (see item 18 of this Schedule) or being subject to other statutory or common law restrictions that would prevent them from performing their roles or carrying out their responsibilities effectively.

 

278.     It is intended that the reference in new subsection 582(1) to assisting another person to perform functions or duties, or exercise powers, under the Biosecurity Act would take its ordinary meaning. It is not intended to be linked to the separate definition of person assisting which is defined in section 536 of the Biosecurity Act.

 

279.     As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 582 is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. However, such an authorisation will not be subdelegable by the SES employee, or an acting SES employee, to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see item 14 of this Schedule). This is because such persons will already be able to rely upon the authorisation in new section 582 in their own capacity, and therefore the subdelegation of the authorisation is not considered to be necessary.

 

Section 583 – Use or disclosure for purposes of managing human health risks

 

280.     New subsection 583(1) would authorise the use or disclosure of relevant information by an entrusted person or person covered by subsection 583(2) for the purposes of managing one or more of the following:

 

·        A risk covered by subsection 583(3);

·        The risk of contagion of a listed human disease;

·        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;

·        Human biosecurity emergencies.

 

281.     New subsection 583(2) would cover the following persons:

 

·        A person employed or engaged by the Commonwealth or a body corporate that is established by a law of the Commonwealth;

·        A biosecurity official (which is defined in section 9 of the Biosecurity Act to mean a biosecurity officer, a biosecurity enforcement officer, and the Director of Biosecurity);

·        A chief human biosecurity officer (which is defined in section 9, in relation to a State or Territory, to mean a person who is authorised under section 562 of the Biosecurity Act to be a chief human biosecurity officer for the State or Territory);

·        A human biosecurity officer (which is defined in section 9 to mean a person who is authorised under section 563 of the Biosecurity Act to be a human biosecurity officer);

·        A biosecurity industry participant (which, under sections 9 and 14, means the holder of the approval of an approved arrangement) or an officer or employee of a biosecurity industry participant.

 

282.     New subsection 583(3) would cover the following risks:

 

·        The likelihood of a disease or pest:

o   entering Australian territory or a part of Australian territory; or

o   emerging, establishing itself or spreading in Australian territory or a part of Australian territory; and

·        The potential for the disease to cause serious harm to human health.

 

283.     The purpose of this provision is to enable relevant information to be disclosed for managing human health risks, the risks associated with listed human diseases and human biosecurity emergencies. Under section 42 of the Biosecurity Act, the Director of Human Biosecurity may determine that a human disease is a listed human disease if the Director of Human Biosecurity considers that it may be communicable and cause significant harm to human health. Under section 9, a human biosecurity emergency means a human biosecurity emergency that is declared to exist under subsection 475(1) of the Biosecurity Act.

 

284.     For example, if there is the likelihood of a new human viral disease entering Australian territory or a part of Australian territory, and the potential for the disease to cause serious harm to human health, then new section 583 would allow an entrusted person to use or disclose relevant information for the purposes of managing that risk. In addition, if a particular disease has been determined to be a listed human disease under section 42 of the Biosecurity Act, then new section 583 would also allow an entrusted person to disclose relevant information for the purposes of managing the risk of contagion of that disease.

 

285.     As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 583 is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. However, such an authorisation will not be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see item 14 of this Schedule). This is because such persons will already be able to rely upon the authorisation in new section 583 in their own capacity, and therefore the subdelegation of the authorisation is not considered to be necessary.

 

Section 584 – Disclosure for the purposes of a State or Territory managing risks

 

286.     New subsection 584(1) would authorise the disclosure of relevant information by an entrusted person to a State or Territory body if the disclosure is for the purpose of assisting the State or Territory body to perform its functions or duties, or to exercise its powers, in relation to managing certain risks for the State or Territory as set out in new subsection 584(2).

 

287.     New subsection 584(2) would cover the following risks for a State or Territory:

 

·        The likelihood of a disease or pest:

o   entering the State or Territory or a part of the State or Territory; or

o   emerging, establishing itself or spreading in the State or Territory or a part of the State or Territory; and

·        The potential for any of the following:

o   the disease or pest to cause serious harm to human, animal or plant health in that State or Territory;

o   the disease or pest to cause serious harm to the environment in that State or Territory;

o   serious economic consequences in that State or Territory associated with the entry, emergence, establishment or spread of the disease or pest.

 

288.     The purpose of this provision is to enable relevant information to be disclosed to a State or Territory body where it is necessary to do so in order to assist in the management of certain risks by the State or Territory. A State or Territory body would be defined in section 9 of the Biosecurity Act as a Department of State, or an agency or authority of a State or Territory (see amendments proposed by item 9 of this Schedule).

 

289.     For example, if there is the likelihood of African Swine Fever entering a State or Territory, and the potential for the disease to cause serious harm to the health of animals in that State or Territory, then new section 584 would allow an entrusted person to disclose relevant information to a State or Territory body, if the particular information would assist in the performance of functions or duties or the exercise of powers by that State or Territory body to manage the risk. Another example is if there is the likelihood of a novel strain of pandemic influenza entering a State or Territory which has the potential to cause serious harm to human health in that State or Territory, an entrusted person could disclose relevant information to a State or Territory body for the purposes of assisting that body to perform its functions or duties, or exercise its powers, in relation to managing that risk.

 

290.     As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 584 is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. However, such an authorisation will not be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see item 14 of this Schedule). This is because employees of the Agriculture Department will already be able to rely upon the authorisation in new section 584 in their own capacity as entrusted persons, and because it is not considered appropriate for biosecurity officers and biosecurity enforcement officers (who are not entrusted persons) to rely upon this authorisation (see item 5 of this Schedule).

 

Section 585 – Disclosure for the purposes of foreign governments etc. managing risks.

 

291.     New subsection 585(1) would authorise the disclosure of relevant information by an entrusted person to a foreign government, an authority or agency of a foreign government, or an international body of an intergovernmental character for the purposes of the government, authority, agency or body managing a risk covered by new subsection 585(2) or giving effect to Australia’s international obligations.

 

292.     New subsection 585(2) would cover the following risks:

 

·        The likelihood of a disease or pest:

o   entering a foreign country or a part of a foreign country; or

o   emerging, establishing itself or spreading in a foreign country or a part of a foreign country; and

·        The potential for any of the following:

o   the disease or pest to cause harm to human, animal or plant health in that foreign country;

o   the disease or pest to cause harm to the environment in that foreign country;

o   economic consequences in that foreign country associated with the entry, emergence, establishment or spread of the disease or pest.

 

293.     The authorisation in new section 585 is intended to allow for the disclosure of relevant information to foreign countries for the purposes of managing certain risks posed by diseases or pests to the foreign country. In addition, Australia’s international obligations may also require the reporting of certain information to foreign countries or international bodies of an intergovernmental character (such as a Conference of the Parties, working group for a Convention or the World Health Organization) in relation to certain risks posed by diseases or pests.

 

294.     For example, if there is the likelihood of African Swine Fever entering a foreign country, and the potential for the disease to cause serious harm to the health of animals in that foreign country, then new section 585 would allow an entrusted person to disclose relevant information to a foreign government, authority or agency, or an international body of an intergovernmental character, if the particular information would assist that government, authority or agency, or international body to manage the risk.

 

295.     As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 585 is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. However, such an authorisation will not be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see item 14 of this Schedule). This is because employees of the Agriculture Department will already be able to rely upon the authorisation in new section 585 in their own capacity as entrusted persons, and because it is not considered appropriate for biosecurity officers and biosecurity enforcement officers (who are not entrusted persons) to rely upon this authorisation (see item 5 of this Schedule).

 

Section 586 – Use or disclosure for the purposes of certain Acts

 

296.     New section 586 would authorise the use or disclosure of relevant information by an entrusted person for the purposes of the administration of the Biosecurity Act or another Act that is administered by the Agriculture Minister or the Health Minister. For example, an entrusted person would be able to use or disclose relevant information for the purposes of administering:

 

·        The Export Control Act 2020, being another Act that is currently administered by the Agriculture Minister;

·        The National Health Security Act 2007, being another Act that is currently administered by the Health Minister.

 

297.     New section 586 would help ensure effective and efficient administration of other relevant legislation in the Agriculture Minister’s or the Health Minister’s portfolios. The authorisation in new section 586 would be restricted to entrusted persons, as it is not considered appropriate for persons who are not employed or engaged by the Commonwealth or a body corporate established by a law of the Commonwealth to be able to use or disclose relevant information for such purposes.

 

298.     As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 586 is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. However, such an authorisation will not be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see item 14 of this Schedule). This is because employees of the Agriculture Department will already be able to rely upon the authorisation in new section 586 in their own capacity as entrusted persons, and because it is not considered appropriate for biosecurity officers and biosecurity enforcement officers (who are not entrusted persons) to rely upon this authorisation (see item 5 of this Schedule).

 

Section 587 – Disclosure to a Commonwealth entity

 

299.     New section 587 would authorise the disclosure of relevant information by an entrusted person to a Commonwealth entity if the disclosure is for the purposes of assisting the entity to perform its functions or duties or exercise its powers.

 

300.     A Commonwealth entity would be defined in section 9 of the Biosecurity Act as having the same meaning as in the PGPA Act (see amendments proposed by item 5 of this Schedule). At the time of introduction of this Bill, Commonwealth entity was defined in the PGPA Act as a Department of State, a Parliamentary Department, a listed entity, a body corporate established by a Commonwealth law or certain body corporates prescribed to be a Commonwealth entity.

 

301.     For example, as the Department of Home Affairs is a Commonwealth entity, new section 587 would allow an entrusted person to disclose relevant information to the Department of Home Affairs if the disclosure of the particular information would assist in the performance of functions or duties or the exercise of powers under that portfolio, such as under the Customs Act 1901.

 

302.     As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 587 is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. However, such an authorisation will not be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see item 14 of this Schedule). This is because employees of the Agriculture Department will already be able to rely upon the authorisation in new section 587 in their own capacity as entrusted persons, and because it is not considered appropriate for biosecurity officers and biosecurity enforcement officers (who are not entrusted persons) to rely upon this authorisation (see item 5 of this Schedule).

 

Section 588 – Disclosure to a court, tribunal etc.

 

303.     New subsection 588(1) would authorise the disclosure of relevant information by an entrusted person to a court exercising federal jurisdiction.

 

304.     New subsection 588(2) would authorise the disclosure of relevant information by an entrusted person to a court or a tribunal, authority or person that has the power to require the answering of questions or the production of documents, in certain circumstances. Such circumstances would be where the disclosure is for the purposes of the enforcement of a law of the Commonwealth or to assist the court, tribunal, authority or person to make or review an administrative decision that is required or authorised to be made under a law of the Commonwealth.

 

305.     This provision is not intended to impose a standalone obligation on an entrusted person to disclose relevant information to a court, or to a tribunal, authority or another person. Rather, the intention of new section 588 is to ensure that if an entrusted person is required to provide relevant information to a court, or to a tribunal, authority or person with the power to require such information, then the entrusted person would not be contravening a civil penalty or committing an offence under new section 580 (see item 18 of this Schedule) in doing so.

 

306.     As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 588 is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. However, such an authorisation will not be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see item 14 of this Schedule). This is because employees of the Agriculture Department will already be able to rely upon the authorisation in new section 588 in their own capacity as entrusted persons, and because it is not considered appropriate for biosecurity officers and biosecurity enforcement officers (who are not entrusted persons) to rely upon this authorisation (see item 5 of this Schedule).

 

Section 589 – Disclosure for the purposes of law enforcement

 

307.     New subsection 589(1) would authorise the disclosure of relevant information by an entrusted person to a body mentioned in new subsection 589(2) in certain circumstances. A body mentioned in new subsection 589(2) would be a Commonwealth entity, a State or Territory body, the Australian Federal Police or the police force or police service of a State or Territory.

 

308.     The circumstances in which new subsection 589(1) would authorise the disclosure of relevant information would be where:

 

·        The entrusted person reasonably believes the disclosure is necessary for the enforcement of the criminal law or a law imposing a pecuniary penalty (such as a civil penalty provision), or for the protection of the public revenue; and

 

·        The functions of the relevant body include that enforcement or protection; and

 

·        For a State or Territory body, or the police force or police service of a State or Territory – the relevant body has undertaken not to use or further disclose the information except in accordance with a relevant agreement that is in force between the Commonwealth and the State or Territory, and that the agreement applies in relation to the information; and

 

·        For a State or Territory body, or the police force or police service of a State or Territory – the entrusted person is satisfied that the information will only be used or further disclosed in accordance with the agreement.

 

309.     It is appropriate that relevant information be able to be disclosed to such law enforcement bodies in these circumstances. This is because the authorisation in new section 589 involves a matter of public interest, being the enforcement of Australian laws. A State or Territory body would be defined in section 9 of the Biosecurity Act as a Department of State, or an agency or authority of a State or Territory (see amendments proposed by item 9 of this Schedule).

 

310.     As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 589 is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. However, such an authorisation will not be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see item 14 of this Schedule). This is because employees of the Agriculture Department will already be able to rely upon the authorisation in new section 589 in their own capacity as entrusted persons, and because it is not considered appropriate for biosecurity officers and biosecurity enforcement officers (who are not entrusted persons) to rely upon this authorisation (see item 5 of this Schedule).

 

Section 590 – Use or disclosure for research, policy development or data analysis

 

311.     New subsection 590(1) would authorise an entrusted person to use relevant information, disclose relevant information to an entrusted person, or disclose relevant information to another person or body for certain purposes. Such purposes would be for the person or body to undertake research, policy development or data analysis to assist the Agriculture Department or Health Department with the administration of the Biosecurity Act.

 

312.     For example, this authorisation would allow an entrusted person (such as the Agriculture Secretary) to engage a person or body to undertake research, policy development or data analysis to assist the Agriculture Department in administering the Biosecurity Act. It would also allow another entrusted person (such as a person engaged or employed by the Agriculture Department) to contribute to such research, policy development or data analysis.

 

313.     However, new subsection 590(2) would provide that an entrusted person would not be authorised to disclose relevant information under new paragraph 590(1)(c) to another person (who is not employed or engaged by the Commonwealth or a body corporate that is established by a law of the Commonwealth) or body (that is not a Commonwealth entity) unless:

 

·        The other person or body has undertaken not to use or further disclose the information except in accordance with an agreement that is in force between the Commonwealth and that person or body, and that agreement applies to the information; and

·        The entrusted person is satisfied that the information will be used or further disclosed only in accordance with the agreement.

 

314.     New subsection 590(3) would further provide that an entrusted person is not authorised to disclose relevant information under new paragraph 590(1)(c) unless the entrusted person is satisfied that:

 

·        In the case of research, policy development or data analysis that could not proceed if personal information were de-identified before the relevant information is disclosed—only the minimum amount of personal information necessary to proceed is disclosed; or

·        Otherwise—all reasonable steps have been taken to de-identify any personal information before the relevant information is disclosed.

 

315.     The restrictions in new subsections 590(2) and (3) would assist in ensuring that appropriate protections are in place for relevant information that is disclosed to another person or body under new paragraph 590(1)(c), so as to reduce the risk that it is misused.

 

316.     As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 590 is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. However, such an authorisation will not be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see item 14 of this Schedule). This is because employees of the Agriculture Department will already be able to rely upon the authorisation in new section 590 in their own capacity as entrusted persons, and because it is not considered appropriate for biosecurity officers and biosecurity enforcement officers (who are not entrusted persons) to rely upon this authorisation (see item 5 of this Schedule).

 

Section 590A – Use or disclosure of statistics

 

317.     New section 590A would authorise the use or disclosure of relevant information by an entrusted person if the information is statistics that are not likely to enable the identification of a person.

 

318.     This authorisation recognises that the disclosure of statistics that contain no identifying information are unlikely to cause harm to any person.

 

319.     As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 590A is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. Such an authorisation will also be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see subsection 542(2) of the Biosecurity Act).

 

Section 590B – Use or disclosure of publicly available information

 

320.     New section 590B would authorise the use or disclosure of relevant information by an entrusted person if the information has already been lawfully made available to the public.

 

321.     This authorisation recognises that there is no justifiable reason to prevent the disclosure of information that is lawfully publicly available and therefore already accessible.

 

322.     As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 590B is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. Such an authorisation will also be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see subsection 542(2) of the Biosecurity Act).

 

Section 590C – Disclosure to person to whom information relates

 

323.     New section 590C would authorise the disclosure of relevant information by an entrusted person to the person to whom the information relates.

 

324.     This authorisation recognises that the interests of the person to whom relevant information relates will not be adversely affected by disclosure of the information to themselves.

 

325.     As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 590C is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. Such an authorisation will also be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see subsection 542(2) of the Biosecurity Act).

 

Section 590D – Use or disclosure with consent

 

326.     New section 590D would authorise the use or disclosure of relevant information by an entrusted person if the person to whom the information relates has consented to the use or disclosure, and where the use or disclosure is in accordance with the consent provided.

 

327.     This authorisation recognises that there is no justifiable reason to prevent the use or disclosure of information where the person concerned consents to the use or disclosure. It is intended that consent would include express consent or implied consent, consistent with the Privacy Act.

 

328.     As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 590D is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. Such an authorisation will also be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see subsection 542(2) of the Biosecurity Act).

 

Section 590E – Disclosure to person who provided information

 

329.     New section 590E would authorise the disclosure of relevant information by an entrusted person to the person who provided the information.

 

330.     This authorisation recognises that there is no justifiable reason to prevent the disclosure of information to the person who provided it in the first place, as that person will have already seen the information.

 

331.     As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 590E is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. Such an authorisation will also be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see subsection 542(2) of the Biosecurity Act).

 

Subdivision B—Authorised uses and disclosures by Director of Biosecurity or Director of Human Biosecurity

 

Section 590F – Disclosure to State or Territory body

 

332.     New section 590F would authorise the disclosure of relevant information by the Director of Biosecurity or the Director of Human Biosecurity to a State or Territory body if:

 

·        That Director reasonably believes the disclosure is necessary for the purposes of the administration of a State or Territory law; and

·        The relevant State or Territory body has given an undertaking not to use or further disclose that information except in accordance with a relevant agreement that is in force between the Commonwealth and the State or Territory, and the agreement applies in relation to the information; and

·        That Director is satisfied that the information will only be used or further disclosed in accordance with the agreement.

 

333.     The purpose of the authorisation in new section 590F is to enable relevant information to be disclosed to a State or Territory body where it is necessary to do so for the purposes of administering State or Territory laws. A State or Territory body would be defined in section 9 of the Biosecurity Act as a Department of State, or an agency or authority of a State or Territory (see amendments proposed by item 9 of this Schedule). As this authorisation would relate to the broader purposes of administering State or Territory laws, which may not necessarily be limited to biosecurity purposes, it is necessary for an agreement to be in place between the Commonwealth and the relevant State or Territory body to ensure the terms of the information sharing arrangement are clear, including the purposes for which the information may be used or further disclosed.

 

334.     As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 590F is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. Such an authorisation will also be subdelegable by the SES employee, or an acting SES employee to a biosecurity officer, biosecurity enforcement officer or a person who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position in the Agriculture Department (see subsection 542(2) of the Biosecurity Act).

 

Section 590G – Use or disclosure to manage severe and immediate threats

 

335.     New section 590G would authorise the use or disclosure of relevant information by the Director of Biosecurity or the Director of Human Biosecurity, if that Director reasonably believes that using or disclosing the information is necessary to manage a severe and immediate threat to human health, animal or plant health, or the environment, and where the threat has the potential to cause harm on a nationally significant scale. The intention is that such threats are not limited to those that arise from diseases or pests.

 

336.     The purpose of the authorisation in new section 590G is allow relevant information to be used or disclosed by the Director of Biosecurity or the Director of Human Biosecurity where it is necessary to manage a severe and immediate threat that has the potential to cause harm on a nationally significant scale. It is appropriate for this authorisation to be in place as such severe and immediate threats require a rapid response, the management of which would likely require the use or disclosure of relevant information.

 

337.     As a result of subsection 542(1) of the Biosecurity Act, the authorisation in new section 590G is delegable by the Director of Biosecurity to an SES employee, or an acting SES employee, in the Agriculture Department. As a severe and immediate threat that has the potential to cause harm on a nationally significant scale would require effective management in a timely manner, it is appropriate for the authorisation to be delegable to senior officials of the Agriculture Department, who may have responsibility for and direct oversight of the threat. However, this function or power would not be subdelegable by the SES employee, or an acting SES employee (see item 14 of this Schedule). This is because the authorisation involves a matter of public interest with a high bar to satisfy (i.e. the threat must be severe and immediate, on a nationally significant scale and there must be a reasonable belief that the disclosure is necessary to manage the risk) and is likely to only be applicable in exceptional circumstances.

 

Subdivision C—Authorised uses and disclosures under regulations

 

Section 590H – Use or disclosure authorised by regulations

 

338.     New subsection 590H(1) would authorise the use of relevant information by a person if:

 

·        That person is included in a class of persons prescribed by regulations made for the purposes of new paragraph 590H(1)(a); and

·        The use is for a purpose prescribed by regulations made for the purposes of new paragraph 590H(1)(b); and

·        The information is of a kind prescribed by regulations made for the purposes of new paragraph 590H(1)(c); and

·        The use complies with any conditions, prescribed by regulations made for the purposes of new paragraph 590H(1)(d).

 

339.     New subsection 590H(2) would authorise the disclosure of relevant information by a person if:

 

·        That person is included in a class of persons prescribed by regulations made for the purposes of new paragraph 590H(2)(a); and

·        The disclosure is for a purpose prescribed by regulations made for the purposes of new paragraph 590H(2)(b); and

·        The information is of a kind prescribed by regulations made for the purposes of new paragraph 590H(2)(c); and

·        The disclosure complies with any conditions, prescribed by regulations made for the purposes of new paragraph 590H(2)(d).

 

340.     New subsection 590H(3) would provide that the regulations made for the purposes of new section 590H must specify the legislative power or powers of the Parliament in respect of which the regulations are made. This will ensure that any new authorisations for the use or disclosure of relevant information will draw upon the necessary constitutional heads of power.

 

341.     New subsection 590H(4) would provide that new Subdivisions A and B of Division 3 of Part 2 of Chapter 11 of the Biosecurity Act do not limit regulations for the purposes of new section 590H. The intention is that the regulations under new section 590H may, for example, prescribe the use or disclosure of relevant information for a purpose that is the same as another authorisation in Subdivisions A and B, but in relation to a different class of persons. Another situation would be where the regulations under new section 590H may prescribe additional authorisations for a class of persons that are otherwise identified in Subdivisions A and B.

 

342.     The authorisation in new section 590H is necessary to allow the regulations to prescribe the use or disclosure of relevant information in other circumstances which may arise in the future, and which may require expedient authorisation to effectively manage biosecurity risks or other risks. For example, a situation may arise in the future where a new partnership is formed between the Commonwealth, industry bodies and local community groups to assess the impacts of climate change, and relevant information about certain diseases or pests is required to assess those impacts, but no other authorisation for the use or disclosure of that information under the Biosecurity Act is available or considered to be appropriate. In such a case, it may be considered necessary to prescribe regulations under new section 590H to allow for the use or disclosure of relevant information by the partnership in certain circumstances.

 

343.     The regulations under new section 590H would be able to be tailored to particular circumstances, by prescribing the kinds of information that may be used or disclosed, the classes of persons who may use or disclose the information, and the purposes for which the information could be used or disclosed. In addition, the regulations would be able to impose appropriate limitations on the use or disclosure of the information, by requiring certain conditions to be complied with. For example, this may include requiring the person who is using or disclosing the information to ensure the confidentiality of the information or to abide by certain agreements between the Commonwealth and the person in relation to the information.

 

344.     New section 590H would also replace existing subsection 580(3) of the Biosecurity Act, which allows the Director of Biosecurity or the Director of Human Biosecurity to provide additional authorisations for the use or disclosure of certain information on an ad‑hoc basis. Under the new information management framework proposed by this Schedule, it is considered more appropriate for the Governor-General to make regulations to prescribe any additional authorisations under new section 590H, instead of the Director of Biosecurity or the Director of Human Biosecurity providing ad‑hoc authorisations. This would allow greater transparency and parliamentary oversight of any regulations made under new section 590H, noting that they would also be subject to the usual disallowance process outlined in the Legislation Act 2003.

 

Item 28      Application and saving provisions

 

345.     Item 28 of this Schedule would provide the application provisions for the amendments in Schedule 3 to the Bill.

 

346.     Subitem 28(1) would provide that the amendments of the Biosecurity Act made by this Schedule would apply in relation to the use or disclosure of relevant information on or after the commencement of this item, whether the relevant information is obtained or generated before, on or after that commencement. This makes clear that the amendments in this Schedule, which relate to the use or disclosure of relevant information, have prospective application.

 

347.     Subitem 28(2) would provide that, despite the amendments to the Biosecurity Act made by this Schedule, existing sections 580 to 589 of the Biosecurity Act, as in force immediately before the commencement of this item, would continue to apply on and after that commencement in relation to the making of a record, disclosure or use of protected information before that commencement. This makes clear that existing sections 580 to 589 (including the existing offence provision in section 585) would continue to apply in relation to protected information that was recorded, disclosed or used before the commencement of this item. Further details about the repeal of existing sections 580 to 589 are discussed above.

 

348.     Subitem 28(3) would provide that, despite the repeal of existing section 590 of the Biosecurity Act by this Schedule, that section, as in force immediately before the commencement of this item, would continue to apply on and after that commencement in relation to a year ending before that commencement. This makes clear that existing section 590 of the Biosecurity Act (which requires the preparation of an annual report) would continue to apply in relation to use of protected information (as defined in the existing Biosecurity Act) to a year that ends prior to the commencement of this item. Further details about the repeal of existing section 590 are discussed above.

 

 

 

SCHEDULE 4—STRENGTHENING PENALTIES

 

Background

 

349.     Schedule 4 to the Bill would increase the pecuniary penalties that apply to specified criminal offences and civil penalty provisions in the Biosecurity Act, and would also align maximum penalties across key provisions of the Biosecurity Act.

 

350.     The proposed amendments relate to key provisions of the Biosecurity Act that, if not complied with, may significantly undermine the integrity of the biosecurity regulatory framework. Contravention of these provisions has the potential to result in significant adverse effects for Australia’s biosecurity status, and consequential impacts on agricultural, tourism and other industries, plant and animal health, the economy and the environment. Many of the specified provisions apply to regulated entities, such as the person in charge or operator of an aircraft or vessel that arrives in Australian territory, and these individuals and bodies corporate should reasonably be aware of their obligations under the Biosecurity Act.

 

351.     The proposed increases to the maximum penalty amounts listed in the tables in items 1 and 3 are intended to provide for more proportionate and appropriate penalties for contraventions of the Biosecurity Act than the current penalties regime.

 

352.     The increases to the maximum penalty amounts for criminal offences are also intended to reflect the severity of the potential consequences of the offence and would allow for more proportionate and appropriate punishment for contraventions of the Biosecurity Act. The significant biosecurity risk that may be realised as a result of the offending conduct is such that it is appropriate to set a higher maximum penalty to punish non‑compliance. Contraventions of these requirements under the Biosecurity Act poses the threat that diseases or pests may enter, establish or spread in Australian territory and cause serious damage to human, animal or plant health, Australia’s agricultural industries, the economy and the environment.

 

353.     In sentencing an offender and determining the level of penalty to impose for any of the criminal offences listed in items 1 and 3, a court may have regard to a number of factors, including the facts and circumstances of the case; the nature and significance of the offending conduct; and any previous history of non-compliance. Each increased maximum criminal penalty outlined in items 1 and 3 has been considered individually and each increase is intended to reinforce the retributive effect of the current penalty regime under the Biosecurity Act, while allowing a court greater capacity to respond meaningfully and proportionately to the worst contraventions of Australia’s biosecurity laws. A court would still be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied.

 

354.     Where a body corporate is convicted of a criminal offence for a provision that is referred to in item 1, a court may, if the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times the increased penalty amount (see subsection 4B(3) of the Crimes Act 1914).

 

355.     The increases to the maximum civil penalty amounts are intended to deter non‑compliance with the requirements of the Biosecurity Act, and to ensure that the maximum penalties available reflect the gains that individuals and businesses might obtain, or seek to obtain, from engaging in conduct that jeopardises Australia’s biosecurity status. It is important that civil penalties are set at a level that means the penalty is not merely perceived as a cost of doing business. This is particularly the case for bodies corporate. In addition, the increased civil penalties more accurately reflect the seriousness of the contravention and the magnitude of likely harm arising from the wrongdoing.

 

356.     If the person who is liable to a civil penalty that is referred to in item 1 is a body corporate, the maximum penalty must not be more than 5 times the increased penalty amount (see subsection 82(5) of the Regulatory Powers Act, as enlivened by section 519 of the Biosecurity Act).

 

357.     This Schedule would commence on the day after the proposed Act receives the Royal Assent. The amendments made to the specified criminal offences and civil penalty provisions by this Schedule would apply prospectively.

 

Part 1—Managing biosecurity risks: goods

 

Biosecurity Act 2015

 

Item 1        Amendments of listed provisions—offences and civil penalty provisions

 

358.     This item would increase the maximum pecuniary penalty for a number of criminal offences and civil penalty provisions, involving the contravention of requirements relating to the assessment and management of biosecurity risks of goods that are brought or imported into Australian territory. The table in this item sets out the provisions that would be amended.

 

Table items 1 and 2 – Subsections 120(6) and (7) (penalty)

 

359.     Subsection 120(1) of the Biosecurity Act provides that a notice must be given for goods that are, or are intended to be, brought into Australian territory and unloaded at a landing place or port in Australian territory, other than certain goods originating in Australian territory. The notice must be given by a person as prescribed by regulations made under subsection 120(2) and the notice must comply with certain requirements set out in subsection 120(3).

 

360.     A person contravenes subsection 120(5) if goods are unloaded as referred to in subsection 120(1), the person is a person prescribed by regulations made under subsection 120(2), a notice is not given by the person in accordance with subsection 120(3), and no other person gives a notice in relation to the goods in accordance with subsection 120(3).

 

361.     Subsection 120(6) provides that a person commits a fault-based offence if that person contravenes subsection 120(5). Table item 1 would amend subsection 120(6) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 120 penalty units to 300 penalty units.

 

362.     Subsection 120(7) provides that a person that contravenes subsection 120(5) is liable to a civil penalty. Table item 2 would amend subsection 120(7) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 120(5) from 120 penalty units to 300 penalty units.

 

363.     The notice required under section 120 allows the Commonwealth to gather important information about goods, such as the country of origin and a description of the goods, that assists with the accurate and timely assessment and management of biosecurity risks. This information can be used by biosecurity officers to determine what risk management activities are necessary to deal with goods subject to biosecurity control when a conveyance (which includes an aircraft or vessel) arrives in Australian territory.

 

364.     Persons to whom section 120 applies (as prescribed by regulations) should be aware of what they are conveying and are in a position to seek the required information from third parties if they do not have it themselves. Failure to provide a notice as required under section 120 may mean the goods by-pass standard inspection and risk mitigation activities (including post-entry quarantine requirements) as required by law. This puts Australia’s agricultural industry at risk of biosecurity threats as the department cannot assess and manage any associated biosecurity risks appropriately. 

 

365.     The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 120(6) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above.

 

366.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 120(7) also aligns with similar civil penalty provisions in subsections 126(2) and 127(3) of the Biosecurity Act, which relate to requirements to provide information and produce documents to biosecurity officers.

         

Table items 3 and 4 – Subsections 121(3) and (4) (penalty)

 

367.     Subsection 121(1) of the Biosecurity Act provides that a person who gave a notice under section 120 must as soon as practicable give a biosecurity officer additional or corrected information if that person becomes aware that information in that notice was incomplete or incorrect. A person contravenes subsection 121(2) if they are required to give information to a biosecurity officer under subsection 121(1) and does not do so.

 

368.     Subsection 121(3) provides that a person commits a fault-based offence if that person contravenes subsection 121(2). Table item 3 would amend subsection 121(3) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 120 penalty units to 300 penalty units.

 

369.     Subsection 121(4) provides that a person that contravenes subsection 121(2) is liable to a civil penalty. Table item 4 would amend subsection 121(4) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 121(2) from 120 penalty units to 300 penalty units

 

370.     The requirement for a person to give additional or corrected information under section 121 while goods are subject to biosecurity control is as important from a biosecurity perspective as the need to provide the notice under section 120 in the first place. It ensures the department has access to the best possible information when assessing and managing biosecurity risk.

 

371.     Persons to whom section 121 applies should be aware of what they are conveying and are in a position to seek the required information from third parties if they do not already have it. Failure to provide additional or corrected information as required under section 121 puts Australia’s agricultural industry at risk of biosecurity threats as the department cannot assess and manage any associated biosecurity risks appropriately if the information provided to it is incomplete or incorrect. 

 

372.     The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 121(3) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above.

 

373.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 121(4) also aligns with similar civil penalty provisions in subsections 126(2) and 127(3) of the Biosecurity Act, which relate to requirements to provide information and produce documents to biosecurity officers.

 

Table items 5 and 6 – Subsections 122(6) and (7) (penalty)

 

374.     Subsection 122(1) of the Biosecurity Act permits a biosecurity officer to exercise their powers under subsections 122(2), (3) and (4) to require a person to provide extra information for the purposes of assessing the level of biosecurity risk associated with the goods that are the subject of a notice given under section 120 but have not become subject to biosecurity control. The extra information allows biosecurity officers to make a preliminary assessment of the level of biosecurity risks associated with the goods, ensuring that appropriate resources can be allocated to assess the risks once the goods are unloaded in Australia. A person contravenes subsection 122(5) if they do not comply with the requirement under subsection 122(2) to answer questions or provide information to a biosecurity officer, or the requirement under subsection 122(3) to produce documents specified by a biosecurity officer.

 

375.     Subsection 122(6) provides that a person commits a fault-based offence if that person contravenes subsection 122(5). Table item 5 would amend subsection 122(6) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 120 penalty units to 300 penalty units.

 

376.     Subsection 122(7) provides that a person that contravenes subsection 122(5) is liable to a civil penalty. Table item 6 would amend subsection 122(7) to increase the maximum civil penalty that a court may order a person who is an individual to pay for contravening subsection 122(5) from 120 penalty units to 300 penalty units.

 

377.     The information or documents to be provided under section 122 are necessary to assist biosecurity officers with the accurate and timely assessment and management of biosecurity risks. Biosecurity officers use this information to determine what risk management activities are necessary to deal with goods subject to biosecurity control when a conveyance (which includes an aircraft or vessel) arrives in Australian territory.

 

378.     Persons to whom section 122 applies should be aware of what they are conveying and are in a position to seek the required information from third parties if they do not already have it. Failure to provide accurate and timely information under section 122 puts Australia’s agricultural industry at risk of biosecurity threats as the department cannot assess and manage any associated biosecurity risks appropriately. 

 

379.     The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 122(6) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above.

 

380.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 122(7) also aligns with similar civil penalty provisions in subsections 126(2) and 127(3) of the Biosecurity Act, which relate to requirements to provide information and produce documents to biosecurity officers.

 

Table items 7 and 8 – Subsections 143(5) and (6) (penalty)

 

381.     Subject to any direction given by a biosecurity officer under subsection 143(3), or in accordance with the requirements in sections 145, 146, 147, 148 and 151, a person in charge of an aircraft or vessel can allow the unloading of goods at a landing place or port at which the aircraft or vessel has arrived. This approach allows goods which do not pose a biosecurity risk to move smoothly through the border, reducing delays on individuals and businesses.

 

382.     Subsection 143(3) of the Biosecurity Act permits a biosecurity officer to give a person in charge of an aircraft or vessel, a direction relating to the unloading of goods from an aircraft or vessel. This direction may relate to not allowing some or all of the goods to be unloaded from the aircraft or vessel. For example, where a particular shipping container is suspected of posing a high level of biosecurity risk, a biosecurity officer may direct the person in charge not to unload that particular shipping container. Subsection 143(4) requires a person given a direction under subsection 143(3) to comply with that direction.

 

383.     Subsection 143(5) provides that a person given a direction under subsection 143(3) commits a fault-based offence if that person engages in conduct that contravenes the direction. Table item 7 would amend subsection 143(5) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

384.     Subsection 143(6) provides that a person that contravenes subsection 143(4) is liable to a civil penalty. Table item 8 would amend subsection 143(6) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 143(4) from 120 penalty units to 300 penalty units.

 

385.     Failure to comply with a direction given by a biosecurity officer under subsection 143(3) may result in an inability to manage the unacceptable level of biosecurity risk posed by the goods in an efficient, timely and suitable manner, potentially exacerbating the risk. If a direction is not complied with, significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia’s local industries, the economy and the environment.

 

386.     The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 143(5) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. The proposed increase will align with the current maximum pecuniary penalty in subsection 140(2) of the Biosecurity Act, which relates to complying with a direction given by a biosecurity officer in relation to the export, movement, treatment or destruction of goods. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above.

 

387.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 143(6) also aligns with similar civil penalty provisions in subsections 124(2) and 125(4) of the Biosecurity Act, which relate to complying with directions to secure goods and deliver samples.

 

Table items 9 and 10 – Subsections 144(6) and (7) (penalty)

 

388.     Subsection 144(3) of the Biosecurity Act permits a biosecurity officer to give a person a direction relating to the unloading of goods from an aircraft or vessel at a landing place or port at which the aircraft or vessel has arrived. If a person in charge of the aircraft or vessel is given a direction by a biosecurity officer under subsection 143(3), subsection 144(4) permits the person in charge of the aircraft or vessel, for the purposes of giving effect to that direction, to give another person a direction relating to the unloading of the goods from the aircraft or vessel. Subsection 144(5) provides that a person given a direction under subsection 144(3) or (4) must comply with that direction.

 

389.     Subsection 144(6) provides that a person commits a fault-based offence if the person is given a direction under subsection 144(3) or (4) and engages in conduct that contravenes the direction. Table item 9 would amend subsection 144(6) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

390.     Subsection 144(7) provides that a person that contravenes subsection 144(5) is liable to a civil penalty. Table item 10 would amend subsection 144(7) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 144(5) from 120 penalty units to 300 penalty units.

 

391.     Failure to comply with a direction given under subsection 144(3) or (4) may result in an inability to manage the unacceptable level of biosecurity risk posed by the goods in an efficient, timely and suitable manner, potentially exacerbating the risk. If directions are not complied with, significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia’s local industries, the economy and the environment.

 

392.     The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 144(6) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. The proposed increase will align with the current maximum pecuniary penalty in subsection 140(2) of the Biosecurity Act, which relates to complying with a direction given by a biosecurity officer in relation to the export, movement, treatment or destruction of goods. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above.

 

393.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 144(7) also aligns with similar civil penalty provisions in subsections 124(2) and 125(4) of the Biosecurity Act, which relate to complying with directions to secure goods and deliver samples.

 

Table items 11 and 12 – Subsections 145(2) and (3) (penalty)

 

394.     Subsection 145(1) of the Biosecurity Act provides that 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 146(2) for the goods to be unloaded at that landing place or port.

 

395.     Subsection 145(2) provides that a person in charge of an aircraft or vessel commits a fault-based offence if the person allows goods that are subject to biosecurity control to be unloaded from the aircraft or vessel at a landing place or port in Australian territory that is not a first point of entry for those goods, and permission has not been given under subsection 146(2) for the goods to be unloaded at that landing place or port. Table item 11 would amend subsection 145(2) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

396.     Subsection 145(3) provides that a person that contravenes subsection 145(1) is liable to a civil penalty. Table item 12 would amend subsection 145(3) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 145(1) from 120 penalty units to 300 penalty units.

 

397.     First points of entry may be determined to receive specific goods, depending on the biosecurity risks associated with the goods and the facilities at the first point of entry to manage the biosecurity risks. Section 145 ensures that, in the event a first point of entry is determined to receive specific goods, the first point of entry is not circumvented by unloading goods at an alternative point of entry. It also ensures that biosecurity risks associated with unloading goods at places that are not first points of entry are appropriately managed.

 

398.     Non-compliance with section 145 would jeopardise Australia’s agricultural industry through a biosecurity threat potentially entering, spreading and establishing itself within Australia. If goods are unloaded from an aircraft or vessel at a landing place or port that is not a first point of entry for those goods, without relevant permission having been given under subsection 146(2), significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia’s local industries, the economy and the environment.

 

399.     The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 145(2) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above.

 

400.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 145(3) also aligns with similar civil penalty provisions relating to a failure to comply with directions under sections 124 to 130 of the Biosecurity Act.

 

Table items 13 to 16 – Subsections 146(4) to (7) (penalty)

 

401.     Subsection 146(1) provides that a 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. The Director of Biosecurity may give such permission, by notice in writing, under subsection 146(2). Under subsection 146(3), this permission may be given subject to any conditions specified in the notice. Section 146 provides flexibility for industry by ensuring that alternative arrangements can be made to unload particular goods at a landing place or port that is not a first point of entry for the goods.

 

402.     Subsection 146(4) provides that the person in charge or the operator of an aircraft or vessel commits a fault-based offence if the person has been given permission under subsection 146(2), the permission is subject to conditions, and the person engages in conduct that contravenes those conditions. Table item 13 would amend subsection 146(4) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

403.     Subsection 146(5) provides that a person in charge of an aircraft or vessel commits a fault-based offence if the operator of the aircraft or vessel has been given a permission under subsection 146(2), the permission is subject to conditions, and the conditions are not complied with. Table item 14 would amend subsection 146(5) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

404.     Subsection 146(6) provides that the operator of an aircraft or vessel commits a fault-based offence if the person in charge of the aircraft or vessel is given a permission under subsection 146(2), the permission is subject to conditions, and the conditions are not complied with. Table item 15 would amend subsection 146(6) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

405.     Subsection 146(7) provides that the person in charge and the operator of an aircraft or vessel are each liable to a civil penalty if the person in charge or the operator of the aircraft or vessel has been given a permission under subsection 146(2), the permission is subject to conditions, and the conditions are not complied with. Table item 16 would amend subsection 146(7) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 146(7) from 120 penalty units to 300 penalty units.

 

406.     The flexibility for industry provided by section 146 must be balanced by the need to ensure that biosecurity risks are appropriately assessed and managed. A person in charge or the operator of an aircraft or vessel should take active steps to understand and comply with requirements in the Biosecurity Act. Where the person has specifically requested permission to unload goods at a landing place or port that is not ordinarily a designated first point of entry for particular goods, and received written notice of the Director of Biosecurity’s decision, they should take reasonable steps to understand the permission, including the conditions attached to the permission. In accordance with subsection 146(2), any permission must be given by written notice.

 

407.     When a person engages in conduct that contravenes the conditions of a permission, they risk the potential entry and spread of pests and disease in Australia territory. The person should expect there to be significant legal consequences because of the serious biosecurity risks likely to be posed by their conduct.

 

408.     The proposed increases to the maximum pecuniary penalties for the fault-based offences in subsections 146(4) to (6) depart from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalty does not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. The proposed increases will align with the current maximum pecuniary penalties for subsections 186(2) and 187(1) of the Biosecurity Act, which relate to contravening conditions that apply to conditionally non-prohibited goods and the conditions of a permit. Further details about the proposed increases to the maximum penalties are outlined in paragraphs [352]-[354] above.

 

409.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 146(7) also aligns with similar civil penalty provisions in the Biosecurity Act relating to a failure to comply with directions under sections 124 to 130.

 

Table items 17 to 21 – Subsections 147(2), (4) to (7) (penalty)

 

410.     Section 147 applies where an aircraft or vessel has arrived at a first point of entry and there is a biosecurity entry point at the first point of entry for goods that are to be unloaded from the aircraft or vessel.

 

411.     Subsection 147(2) provides that the person in charge of an 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 biosecurity officer has given a direction under subsection 147(3) or permission has been given under subsection 148(2) for the goods to be brought to an alternative biosecurity entry point.

 

412.     A person is liable to a civil penalty under subsection 147(2) if they contravene the requirements of the subsection. Table item 17 would amend subsection 147(2) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 146(2) from 120 penalty units to 300 penalty units.

 

413.     Subsection 147(3) permits a biosecurity officer to 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.

 

414.     Subsection 147(4) provides that the person in charge or the operator of the aircraft or vessel commits a fault-based offence if the person has been given a direction under subsection 147(3), and the person engages in conduct which contravenes the direction. Table item 18 would amend subsection 147(4) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

415.     Subsection 147(5) provides that the person in charge of an aircraft or vessel commits a fault-based offence if the operator of the aircraft or vessel has been given a direction under subsection 147(3) and the direction is not complied with. Table item 19 would amend subsection 147(5) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

416.     Subsection 147(6) provides that the operator of an aircraft or vessel commits a fault-based offence if the person in charge of the aircraft or vessel has been given a direction under subsection 147(3) and the direction is not complied with. Table item 20 would amend subsection 147(6) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

417.     Subsection 147(7) provides that the person in charge and the operator of an aircraft or vessel are each liable to a civil penalty if the person in charge or the operator of the aircraft or vessel has been given a direction under subsection 147(3) and the direction is not complied with. Table item 21 would amend subsection 147(7) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 147(7) from 120 penalty units to 300 penalty units.

 

418.     Biosecurity entry points are designated areas within a landing place or port that an aircraft, vessel or goods must enter as soon as practicable upon arriving at a first point of entry. They allow biosecurity risks associated with the aircraft, vessel or goods to be managed at a specific location within the landing place or port. A person in charge of an aircraft or vessel should take active steps to understand and comply with the requirements under the Biosecurity Act, including those relating to designated biosecurity entry points for first points of entry.

 

419.     Failure to bring goods to a biosecurity entry point as required under subsection 147(2), or in accordance with a direction given under subsection 147(3), may prevent biosecurity officers from properly assessing and managing any biosecurity risk associated with the goods, potentially resulting in serious damage to plant and animal health, Australia’s local industries, economy and the environment.

 

420.     The proposed increases to the maximum pecuniary penalties for the fault-based offence in subsections 147(4) to (6) depart from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above.

 

421.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increases to the maximum civil penalties in subsections 147(2) and (7) also align with similar civil penalty provisions relating to a failure to comply with directions under sections 124 to 130 of the Biosecurity Act.

 

Table items 22 to 25 – Subsections 148(4) to (7) (penalty)

 

422.     Subsection 148(1) of the Biosecurity Act permits the person in charge or the operator of the aircraft or vessel to request in writing that the Director of Biosecurity give permission to bring the goods to a biosecurity entry point (known as “the alternative biosecurity entry point”) that is not a biosecurity entry point for those goods. The Director of Biosecurity may give permission by notice in writing under subsection 148(2). Subsection 148(3) provides that this permission may be subject to any conditions specified in the notice.

 

423.     These provisions provide flexibility to industry by ensuring that alternative arrangements can be made to unload goods at alternative biosecurity entry points, subject to abiding by any conditions specified in the permission.

 

424.     Subsection 148(4) provides that the person in charge or the operator of an aircraft or vessel commits a fault-based offence if the person has been given a permission under subsection 148(2) which is subject to conditions, and the person engages in conduct that contravenes the conditions. Table item 22 would amend subsection 148(4) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

425.     Subsection 148(5) provides that the person in charge of an aircraft or vessel commits a fault-based offence if the operator of the aircraft or vessel has been given a permission under subsection 148(2) which is subject to conditions, and the conditions are not complied with. Table item 23 would amend subsection 148(5) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

426.     Subsection 148(6) provides that the operator of an aircraft or vessel commits a fault-based offence if the person in charge of the aircraft or vessel has been given a permission under subsection 148(2) which is subject to conditions, and the conditions are not complied with. Table item 24 would amend subsection 148(6) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

427.     Subsection 148(7) provides that the person in charge and the operator of an aircraft or vessel are each liable to a civil penalty if the person in charge or the operator of the aircraft or vessel has been given a permission under subsection 148(2) which is subject to conditions, and the conditions are not complied with. Table item 25 would amend subsection 148(7) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 148(7) from 120 penalty units to 300 penalty units.

 

428.     The provisions in section 148 ensure that biosecurity risk assessment processes for determining biosecurity entry points at first points of entry are not circumvented and that biosecurity risks associated with unloading the goods at places that are not a biosecurity entry point (including an alternative biosecurity entry point) for those goods are appropriately managed.

 

429.     A person in charge or the operator of an aircraft or vessel should take active steps to understand and comply with requirements in the Biosecurity Act. Where the person has specifically requested permission to bring goods to an alternative biosecurity entry point, and received written notice of the Director of Biosecurity’s decision, they should take reasonable steps to understand the permission, including the conditions attached to the permission. In accordance with subsection 148(2), any permission must be given by written notice.

 

430.     When a person engages in conduct that contravenes the conditions of a permission, they risk the potential entry and spread of pests and disease in Australia territory. The person should expect there to be significant legal consequences because of the serious biosecurity risks likely to be posed by their conduct.

 

431.     The proposed increases to the maximum pecuniary penalties for the fault-based offence in subsections 148(4) to (6) depart from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. The proposed increases will align with the current maximum pecuniary penalties for subsections 186(2) and 187(1) of the Biosecurity Act, which relate to contravening conditions that apply to conditionally non-prohibited goods and the conditions of a permit. Further details about the proposed increase to the maximum penalties are outlined in paragraphs [352]-[354] above.

 

432.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 148(7) also aligns with similar civil penalty provisions in the Biosecurity Act relating to a failure to comply with directions under sections 124 to 130.

 

Table item 26 – Subsection 149(1) (penalty)

 

433.     Subsection 149(1) of the Biosecurity Act provides that a person is liable to a civil penalty if they receive, or have in their possession, goods that have been unloaded from an aircraft or vessel in Australian territory, where a direction given under subsection 143(3), 144(3), 144(4) or 147(3) has been contravened; the goods were unloaded in contravention of subsection 145(1); a condition of a permission imposed under subsection 146(3) or 148(3) has been contravened; or subsection 147(2) has been contravened. This provision is designed to deter people from receiving or possessing goods that are unlawfully unloaded in Australian territory as the result of a failure to comply with the requirements in Division 6 of Part 1 of Chapter 3 of the Biosecurity Act. It ensures that anyone contemplating the receipt or possession of imported goods takes reasonable steps to ascertain the provenance of goods and how they came to be in Australia. 

 

434.     Table item 26 would amend subsection 149(1) to increase the maximum penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 149(1) from 120 penalty units to 300 penalty units.

 

435.     Receiving or being in possession of goods that have by-passed biosecurity control could have a detrimental effect on the Australian environment, economy and export markets as the biosecurity risk associated with the goods may not have been assessed and managed by biosecurity officers. The current civil penalty does not adequately reflect the seriousness of the contravening behaviour. The potential consequences of non-compliance are such that it is appropriate to increase the maximum civil penalty.

 

436.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty better reflects the seriousness of receiving or being in possession of goods, where the requirements under the Biosecurity Act in relation to the unloading of goods, directions given relating to the goods, and conditions relating to the goods have been contravened. The higher civil penalty is intended to achieve the necessary deterrent effect to promote compliance with the Biosecurity Act while also indicating the magnitude of likely harm arising from the relevant wrongdoing. The proposed increase also aligns with similar civil penalty provisions in the Biosecurity Act relating to a failure to comply with directions under sections 124 to 130.

 

Table items 27 and 28 – Subsections 155(2) and (3) (penalty)

 

437.     Section 154 of the Biosecurity Act permits the Director of Biosecurity to determine, by legislative instrument, that an act, omission or event is a reportable biosecurity incident in relation to goods that are subject to biosecurity control.

 

438.     Subsection 155(1) of the Biosecurity Act provides that if goods that are subject to biosecurity control are, or were, on board an aircraft or vessel and the person in charge of the aircraft or vessel becomes aware of a reportable biosecurity incident in relation to the goods, the person must report the incident to a biosecurity officer or the Director of Biosecurity as soon as practicable after becoming aware of the incident.

 

439.     Subsection 155(2) provides that the person in charge of an aircraft or vessel commits a fault-based offence if the aircraft or vessel is, or was, carrying goods that are subject to biosecurity control, the person becomes aware of a reportable biosecurity incident in relation to the goods, and the person fails to report the incident as required by subsection 155(1). Table item 27 would amend subsection 155(2) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 120 penalty units to 1,000 penalty units.

 

440.     Subsection 155(3) provides that a person is liable to a civil penalty if they contravene subsection 155(1). Table item 28 would amend subsection 155(3) to increase the maximum penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 155(1) from 120 penalty units to 300 penalty units.

 

441.     It is important that reportable biosecurity incidents are reported as soon as practicable to ensure that any biosecurity risks associated with the incident can be managed to an acceptable level and to limit the risk associated with any pest or disease entering, establishing or spreading into Australian territory. The person in charge of an aircraft or vessel carrying the goods that are subject to biosecurity control should be aware of and clearly understand the requirements under the Biosecurity Act and take reasonable steps to comply.

 

442.     Failure to report such biosecurity incidents as soon as practicable after becoming aware of them is likely to result in a delay in responding to the biosecurity risk associated with the incident, which could exacerbate the nature and magnitude of the risk, and any required response activity.

 

443.     The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 155(2) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalty does not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. The proposed increase will more adequately reflect the seriousness of failing to report a reportable biosecurity incident as soon as practicable after becoming aware of the incident, and is intended to allow for more appropriate punishment of serious offending. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above.

 

444.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 155(3) also aligns with similar civil penalty provisions in the Biosecurity Act relating to a failure to comply with directions under sections 124 to 130.

 

Table items 29 and 30 – Subsections 156(2) and (3) (penalty)

 

445.     Subsection 156(1) of the Biosecurity Act provides that a person in charge of goods that are subject to biosecurity control must report a reportable biosecurity incident to a biosecurity officer or the Director of Biosecurity as soon as practicable after becoming aware of the incident.

 

446.     Subsection 156(2) provides that a person in charge of goods that are subject to biosecurity control commits a fault-based offence if a person becomes aware of a reportable biosecurity incident in relation to the goods and the person fails to report the incident as required by subsection 156(1). Table item 29 would amend subsection 156(2) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 120 penalty units to 1,000 penalty units.

 

447.     Subsection 156(3) provides that a person is liable to a civil penalty if they contravene subsection 156(1). Table item 30 would amend subsection 156(3) to increase the maximum penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 156(1) from 120 penalty units to 300 penalty units.

 

448.     It is important that reportable biosecurity incidents are reported as soon as practicable to ensure that any biosecurity risks associated with the incident can be managed to an acceptable level and to limit the risk associated with any pest or disease entering, establishing or spreading into Australian territory. The person in charge of the goods that are subject to biosecurity control should be aware of and clearly understand the requirements under the Biosecurity Act and take reasonable steps to comply.

 

449.     Failure to report such biosecurity incidents as soon as practicable after becoming aware of them is likely to result in a delay in responding to the biosecurity risk associated with the incident, which could exacerbate the nature and magnitude of the risk, and any required response activity.

 

450.     The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 156(2) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalty does not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. The proposed increase will more adequately reflect the seriousness of failing to report a reportable biosecurity incident as soon as practicable after becoming aware of the incident, and is intended to allow for more appropriate punishment of serious offending. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above.

 

451.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 156(3) also aligns with similar civil penalty provisions in the Biosecurity Act relating to a failure to comply with directions under sections 124 to 130.

 

Item 2        Application provisions

 

452.     This item would provide that the amendments to the maximum pecuniary penalties made by item 1 of this Schedule apply in relation to specified circumstances that occur on or after the commencement of this item. This would make clear that these amendments are intended to apply prospectively.

 

453.     Subitem 2(1) would provide that the amendments to section 120 of the Biosecurity Act, proposed by table items 1 and 2 in item 1 of this Schedule, apply in relation to goods that are unloaded on or after the commencement of this item. This would make clear that the amendments in table items 1 and 2 in item 1 are proposed to have prospective effect.

 

454.     Subitem 2(2) would provide that the amendments to section 121 of the Biosecurity Act, proposed by table items 3 and 4 in item 1 of this Schedule, apply in relation to a notice given under section 120 of the Biosecurity Act on or after the commencement of this item. This would make clear that the amendments in table items 3 and 4 in item 1 are proposed to have prospective effect.

 

455.     Subitem 2(3) would provide that the amendments to section 122 of the Biosecurity Act, proposed by table items 5 and 6 in item 1 of this Schedule, apply in relation to a requirement made under subsection 122(2) or (3) of the Biosecurity Act on or after the commencement of this item. This would make clear that the amendments in table items 5 and 6 in item 1 are proposed to have prospective effect.

 

456.     Subitem 2(4) would provide that the amendments to section 143 of the Biosecurity Act, proposed by table items 7 and 8 in item 1 of this Schedule, apply in relation to a direction given under subsection 143(3) of the Biosecurity Act on or after the commencement of this item. This would make clear that the amendments in table items 7 and 8 in item 1 are proposed to have prospective effect.

 

457.     Subitem 2(5) would provide that the amendments to section 144 of the Biosecurity Act, proposed by table items 9 and 10 in item 1 of this Schedule, apply in relation to a direction given under subsection 144(3) or (4) of the Biosecurity Act on or after the commencement of this item. This would make clear that the amendments in table items 9 and 10 in item 1 are proposed to have prospective effect.

 

458.     Subitem 2(6) would provide that the amendments to section 145 of the Biosecurity Act, proposed by table items 11 and 12 in item 1 of this Schedule, apply in relation to goods that are unloaded on or after the commencement of this item. This would make clear that the amendments in table items 11 and 12 in item 1 are proposed to have prospective effect.

 

459.     Subitem 2(7) would provide that the amendments to section 146 of the Biosecurity Act, proposed by table items 13 to 16 in item 1 of this Schedule, apply in relation to a permission given under subsection 146(2) of the Biosecurity Act on or after the commencement of this item. This would make clear that the amendments in table items 13 to 16 in item 1 are proposed to have prospective effect.

 

460.     Subitem 2(8) would provide that the amendments to section 147 of the Biosecurity Act, proposed by table items 17 to 21 in item 1 of this Schedule, apply in relation to an aircraft or vessel that arrives at a first point of entry for the aircraft or vessel on or after the commencement of this item. This would make clear that the amendments in table items 17 to 21 in item 1 are proposed to have prospective effect.

 

461.     Subitem 2(9) would provide that the amendments to section 148 of the Biosecurity Act, proposed by table items 22 to 25 in item 1 of this Schedule, apply in relation to a permission given under subsection 148(2) of the Biosecurity Act on or after the commencement of this item. This would make clear that the amendments in table items 22 to 25 in item 1 are proposed to have prospective effect.

 

462.     Subitem 2(10) would provide that the amendment to section 149 of the Biosecurity Act, proposed by table item 26 in item 1 of this Schedule, applies in relation to goods that are unloaded on or after the commencement of this item. This would make clear that the amendment in table item 26 in item 1 is proposed to have prospective effect.

 

463.     Subitem 2(11) would provide that the amendments to section 155 of the Biosecurity Act, proposed by table items 27 and 28 in item 1 of this Schedule, apply in relation to goods that become subject to biosecurity control on or after the commencement of this item. This would make clear that the amendments in table items 27 and 28 in item 1 are proposed to have prospective effect.

 

464.     Subitem 2(12) would provide that the amendments to section 156 of the Biosecurity Act, proposed by table items 29 and 30 in item 1 of this Schedule, apply in relation to goods that become subject to biosecurity control on or after the commencement of this item. This would make clear that the amendments in table items 29 and 30 in item 1 are proposed to have prospective effect.

 

Part 2—Managing biosecurity risks: conveyances

 

Biosecurity Act 2015

 

Item 3        Amendments of listed provisions—offences and civil penalty provisions

 

465.     This item would increase the maximum pecuniary penalty for a number of criminal offences and civil penalty provisions, involving the contravention of requirements relating to the assessment and management of biosecurity risks of conveyances that enter, or intend to enter, Australian territory. The table in this item sets out the provisions that would be amended.

 

Table item 1 – Subsection 198(2) (penalty)

 

466.     Subsection 198(1) of the Biosecurity Act provides that a biosecurity officer may direct the person in charge or the operator of a conveyance to secure the conveyance in a manner, and for a period (not exceeding 48 hours) specified by the biosecurity officer. Under subsection 198(2), a person who is given a direction under subsection 198(1) is liable to a civil penalty if they do not comply with the direction.

 

467.     Table item 1 would amend subsection 198(2) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 198(2) from 120 penalty units to 300 penalty units.

 

468.     A direction given under subsection 198(1) allows a biosecurity officer to exercise other assessment powers under Division 3 of Part 2 of Chapter 4 of the Biosecurity Act to assess the level of biosecurity risk in relation to a conveyance and limits the possibility that any biosecurity risk associated with the conveyance will spread. Non-compliance with a direction given under subsection 198(1) impedes the ability of biosecurity officers to assess the level of biosecurity risk in relation to a conveyance.

 

469.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 198(2) also aligns with a similar civil penalty provision under section 124 of the Biosecurity Act relating to a failure to comply with directions to secure goods.

 

Table item 2 – Subsection 200(2) (penalty)

 

470.     Subsection 200(1) of the Biosecurity Act provides that a biosecurity officer may require a person who the biosecurity officer suspects, on reasonable grounds, has information in relation to the conveyance to answer questions, or provide information in writing, in relation to the conveyance. Under subsection 200(2), a person who is required to answer questions, or provide information in writing, under subsection 200(1) is liable to a civil penalty if they do not comply with the requirement.

 

471.     Table item 2 would amend subsection 200(2) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 200(2) from 120 penalty units to 300 penalty units.

 

472.     Section 200 ensures that biosecurity officers have access to all the necessary information to make an accurate and timely assessment of biosecurity risk associated with the conveyance. Non-compliance with a requirement to answer questions or provide information under subsection 200(1) impedes the ability of biosecurity officers to assess the level of biosecurity risk in relation to a conveyance.

 

473.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 200(2) also aligns with similar civil penalty provisions under sections 126 and 127 of the Biosecurity Act relating to a failure to comply with requirements.

 

Table item 3 – Subsection 201(3) (penalty)

 

474.     Subsection 201(1) of the Biosecurity Act provides that 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 conveyance to produce to the officer such of those documents as are specified by the officer. Under subsection 201(3), a person who is required to produce documents under subsection 201(1) is liable to a civil penalty if they do not comply with the requirement.

 

475.     Table item 3 would amend subsection 201(3) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 201(3) from 120 penalty units to 300 penalty units.

 

476.     Section 201 ensures that biosecurity officers have access to all the necessary information to make an accurate and timely assessment of biosecurity risk associated with the conveyance. Non-compliance with a requirement to produce documents under subsection 201(1) impedes the ability of biosecurity officers to assess the level of biosecurity risk in relation to a conveyance.

 

477.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 201(3) also aligns with similar civil penalty provisions under sections 126 and 127 of the Biosecurity Act relating to a failure to comply with requirements.

 

Table item 4 – Subsection 202(2) (penalty)

 

478.     Paragraph 202(1)(a) of the Biosecurity Act allows a biosecurity officer to give the following directions to the person in charge or the operator of the conveyance:

 

·        a direction not to move, deal with or interfere with the conveyance;

·        a direction to move the conveyance, as soon as practicable, to a place specified by the biosecurity officer (except a place outside Australian territory);

·        any other direction relating to the movement of the conveyance.

 

A biosecurity officer may also cause the conveyance to be moved to another place (except a place outside Australian territory) under paragraph 202(1)(b). Under subsection 202(2), a person who is given a direction under paragraph 202(1)(a) is liable to a civil penalty if they do not comply with the direction.

 

479.     Table item 4 would amend subsection 202(2) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 202(2) from 120 penalty units to 300 penalty units.

 

480.     Section 202 allows a biosecurity officer to issue movement directions in relation to a conveyance to ensure that appropriate activities can be carried out to assess biosecurity risks and that a conveyance can be assessed at place where there is no risk of any biosecurity risk spreading. Non-compliance with a direction given under paragraph 202(1)(a) impedes the ability of biosecurity officers to assess the level of biosecurity risk in relation to a conveyance.

 

481.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 202(2) also aligns with a similar civil penalty provision under section 128 of the Biosecurity Act relating to a failure to comply with directions.

 

Table item 5 – Subsection 203(2) (penalty)

 

482.     Subsection 203(1) of the Biosecurity Act allows a biosecurity officer to affix a biosecurity control notice to, or as near as reasonably practicable to, the conveyance (paragraph 203(1)(a)) or give a biosecurity control notice to the person in charge of the conveyance (paragraph 203(1)(b)). Under subsection 203(2), a person is liable to a civil penalty if that person interferes with, removes or defaces a notice affixed under paragraph 203(1)(a) and none of the circumstances set out in paragraph 203(2)(c) or subsection 203(3) applies. Paragraph 203(2)(c) and subsection 203(3) provide for limited exceptions to the civil penalty provision where the person is authorised or permitted to engage in the conduct, or it is necessary to engage in that conduct to comply with another direction given under the Biosecurity Act.

 

483.     Table item 5 would amend subsection 203(2) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 203(2) from 120 penalty units to 300 penalty units.

 

484.     The purpose of affixing a biosecurity control notice to a conveyance (or giving a biosecurity control notice to the person in charge of the conveyance) under section 203 is to inform a person that the movement of the conveyance to which the notice is affixed is restricted. This ensures that a biosecurity officer can carry out an assessment of the biosecurity risk associated with the conveyance. Interfering with, removing or defacing a biosecurity control notice affixed under paragraph 203(1)(a), without a valid reason, impedes the ability of biosecurity officers to assess the level of biosecurity risk in relation to a conveyance.

 

485.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 203(2) also aligns with a similar civil penalty provision under section 129 of the Biosecurity Act relating to interfering with biosecurity control notices.

 

Table item 6 – Subsection 204(2) (penalty)

 

486.     Under subsection 204(2) of the Biosecurity Act, a person is liable to a civil penalty if the person moves, deals with or interferes with a conveyance:

 

·        that has been secured in accordance with a direction given under subsection 198(1); or

·        in relation to which a direction relating to movement has been given under paragraph 202(1)(a); or

·        that has been moved under paragraph 202(1)(b); or

·        in relation to which a biosecurity control notice has been affixed under paragraph 203(1)(a)

 

and none of the circumstances set out in paragraph 204(2)(b) or subsection 204(3) applies. Paragraph 204(2)(b) and subsection 204(3) provide for limited exceptions to the civil penalty provision where the person is authorised or permitted to engage in the conduct, or it is necessary to engage in that conduct to comply with another direction given under the Biosecurity Act.

 

487.     Table item 6 would amend subsection 204(2) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 204(2) from 120 penalty units to 300 penalty units.

 

488.     Section 204 ensures that biosecurity officers are able to carry out an assessment of the biosecurity risk associated with a conveyance. Moving, dealing with or interfering with a conveyance that has been secured, is the subject of a direction, has been moved or is subject to a biosecurity control notice, without a valid reason, impedes the ability of biosecurity officers to assess the level of biosecurity risk in relation to a conveyance.

 

489.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 204(2) also aligns with a similar civil penalty provision under section 130 of the Biosecurity Act relating to interfering with goods that are subject to biosecurity control notices.

 

Table item 7 – Subsection 214(3) (penalty)

 

490.     Subsection 214(1) of the Biosecurity Act allows a biosecurity officer to affix a notice to, or as near as reasonably practicable to, a conveyance in relation to which biosecurity measures have been required under Division 5 of Part 2 of Chapter 4 of the Biosecurity Act, or a regulation made for the purposes of section 212. Under subsection 214(3), a person is liable to a civil penalty if that person interferes with, removes or defaces a notice affixed under subsection 214(1) and none of the circumstances set out in paragraph 214(3)(c) or subsection 214(4) applies. Paragraph 214(3)(c) and subsection 214(4) provide for limited exceptions to the civil penalty provision, where the person is authorised or permitted to engage in the conduct, or it is necessary to engage in that conduct to comply with another direction given under the Biosecurity Act.

 

491.     Table item 7 would amend subsection 214(3) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 214(3) from 120 penalty units to 300 penalty units.

 

492.     Section 214 ensures that biosecurity officers are able to affix a notice to inform other persons that biosecurity measures are required in relation to a conveyance. Interfering with, removing or defacing a notice affixed under subsection 214(1), without a valid reason, may prevent other people from knowing that the conveyance is subject to biosecurity measures, and impedes the ability of biosecurity officers to ensure that biosecurity measures are carried out in an efficient and timely and suitable way to manage an unacceptable level of biosecurity risk associated with a conveyance. The proposed increases to the maximum civil penalty in subsections 215(7) and (8) reflect the seriousness of a person interfering with a biosecurity control notice without a valid reason and are intended to be proportionate to the likely harm that may result from a worse-case scenario and to adequately deter those considering jeopardising Australia’s biosecurity status.

 

493.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 214(3) also aligns with a similar civil penalty provision under section 139 of the Biosecurity Act relating to interfering with biosecurity control notices.

 

Table items 8 to 14 – Subsections 215(2) to (8) (penalty)

 

494.     Section 215 of the Biosecurity Act provides for a number of fault-based offences and civil penalty provisions in circumstances where the person in charge, the operator or the owner of an aircraft or vessel contravenes or does not comply with, a direction given under paragraph 206(2)(a), 207(2)(a) or 213(1)(a), (b) or (c) of the Biosecurity Act. These provisions allow a biosecurity officer to give directions:

 

·        Relating to movement of an aircraft or vessel that is subject to biosecurity control (paragraph 206(2)(a));

·        Relating to movement of an exposed conveyance that is subject to biosecurity control (paragraph 207(2)(a));

·        Requiring certain biosecurity measures to be carried out (paragraphs 213(1)(a), (b) and (c)).

 

495.     Under subsection 215(2), a person in charge, operator or owner of an aircraft or vessel commits a fault-based offence in circumstances where they engage in conduct that contravenes a direction given under paragraph 206(2)(a), 207(2)(a) or 213(1)(a), (b) or (c). Table item 8 would amend subsection 215(2) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

496.     Under subsection 215(3), a person in charge of an aircraft or vessel commits a fault-based offence in circumstances where the operator of the aircraft or vessel has been given a direction under paragraph 206(2)(a), 207(2)(a) or 213(1)(b) (other than a direction given under paragraph 213(1)(b) to arrange for destruction of the aircraft or vessel to be carried out) and the direction is not complied with. Table item 9 would amend subsection 215(3) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

497.     Under subsection 215(4), the operator of an aircraft or vessel commits a fault-based offence in circumstances where the person in charge of the aircraft or vessel has been given a direction under paragraph 206(2)(a), 207(2)(a) or 213(1)(a) and the direction is not complied with. Table item 10 would amend subsection 215(4) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

498.     Under subsection 215(5), the operator of an aircraft or vessel commits a fault-based offence in circumstances where the owner of the aircraft or vessel has been given a direction under paragraph 213(1)(c) and the direction is not complied with. Table item 11 would amend subsection 215(5) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

499.     Under subsection 215(6), the owner of an aircraft or vessel commits a fault-based offence in circumstances where the operator of the aircraft or vessel has been given a direction under paragraph 213(1)(b) to arrange for the destruction of the aircraft or vessel to be carried out and the direction is not complied with. Table item 12 would amend subsection 215(6) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

500.     Under subsection 215(7), the person in charge and the operator of the aircraft or vessel are each liable to a civil penalty if the person in charge or the operator has been given a direction under paragraph 206(2)(a), 207(2)(a) or 213(1)(a) or (b) (other than a direction under paragraph 213(1)(b) to arrange for destruction of the aircraft or vessel to be carried out) and the direction is not complied with. Table item 13 would amend subsection 215(7) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 215(7) from 120 penalty units to 300 penalty units.

 

501.     Under subsection 215(8), the operator and the owner of an aircraft or vessel are each liable to a civil penalty if the operator or the owner has been given a direction under paragraph 213(1)(b) or (c) to arrange for destruction of the aircraft or vessel to be carried out and the direction is not complied with. Table item 14 would amend subsection 215(8) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 215(8) from 120 penalty units to 300 penalty units.

 

502.     Section 215 ensures that both the person in charge and the operator of an aircraft or vessel, who are responsible for the movement and conduct of an aircraft or vessel, may be given a direction in relation to the aircraft or vessel by a biosecurity officer and be held liable if that direction is not complied with.

 

503.     The proposed increases to the maximum pecuniary penalties for the fault-based offences in subsections 215(2) to (6) depart from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. The increased penalties for the fault-based offences reinforce the punitive and retributive objective of the current penalty regime while allowing a court a greater capacity to respond meaningfully and proportionally to the worst breaches of the law. Further details about the proposed increases to the maximum penalties are outlined in paragraphs [352]-[354] above.

 

504.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increases to the maximum civil penalties in subsections 215(7) and (8) also align with a similar civil penalty provision in section 140 of the Biosecurity Act relating to contravening directions to take biosecurity measures.

 

Table items 15 and 16 – Subsections 216(3) and (4) (penalty)

 

505.     Section 216 of the Biosecurity Act provides for a fault-based offence (subsection 216(3)) and civil penalty provision (subsection 216(4)) in circumstances where a person moves, deals with or interferes with a conveyance in relation to which a notice has been affixed under subsection 214(1) and none of the circumstances set out in paragraph 216(1)(c) or subsection 216(2) applies. Paragraph 216(1)(c) and subsection 216(2) provide for limited exceptions to the fault-based offence and civil penalty provision, where the person is authorised or permitted to engage in the conduct, or it is necessary to engage in that conduct to comply with another direction given under the Biosecurity Act.

 

506.     Table item 15 would amend subsection 216(3) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

507.     Table item 16 would amend subsection 216(4) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 216(4) from 120 penalty units to 300 penalty units.

 

508.     The purpose of affixing a biosecurity control notice to a conveyance is to alert people to the fact the conveyance is subject to biosecurity control. Section 216 ensures that biosecurity officers can conduct biosecurity measures to manage identified biosecurity risks associated with a conveyance without interference. Moving, dealing with, or interfering with a conveyance to which a notice has been affixed without proper authority impedes the ability of biosecurity officers to conduct appropriate biosecurity measures in relation to the conveyance.

 

509.     The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 216(3) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalty does not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above.

 

510.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 216(4) also aligns with a similar civil penalty provision in section 141 of the Biosecurity Act relating to interfering with goods in relation to which biosecurity measures have been required.

 

Table items 17 and 18 – Subsections 217(4) and (5) (penalty)

 

511.     Subsection 217(1) of the Biosecurity Act provides that the person in charge of a conveyance that is subject to biosecurity control may leave the conveyance unless a biosecurity officer has directed the person not to leave the conveyance. Under subsection 217(2), a biosecurity officer may direct a person in charge of the conveyance not to leave the conveyance for a specified period, not longer than 24 hours. Subsection 217(3) provides that a person given a direction under subsection 217(2) must comply with the direction.

 

512.     Subsection 217(4) provides for a fault-based offence in circumstances where a person is given a direction under subsection 217(2) and the person engages in conduct that contravenes the direction. Table item 17 would amend subsection 217(4) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

513.     Subsection 217(5) provides for a civil penalty provision in circumstances where a person contravenes subsection 217(3). Table item 18 would amend subsection 217(5) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 217(5) from 120 penalty units to 300 penalty units.

 

514.     Section 217 ensures that the person in charge of the conveyance can be required to stay on the conveyance if the person is required to assist with the management of biosecurity risks.

 

515.     The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 217(4) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Contraventions in relation to conveyances that present an unacceptable level of risk may have very significant consequences for Australia’s biosecurity status. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above.

 

516.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 217(5) also aligns with a similar civil penalty provision in section 140 of the Biosecurity Act relating to contravening directions.

 

Table item 19 – Subsection 220(1) (penalty)

 

517.     Under subsection 220(1) of the Biosecurity Act, the person in charge or the operator of an incoming aircraft or vessel that is subject to biosecurity control because of subsection 191(2) or (4), is liable to a civil penalty if the person does not ensure that each person (including a member of the crew) on board the aircraft or vessel is given information about biosecurity requirements under the laws of the Commonwealth.

 

518.     Table item 19 would amend subsection 220(1) to increase the maximum civil penalty that a court may order a person who is an individual to pay where that person is liable to a civil penalty under subsection 220(1) from 120 penalty units to 300 penalty units.

 

519.     Section 220 ensures that every person on board a conveyance that is subject to biosecurity control is aware of Australia’s biosecurity requirements and can comply with them when they enter Australian territory.

 

520.     The proposed increase to the maximum civil penalty in section 220 is necessary to deter those considering jeopardising Australia’s biosecurity status. Further details about the proposed increase to the maximum civil penalty are outlined in paragraphs [355]-[356] above.

 

Table item 20 – Subsection 221(3) (penalty)

 

521.     Subsection 221(1) of the Biosecurity Act provides that a person in charge of a vessel that is within Australian territory must ensure that the prescribed quarantine signal is displayed on the vessel in the circumstances and in the manner prescribed by the regulations. Subsection 221(3) provides for an offence of strict liability in circumstances where a person contravenes subsection 221(1).

 

522.     Table item 20 would amend subsection 221(3) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the strict liability offence from 50 penalty units to 60 penalty units.

 

523.     Section 221 ensures that a warning can be provided from vessels to indicate there may be a high level of biosecurity risk associated with the vessel, the people, or things on board. It is important that these signals are correctly displayed so that biosecurity officers are aware of the risk and can undertake measures to manage it to an acceptable level and other relevant persons can avoid unnecessarily interacting with that vessel. Quarantine signals are used worldwide to communicate the presence of human and animal disease and the person in charge of a vessel can reasonably be expected to know they are required to warn other parties of potential biosecurity risks on board. The higher penalty more adequately reflects the seriousness of failing to correctly display quarantine signals on a vessel, while also not exceeding the guidance set out in the Guide that strict liability offences should not exceed 60 penalty units. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [355]-[356] above.

 

Table items 21 to 24 – Subsections 237(2) to (5) (penalty)

 

524.     Section 237 of the Biosecurity Act provides for a number of fault-based offences and a civil penalty provision that apply in circumstances where an aircraft that is subject to biosecurity control lands at a landing place in Australian territory that is not a first point of entry for the aircraft and none of the circumstances set out in paragraphs 237(1)(a) or (b) apply. Paragraphs 237(1)(a) and (b) provide for limited exceptions where a permission has been given for the aircraft to land at that landing place, or a direction has been given requiring the aircraft to land at that landing place.

 

525.     Subsection 237(2) provides for a fault-based offence that applies to the person in charge or the operator of the aircraft in circumstances where the person permits the aircraft (which is subject to biosecurity control) to land at a landing place in Australian territory that is not a first point of entry for the aircraft, and the aircraft is not permitted or directed to do so. Table item 21 would amend subsection 237(2) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

526.     Subsection 237(3) provides for a fault-based offence that applies to the person in charge of the aircraft in circumstances where the operator of the aircraft permits the aircraft (which is subject to biosecurity control) to land at a landing place in Australian territory that is not a first point of entry for the aircraft, and the aircraft is not permitted or directed to do so. Table item 22 would amend subsection 237(3) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

527.     Subsection 237(4) provides for a fault-based offence that applies to the operator of the aircraft in circumstances where the person in charge of the aircraft permits the aircraft (which is subject to biosecurity control) to land at a landing place in Australian territory that is not a first point of entry for the aircraft, and the aircraft is not permitted or directed to do so. Table item 23 would amend subsection 237(4) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

528.     Under subsection 237(5), the person in charge and the operator of an aircraft are each liable to a civil penalty in circumstances where the aircraft (which is subject to biosecurity control) lands at a landing place in Australian territory that is not a first point of entry for the aircraft, and the aircraft is not permitted or directed to do so. The maximum civil penalty that a court may order a person who is an individual to pay would increase from 120 penalty units to 300 penalty units.

 

529.     First points of entry for aircraft may be determined to receive specified aircraft, depending on the biosecurity risks associated with the aircraft and the facilities at the first point of entry to manage the biosecurity risks. Section 237 ensures that, in the event that a first point of entry is determined to receive specified aircraft, the first point of entry is not circumvented by landing the aircraft at an alternative location. Both the person in charge and the operator of an aircraft are responsible for the movement of the aircraft and should take active steps to understand and comply with the requirements under the Biosecurity Act, including those relating to first points of entry. Aircraft or goods arriving at a landing place that is not a first point of entry, and which does not have the capacity to manage the biosecurity risk, pose a threat that a disease or pest may enter, establish or spread in Australian territory. This could cause serious harm to Australia’s human, plant and animal health, the environment and the economy.

 

530.     The proposed increases to the maximum pecuniary penalties for the fault-based offences in subsections 237(2) to (4) depart from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increases to the maximum penalties are outlined in paragraphs [352]-[354] above.

 

531.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 237(5) is necessary to deter those considering jeopardising Australia’s biosecurity status while also indicating the magnitude of likely harm arising from the relevant wrongdoing.

 

Table items 25 to 28 – Subsections 238(2) to (5) (penalty)

 

532.     Section 238 of the Biosecurity Act provides for a number of fault-based offences and a civil penalty provision that apply in circumstances where an aircraft that is subject to biosecurity control has landed at a first point of entry for that aircraft, there is a biosecurity entry point for the aircraft at the first point of entry and the aircraft is not brought to the biosecurity entry point as soon as practicable.

 

533.     Subsection 238(2) provides for a fault-based offence that applies to the person in charge or the operator of the aircraft in circumstances where the person does not ensure that the aircraft (which has landed at a first point of entry and is subject to biosecurity control) is brought to a biosecurity entry point for the aircraft (if any) as soon as practicable. Table item 25 would amend subsection 238(2) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

534.     Subsection 238(3) provides for a fault-based offence that applies to the person in charge of the aircraft in circumstances where the operator of the aircraft does not ensure that the aircraft (which has landed at a first point of entry and is subject to biosecurity control) is brought to a biosecurity entry point for the aircraft (if any) as soon as practicable. Table item 26 would amend subsection 238(3) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

535.     Subsection 238(4) provides for a fault-based offence that applies to the operator of the aircraft in circumstances where the person in charge of the aircraft does not ensure that the aircraft (which has landed at a first point of entry and is subject to biosecurity control) is brought to a biosecurity entry point for the aircraft (if any) as soon as practicable. Table item 27 would amend subsection 238(4) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

536.     Under subsection 238(5), the person in charge and the operator of an aircraft are each liable to a civil penalty in circumstances where the aircraft (which has landed at a first point of entry and is subject to biosecurity control) is not brought to a biosecurity entry point for the aircraft (if any) as soon as practicable. Table item 28 would amend subsection 238(5) to increase the maximum civil penalty that a court may order a person who is an individual to pay from 120 penalty units to 300 penalty units.

 

537.     Biosecurity entry points for aircraft are designated areas within a landing place that an aircraft must enter as soon as practicable upon arriving at a first point of entry. Section 238 ensures that aircraft and goods that arrive in Australian territory from overseas, are brought, as soon as practicable, to a specific location within the landing place that has the facilities available to assess any biosecurity risk and mange it to an acceptable level. Both the person in charge and the operator of an aircraft should take active steps to understand and comply with the requirements under the Biosecurity Act, including those relating to designated biosecurity entry points for first points of entry.

 

538.     Failure to bring an aircraft to a biosecurity entry point as required under section 238 may prevent biosecurity officers from properly assessing and managing any biosecurity risk associated with the aircraft, potentially resulting in serious damage to plant and animal health, Australia’s local industries, economy and the environment.

 

539.     The proposed increases to the maximum pecuniary penalties for the fault-based offences in subsections 238(2) to (4) depart from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increases to the maximum penalties are outlined in paragraphs [352]-[354] above.

 

540.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 238(5) is necessary to deter those considering jeopardising Australia’s biosecurity status.

 

Table items 29 to 32 – Subsections 239(4) to (7) (penalty)

 

541.     Section 239 of the Biosecurity Act provides for a number of fault-based offences and a civil penalty provision in relation to permission for an aircraft to land at a landing place that is not a first point of entry for the aircraft.

 

542.     Under subsection 239(1), the person in charge or the operator of an aircraft that intends to land at a landing place in Australian territory, may, in writing, request permission from the Director of Biosecurity or the Director of Human Biosecurity for the aircraft to land at a specified landing place in Australian territory that is not a first point of entry for the aircraft. The Director of Biosecurity or the Director of Human Biosecurity may, by written notice, give permission for the aircraft to land at a landing place specified in the request (subsection 239(2)) and the permission may be subject to any conditions specified in the notice (subsection 239(3)).

 

543.     Subsection 239(4) provides for a fault-based offence that applies to the person in charge or the operator of the aircraft in circumstances where the person is given a permission under subsection 239(2) which is subject to conditions and the person engages in conduct that contravenes the conditions. Table item 29 would amend subsection 239(4) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

544.     Subsection 239(5) provides for a fault-based offence that applies to the person in charge of the aircraft in circumstances where the operator of the aircraft has been given a permission under subsection 239(2) which is subject to conditions and the conditions are not complied with. Table item 30 would amend subsection 239(5) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

545.     Subsection 239(6) provides for a fault-based offence that applies to the operator of the aircraft in circumstances where the person in charge of the aircraft has been given a permission under subsection 239(2) which is subject to conditions and the conditions are not complied with. Table item 31 would amend subsection 239(6) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

546.     Subsection 239(7) provides that the person in charge and the operator of an aircraft are each liable to a civil penalty in circumstances where the person in charge or the operator of the aircraft has been given a permission under subsection 239(2) which is subject to conditions and the conditions are not complied with. Table item 32 would amend subsection 239(7) to increase the maximum civil penalty that a court may order a person who is an individual to pay from 120 penalty units to 300 penalty units.

 

547.     Section 239 allows flexibility for aircraft to land at a landing place that is not the first point of entry, provided that any conditions specified in the permission are complied with. The flexibility for industry provided by section 239 must be balanced by the need to ensure that biosecurity risks are appropriately assessed and managed. A person in charge or the operator of an aircraft should take active steps to understand and comply with requirements in the Biosecurity Act. Where the person has specifically requested permission to land at a landing place that is not ordinarily a first point of entry for the particular aircraft, and received written notice of the relevant Director’s decision, they should take reasonable steps to understand the permission, including the conditions attached to the permission. In accordance with subsection 239(2), any permission must be given by written notice.

 

548.     The ability to specify conditions in the notice allows the Director of Biosecurity or the Director of Human Biosecurity to maintain control over how a specific biosecurity risk is dealt with and ensure it is managed to an acceptable level. Accordingly, when a person engages in conduct that contravenes the conditions of a permission, they risk the potential entry and spread of pests and diseases in Australian territory. The person should expect there to be significant legal consequences because of the serious biosecurity risks likely to be posed by their conduct.

 

549.     The proposed increases to the maximum pecuniary penalties for the fault-based offences in subsections 239(4) to (6) depart from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct and signify the magnitude of the likely harm in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increases to the maximum penalties are outlined in paragraphs [352]-[354] above.

 

550.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 239(7) also aligns with similar civil penalty provisions in subsections 186(2) and 187(1) of the Biosecurity Act, which relate to contravening conditions that apply to conditionally non-prohibited goods and the conditions of a permit.

 

Table items 33 and 34 – Subsections 243(2) and (3) (penalty)

 

551.     Section 243 of the Biosecurity Act provides for a fault-based offence and a civil penalty provision which apply in circumstances where a person contravenes or does not comply with a direction that the person has been given under a provision of Division 2 of Part 4 of Chapter 4 of the Biosecurity Act. Under Division 2 of Part 4 of Chapter 4, the following directions may be given to a person in charge or the operator of an aircraft:

 

·        To require the aircraft to land, or not to land, at a specified landing place in Australian territory (section 240);

·        To require the aircraft not to land at any landing place in Australian territory (section 241); and

·        To require the aircraft to land, or not to land, at a specified landing place in Australian territory, where the direction is necessary to manage human health risks (section 242).

 

552.     Subsection 243(2) provides for a fault-based offence in circumstances where a person engages in conduct that contravenes a direction given under Division 2 of Part 4 of Chapter 4 of the Biosecurity Act. Table item 33 would amend subsection 243(2) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

553.     Subsection 243(3) provides that a person is liable to a civil penalty if the person does not comply with a direction given under Division 2 of Part 4 of Chapter 4 of the Biosecurity Act. Table item 34 would amend subsection 243(3) to increase the maximum civil penalty that a court may order a person who is an individual to pay from 120 penalty units to 300 penalty units.

 

554.     Regulated entities, such as the person in charge or operator of an aircraft, are well placed to know that a direction has been given and how to comply with the direction. Section 243 ensures that persons who do not comply with, or who contravene, such directions can be held responsible. These directions ensure that the biosecurity risk of aircraft can be appropriately assessed and managed at an appropriate first point of entry. If a person does not comply with these directions, this may result in an inability to manage the unacceptable level of biosecurity risk posed by the aircraft in an efficient and timely manner, potentially exacerbating the risk.

 

555.     The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 243(2) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalty does not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above.

 

556.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 243(3) also aligns with similar civil penalty provisions under sections 124 and 128 of the Biosecurity Act relating to a failure to comply with directions.

 

Table items 35 to 38 – Subsections 245(2) to (5) (penalty)

 

557.     Section 245 of the Biosecurity Act provides for a number of fault-based offences and a civil penalty provision that apply in circumstances where a vessel that is subject to biosecurity control is moored at a port in Australian territory that is not a first point of entry for the vessel and none of the circumstances set out in paragraph 245(1)(a) or (b) apply. Paragraphs 245(1)(a) and (b) provide for limited exceptions to the fault‑based offence and civil penalty provision where a permission has been given for the vessel to be moored at that port, or a direction has been given requiring the vessel to be moored at that port.

 

558.     Subsection 245(2) provides for a fault-based offence that applies to the person in charge or the operator of the vessel in circumstances where the person permits the vessel (which is subject to biosecurity control) to be moored at a port in Australian territory that is not a first point of entry for the vessel, and the vessel is not permitted or directed to do so. Table item 35 would amend subsection 245(2) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual of the fault-based offence from 300 penalty units to 1,000 penalty units.

 

559.     Subsection 245(3) provides for a fault-based offence that applies to the person in charge of the vessel in circumstances where the operator of the vessel permits the vessel (which is subject to biosecurity control) to be moored at a port in Australian territory that is not a first point of entry for the vessel, and the vessel is not permitted or directed to do so. Table item 36 would amend subsection 245(3) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual of the fault-based offence from 300 penalty units to 1,000 penalty units.

 

560.     Subsection 245(4) provides for a fault-based offence that applies to the operator of the vessel in circumstances where the person in charge of the vessel permits the vessel (which is subject to biosecurity control) to be moored at a port in Australian territory that is not a first point of entry for the vessel, and the vessel is not permitted or directed to do so. Table item 37 would amend subsection 245(4) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual of the fault-based offence from 300 penalty units to 1,000 penalty units.

 

561.     Subsection 245(5) provides that the person in charge and the operator of a vessel are each liable to a civil penalty in circumstances where the vessel (which is subject to biosecurity control) is moored at a port in Australian territory that is not a first point of entry for the vessel, and the vessel is not permitted or directed to do so. Table item 38 would amend subsection 245(5) to increase the maximum civil penalty that a court may order a person who is an individual to pay from 120 penalty units to 300 penalty units.

 

562.     First points of entry for vessels may be determined to receive specified vessels, depending on the biosecurity risks associated with the vessel and the facilities at the first point of entry to manage the biosecurity risks. Section 245 ensures that, in the event that a first point of entry is determined to receive specified vessels, the first point of entry is not circumvented by mooring the vessel at an alternative location. Non‑compliance with section 245 may result in an inability to manage biosecurity risks associated with the vessel. Vessels arriving at a port that is not a first point of entry, and which does not have the capacity to manage the biosecurity risk, pose a threat that a disease or pest may enter, establish or spread and cause harm to Australia’s human, plant and animal health, the environment and the economy. Both the person in charge and the operator of a vessel are responsible for the movement of the vessel and should take active steps to understand and comply with the requirements under the Biosecurity Act, including those relating to first points of entry.

 

563.     The proposed increases to the maximum pecuniary penalties for the fault-based offences in subsections 245(2) to (4) depart from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increases to the maximum penalties are outlined in paragraphs [352]-[354] above.

 

564.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 245(5) is necessary to deter those considering jeopardising Australia’s biosecurity status.

 

Table items 39 to 42 – Subsections 246(2) to (5) (penalty)

 

565.     Section 246 of the Biosecurity Act provides for a number of fault-based offences and a civil penalty provision that apply in circumstances where a vessel that is subject to biosecurity control has been moored at a first point of entry for that vessel, there is a biosecurity entry point for the vessel at the first point of entry and the vessel is not brought to the biosecurity entry point as soon as practicable.

 

566.     Subsection 246(2) provides for a fault-based offence that applies to the person in charge or the operator of the vessel in circumstances where the person does not ensure that the vessel (which has been moored at a first point of entry and is subject to biosecurity control) is brought to a biosecurity entry point for the vessel (if any) as soon as practicable. Table item 39 would amend subsection 246(2) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual of the fault-based offence from 300 penalty units to 1,000 penalty units.

 

567.     Subsection 246(3) provides for a fault-based offence that applies to the person in charge of the vessel in circumstances where the operator of the vessel does not ensure that the vessel (which has been moored at a first point of entry and is subject to biosecurity control) is brought to a biosecurity entry point for the vessel (if any) as soon as practicable. Table item 40 would amend subsection 246(3) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual of the fault-based offence from 300 penalty units to 1,000 penalty units.

 

568.     Subsection 246(4) provides for a fault-based offence that applies to the operator of the vessel in circumstances where the person in charge of the vessel does not ensure that the vessel (which has been moored at a first point of entry and is subject to biosecurity control) is brought to a biosecurity entry point for the vessel (if any) as soon as practicable. Table item 41 would amend subsection 246(4) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual of the fault-based offence from 300 penalty units to 1,000 penalty units.

 

569.     Subsection 246(5) provides that the person in charge and the operator of a vessel are each liable to a civil penalty in circumstances where the vessel (which has been moored at a first point of entry and is subject to biosecurity control) is not brought to a biosecurity entry point for the vessel (if any) as soon as practicable. Table item 42 would amend subsection 246(5) to increase the maximum civil penalty that a court may order a person who is an individual to pay from 120 penalty units to 300 penalty units.

 

570.     Biosecurity entry points for vessels are designated areas within a port that a vessel must enter as soon as practicable upon arriving at a first point of entry. Section 246 ensures that vessel and goods that arrive in Australian territory from overseas, are brought, as soon as practicable, to a specific location within the port that has the facilities available to assess any biosecurity risk and mange it to an acceptable level. Both the person in charge and the operator of a vessel should take active steps to understand and comply with the requirements under the Biosecurity Act, including those relating to designated biosecurity entry points for first points of entry.

 

571.     Failure to bring a vessel to a biosecurity entry point as required under section 246 may prevent biosecurity officers from properly assessing and managing any biosecurity risk associated with the vessel, potentially resulting in serious damage to plant and animal health, Australia’s local industries, economy and the environment.

 

572.     The proposed increases to the maximum pecuniary penalties for the fault-based offences in subsections 246(2) to (4) depart from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increases to the maximum penalties are outlined in paragraphs [352]-[354] above.

 

573.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 246(5) is necessary to reflect the potential consequences of failing to bring the vessel to a biosecurity entry point and deter those considering jeopardising Australia’s biosecurity status.

 

Table items 43 to 46 – Subsections 247(4) to (7) (penalty)

 

574.     Section 247 of the Biosecurity Act provides for a number of fault-based offences and a civil penalty provision in relation to permission for a vessel to be moored at a port that is not a first point of entry for the vessel.

 

575.     Under subsection 247(1), the person in charge or the operator of a vessel that intends to be moored at a port in Australian territory, may, in writing, request permission from the Director of Biosecurity or the Director of Human Biosecurity for the vessel to be moored at a specified port in Australian territory that is not a first point of entry for the vessel. The Director of Biosecurity or the Director of Human Biosecurity may, by written notice, give permission for the vessel to be moored at a port specified in the request (subsection 247(2)) and the permission may be subject to any conditions specified in the notice (subsection 247(3)).

 

576.     Subsection 247(4) provides for a fault-based offence that applies to the person in charge or the operator of the vessel in circumstances where the person is given a permission under subsection 247(2) which is subject to conditions and the person engages in conduct that contravenes the conditions. Table item 43 would amend subsection 247(4) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

577.     Subsection 247(5) provides for a fault-based offence that applies to the person in charge of the vessel in circumstances where the operator of the vessel has been given a permission under subsection 247(2) which is subject to conditions and the conditions are not complied with. Table item 44 would amend subsection 247(5) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

578.     Subsection 247(6) provides for a fault-based offence that applies to the operator of the vessel in circumstances where the person in charge of the vessel has been given a permission under subsection 247(2) which is subject to conditions and the conditions are not complied with. Table item 45 would amend subsection 247(6) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

579.     Subsection 247(7) provides that the person in charge and the operator of a vessel are each liable to a civil penalty in circumstances where the person in charge or the operator of the vessel has been given a permission under subsection 247(2) which is subject to conditions and the conditions are not complied with. Table item 46 would amend subsection 247(7) to increase the maximum civil penalty that a court may order a person who is an individual to pay from 120 penalty units to 300 penalty units.

 

580.     Section 247 allows flexibility for vessels to be moored at a port that is not the first point of entry, provided that any conditions specified in the permission are complied with. The flexibility for industry provided by section 247 must be balanced by the need to ensure that biosecurity risks are appropriately assessed and managed. A person in charge or the operator of a vessel should take active steps to understand and comply with requirements in the Biosecurity Act. Where the person has specifically requested permission to be moored at a port that is not ordinarily a first point of entry for the particular vessel, and received written notice of the relevant Director’s decision, they should take reasonable steps to understand the permission, including the conditions attached to the permission. In accordance with subsection 239(2), any permission must be given by written notice.

 

581.     The ability to specify conditions in the notice allows the Director of Biosecurity or the Director of Human Biosecurity to maintain control over how a specific biosecurity risk is dealt with and ensure it is managed to an acceptable level. Accordingly, when a person engages in conduct that contravenes the conditions of a permission, they risk the potential entry and spread of pests and diseases in Australian territory. The person should expect there to be significant legal consequences because of the serious biosecurity risks likely to be posed by their conduct.

 

582.     The proposed increases to the maximum pecuniary penalties for the fault-based offences in subsections 247(4) to (6) depart from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalties do not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increases to the maximum penalties are outlined in paragraphs [352]-[354] above.

 

583.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 247(7) also aligns with similar civil penalty provisions in subsections 186(2) and 187(1) of the Biosecurity Act, which relate to contravening conditions that apply to conditionally non-prohibited goods and the conditions of a permit.

 

Table items 47 and 48 – Subsections 251(2) and (3) (penalty)

 

584.     Section 251 of the Biosecurity Act provides for a fault-based offence and a civil penalty provision which apply in circumstances where a person contravenes or does not comply with a direction that the person has been given under a provision of Division 3 of Part 4 of Chapter 4 of the Biosecurity Act. Under Division 3 of Part 4 of Chapter 4, the following directions may be given to a person in charge or the operator of a vessel:

 

·        To require the vessel to be moored, or not to be moored, at a specified port in Australian territory (section 248);

·        To require the vessel not to be moored at any port in Australian territory (section 249); and

·        To require the vessel to be moored, or not to be moored, at a specified port in Australian territory, where the direction is necessary to manage human health risks (section 250).

 

585.     Subsection 251(2) provides for a fault-based offence in circumstances where a person engages in conduct that contravenes a direction given under Division 3 of Part 4 of Chapter 4 of the Biosecurity Act. Table item 47 would amend subsection 251(2) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

586.     Subsection 251(3) provides that a person is liable to a civil penalty if the person does not comply with a direction given under Division 3 of Part 4 of Chapter 4 of the Biosecurity Act. Table item 48 would amend subsection 251(3) to increase the maximum civil penalty that a court may order a person who is an individual to pay from 120 penalty units to 300 penalty units.

 

587.     Regulated entities, such as the person in charge or operator of a vessel, are well placed to know that a direction has been given and how to comply with the direction. Section 251 ensures that persons who do not comply with, or who contravene, such directions can be held responsible. These directions ensure that the biosecurity risk of vessels can be appropriately assessed and managed at an appropriate first point of entry.

 

588.     The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 251(2) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalty does not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above.

 

589.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 251(3) also aligns with similar civil penalty provisions under sections 124 and 128 of the Biosecurity Act relating to a failure to comply with directions.

 

Table items 49 and 50 – Subsections 252A(3) and (4) (penalty)

 

590.     Section 252A provides a fault-based offence and a civil penalty provision in relation to a direction given to an operator of a first point of entry. Under subsection 252A(1), the Director of Human Biosecurity or a chief human biosecurity officer for a State or Territory may give an operator of a first point of entry a direction to carry out specified activities within the area of a first point of entry to control a vector if the Director or chief human biosecurity officer has reasonable grounds to believe that carrying out those activities in that area is necessary to ensure that the vector has not spread into, or is not likely to become established in, the area.

 

591.     Subsection 252A(3) provides for a fault-based offence in circumstances where a person fails to comply with a direction given under subsection 252A(1). Table item 49 would amend subsection 252A(3) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based offence from 300 penalty units to 1,000 penalty units.

 

592.     Subsection 252A(4) provides that a person is liable to a civil penalty if the person does not comply with a direction given under subsection 252A(1). Table item 50 would amend subsection 252A(4) to increase the maximum civil penalty that a court may order a person who is an individual to pay from 120 penalty units to 300 penalty units.

 

593.     Section 252A allows for the management of vectors that have the potential to spread listed human diseases or other human diseases. This ensures that the vector can be destroyed and the potential risk to human health by the vector appropriately managed. Failure to comply with a direction under section 252A poses a serious risk that the vector will spread into, or become established in, the area of a first point of entry, thereby risking Australia’s biosecurity status.

 

594.     The proposed increase to the maximum pecuniary penalty for the fault-based offence in subsection 252A(3) departs from the standard fine to imprisonment ratio in the Guide. However, this is necessary as the current penalty does not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. Further details about the proposed increase to the maximum penalty are outlined in paragraphs [352]-[354] above.

 

595.     In addition to the matters outlined in paragraphs [355]-[356] above, the proposed increase to the maximum civil penalty in subsection 252A(4) also aligns with similar civil penalty provisions under sections 124 and 128 of the Biosecurity Act relating to a failure to comply with directions.

 

Item 4        Application provisions—conveyances entering Australian territory etc.

 

596.     This item would provide that the amendments to the maximum pecuniary penalties made by table items 1 to 20 in item 3 of this Schedule, apply in relation to specified circumstances that occur on or after the commencement of this item. This would make clear that these amendments are intended to apply prospectively.

 

597.     Subitem 4(1) would provide that the amendment of subsection 198(2) of the Biosecurity Act, proposed by table item 1 in item 3 of this Schedule, applies in relation to a direction that is given on or after the commencement of this item. This would make clear that the amendment in table item 1 in item 3 is proposed to have prospective effect.

 

598.     Subitem 4(2) would provide that the amendments of subsections 200(2) and 201(3) of the Biosecurity Act, proposed by table items 2 and 3 in item 3 of this Schedule, apply in relation to a requirement made on or after the commencement of this item. This would make clear that the amendments in table items 2 and 3 in item 3 are proposed to have prospective effect.

 

599.     Subitem 4(3) would provide that the amendment of subsection 202(2) of the Biosecurity Act, proposed by table item 4 in item 3 of this Schedule, applies in relation to a direction that is given on or after the commencement of this item. This would make clear that the amendment in table item 4 in item 3 is proposed to have prospective effect.

 

600.     Subitem 4(4) would provide that the amendment of subsection 203(2) of the Biosecurity Act, proposed by table item 5 in item 3 of this Schedule, applies in relation to a biosecurity control notice that is affixed on or after the commencement of this item. This would make clear that the amendment in table item 5 in item 3 is proposed to have prospective effect.

 

601.     Subitem 4(5) would provide that the amendment of subsection 204(2) of the Biosecurity Act, proposed by table item 6 in item 3 of this Schedule, applies in relation to a conveyance:

 

·        that has been secured in accordance with a direction given under subsection 198(1) of the Biosecurity Act on or after the commencement of this item; or

·        in relation to which a direction relating to movement has been given under paragraph 202(1)(a) of the Biosecurity Act on or after the commencement of this item; or

·        that has been moved under paragraph 202(1)(b) of the Biosecurity Act on or after the commencement of this item; or

·        in relation to which a biosecurity control notice has been affixed under paragraph 203(1)(a) of the Biosecurity Act on or after the commencement of this item.

 

This would make clear that the amendment in table item 6 in item 3 is proposed to have prospective effect.

 

602.     Subitem 4(6) would provide that the amendment of subsection 214(3) of the Biosecurity Act, proposed by table item 7 in item 3 of this Schedule, applies in relation to a notice that is affixed on or after the commencement of this item. This would make clear that the amendment in table item 7 in item 3 is proposed to have prospective effect.

 

603.     Subitem 4(7) would provide that the amendments of section 215 of the Biosecurity Act, proposed by table items 8 to 14 in item 3 of this Schedule, apply in relation to a direction that is given on or after the commencement of this item. This would make clear that the amendments in table items 8 to 14 in item 3 are proposed to have prospective effect.

 

604.     Subitem 4(8) would provide that the amendments of subsections 216(3) and (4) of the Biosecurity Act, proposed by table items 15 and 16 in item 3 of this Schedule, apply in relation to a notice that is affixed on or after the commencement of this item. This would make clear that the amendments in table items 15 and 16 in item 3 are proposed to have prospective effect.

 

605.     Subitem 4(9) would provide that the amendments of subsections 217(4) and (5) of the Biosecurity Act, proposed by table items 17 and 18 in item 3 of this Schedule, apply in relation to a direction that is given on or after the commencement of this item. This would make clear that the amendments in table items 17 and 18 in item 3 are proposed to have prospective effect.

 

606.     Subitem 4(10) would provide that the amendment of subsection 220(1) of the Biosecurity Act, proposed by table item 19 in item 3 of this Schedule, applies in relation to an incoming aircraft or vessel that becomes subject to biosecurity control on or after the commencement of this item. This would make clear that the amendment in table item 19 in item 3 is proposed to have prospective effect.

 

607.     Subitem 4(11) would provide that the amendment of subsection 221(3) of the Biosecurity Act, proposed by table item 20 in item 3 of this Schedule, applies in relation to a vessel that enters Australian territory on or after the commencement of this item. This would make clear that the amendment in table item 20 in item 3 is proposed to have prospective effect.

 

Item 5        Application provisions—entry points for incoming aircraft and vessels

 

608.     This item would provide that the amendments to the maximum pecuniary penalties made by table items 21 to 50 in item 3 of this Schedule, apply in relation to specified circumstances that occur on or after the commencement of this item. This would make clear that these amendments are intended to apply prospectively.

 

609.     Subitem 5(1) would provide that the amendments of sections 237 and 238 of the Biosecurity Act, proposed by table items 21 to 28 in item 3 of this Schedule, apply in relation to an aircraft that becomes subject to biosecurity control on or after the commencement of this item. This would make clear that the amendments in table items 21 to 28 in item 3 are proposed to have prospective effect.

 

610.     Subitem 5(2) would provide that the amendments of section 239 of the Biosecurity Act, proposed by table items 29 to 32 in item 3 of this Schedule, apply in relation to a permission that is given on or after the commencement of this item. This would make clear that the amendments in table items 29 to 32 in item 3 are proposed to have prospective effect.

 

611.     Subitem 5(3) would provide that the amendments of subsections 243(2) and (3) of the Biosecurity Act, proposed by table items 33 and 34 in item 3 of this Schedule, apply in relation to a direction that is given on or after the commencement of this item. This would make clear that the amendments in table items 33 and 34 in item 3 are proposed to have prospective effect.

 

612.     Subitem 5(4) would provide that the amendments of sections 245 and 246 of the Biosecurity Act, proposed by table items 34 to 42 in item 3 of this Schedule, apply in relation to a vessel that becomes subject to biosecurity control on or after the commencement of this item. This would make clear that the amendments table in items 34 to 42 in item 3 are proposed to have prospective effect.

 

613.     Subitem 5(5) would provide that the amendments of section 247 of the Biosecurity Act, proposed by table items 43 to 46 in item 3 of this Schedule, apply in relation to a permission that is given on or after the commencement of this item. This would make clear that the amendments in table items 43 to 46 in item 3 are proposed to have prospective effect.

 

614.     Subitem 5(6) would provide that the amendments of subsections 251(2) and (3) and 252A(3) and (4) of the Biosecurity Act, proposed by table items 47 to 50 in item 3 of this Schedule, apply in relation to a direction that is given on or after the commencement of this item. This would make clear that the amendments in table items 47 to 50 in item 3 are proposed to have prospective effect.

 

 

SCHEDULE 5—RISK ASSESSMENT

 

Background

 

615.     Schedule 5 to the Bill would amend a number of provisions in the Biosecurity Act in relation to the conduct of risk assessments. A risk assessment is conducted for particular goods or class of goods to ensure the biosecurity risk associated with the goods or class of goods is appropriately managed for the purposes of making a determination under subsection 173(1), 174(1) and 182(1), or for deciding to grant a permit under subsection 179(1). The Appropriate Level of Protection (ALOP) for Australia, which aims to reduce biosecurity risks to a very low level, but not to zero, is applied when conducting a risk assessment.

 

616.     The amendments proposed by this Schedule seek to increase transparency about the process by which risk assessments are conducted for the purposes of these determinations or decisions to grant permits made under subsection 179(1). The amendments would identify the matters that the decision-makers must be satisfied of before making such a determination or decision, as well as setting out the considerations that the decision-makers must or may consider before making such a determination or decision. This would provide greater certainty and clarity to stakeholders about the process by which risk assessments are conducted, thereby enhancing good public administration.

 

617.     Schedule 5 to the Bill would not alter the requirement that ALOP be applied in conducting a risk assessment, consistent with Australia’s international obligations under the World Trade Organization Agreement on the Application of Sanitary and Phytosanitary Measures 1994. Similarly, the amendments proposed would not change the role of the Director of Biosecurity and Director of Human Biosecurity as decision-makers for these determinations and permits.

 

618.     This Schedule would commence on the day after the proposed Act receives the Royal Assent. The amendments made by this Schedule would not have effect until that day.

 

Biosecurity Act 2015

 

Item 1        Section 5 (note 2)

 

619.     Section 5 of the Biosecurity Act defines the Appropriate Level of Protection (ALOP) for Australia as a high level of sanitary and phytosanitary protection aimed at reducing biosecurity risks to a very low level, but not to zero.

 

620.     Note 2 following section 5 currently notifies the reader that the ALOP must be applied in conducting, among other things, a risk assessment for the purposes of deciding whether particular goods, or a particular class of goods, can be brought or imported into Australian territory (referring the reader to subsections 173(4), 174(3), 179(3) and 182(4) of the Biosecurity Act).

 

621.     This item would amend note 2 in section 5 to omit the reference to subsection 179(3) and substitute this with a reference to subsection 179(1A). This amendment would be consequential to the amendments proposed by items 6 and 8 of this Schedule.

 

Item 2        Section 9

 

622.     Section 9 of the Biosecurity Act provides definitions for the Biosecurity Act. This item would insert a new definition of biosecurity worker. This new definition would provide that biosecurity worker has the meaning given by new section 14A. This would be consequential to the insertion of new section 14A proposed by item 3 of this Schedule.

 

Item 3        After section 14

 

623.     This item would insert new section 14A after section 14 of the Biosecurity Act. Section 14A would provide for the definition of biosecurity worker.

 

624.     New subsection 14A(1) would provide that a biosecurity worker is:

 

·         An APS employee in the Agriculture Department or Health Department (new paragraph 14A(1)(a)); or

·         A person who is an employee of an Agency (within the meaning of the Public Service Act 1999) and whose services are made available to the Agriculture Department or Health Department (new paragraph 14A(1)(b)); or

·         A person who is engaged as a consultant or contractor to perform services for the Agriculture Department or Health Department and is specified in a determination under subsection 14A(2) (new paragraph 14A(1)(c)); or

·         A person who is engaged or employed by a person to whom new paragraph 14A(1)(c) applies, is performing services for the Agriculture Department or Health Department in connection with that engagement or employment and is specified in a determination under subsection 14A(3) (new paragraph 14A(1)(d)).

 

625.     New subsection 14A(2) would provide that the Director of Biosecurity or the Director of Human Biosecurity may, by written determination, specify a person for the purposes of new subparagraph 14A(1)(c)(ii). New subsection 14A(3) would provide that the Director of Biosecurity or the Director of Human Biosecurity may also, by written determination, specify a person for the purposes of subparagraph 14A(1)(d)(iii). New subsection 14A(4) would provide that a determination under new subsections 14A(2) or (3) is not a legislative instrument.

 

626.     The intention is that a biosecurity worker who conducts a risk assessment under new paragraphs 173(4)(a), 174(3)(a), 179(1A)(a) and 182(4)(a) would do so with specialised knowledge and skills that would enable them to make an accurate scientific assessment of the relevant biosecurity risks posed by particular goods or a class of goods. The sheer volume of the different goods or different classes of goods that may be the subject of a risk assessment means that, inevitably, there will be differences in the particular training, qualifications and expertise that is necessary to conduct each risk assessment. However, through appropriate knowledge-sharing and capacity building within the Agriculture Department and Health Department, biosecurity workers would be adequately supported in the conduct of the risk assessments.

 

Item 4        Subsection 173(4)

 

627.     Section 173 of the Biosecurity Act provides for prohibited goods. Subsection 173(1) of the Biosecurity Act allows the Director of Biosecurity and the Director of Human Biosecurity to jointly determine that specified goods, or a specified class of goods, must not be brought or imported into Australian territory. Under subsection 173(2), goods specified in a determination in force under subsection 173(1) or goods included in a class of goods specified in a determination in force under subsection 173(1) are prohibited goods.

 

628.     Subsection 173(4) currently provides that 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 173(1) specifying particular goods or a particular class of goods.

 

629.     This item would repeal and substitute subsection 173(4). Amended subsection 173(4) would provide that before a determination under subsection 173(1) is made:

 

·         A risk assessment must be conducted by a biosecurity worker in relation to the making of that determination; and

·         The Director of Biosecurity must be satisfied that the ALOP for Australia was applied in the conduct of the risk assessment, must consider the risk assessment and may also consider any other matters that the Director of Biosecurity considers relevant; and

·         The Director of Human Biosecurity must be satisfied that the ALOP for Australia was applied in the conduct of the risk assessment, must consider the risk assessment and may also consider any other matters that the Director of Human Biosecurity considers relevant.

 

630.     The intention of new subsection 173(4) is to clarify the process by which risk assessments are conducted for the purposes of the Director of Biosecurity and Director of Human Biosecurity making a determination under subsection 173(1). This increases transparency about the process by clearly identifying the matters that the decision-makers must be satisfied of, as well as the considerations that the decision-makers must or may consider before making such a determination. This amendment would not create or change classes of goods listed in a determination made under subsection 173(1).

 

Item 5        Subsection 174(3)

 

631.     Section 174 of the Biosecurity Act provides for conditionally non-prohibited goods. Subsection 174(1) allows the Director of Biosecurity and the Director of Human Biosecurity to 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. Under subsection 174(2), goods included in a class of goods specified in a determination in force under subsection 174(1) are conditionally non-prohibited goods.

 

632.     Subsection 174(3) currently provides that 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 174(1) specifying a particular class of goods.

 

633.     This item would repeal and substitute subsection 174(3). Amended subsection 174(3) would provide that before a determination under subsection 174(1) is made:

 

·         A risk assessment must be conducted by a biosecurity worker in relation to the making of that determination; and

·         The Director of Biosecurity must be satisfied that the ALOP for Australia was applied in the conduct of the risk assessment, must consider the risk assessment and may also consider any other matters that the Director of Biosecurity considers relevant; and

·         The Director of Human Biosecurity must be satisfied that the ALOP for Australia was applied in the conduct of the risk assessment, must consider the risk assessment and may also consider any other matters that the Director of Human Biosecurity considers relevant.

 

634.     The intention of new subsection 174(3) is to clarify the process by which risk assessments are conducted for the purposes of the Director of Biosecurity and Director of Human Biosecurity making a determination under subsection 174(1). This increases transparency about the process, by clearly identifying the matters that the decision-makers must be satisfied of, as well as the considerations that the decision-makers must or may consider before making such a determination. This amendment would not create or change classes of goods listed in a determination made under subsection 174(1) or the conditions that are imposed on conditionally non-prohibited goods.

 

Item 6        After subsection 179(1)

 

635.     Section 177 of the Biosecurity Act allows a person to apply to the Director of Biosecurity for a permit authorising the person, or a person acting on behalf of the person, to bring or import particular goods into Australian territory. Subsection 179(1) allows the Director of Biosecurity to grant a permit where a person has made an application under section 177.

 

636.     This item would amend the Biosecurity Act by inserting new subsection 179(1A) after subsection 179(1). New subsection 179(1A) would require that, before a permit in relation to the goods is granted, a risk assessment is conducted in relation to the goods by a biosecurity worker, and the Director of Biosecurity is satisfied that the ALOP for Australia was applied in the conduct of the risk assessment.

 

637.     The intention of new subsection 179(1A) is to clarify the process by which risk assessments are conducted for the purposes of the Director of Biosecurity granting a permit in relation to goods under subsection 179(1). This increases transparency about the process, by clearly identifying the matters that the Director of Biosecurity must be satisfied of before granting such a permit.

 

638.     A decision of the Director of Biosecurity under subsection 179(1) to refuse to grant a permit is a reviewable decision under subsection 574(1) of the Biosecurity Act. The amendment proposed in this item does not change this position. A person who applies for a permit under section 177 may seek to review a decision to refuse to grant that permit.

 

Item 7        Before paragraph 179(2)(a)

 

639.     As noted above, section 177 of the Biosecurity Act allows a person to apply to the Director of Biosecurity for a permit authorising the person, or a person acting on behalf of the person, to bring or import particular goods into Australian territory. Subsection 179(1) allows the Director of Biosecurity to grant a permit where a person has made an application under section 177. Subsection 179(2) of the Biosecurity Act provides the matters that the Director of Biosecurity must consider in deciding whether to grant a permit under subsection 179(1).

 

640.     This item would amend the Biosecurity Act by inserting new paragraph 179(2)(aa) before paragraph 179(2)(a). New paragraph 179(2)(aa) would provide that the risk assessment that was conducted in relation to the goods, is a matter that the Director of Biosecurity must consider in deciding whether to grant the permit.

 

641.     The intention of new subsection 179(1A) is to clarify the process by which risk assessments are conducted for the purposes of the Director of Biosecurity granting a permit in relation to goods under subsection 179(1). This increases transparency about the process, by clearly identifying the matters that the Director of Biosecurity must consider in deciding whether to grant such a permit.

 

642.     A decision of the Director of Biosecurity under subsection 179(1) to refuse to grant a permit is a reviewable decision under subsection 574(1) of the Biosecurity Act. The amendment proposed in this item does not change this position. A person who applies for a permit under section 177 may seek to review a decision to refuse to grant that permit.

 

Item 8        Subsection 179(3)

 

643.     Subsection 179(3) of the Biosecurity Act currently provides that the Director of Biosecurity must apply the ALOP for Australia in conducting a risk assessment for the purposes of deciding whether to grant the permit in relation to the goods.

 

644.     This item would amend the Biosecurity Act by repealing subsection 179(3). This amendment would be consequential on the insertion of subsection 179(1A) proposed by item 6 of this Schedule.

 

Item 9        Subsection 182(4)

 

645.     Subsection 182(1) of the Biosecurity Act provides that the Director of Biosecurity may determine that specified goods or a specified class of goods (including conditionally non-prohibited goods), must not be brought or imported into Australian territory for a specified period which is not longer than 6 months. Under subsection 182(2), goods specified in a determination in force under subsection 182(1) or goods included in a class of goods specified in a determination in force under subsection 182(1) are suspended goods.

 

646.     Subsection 182(4) currently provides that the Director of Biosecurity must apply the ALOP for Australia in conducting a risk assessment for the purpose of deciding whether to make a determination under subsection 182(1) specifying particular goods or a particular class of goods.

 

647.     This item would amend the Biosecurity Act by repealing and substituting subsection 182(4). Amended subsection 182(4) would provide that before a determination under subsection 182(1) is made:

 

·         A risk assessment must be conducted by a biosecurity worker in relation to the making of that determination; and

·         The Director of Biosecurity must be satisfied that the ALOP for Australia was applied in the conduct of the risk assessment, must consider the risk assessment, and may also consider any other matters that the Director of Biosecurity considers relevant.

 

648.     The intention of new subsection 182(4) is to clarify the process by which risk assessments are conducted for the purposes of the Director of Biosecurity making a determination under subsection 182(1). This increases transparency about the process, by clearly identifying the matters that the Director of Biosecurity must be satisfied of, as well as the considerations that the Director of Biosecurity must or may consider before making such a determination. This amendment would not create or change classes of goods listed in a determination made under subsection 182(1).

 

Items 10 and 11           Subsection 541(4) (note)

 

649.     Section 541 of the Biosecurity Act provides for the functions and powers of the Director of Biosecurity. Subsection 541(4) provides that in performing functions or exercising powers under the Biosecurity Act, the Director of Biosecurity:

 

·        Must have regard to the objects of the Biosecurity Act; and

·        Must comply with certain directions given by the Agriculture Minister.

 

650.     The note following subsection 541(4) currently notifies the reader that the Director of Biosecurity must apply the ALOP for Australia in conducting, among other things, 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 and, if so, whether this should be subject to conditions (referring the reader to subsections 173(4), 174(3), 179(3) and 182(4)).

 

651.     Item 10 would amend the note following subsection 541(4) by omitting the words “The Director of Biosecurity must apply the ALOP for Australia” and substituting this with “The ALOP for Australia must be applied”. Item 11 would amend the note following subsection 541(4) by omitting the word “179(3)” and substituting this with “179(1A)”.

 

652.     The amendments proposed by items 10 and 11 would align the Biosecurity Act with the other amendments proposed by item 1 of this Schedule and would be consequential to the amendments proposed by items 4 to 9 of this Schedule.

 

Item 12      Application provisions

 

653.     This item would provide for the application provisions for the amendments proposed by this Schedule, and would make clear that the amendments will have prospective effect.

 

654.     Subitem 12(1) would provide that the amendment of section 173 of the Biosecurity Act made by this Schedule applies in relation to a determination made under subsection 173(1) on or after the commencement of this item.

 

655.     Subitem 12(2) would provide that the amendment of section 174 made by this Schedule applies in relation to a determination made under subsection 174(1) on or after the commencement of this item.

 

656.     Subitem 12(3) would provide that the amendments of section 179 of the Biosecurity Act made by this Schedule applies in relation to an application for a permit made on or after the commencement of this item.

 

657.     Subitem 12(4) would provide that the amendment of section 182 of the Biosecurity Act made by this Schedule applies in relation to a determination made under subsection 182(1) on or after the commencement of this item.

 

 

SCHEDULE 6—ARRANGEMENTS AND GRANTS FOR DEALING WITH RISKS POSED BY DISEASES OR PESTS

 

Background

 

658.     The Australian Government currently delivers numerous programs to manage biosecurity risks which may cause harm to animal, plant and human health, the environment and the economy. The programs are designed to identify, prevent, prepare for, and manage the risk of pests and diseases entering Australian territory.

 

659.     Legislative authority for expenditure for such programs is generally provided by section 32B of the Financial Framework (Supplementary Powers) Act 1997 (FFSP Act) by inserting new items for each program into the relevant Schedule to the Financial Framework (Supplementary Powers) Regulations 1997 (FFSP Regulations). The FFSP Act and the FFSP Regulations provide general expenditure authority for programs across the Commonwealth that are not otherwise specifically authorised in portfolio legislation. Examples of such programs include:

 

·        Funding to improve Australia’s capacity to respond to pest and disease incursions;

·        Increased economic opportunities for Indigenous persons, entities and communities through activities that target biosecurity risks in northern Australia; and

·        Investment in projects that support planning and preparedness for management of environmental biosecurity risks.

 

660.     Schedule 6 to the Bill would provide legislative authority for arrangements and grants for dealing with risks posed by diseases or pests, such as the National Citrus Canker Eradication Program which ran in response to the detection of citrus canker in a Darwin retail nursery. Having tailored legislative authority provisions in the Biosecurity Act would assist the Australian Government to respond quickly to fast-changing circumstances where there is a pest or disease threatening the health of the Australian population, the environment or the agricultural sector. Including the authority for expenditure on biosecurity activities and programs in the Biosecurity Act would support a more agile biosecurity system, and ensure transparency and accountability for Commonwealth expenditure on biosecurity activities and programs. Expenditure on biosecurity activities and programs would be reported by the relevant Agriculture or Health portfolio.

 

661.     This approach would be consistent with the approach taken in other Commonwealth legislation to provide legislative authority for arrangements and grants, including the Aged Care Act 1997, Child Care Act 1972, Emergency Response Fund Act 2019, Fair Entitlements Guarantee Act 2012, Future Drought Fund Act 2019 and National Disability Insurance Scheme Act 2013.

 

662.     This Schedule would commence on the day after the proposed Act receives the Royal Assent. The amendments made by this Schedule would not have effect until that day. Any arrangements made prior to this day would still require legislative authority from other sources, such as by amendments to a Schedule to the FFSP Regulations.

 

Biosecurity Act 2015

 

Item 1        Section 3

 

663.     Section 3 of the Biosecurity Act sets out a simplified outline. This item would amend the description of Chapter 11 in the simplified outline to include a reference to arrangements and grants for dealing with risks posed by diseases or pests. This item is consequential to the changes proposed by item 6 of this Schedule which inserts a power of the Agriculture Minister or Health Minister to make, vary or administer such arrangements.

 

664.     The simplified outline, and the amendments made by this item, are not intended to be comprehensive and has been included to assist readers to understand the substantive provisions of the Biosecurity Act and the amendments made by this Schedule, rather than to replace those provisions. It is intended that readers would rely on the substantive provisions in the Biosecurity Act and this Schedule.

 

Items 2 and 3      Section 4 (note)

 

665.     Section 4 sets out the objects of the Biosecurity Act, which includes to provide for managing biosecurity risks. The note following section 4 explains that the expression ‘biosecurity risk’ has different meanings in the Biosecurity Act.

 

666.     Item 2 would insert the words “, Part 3A of Chapter 11 (arrangements and grants for dealing with risks posed by diseases or pests)” after “response)” in the note. Item 3 would omit “and 310” and substitute “, 310 and 614B” in the note. The amended note following section 4 would provide that the expression ‘biosecurity risk’ has different meanings depending on whether it is for the purposes of Chapter 6, Part 3A of Chapter 11, or another part of the Biosecurity Act, referring to sections 9, 310 or 614B. This amendment would be consequential to the insertion of new Part 3A of Chapter 11, as proposed by item 6 of this Schedule.

 

Item 4        Section 9 (definition of biosecurity risk)

 

667.     Section 9 provides definitions for the Biosecurity Act. This item would insert the words “or 614B” after “section 310” in the definition of biosecurity risk. This would provide that the definition of biosecurity risk has the meaning set out in in section 9, except where otherwise provided by section 310 or 614B. This amendment would be consequential to the insertion of new section 614B, as proposed by item 6 of this Schedule.

 

Item 5        Section 9 (at the end of the note to the definition of biosecurity risk)

 

668.     Section 9 provides definitions for the Biosecurity Act. This item would insert the words “and section 614B applies this modified meaning in relation to Part 3A of Chapter 11 (arrangements and grants for dealing with risks posed by diseases or pests)” at the end of the note to the definition of biosecurity risk. This would explain to readers that new section 614B applies the modified meaning of biosecurity risk in section 310 in relation to new Part 3A of Chapter 11. This would be consequential to the amendments proposed by items 4 and 6 of this Schedule.

 

Item 6        After Part 3 of Chapter 11

 

669.     This item would insert a new Part 3A into Chapter 11 of the Biosecurity Act. The new Part 3A would set out provisions relating to arrangements and grants by the Commonwealth for dealing with risks posed by diseases or pests.

 

Section 614A – Simplified outline of this Part

 

670.     New section 614A would provide a simplified outline of the new Part 3A of Chapter 11 of the Biosecurity Act. The outline notes that Part 3A of Chapter 11 would allow the Agriculture Minister or the Health Minister, on behalf of the Commonwealth, to make, vary or administer an arrangement for the making of payments by the Commonwealth, or make, vary or administer a grant of financial assistance, for dealing with risks posed by diseases or pests.

 

671.     The outline is not intended to be comprehensive and has been included to assist readers to understand the substantive provisions of new Part 3A, rather than to replace those provisions. It is intended that readers would rely on the substantive provisions in new Part 3A.

 

Section 614B – Arrangements and grants for dealing with risks posed by diseases or pests

 

672.     New section 614B would provide for arrangements and grants by the Commonwealth for dealing with risks posed by diseases or pests.

 

673.     New subsection 614B(1) would provide that the Agriculture Minister or the Health Minister may, on behalf of the Commonwealth, make, vary or administer an arrangement for the making of payments by the Commonwealth, or make, vary or administer a grant of financial assistance, in relation to one or more specified activities.

 

674.     These activities would be specified to be the following:

 

·         Activities or research relating to identifying, preventing, preparing for or managing biosecurity risks (new paragraph 614B(1)(a));

·         Activities in or outside of Australian territory relating to dealing with the risk covered by new subsection 614B(2), including, but not limited to, improving the capacity of foreign countries to respond to or manage that risk (new paragraph 614B(1)(b));

·         Activities relating to communicating information in or outside Australian territory about the identification of, prevention of, preparation for or management of biosecurity risks or the risk covered by new subsection 614B(2) (new paragraph 614B(1)(c));

·         Activities relating to supporting or enhancing State or Territory or industry led biosecurity incident response programs, or biosecurity incident recovery programs, dealing with biosecurity risks (new paragraph 614B(1)(d));

·         Activities relating to identifying or managing established pests or established diseases to stop the spread of such pests or diseases (new paragraph 614B(1)(e));

·         Activities relating to furthering the objects of the Biosecurity Act (new paragraph 614B(1)(f));

·         A matter that is incidental or ancillary to an activity covered by the above paragraphs (new paragraph 614B(1)(g)).

 

675.     The reference to the spread of established pests or established diseases in new paragraph 614B(1)(e) is intended to include the introduction of such pests or diseases to a part of Australian territory where it is not already established, from another part of Australian territory where these pests or diseases are established. For the purposes of new subsection 614B(1), biosecurity risk is defined in new subsection 614B(6). Australian territory is defined in section 12 of the Biosecurity Act.

 

676.     The activities listed in new subsection 614B(1) would provide clear parameters on the types of arrangements and grants of financial assistance that either Minister may make, vary or administer.

 

677.     It is appropriate to enable both the Agriculture Minister and the Health Minister to make, vary or administer arrangements and grants of financial assistance under subsection 614B(1), given that the Biosecurity Act is administered by both the Agriculture Department and the Health Department. It is intended that the Health Minister would be able to make, vary or administer arrangements and grants of financial assistance relating to diseases or pests that cause harm to human health, while the Agriculture Minister would be able to make, vary or administer arrangements and grants of financial assistance for other diseases or pests. However, this is a starting position only, and does not serve as qualification to, or delineation of, the types of arrangements and grants of financial assistance that either Minister can make, vary or administer (within the parameters set out by new subsection 614B(1)). As there are some diseases or pests which may cause harm to both human health and animal health, it is appropriate for arrangements and grants of financial assistance relating to such diseases to be made, varied or administered by either Minister.

 

678.     Funding for these arrangements and grants of financial assistance would come from annual appropriations made through the Federal Budget process. Government decisions in relation to these activities would therefore still be subject to those requirements, including the Budget Process Operational Rules, and would be published in the Portfolio Budget Statements including Additional and Supplementary Statements. The Parliament would continue to have the ability to scrutinise expenditure on, and the operation of, arrangements and grants of financial assistance made under new section 614B, through regular parliamentary processes such as Senate Estimates. 

 

679.     In accordance with usual Commonwealth processes, expenditure for activities being provided under the proposed arrangements and grants of financial assistance would require the policy approval of the Cabinet or the Prime Minister as appropriate, prior to either Minister exercising their power under new subsection 614B(1). This would ensure compliance with the Budget Process Operational Rules. 

 

680.     Funding decisions and payments for arrangements and grants of financial assistance made under new section 614B would be subject to the requirements of the Commonwealth resource management framework including, where relevant, the Public Governance, Performance and Accountability Act 2013 (PGPA Act), the Commonwealth Grants Rules and Guidelines 2017 and the Commonwealth Procurement Rules. These documents outline, among other things, requirements relating to the publication of applicant guidelines, development of eligibility and assessment criteria, and publication of details relating to the successful applicant and the arrangement and grant subsequently made.

 

681.     Funding decisions made in connection with arrangements and grants of financial assistance made under new section 614B may be subject to independent merits review, where appropriate. In addition, the review and audit process undertaken by the Australian National Audit Office provides a mechanism to review Australian Government spending decisions and report any concerns to the Parliament. These requirements and mechanisms would help to ensure the proper use of Commonwealth resources and appropriate transparency around decisions relating to making, varying or administering arrangements and grants under new subsection 614B(1).

 

682.     Further, the right to review under paragraph 75(v) of the Constitution and review under section 39B of the Judiciary Act 1903 may still be available. Persons affected by spending decisions made in relation to arrangements and grants made under this new subsection 614B(1) may also have recourse to the Commonwealth Ombudsman where appropriate. 

 

683.     New subsection 614B(2) would set out certain types of risks that are to be covered by the activities in subsection 614B(1), including those outlined in new paragraph 614B(1)(b) and subparagraph 614B(1)(c)(ii).

 

684.     New subsection 614B(2) would provide that the risk covered by this subsection is the likelihood of a disease or pest entering a foreign country or a part of a foreign country; or the likelihood of a disease or pest emerging, establishing itself or spreading in a foreign country or a part of a foreign country; and the potential for any of the following:

 

·         The disease or pest to cause harm to human, animal or plant health in that foreign country;

·         The disease or pest to cause harm to the environment in that foreign country;

·         Economic consequences in that foreign country associated with the entry, emergence, establishment or spread of the aforementioned disease or pest.

 

685.     One of the key benefits of arrangements and grants to support activities dealing with risks posed by disease or pests in foreign countries is to strengthen the capability of those foreign countries to manage those risks to prevent them from entering Australia. For example, a pest may be prevalent in a foreign country that is a trading partner, and it is necessary to make, vary or administer arrangements or grants of financial assistance to assist that country to deal with the spread of that pest, to reduce the risk that it may enter in Australian territory through trade or other means.

 

686.     The key difference between new subsection 614B(2) and the definition of biosecurity risk in new subsection 614B(6) is the likelihood of a disease or pest entering, emerging, establishing or spreading in a particular location. This location may be in or outside of Australian territory. In some cases, it would be appropriate and more effective to address the risk of disease or pest outside of Australian territory.

 

687.     The combined effect of new subsections 614B(3), (4) and (5) would be to clarify that an arrangement or grant of financial assistance under new subsection 614B(1) may provide for the Commonwealth to reimburse, or partly reimburse, costs or expenses, but that this would not limit the operation of subsection 614B(1).

 

688.     New subsection 614B(6) would set out the definitions of key terms used in new section 614B. In this section, the following definitions would apply:

 

·        Arrangement would include a contract, agreement, deed or understanding;

·        Biosecurity risk would have the same meaning as in Chapter 6 of the Biosecurity Act (see section 310); and

·        Make, in relation to an arrangement, would include entering into an arrangement.

 

These definitions would clarify the operation of these terms in this section for the benefit of readers.

 

Section 614C – Terms and conditions for grants

 

689.     New subsection 614C(1) would require the terms and conditions on which a grant of financial assistance under new section 614B is made to a State or Territory to be set out in a written agreement between the Commonwealth and the State or Territory.

 

690.     New subsection 614C(2) would allow the Agriculture Minister or the Health Minister to enter into an agreement under new subsection 614C(1), on behalf of the Commonwealth. New subsection 614C(3) would explain that any variation of the grant of financial assistance must be in accordance with the terms or conditions of the grant.

 

691.     New subsection 614C(3) would clarify that new section 614C does not, by implication, prevent a grant of financial assistance under new section 614B to a person other than a State or Territory from being made subject to terms and conditions.

 

Section 614D – Additional operation of this Part

 

692.     New subsection 614D(1) would provide that, in addition to Part 3 of Chapter 1 of the Biosecurity Act, this new Part 3A of Chapter 11 also has effect as provided by new section 614D. Part 3 of Chapter 1 sets out the constitutional and international law provisions that are relevant to the Biosecurity Act. In particular, section 24 sets out the various constitutional heads of power upon which the Biosecurity Act may seek to draw if its operation is expressly confined to acts or omissions under those constitutional powers.

 

693.     New subsection 614D(2) would provide that new Part 3A of Chapter 11 also applies in relation to an arrangement or grant of financial assistance referred to in section 614B that is with respect to the granting of financial assistance to a State or Territory (referencing section 96 of the Constitution), or with respect to a Territory (referencing section 122 of the Constitution). This would mean that new section 614B may seek to draw upon those various constitutional heads of power, as set out in new subsections 614D(1) and (2).

 

Section 614E – Relationship of this Part with other Acts

 

694.     New section 614E would clarify that this new Part 3A of Chapter 11 of the Biosecurity Act does not, by implication, limit the operation of the Financial Framework (Supplementary Powers) Act 1997.

 

Section 614F – Executive power of the Commonwealth

 

695.     New section 614F would clarify that this new Part 3A of Chapter 11 of the Biosecurity Act does not, by implication, limit the executive power of the Commonwealth.

 

Section 614G – Inclusion of information in annual reports

 

696.     New section 614G would set out additional reporting requirements for when an arrangement or grant of financial assistance is made under new section 614B to ensure that such arrangements and grants are transparent and accountable.

 

697.     The operation of section 46 of the PGPA Act and new subsection 614G(1) of the Biosecurity Act would require the Agriculture Secretary to include in the Agriculture Department’s annual report:

 

·         The total of the amounts paid in that period under arrangements or grants of financial assistance made by the Agriculture Minister under new section 614B;

·         The total number of such arrangements or grants made by the Agriculture Minister under new section 614B in that period.

 

698.     The operation of section 46 of the PGPA Act and new subsection 614G(2) of the Biosecurity Act would require the Health Secretary to include in the Health Department’s annual report:

 

·         The total of the amounts paid in that period under arrangements or grants of financial assistance made by the Health Minister under new section 614B;

·         The total number of such arrangements or grants made by the Health Minister under new section 614B in that period.

 

699.     Annual reports for Commonwealth entities are required to be presented in the Parliament by the responsible Minister under section 46 of the PGPA Act and are subject to parliamentary scrutiny by the Joint Committee of Public Accounts and Audit. The inclusion of information in the Annual Report relating to arrangements and grants of financial assistance made under section 614B would provide an additional mechanism for parliamentary scrutiny and ensure transparency on the arrangements and grants being made.

 

700.     This requirement to include information in the annual report is not intended to displace or limit any existing reporting requirements. Rather, this requirement would be in addition to the Commonwealth’s regular practices and requirements for publishing expenditure-related information, for example, through the Federal Budget process.

 

Section 614H – Delegation

 

701.     New subsection 614H(1) would provide that the Health Minister may, by writing, delegate any of all of the Health Minister’s powers under new section 614B to the Health Secretary, or to an SES employee, or acting SES employee, in the Health Department or in a Department of State of the Commonwealth other than the Health Department. This means that the ability to make, vary or administer arrangements or grants of financial assistance for dealing with risks posed by diseases or pests can be delegated by the Health Minister.

 

702.     New subsection 614H(2) would provide that the Health Minister may, by writing, delegate the Health Minister’s powers under new section 614C to the Health Secretary, or to an SES employee, or acting SES employee, in the Health Department. This means that the ability to make, vary or administer grants of financial assistance to a State or Territory for dealing with risks posed by diseases or pests can be delegated by the Health Minister.

 

703.     A note following new subsections 614H(1) and (2) would refer readers to section 643 of the Biosecurity Act for the delegation of powers by the Agriculture Minister. Subsection 643(1) provides that the Agriculture Minister may, by writing, delegate any of the Agriculture Minister’s powers under the Biosecurity Act to the Director of Biosecurity, or an SES employee, or acting SES employee, in the Agriculture Department. This would include any delegation of powers under new section 614B or 614C. In addition, new subsection 643(1A), as proposed by item 7 of this Schedule, would provide that the Agriculture Minister may, by writing, delegate the Agriculture Minister’s powers under new section 614B to an SES employee, or acting SES employee, in a Department other than the Agriculture Department. It is intended that the delegation of the Health Minister’s powers, insofar as they relate to those powers provided for in new section 614B or 614C, would align with the Agriculture Minister’s ability to delegate powers under new section 614B or 614C.

 

704.     As noted above, the Australian Government currently delivers numerous programs designed to identify, prevent, prepare for and manage the risk of pests and diseases entering Australian territory which may cause harm to animal, plant and human health, the environment and the economy. This Schedule would insert tailored legislative authority provisions in the Biosecurity Act to allow the Australian Government to respond rapidly to the emergence, establishment or spreading of a pest or disease threatening the health of the Australian population, the environment or the agricultural sector. Given that programs may need to be administered and delivered quickly in order to mitigate such threats in a timely manner, it is important that the Health Minister’s powers under new sections 614B and 614C are delegable to the Health Secretary or an SES employee (or acting SES employee) in the Health Department so that arrangements and grants of financial assistance may be made, varied and administered on potentially short notice to respond to fast-changing circumstances. This would include powers relating to the management, administration and payment of any approved expenditure. It is the intention that the delegates would be senior officials of the Health Department, who have overall responsibility and direct oversight of the relevant arrangement or grant, therefore making them best placed to exercise the power under new section 614B or 614C. In addition, for the powers under new section 614B, it is intended that such delegates may also include senior officials of other Departments that are involved in the management and delivery of the relevant arrangement. For example, this would include programs delivered via the Business Grants Hub (operated by the Department of Industry, Science and Resources) or the Community Grants Hub (operated by the Department of Social Services), in accordance with existing Commonwealth policy. Where programs may be required quickly to mitigate relevant threats and risks, an inability to delegate the powers under new section 614B or 614C would require the Health Minister personally to make, vary and administer all arrangements and grants, including those of a more bureaucratic nature relating to the management, administration and payment of expenditure, thus potentially exacerbating and increasing those threats and risks.

 

705.     Further, and as provided by paragraph 34AB(1)(d) of the Acts Interpretation Act, a delegation of the power under section 614B or 614C by the Health Minister does not prevent the exercise of that power by the Health Minister. Any delegates of the Health Minister would be able to further consult with and seek approval from the Health Minister in relation to a specific arrangement or grant, if necessary, in the particular circumstances of each case. Similar considerations apply to the ability for the Agriculture Minister to delegate powers under new section 614B or 614C to the Director of Biosecurity or an SES employee (or acting SES employee) in the Agriculture Department or in a Department other than the Agriculture Department (as applicable).

 

706.     New subsection 614H(3) would provide that, when exercising any powers under a delegation of the power under section 614B by the Health Minister, the delegate must comply with any directions of the Health Minister. This is similar to the requirement in subsection 643(6), which provides that, when exercising any powers under a delegation, a delegate of the Agriculture Minister must also comply with any directions of the Agriculture Minister.

 

Item 7        After subsection 643(1)

 

707.     Subsection 643(1) provides that the Agriculture Minister may, by writing, delegate any of the Agriculture Minister’s powers under the Biosecurity Act to the Director of Biosecurity, or an SES employee, or acting SES employee, in the Agriculture Department.

 

708.     This item would insert new subsection 643(1A) after subsection 643(1) of the Biosecurity Act. New subsection 643(1A) would provide that the Agriculture Minister may, by writing, delegate the Agriculture Minister’s powers under new section 614B to an SES employee, or acting SES employee, in a Department of State of the Commonwealth other than the Agriculture Department. This would align the Agriculture Minister’s ability to delegate powers under new section 614B or 614C with the delegation of the Health Minister’s powers under new section 614H, as proposed by item 6 of this Schedule.

 

 

SCHEDULE 7—APPROVED ARRANGEMENTS AND COMPENSATION

 

Background

 

709.     Schedule 7 to the Bill would amend provisions relating to approved arrangements and compensation in the Biosecurity Act to streamline and improve their operation. The amendments would enhance the effectiveness and efficiency of the management of approved arrangements, while also improving processes for arrangement administration, auditing and the consideration of compensation claims.

 

710.     Chapter 7 of the Biosecurity Act enables the Director of Biosecurity or the Director of Human Biosecurity (the relevant Director) to approve proposed arrangements that provide for the holder of the arrangement, known as the biosecurity industry participant, to carry out certain biosecurity activities to manage biosecurity risks associated with specified goods, premises or other things. A biosecurity industry participant covered by an approved arrangement is authorised and required to carry out biosecurity activities in accordance with the approved arrangement, except in certain specified circumstances.

 

711.     Various Parts of Chapter 7 deal with processes relating to the approval of a proposed arrangement, as well as the variation, suspension and revocation of an approved arrangement in specified circumstances. It also relevantly sets out the powers and obligations of biosecurity industry participants, the directions that may be given to former biosecurity industry participants, and the auditing of approved or proposed arrangements.

 

712.     Division 3 of Part 5 of Chapter 11 of the Biosecurity Act deals with damaged goods or destroyed goods, conveyances or other premises. This includes the payment of compensation for such damage or destruction.

 

713.     This Schedule would provide for the following measures:

 

·         Allowing a biosecurity industry participant to make a written declaration to release goods from biosecurity control, where the biosecurity industry participant is also the person in charge of the goods;

·         Providing the relevant Director with the option of allowing an approved arrangement to remain in force indefinitely, unless it is revoked;

·         Extending the power of the relevant Director to give a direction to a former biosecurity industry participant, to circumstances where the approved arrangement has expired;

·         Providing additional powers for an auditor who is carrying out an audit of an approved or proposed arrangement under section 436 of the Biosecurity Act; and

·         Improving the operation of the compensation scheme for damaged goods or destroyed goods, conveyances or other premises.

 

714.     The policy intention is that these measures will provide clarity, streamline the administration of approved arrangements, reduce compliance costs and support more efficient movement of goods into Australian territory.

 

715.     This Schedule would commence on the day after the proposed Act receives the Royal Assent. The amendments made by this Schedule would not have effect until that day.

 

Part 1—Release of goods from biosecurity control

 

Background

 

716.     Part 1 of Chapter 3 of the Biosecurity Act provides for the management of biosecurity risks in relation to goods that are brought or imported into Australian territory. Under section 119, goods become subject to biosecurity control when the aircraft or vessel carrying the goods enters Australian territory.

 

717.     The goods remain subject to biosecurity control until they are released from biosecurity control under Division 10 of Part 1 of Chapter 3 of the Biosecurity Act. Currently, under section 162, one of the circumstances in which goods are released from biosecurity control is where a biosecurity industry participant gives, to a person in charge of the goods, a written notice releasing the goods from biosecurity control. A person in charge of goods is defined in subsection 22(1) of the Biosecurity Act.

 

718.     In practice, there are some situations where a biosecurity industry participant is also the person in charge of the goods. The amendments proposed by Part 1 of this Schedule to the Bill seek to clarify the circumstances in which a biosecurity industry participant can release goods from biosecurity control, where they are also the person in charge of the goods. This would provide clarity for individuals and businesses who are dealing with such goods and support the smooth movement of goods into Australian territory.

 

Biosecurity Act 2015

 

Item 1        Subsection 19(3) (paragraph (a) of the note)

 

719.     Section 19 of the Biosecurity Act defines the meaning of goods. Subsection 19(2) provides that a carried conveyance ─ which is a conveyance that is, or is to be, brought or imported into Australian territory from outside Australian territory on board another conveyance ─ is considered to be goods from the time it is first intended to be so brought or imported, until immediately after it is released from biosecurity control. This is intended to exclude such carried conveyances from provisions of the Biosecurity Act that deal with biosecurity risks associated with conveyances that convey people or goods into Australian territory.

 

720.     Subsection 19(3) provides that for the purposes of Parts 1 and 3 of Chapter 3 of the Biosecurity Act, and any other provisions related to those Parts, the carried conveyance continues to be goods after it is released from biosecurity control. Currently, paragraph (a) to the note following subsection 19(3) explains that this ensures that a notice releasing the carried conveyance from biosecurity control can be revoked under section 164 of the Biosecurity Act.

 

721.     This item would amend paragraph (a) to the note following subsection 19(3) of the Biosecurity Act, by inserting the words “or declaration” after “notice”. The amended note would explain that subsection 19(3) ensures that a declaration that has been made by a biosecurity industry participant to release a carried conveyance from biosecurity control can be revoked under section 164. This would be consequential to the amendments to paragraph 162(1)(b) proposed by item 2 of this Schedule.

 

Item 2        Paragraph 162(1)(b)

 

722.     Section 162 of the Biosecurity Act sets out when goods that are subject to biosecurity control are released from biosecurity control. Paragraph 162(1)(b) currently provides that goods are released from biosecurity control if a biosecurity industry participant gives or, before the goods became subject to biosecurity control, gave a person in charge of the goods a written notice releasing the goods from biosecurity control.

 

723.     This item would repeal current paragraph 162(1)(b) and substitute a new paragraph 162(1)(b). New paragraph 162(1)(b) would provide two circumstances in which goods are released from biosecurity control by a biosecurity industry participant, where they are authorised to do so in accordance with their approved arrangement.

 

724.     The first circumstance, as set out in new subparagraph 162(1)(b)(i), would provide that unless subparagraph 162(1)(b)(ii) applies, goods are released from biosecurity control if a biosecurity industry participant gives, or before the goods became subject to biosecurity control, gave to a person in charge of the goods a written notice releasing the goods from biosecurity control. This circumstance would be the same as current paragraph 162(1)(b) in the Biosecurity Act.

 

725.     The second circumstance, as set out in new subparagraph 162(1)(b)(ii), would apply where the biosecurity industry participant is, or will be, in charge of the goods. The goods would be released from biosecurity control if the biosecurity industry participant makes a written declaration, or made a written declaration before the goods became subject to biosecurity control, releasing the goods from biosecurity control.

 

726.     New subparagraph 162(1)(b)(ii) would provide for instances where biosecurity industry participants may be able to release goods to itself under an approved arrangement as they are also the person in charge of the goods. The proposed amendment would clarify that where the person in charge of the goods and the biosecurity industry participant is the same person, the biosecurity industry participant may make a written declaration to release the goods from biosecurity control if the biosecurity industry participant is authorised to do so in accordance with their approved arrangement.

 

727.     The intention of requiring a written declaration to be made under new subparagraph 162(1)(b)(ii) is to provide certainty for individuals and businesses that deal with goods that are obtained from a biosecurity industry participant who is also the person in charge of the goods. Such a declaration would indicate that the biosecurity industry participant decided to release the goods from biosecurity control to itself in accordance with the requirements of an approved arrangement covering the biosecurity industry participant.

 

Item 3        Subsection 162(2)

 

728.     Subsection 162(2) of the Biosecurity Act currently provides that, if goods are released from biosecurity control under, relevantly, paragraph 162(1)(b) because of a written notice given before the goods became subject to biosecurity control, then the goods are released immediately after they became subject to biosecurity control.

 

729.     This item would amend current subsection 162(2) to omit the words “or written notice given” and to substitute the words “written notice given or written declaration made”. This would have the effect that, if a written notice is given under new subparagraph 162(1)(b)(i) or a written declaration is made by a biosecurity industry participant under new subparagraph 162(1)(b)(ii) before the goods became subject to biosecurity control, then the goods would be released immediately after they become subject to biosecurity control.

 

730.     This amendment is necessary because goods may be released prior to becoming subject to biosecurity control based on an assessment of information provided under other provisions of the Biosecurity Act. In circumstances where a biosecurity industry participant decides to release goods to a person in charge of goods or to itself before the goods become subject to biosecurity control, then this amendment would ensure that both a notice under new subparagraph 162(1)(b)(i) and a declaration under new subparagraph 162(1)(b)(ii) are treated in the same way. This would allow these goods to move smoothly through the border ensuring that individuals and businesses are not subject to delays or additional costs.

 

Item 4        Paragraph 162(3)(b)

 

731.     Paragraph 162(3)(b) of the Biosecurity Act currently provides that a written notice releasing goods from biosecurity control that is given by a biosecurity industry participant to a person in charge of the goods under existing paragraph 162(1)(b) is not a legislative instrument.

 

732.     This item would amend current paragraph 162(3)(b) to omit the words “paragraph (1)(b)” and substitute “subparagraph (1)(b)(i) or a declaration referred to in subparagraph (1)(b)(ii)”. This would have the effect that both a written notice given under new subparagraph 162(1)(b)(i) and a written declaration made by a biosecurity industry participant under new subparagraph 162(1)(b)(ii) would not be a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 (the Legislation Act).

 

733.     The intention of this amendment is to clarify that both a notice under new subparagraph 162(1)(b)(i) and a declaration under new subparagraph 162(1)(b)(ii) are administrative in nature, and that an exemption from the Legislation Act is not sought or required.

 

Item 5        Section 164 (heading)

 

734.     Section 164 of the Biosecurity Act currently provides for circumstances in which a notice releasing goods from biosecurity control may be revoked.

 

735.     This item would amend the heading of section 164 of the Biosecurity Act to insert the words “or declaration” after the word “notice”. This would be consequential to the insertion of new subsection 164(2A) proposed by item 7 of this Schedule.

 

Item 6        Subsection 164(2)

 

736.     Subsection 164(2) of the Biosecurity Act currently provides that if a biosecurity industry participant gave a written notice for the purposes of paragraph 162(1)(b) to release goods from biosecurity control, then the biosecurity industry participant may revoke the notice by informing the person in charge of the goods in writing of the revocation.

 

737.     This item would amend current subsection 164(2) to omit the words “paragraph 162(1)(b)” and to substitute “subparagraph 162(1)(b)(i)”. This would be consequential to the amendments to paragraph 162(1)(b) proposed by item 2 of this Schedule.

 

Item 7        After subsection 164(2)

 

738.     This item would insert new subsection 164(2A) after subsection 164(2). A new subheading titled “Revoking declaration made by biosecurity industry participant” would be inserted before new subsection 164(2A) to provide a useful signpost for readers. New subsection 164(2A) would provide that if a biosecurity industry participant made a written declaration under subparagraph 162(1)(b)(ii) releasing goods from biosecurity control, they may, in writing, revoke the declaration.

 

739.     The ability to revoke a declaration releasing goods from biosecurity control under subparagraph 162(1)(b)(ii) is necessary to manage biosecurity risks in circumstances where the goods have been released by mistake or based on incorrect information provided to a biosecurity industry participant. The intention of requiring a written revocation of the declaration to be made under new subsection 164(2A) is to provide certainty for individuals and businesses that deal with goods that are obtained from a biosecurity industry participant who is also the person in charge of the goods. Such a written revocation would indicate that the biosecurity industry participant decided to revoke an earlier decision to release the goods from biosecurity control to itself, where the relevant grounds for revocation exist.

 

Item 8        Subsection 164(3)

 

740.     Subsection 164(3) of the Biosecurity Act currently sets out the grounds upon which a biosecurity officer or biosecurity industry participant may revoke a notice releasing goods from biosecurity control.

 

741.     This item would omit the words “subsections (1) and (2), the biosecurity officer or biosecurity industry participant may revoke the notice” from subsection 164(3), and substitute the words “subsections (1), (2) and (2A), the biosecurity officer or biosecurity industry participant may revoke the notice, or the biosecurity industry participant may revoke the declaration,”. This would have the effect that a biosecurity industry participant would be able to revoke a declaration under subparagraph 162(1)(b)(ii), where they suspect on reasonable grounds that the level of biosecurity risk associated with the goods is unacceptable or where the revocation occurs before any of the conditions in paragraphs 162(1)(c), (d) or (e) exist in relation to the goods.

 

742.     This amendment is necessary to set out the grounds upon which biosecurity industry participant would be able to revoke an earlier decision to release the goods from biosecurity control to itself. The grounds for revoking a declaration under new subparagraph 162(1)(b)(ii) would be the same as the grounds for revoking a notice given under subparagraph 162(1)(b)(i). This ensures consistency in the management of biosecurity risks relating to the release of goods from biosecurity control.

 

Item 9        Subsection 164(4)

 

743.     Subsection 164(4) of the Biosecurity Act currently provides that the effect of a revoked notice is that the revoked notice is taken never to have been given, for the purposes of the Biosecurity Act (other than section 164).

 

744.     This item would amend subsection 164(4) to insert the words “or the revoked declaration is taken never to have been made” after the words “given”. This would have the effect that, for the purposes of other provisions of the Biosecurity Act:

 

·         a notice given under subparagraph 162(1)(b)(i), which has been revoked, is taken to have never been given; and

·         a declaration made under subparagraph 162(1)(b)(ii), which has been revoked, is taken to have never been made.

 

745.     The intention of this item is to provide certainty for individuals and businesses that deal with goods that are the subject of a revoked notice or declaration. If a revoked notice or declaration is taken to have never been given or made, then the goods would remain subject to biosecurity control and the relevant provisions of the Biosecurity Act would continue to apply to such goods.

 

Item 10      Subsection 164(5)

 

746.     This item would repeal and substitute subsection 164(5) of the Biosecurity Act. A new subheading titled “Revocation not a legislative instrument” would be inserted before new subsection 164(5) to provide a useful signpost for readers.

 

747.     New paragraph 164(5)(a) would provide that a revocation of a notice that is given in writing under subsection 164(1) or 164(2) by a biosecurity officer or biosecurity industry participant respectively, would not be a legislative instrument. New paragraph 164(5)(b) would similarly provide that a revocation of a declaration made by a biosecurity industry participant under new subsection 162(2A) would not be a legislative instrument. The intention of this amendment is to clarify that a revocation is administrative in nature, and that an exemption from the Legislation Act is not sought or required.

 

Item 11      Application provision

 

748.     This item would provide that the amendments of section 162 and 164 of the Biosecurity Act made by Part 1 of this Schedule would apply in relation to a notice that is given, or declaration that is made, on or after the commencement of this item releasing goods from biosecurity control, whether the goods become subject to biosecurity control, or whether the arrangement concerned was approved, before, on or after that commencement.

 

749.     This item would make clear that the amendments made by Part 1 of this Schedule have prospective effect, in relation to a notice given or a declaration made on or after commencement.

 

Part 2—Duration of approved arrangements

 

Background

 

750.     Under Part 2 of Chapter 7 of the Biosecurity Act, approved arrangements are currently in force for a certain period that is specified in the notice of approval of the arrangement. Due to ongoing monitoring of approved arrangements under the Biosecurity Act, there are some circumstances where it may be appropriate to allow for certain approved arrangements to continue indefinitely unless revoked by the relevant Director.

 

751.     The amendments proposed by Part 2 of this Schedule to the Bill would provide the relevant Director with the option of allowing an approved arrangement to remain in force indefinitely, unless otherwise revoked. This would reduce compliance costs for biosecurity industry participants who are covered by the approved arrangement, with no impact on the effective management of biosecurity risks under the arrangement.

 

Biosecurity Act 2015

 

Item 12      Paragraph 408(2)(b)

 

752.     Subsection 408(1) of the Biosecurity Act provides that the relevant Director must notify, in writing, the applicant for approval of a proposed arrangement whether the arrangement is approved or not. Subsection 408(2) provides that if the arrangement is approved, the notice must specify any conditions to which the approved arrangement is subject (paragraph 408(2)(a)) and the period for which the approved arrangement is to be in force (paragraph 408(2)(b)).

 

753.     This item would repeal and substitute paragraph 408(2)(b) to provide that, if an arrangement is approved, the notice must specify the duration of the arrangement. New paragraph 408(2)(b) would also direct the reader to new section 409. This would be consequential to the insertion of new section 409, as proposed by item 13 of this Schedule.

 

Item 13      Section 409

 

754.     Section 409 of the Biosecurity Act currently provides for the period of effect of an approved arrangement. This item would repeal and substitute section 409, with a new heading titled “Duration of approved arrangement”.

 

755.     New paragraph 409(a) would provide that an approved arrangement comes into force on the day the notice is given under subsection 408(1), or otherwise on a later day, if that later day is specified in the notice. New paragraph 409(b) would provide that, unless an approved arrangement is revoked earlier, the arrangement would remain in force indefinitely, or otherwise for a certain period, if that period is specified in the notice given under subsection 408(1) as the period for which the arrangement is to be in force.

 

756.     This amendment would provide the relevant Director with the option of deciding not to specify, in the notice under subsection 408(1), a period for which the approved arrangement remains in force. This would have the effect that the approved arrangement would remain in force indefinitely unless it is revoked. This option would allow for additional flexibility and ensure that the duration of the approved arrangement can be tailored to reflect what is appropriate in the circumstances of each case.

 

Item 14      Application provision

 

757.     This item would provide that the amendments made by Part 2 of this Schedule would apply in relation to an approved arrangement, where the notice of approval under subsection 408(1) of the Biosecurity Act in relation to the arrangement is given on or after the commencement of this item. This would make clear that the amendments in items 12 and 13 of this Schedule are intended to have prospective effect.

 

Part 3—Directions to biosecurity industry participants after expiry of approved arrangements

 

Background

 

758.     Part 5 of Chapter 7 of the Biosecurity Act currently provides for the revocation of an approved arrangement in certain circumstances. After an approved arrangement has been revoked, there are some situations where it is necessary for the relevant Director to provide directions to former biosecurity industry participants to ensure that any outstanding biosecurity risks are appropriately managed.

 

759.     The amendments proposed by Part 3 of this Schedule to the Bill would provide the relevant Director with a corresponding power to provide directions to former biosecurity industry participants, where an approved arrangement expires. This would ensure that any biosecurity risks that pose harm to Australia’s human, plant and animal health, environment, and economy can be managed efficiently.

 

Biosecurity Act 2015

 

Item 15      Section 404

 

760.     Section 404 of the Biosecurity Act sets out a simplified outline of Chapter 7 which relates to approved arrangements. This item would amend the description of Part 5 of Chapter 7 in the simplified outline by omitting the words “Part 5 deals with revoking” and substituting the words “Part 5 deals with the revocation or expiry of”. This item would be consequential to the amendments proposed by items 16 to 22 of this Schedule, which would expand Part 5 of Chapter 7 to cover the revocation and expiry of approved arrangements.

 

761.     The simplified outline, and the amendments made by this item, are not intended to be comprehensive and has been included to assist readers to understand the substantive provisions of the Biosecurity Act and the amendments made by this Schedule, rather than to replace those provisions. It is intended that readers would rely on the substantive provisions in the Biosecurity Act and this Schedule.

 

Item 16      Part 5 of Chapter 7 (heading)

 

762.     This item would repeal the heading of Part 5 of Chapter 7 in the Biosecurity Act and substitute “Part 5—Revocation or expiry of approved arrangement”. This would be consequential to the amendments proposed by items 17 to 22 of this Schedule.

 

Item 17      Division 3 of Part 5 of Chapter 7 (heading)

 

763.     This item would repeal the heading of Division 3 of Part 5 of Chapter 7 in the Biosecurity Act and substitute “Division 3—Management of biosecurity risks after revocation or expiry of approved arrangement”. This would be consequential to the amendments proposed by items 18 to 22 of this Schedule.

 

Item 18      Section 426 (heading)

 

764.     This item would repeal the heading of section 426 in the Biosecurity Act and substitute “Management of biosecurity risks after revocation or expiry of approved arrangement”. This would be consequential to the amendments proposed by items 19 to 20 of this Schedule.

 

Item 19      At the end of subsection 426(1)

 

765.     Subsection 426(1) of the Biosecurity Act currently provides that section 426 applies if an approved arrangement covering a biosecurity industry participant (the former biosecurity industry participant) has been revoked under Division 1 or Division 2 of Part 5 of Chapter 7.

 

766.     This item would amend subsection 426(1) by adding the words “or has expired” at the end of subsection 426(1). This would have the effect of broadening the scope of section 426 of the Biosecurity Act to also apply to a former biosecurity industry participant, where their approved arrangement has expired. This would be consequential to the amendment to subsection 426(1), proposed by item 20 of this Schedule.

 

Item 20      At the end of subsection 426(2)

 

767.     Subsection 426(2) of the Biosecurity Act currently provides that the relevant Director may, in writing, direct the biosecurity industry participant to take specified action, within a specified period, to manage any biosecurity risks associated with goods, premises or other things that the biosecurity industry participant would have been authorised to deal with if the approved arrangement had not been revoked.

 

768.     This item would amend subsection 426(2) by adding the words “or has expired” at the end of subsection 426(2). This would have the effect that the relevant Director may give a direction to a former business industry participant in respect of an expired approved arrangement in the same manner as the relevant Director may currently give directions to former biosecurity industry participants in respect of approved arrangements that have been revoked.

 

769.     For example, if an approved arrangement expires while goods that are subject to biosecurity control are still under the possession or control of the former biosecurity industry participant, then new subsection 426(2) would allow the relevant Director to direct the former biosecurity industry participant to deal with the goods in a particular way for biosecurity risk management purposes.

 

Item 21      Subsection 427(2)

 

770.     Subsection 427(2) of the Biosecurity Act provides that if an approved arrangement has been revoked under Part 5 of Chapter 7, the person who was the biosecurity industry participant covered by the arrangement is not authorised, for the purposes of the Biosecurity Act, to carry out biosecurity activities in accordance with the arrangement at any time after the revocation takes effect.

 

771.     This item would amend subsection 427(2) to insert the words “or has expired” after “Part 5”. When read with the amendments proposed by item 22 of this Schedule, this would have the effect that a biosecurity industry participant covered by an approved arrangement would not be authorised to carry out biosecurity activities in accordance with the arrangement at any time after the arrangement expires.

 

Item 22      At the end of subsection 427(2)

 

772.     This item would amend subsection 427(2) by adding the words “or after the expiry of the arrangement” at the end of subsection 427(2). When read with the amendments proposed by item 21 of this Schedule, this would have the effect that a biosecurity industry participant covered by an approved arrangement would not be authorised to carry out biosecurity activities in accordance with the arrangement at any time after the arrangement expires.

 

Item 23      Application provision

 

773.     This item would provide that the amendments made by Part 3 of this Schedule would apply in relation to the expiry of an approved arrangement on or after the commencement of this item, whether the arrangement was approved before, on or after that commencement. This would make clear that the amendments in items 15 to 22 of this Schedule are intended to have prospective effect.

 

Part 4—Audit powers for auditing of approved arrangements

 

Background

 

774.     Division 2 of Part 7 of Chapter 7 of the Biosecurity Act provides for audit powers in relation to an approved arrangement or an application for the approval of a proposed or varied arrangement. Under section 436, the relevant Director may require any audit to be carried out in certain circumstances. An auditor is a person who carries out an audit under section 436. Auditors are either biosecurity officers or other appropriately qualified and experienced persons who are duly authorised by the relevant Director.

 

775.     Auditors require robust powers to ensure their audits are carried out accurately and supported by relevant evidence. The amendments proposed by Part 4 of this Schedule to the Bill would expand the current powers of auditors to provide additional powers to inspect, examine or make copies or sketches of certain documents, records or things.

 

Biosecurity Act 2015

 

Item 24      After subsection 437(4)

 

776.     Section 437 of the Biosecurity Act sets out the powers of an auditor. This includes, relevantly, the power under subsection 437(1) for the auditor to require any person to produce any documents, records or things that the auditor is satisfied are relevant to the audit.

 

777.     This item would insert new subsection 437(4A) after subsection 437(4) of the Biosecurity Act. New subsection 437(4A) would provide that the auditor may do the following:

 

·         Inspect or examine a document, record or thing produced under subsection 437(1);

·