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2013-2014

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

BIOSECURITY BILL » 2014

EXPLANATORY MEMORANDUM

(Circulated by authority of the Minister for Agriculture,

the Hon. Barnaby Joyce MP)



 



 

Contents

 

Purpose of the « Bill » 7

Why is the « Bill » necessary? . 7

Key principles . 8

Legislation for a strong agricultural industry . 8

Clear legislation to manage biosecurity risks . 8

Increasing efficiency and decreasing regulation . 9

Improving compliance . 10

Providing protection from public health risks . 10

Meeting Australia’s « international » obligations . 11

Overview of the « Bill » 11

Operational chapters . 11

Specialised biosecurity management chapters . 12

General administration chapters . 13

Rationale for « Bill » provisions . 14

Offences and penalties . 14

Abrogation of the privilege against self-incrimination . 15

Limitations . 15

Entry without warrant or consent 16

Exemption from disallowance . 17

Consultation about provisions of the « Bill » 17

The « Bill » ’s operation . 18

« Financial » impact statement 18

Human Rights Compatibility Statement 19

Discussion: general protection clauses and civil penalties . 20

Right to life . 22

Right to freedom from torture and cruel, inhuman or degrading treatment 22

Right to liberty and freedom from arbitrary detention . 25

Right to seek review .. 26

Right to freedom of movement 26

Right to the presumption of innocence (reverse burden provisions) 33

Right to the presumption of innocence (strict liability offences) 36

Right to be free from self-incrimination . 39

Right not to be tried or punished again for an offence for which a person has already been finally convicted or acquitted . 41

Right to protection from arbitrary interference with privacy . 41

Right to freedom of association . 47

Rights of the child . 49

Right to work . 49

Right to an adequate standard of living, including food, water and housing . 50

Right to health . 51

Right to enjoy and benefit from culture . 55

Rights of persons with disabilities . 55

Conclusion . 56

Notes on clauses . 57

Chapter 1—Preliminary . 57

Part 1—Preliminary . 57

Part 2—Definitions . 60

Part 3—Constitutional and « international » law provisions . 92

Part 4—Principles affecting decisions to exercise certain powers . 94

Chapter 2—Managing biosecurity risks: human health . 95

Part 1—General protections and listing human diseases . 95

Part 2—Preventing risks to human health . 98

Part 3—Managing risks to human health: human biosecurity control orders . 106

Part 4—Managing risks to human health: other biosecurity measures . 122

Chapter 3—Managing biosecurity risks: goods . 125

Part 1—Goods brought into Australia territory . 125

Part 2—Biosecurity Import Risk Analyses . 148

Part 3—Prohibited Goods etc. 150

Chapter 4—Managing biosecurity risks: conveyances . 160

Part 1—Introduction . 160

Part 2—Conveyances entering Australian territory etc. 160

Part 3—First points of entry and biosecurity entry points . 181

Part 4—Entry points for incoming aircraft and vessels . 185

Part 5—Ship sanitation . 195

Chapter 5—Ballast water and sediment 197

Part 1—Application and interpretation . 197

Part 2—Notice of discharge of ballast water in Australian seas . 198

Part 3—Management of discharge of ballast water 200

Part 4—Ballast water management plans and ballast water management certificates . 208

Part 5—Ballast water records . 210

Part 6—Offence of disposing of sediment 213

Part 7—Compliance and enforcement 214

Part 8—Miscellaneous . 217

Chapter 6—Managing biosecurity risks: monitoring, control and response . 218

Part 1—Introduction . 218

Part 2—Assessment of level of biosecurity risk . 219

Part 3—Biosecurity measures to manage unacceptable level of biosecurity risk . 226

Part 4—Biosecurity control orders . 238

Part 5—Biosecurity response zones . 243

Part 6—Biosecurity monitoring zones . 249

Part 7—Biosecurity activity zones . 254

Chapter 7—Approved arrangements . 258

Part 1—Introduction . 258

Part 2—Approval of proposed arrangement 258

Part 3—Variation of approved arrangement 260

Part 4—Suspension of approved arrangement 262

Part 5—Revocation of approved arrangement 265

Part 6—Powers and obligations of biosecurity industry participants . 267

Part 7—Other provisions . 269

Chapter 8—Biosecurity emergencies and human biosecurity emergencies . 273

Part 1—Biosecurity emergencies . 273

Part 2—Human biosecurity emergencies . 292

Chapter 9—Compliance and enforcement 296

Part 1—Monitoring . 296

Part 2—Investigation . 297

Part 3—Warrants for purposes other than monitoring and investigation . 299

Part 4—General rules about entry to premises under a warrant or consent 306

Part 5—Entering and exercising powers on premises without a warrant or consent 310

Part 6—Civil penalties . 313

Part 7—Infringement notices . 315

Part 8—Enforceable undertakings . 316

Part 9—Injunctions . 316

Part 10—Miscellaneous . 317

Chapter 10—Governance and officials . 322

Part 1—Introduction . 322

Part 2—Director of Biosecurity . 322

Part 3—Director of Human Biosecurity . 325

Part 4—Biosecurity officers and biosecurity enforcement officers . 325

Part 5—Chief human biosecurity officers and human biosecurity officers . 333

Part 6—Ministerial reviews . 335

Part 7—Miscellaneous . 336

Chapter 11—Miscellaneous . 338

Part 1—Review of decisions . 338

Part 2—Confidentiality of information . 340

Part 3—Cost recovery . 344

Part 4—Exemptions from and modifications of this Act 353

Part 5—Miscellaneous . 360

Addendum to the Regulation Impact Statement on the Australian Government’s biosecurity legislation   371

Regulation Impact Statement 372

 



BIOSECURITY « BILL » 2014

Purpose of the « Bill »

The Biosecurity « Bill » 2014 (the « Bill » ) will provide the primary legislative means and a modern regulatory framework for the Australian Government to manage the risk of pests and diseases entering Australian territory and causing harm to animal, plant and human health, the environment and the economy.

The « Bill » is designed to manage biosecurity risks—including the risk of listed human diseases—entering Australian territory, or emerging, establishing themselves or spreading in Australian territory or a part of Australian territory. The « Bill » will also enable the management of risks relating to ballast water and sediment and biosecurity emergencies. The « Bill » will give effect to Australia’s « international » rights and obligations, including under the World Health Organization « International » Health Regulations 200 5 ( « International » Health Regulations), the World Trade Organization Agreement on the Application of Sanitary and Phytosanitary Measures 1994 (SPS Agreement) and the Convention on Biological Diversity 1992 (Biodiversity Convention).

Why is the « Bill » necessary?

Australia’s people, economy and environment benefit significantly from a strong biosecurity system. Australia’s unique pest and disease status helps to protect our way of life, including our environment, human health, and the wellbeing of our domestic animals and plants. This unique status means that our agricultural industries, environment and communities have remained free of many pests and diseases common elsewhere, giving Australia a comparative advantage in export markets around the world.

Australia’s biosecurity system must be underpinned by a modern and effective regulatory framework. Currently, biosecurity is managed under the Quarantine Act 1908 (Quarantine Act) and related regulations. Australia’s biosecurity risks have changed significantly since the Quarantine Act was first drafted over a century ago. Shifting global demands, growing passenger and trade volumes, increasing imports from a growing number of countries and new air and sea craft technology have all contributed to a new and challenging biosecurity environment.

Whilst the Quarantine Act has enabled the effective management of biosecurity risks to date, it has been progressively amended no less than fifty times, mostly to cater for the changing demands placed on the biosecurity system. These amendments have contributed to creating complex legislation that is difficult to interpret and contains overlapping provisions and powers. Australia’s biosecurity system has been subject to review several times, and proposed reforms to strengthen the system have included the development of new biosecurity legislation.

The « Bill » provides a strong regulatory framework that enables the management of biosecurity risks in a modern and responsive manner and enhances Australia’s capacity to manage biosecurity risks into the future.

 

 

 

 

7

Legislation for a strong agricultural industry

Australia is free of many pests and diseases that are common around the world. This favourable status increases the demand for Australian agricultural products domestically and internationally. If harmful pests or diseases enter or spread in Australian territory, the agricultural sector, including farmers and exporters, will feel an enormous impact.

The « Bill » helps protect Australia’s favourable pest and disease status through a strong, clear and flexible legislative framework. As a result, Australia will be able to maximise its agricultural productivity and continue to pursue new agricultural export opportunities. The Australian Bureau of Statistics showed farm exports rose almost 5 per cent to $3.8 billion between December 2013 and January 2014 [1] and agricultural exports were worth $39.4 billion to the Australian economy in the 2013-14 « financial » year. [2]

The « Bill » contains new powers that allow for the management of a wider range of pests and diseases already present in Australian territory, such as fruit fly, which can adversely affect a wide range of fruit crops grown in Australia, and noxious weeds which might pose a threat to agricultural industries or the environment. The « Bill » also extends the coverage of existing powers so that some of the biosecurity risks posed by invasive pests can be more effectively managed. This is significant, as some invasive pests have the potential to cause significant damage to Australia’s agriculture sector and the environment. For instance, an incursion of red imported fire ants could have an estimated impact of $8.9 billion over 30 years. [3] These additional powers will complement current arrangements [4] with states, territories and industry to support the management of pest and disease incursions.

The « Bill » also helps to protect Australia’s marine industries from invasive marine pests found in ballast water and sediment. Ballast water is used by ships to maintain their safety and stability at sea, but its uptake and discharge can also spread invasive pests to new marine environments and cause significant harm to the industries that rely upon them. Australia’s key fishery industries are susceptible to a range of marine biosecurity threats that may be present in ballast water. In 2011-12 the gross value of Australian commercial fisheries production was $2.3 billion, with $1.3 billion coming from the wild-catch sector. [5] The « Bill » contains powers to manage the biosecurity risk posed by the ballast water held on board domestic and « international » ships.

Clear legislation to manage biosecurity risks

The « Bill » provides a strong legislative framework that clearly sets out the powers that can be exercised by officials as well as the requirements of those being regulated.

The « Bill » has been divided into chapters by subject matter and then structured in a way that makes it easier to find relevant powers. For example, there are three operational chapters that regulate goods, conveyances and onshore biosecurity risks. These chapters have been structured similarly so that the relevant powers and obligations for each topic can be more easily located.

Many powers in the « Bill » are similar to existing powers under the Quarantine Act, but are clearly stated and easier to use. Duplicate powers have been removed to reduce administrative complexity. This will lead to more effective biosecurity risk management and compliance and enforcement actions, improving the overall operation of Australia’s biosecurity system.

The definition of ‘biosecurity risk’ includes a reference to the likelihood of a pest or disease entering Australian territory ‘or a part of Australian territory.’ The reference to a part of Australian territory allows for a biosecurity risk to be assessed for a specific area or region, as well as for Australia as a whole. This means that BIRAs can consider and recommend biosecurity measures based on the level of biosecurity risk in a part of Australian territory. A note has been included in the « Bill » to clarify this.

The « Bill » will also help to protect Australia’s natural environments. The definition of ‘biosecurity risk’ considers the risk posed to the environment, as well as human, animal and plant health and the economy. Biosecurity risk is a core concept in the biosecurity legislation. Biosecurity officers have a range of powers to assess biosecurity risks, and if they suspect one is present, to impose measures and manage that risk.

Increasing efficiency and decreasing regulation

The « Bill » is outcomes focused and based on a key principle of minimising regulatory impact while still achieving the best biosecurity outcome. This results in a « Bill » that cuts red tape and reduces the regulatory burden experienced by compliant businesses that regularly interact with Australia’s biosecurity system.

The Department of Agriculture currently uses a risk-based approach to biosecurity intervention, where resources are focused on the risks of greatest biosecurity concern. The « Bill » will support this policy approach by providing flexible and responsive powers that allow biosecurity officials to best target risk based on the circumstances of each case.

Risk-based intervention reduces the administrative burden on compliant clients, enabling faster clearance at the border through better targeting and a focus on higher risk commodities and stakeholder behaviours. It also reduces delays for industry and cuts the costs for clients who actively and conscientiously take action to manage their biosecurity risks.

The « Bill » reduces regulation for many businesses by removing duplication and recognising modern business practices and systems that are already in place to manage biosecurity risk. A good example is industry partnerships, where an individual or business enters an arrangement with the Department of Agriculture to manage their biosecurity risks in an approved way (known as approved arrangements). This scheme will replace the duplicative quarantine approved premise and compliance agreement provisions in the Quarantine Act. These provisions overlap and can cause unnecessary administrative costs for businesses that are required to apply for and maintain multiple approvals and « agreements » with the Department of Agriculture.

The « Bill » allows businesses to enter into a single arrangement with the Department of Agriculture to manage their biosecurity risks in an approved way. The « Bill » will also allow a broader range of activities to be conducted under an arrangement. By allowing biosecurity risks to be managed more flexibly, the « Bill » encourages more businesses to approach the department and propose methods of managing biosecurity risk that can be incorporated into their existing business practices. This can be used to save time and money for both that business and the Commonwealth.

The « Bill » also modifies key operational provisions from the Quarantine Act that impose an unnecessary regulatory burden and are not required to manage biosecurity risks effectively. For example, the Quarantine Act does not allow goods to be unloaded from a conveyance automatically when it arrives in Australia. The « Bill » allows the goods to be unloaded, unless an officer instructs otherwise. This means that the conveyance is not unnecessarily delayed by a requirement to seek permission to unload goods that do not pose a biosecurity risk.

Vessels and aircraft that arrive in Australia are required to arrive at a port or landing place that is declared to be a first point of entry. The Quarantine Act allows an aircraft or vessel to apply for permission to enter a port or landing place that is not a first point of entry. The « Bill » takes this one step further by allowing a business to apply for a standing permission to arrive in Australia multiple times over an identified period of time. This will reduce the administrative burden faced by the aircraft or vessel, as it may otherwise be required to apply for permission for every arrival.

Improving compliance

The « Bill » contains a modern compliance framework with new and improved tools to enable more effective and efficient targeting of non-compliant behaviour or activities, while reducing the burden on those that are compliant. The « Bill » contains a range of enforcement options including: infringement notices, civil penalties, enforceable undertakings and criminal sanctions. This means the Commonwealth can choose between different penalty options and ensure that penalties are imposed in proportion to the offence committed, and are balanced, consistent and based on the level of risk posed.

The « Bill » also contains options to address the risk posed by people or companies that repeatedly breach biosecurity laws. A fit and proper person test can be used to consider a person or company’s history of compliance with Commonwealth legislation and then deny them approval for an import permit on that basis. It can also be used to deny a person approval for an approved arrangement or to suspend, revoke or alter the conditions upon an existing approved arrangement. This ensures that people or companies seeking these approvals, which give them a privileged position, are suitable entities to be responsible for the management of biosecurity risks.

The « Bill » introduces an associate test that can be used to consider whether a person applying for an import permit or an approved arrangement is an associate of another person that the Department of Agriculture does not consider to be a fit and proper person. This test will be used to prevent a person who has previously been denied an import permit or an industry arrangement with the Commonwealth from applying again under the name of an associate, such as a family member or former business partner.

The « Bill » contains a range of new warrant powers that allow biosecurity officers to enter premises and then use their powers to manage biosecurity risks. This means that the Commonwealth can more effectively manage biosecurity risks before they are realised, rather than penalising a person or company after they contravene the Act and have caused damage that cannot be undone.

Providing protection from public health risks

The « Bill » contains a range of biosecurity measures to manage the public health risk posed by serious communicable diseases. To reflect the new way in which human health risks are managed, it includes a range of measures that can be tailored to accommodate an individual’s circumstances and aims to ensure individual liberties and freedoms are considered, as well as the risk posed by the disease. The « Bill » will allow for measures such as passenger entry and exit screening, the management of exotic diseases onshore and provide for the review of human biosecurity decisions, to ensure that the use of powers and exercise of functions under the « Bill » are balanced against an individual’s rights.  

The human health provisions of the Quarantine Act, particularly those relating to isolation and treatment, have rarely been used in the last 20 years.  It is expected that the human health provisions contained in the « Bill » will also be seldom used.   However it is important that legislative powers are available to manage serious communicable diseases should they occur. This has been particularly highlighted by the recent announcements by the World Health Organization that diseases such as polio and Ebola virus disease have met the conditions for Public Health Emergencies of « International » Concern.

Meeting Australia’s « international » obligations

The « Bill » allows for the management of biosecurity risks in a manner that is consistent with Australia’s « international » obligations.

This includes obligations under the World Trade Organization Agreement on the Application of Sanitary and Phytosanitary Measures 1994 (SPS Agreement), the World Health Organization « International » Health Regulations 2005 ( « International » Health Regulations), and the Convention on Biological Diversity1992 (Biodiversity Convention).

The « Bill » can be broadly divided into three areas; operational chapters that support day to day biosecurity business, stand-alone chapters that support specialised biosecurity situations and general administrative chapters that support the other necessary functions and powers.

Operational chapters

The primary objective of the « Bill » is to manage biosecurity risk. This requires powers to identify, assess and manage biosecurity risks in relation to goods, conveyances and onshore pest or disease incursions.  

These powers will be exercised by appointed biosecurity officials who have the appropriate training and knowledge to recognise biosecurity risks and manage them appropriately—supported by extensive technical, policy and scientific expertise.

Chapter 3—Managing biosecurity risks: goods

This Chapter specifically deals with the management of goods which may create a biosecurity risk when they come to Australia. This includes powers to assess and manage biosecurity risks. Some goods will be prohibited from being brought in or imported into Australia. Others can only be brought in or imported if certain conditions are met (conditionally non-prohibited).

In order to evaluate the level of biosecurity risk associated with goods that are proposed for importation into Australia, the « Bill » will allow the Director of Biosecurity to conduct a Biosecurity Import Risk Analysis (similar to the current Import Risk Analysis process).  

Chapter 4—Managing biosecurity risks: conveyances

This Chapter deals with the movement of conveyances into Australian territory (conveyances include vessels and aircraft). This includes powers to assess and manage biosecurity risks.

« International » vessels and aircraft arriving in Australia from overseas and the goods on board must arrive at a declared first point of entry that is approved to accept them (unless given permission to do otherwise). This ensures that biosecurity risks enter Australia at a location where there are the appropriate facilities and personnel to manage them to an acceptable level.

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

This Chapter provides powers to manage biosecurity risks within Australia, including its territorial waters.  This chapter will complement existing « agreements » [6] and state controls, allowing for efficient and effective incursion responses in state, territory and Commonwealth jurisdictions.

This includes powers to assess and manage biosecurity risks. In line with the Biodiversity Convention, the powers will allow for the management of invasive pests.

A biosecurity control order can be issued, requiring that biosecurity measures are carried out in relation to a specific good, conveyance or premise. Over a larger area, monitoring zones can be declared that allow biosecurity officers to undertake monitoring and surveillance activities to check for potential biosecurity risks. If a pest or disease incursion is identified, a biosecurity response zone can be declared allowing biosecurity officers to carry out biosecurity measures and manage the biosecurity risk.

Biosecurity activity zones can also be declared over areas where biosecurity functions or duties are performed on behalf of the Commonwealth. This may include activities at a quarantine station or activities under an approved arrangement. Activity zones allow biosecurity officers to exercise assessment and management powers in the zone and control where and how people, goods or conveyances enter or exit the zone, in order to manage the biosecurity risk.

Specialised biosecurity management chapters

These chapters outline and support specialised biosecurity management.

Chapter 2—Managing biosecurity risks: human health

This Chapter contains a range of powers to control the spread of communicable diseases that may cause serious harm to human health. The powers only apply in relation to listed human diseases, determined by the Director of Human Biosecurity. The principles of general protection ensure that a power is exercised, or a biosecurity measure is imposed, only when the circumstances are sufficiently serious to justify it, and only if it would be effective, is proportionate, and is no more restrictive or intrusive than is required to manage the risk.

The Chapter also seeks to further implement Australia’s obligations as a signatory to the « International » Health Regulations .

Chapter 5—Ballast water and sediment

This Chapter creates a single, Australia-wide ballast water and sediment management regime, providing a comprehensive system for ballast water management that covers « international » and domestic vessels. This will allow Australia to manage risks associated with ballast water and work towards ratification of the Ballast Water Convention. The Convention has not yet come into force but this legislation will help ensure that Australia is ready when it does.

Chapter 7—Approved arrangements

This Chapter allows the Commonwealth to partner with industry through an approved arrangement scheme. Industry participants may enter into a voluntary arrangement with the Commonwealth to manage the biosecurity risks associated with their own operations in the most efficient and effective way. The industry participant must demonstrate its ability to meet strict standards to maintain the integrity of Australia’s biosecurity system.

Chapter 8 —Biosecurity emergencies and human biosecurity emergencies

This Chapter contains provisions to manage a pest or disease that poses a nationally significant threat to human, plant and animal health, the environment or the economy. The focus of these powers is to enable a fast and effective response that helps manage the amount of damage to Australia’s communities, local industries and economy. 

The emergency chapter will complement existing « agreements » and state and territory controls, allowing for efficient and effective emergency responses in state, territory and Commonwealth jurisdictions.

General administration chapters

The final group of chapters deal with the general administration of the « Bill » and apply across the legislation as a whole. They provide a framework for the smooth administration of Australia’s biosecurity system.

Chapter 1—Preliminary

This Chapter of the legislation deals with administrative matters such as jurisdiction, definitions of key terms and the objects of the « Bill » .

Chapter 9—Compliance and enforcement

This Chapter introduces a number of new tools to manage compliance and enforcement, designed to encourage clients to voluntarily comply with biosecurity requirements.

The « Bill » will contain infringement notices, civil penalties, enforceable undertakings and criminal sanctions. It will also have additional warrants powers that allow officers to enter premises in order to manage biosecurity risk.

Chapter 10—Governance and officials

This Chapter creates the positions of Director of Biosecurity (the Secretary of the Agriculture Department), the Director of Human Biosecurity (the Commonwealth Chief Medical Officer), biosecurity officers, biosecurity enforcement officers and human biosecurity officers. It also assigns some generic powers and functions for each position.

This Chapter also contains powers to gather information for the purposes of undertaking a review of the biosecurity system.  It is intended that these powers be delegated to the Inspector-General of Biosecurity. This will help ensure that the biosecurity system is robust and that the assessment and management of biosecurity risk is subject to regular review and continual improvement.

Chapter 11—Miscellaneous

This Chapter includes the remaining provisions for topics that do not belong in other Chapters, but are important for the overall administration of the « Bill » . This includes cost recovery, exemptions and modifications, immunity, information sharing and reviewable decisions. This Chapter also contains provisions relating to the application of the Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters and the management of biosecurity risks in the external territories.

Rationale for « Bill » provisions

Offences and penalties

Strict liability offences

When strict liability applies to an offence, the prosecution is only required to prove the physical elements of an offence, they are not required to prove fault elements, in order for the defendant to be found guilty. Strict liability is used in circumstances where there is public interest in ensuring that regulatory schemes are observed and it can reasonably be expected that the person was aware of their duties and obligations.

The « Bill » contains some strict liability offences. These offences have been used when there is a strong public interest in managing biosecurity risks appropriately and preventing serious damage to plant and animal health, human health, local industries, the economy and the environment.

For example, in Chapter 5 there are a number of strict liability offences that apply to the management of ballast water. There is a strong public interest in preventing invasive marine species from spreading to Australia’s marine environments and causing damage to the local industries that rely upon them or the environment. Ballast water is regulated on an « international » level through the « International » Maritime Organization and is the subject of an « international » convention. It can reasonably be expected that a person responsible for the operation of a ballast carrying vessel is aware of their duties and obligations to manage ballast water correctly and meet environmental standards designed to protect the marine environment.

To ensure that the strict liability offences in the « Bill » only target appropriate conduct, the defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ). This means that if a person has considered the relevant facts and is under a mistaken, but reasonable, belief about those facts, he or she is not liable for an offence.

All departures from the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) have been approved by the Attorney-General.

Reversing the evidential burden

Reversing the evidential burden means that a defendant, rather than the prosecution, is responsible for presenting evidence to a court about a particular fact. It is then up to the prosecution to establish that this evidence is incorrect or does not apply. This can be justified in circumstances where the facts in question are peculiarly within the knowledge of the defendant and it would be difficult or expensive for the prosecution to provide evidence, but the evidence is readily and cheaply available for the defendant.  

Some offences in the « Bill » reverse the evidential burden, by making the defendant responsible for providing evidence that proves there is a reasonable excuse why they have failed to meet a duty or obligation under the Act. This has been done because the relevant information is known peculiarly by the defendant and it would be significantly more difficult for the prosecution to prove. For example, a person might have removed a biosecurity control notice affixed to a vessel and seek to rely on the exception that they are a Commonwealth official and approved to do so under another Australian law. This person should easily be able to provide relevant identification and further information about the circumstances and the law that authorised them to remove the notice. It would be more difficult and time-consuming for the prosecution to provide evidence of this. 

The « Bill » also reverses the evidential burden for a defendant to prove that an exception applies if they are suspected of receiving or possessing prohibited goods or conditionally non-prohibited goods. This is justified because the defendant will have peculiar knowledge about how the goods in their possession were obtained and should be able to produce evidence of how they obtained them, such as a receipt or evidence of an EFTPOS transfer. It would be much more difficult and time-consuming for the prosecution to provide evidence of this.

Shifting the evidential burden for these offences implements the recommendations of the Commonwealth Ombudsman’s 2009 Report: Compliance and Investigation Activities of the Australian Quarantine and Inspection Service (AQIS). The reversal of the onus of evidential burden in these circumstances is also consistent with the Guide.

Abrogation of the privilege against self-incrimination

The privilege against self-incrimination is an important common law and « international » law principle that provides an individual with the right not to answer questions or produce materials which may incriminate them of a criminal offence or expose them to a civil penalty. However, this privilege may be overridden in circumstances where its use can seriously undermine the effectiveness of a regulatory scheme and prevent the collection of evidence. 

Chapters 3, 4 and 6 of the « Bill » contain powers that allow biosecurity officers to ask questions and require documents that abrogate the privilege against self-incrimination. Removing the privilege in these circumstances is justified, because this information is required to accurately assess biosecurity risks and ensure that they are managed to an acceptable level. For example, the information might inform officers that a shipment of meat products is from a country with a recent foot-and-mouth disease outbreak and strict biosecurity measures are required to prevent the risk of the outbreak spreading to Australia. Foot-and-mouth disease poses a risk of serious damage to Australia’s local industries, economy and the reputation of Australian products overseas. Gathering accurate information about a potential foot-and-mouth disease exposure is crucial to a fast and effective response by the Commonwealth. Allowing a person to use the privilege against self-incrimination and refuse to provide important information could result in a significant biosecurity risk remaining unmanaged. Therefore the public benefit of its removal outweighs the loss of personal liberty.

While in some cases it may be feasible to obtain information by other means (for example, through a warrant), the additional time taken to obtain such information may significantly increase the risk of a disease or pest entering, establishing or spreading to Australia. If the privilege is not abrogated, the Commonwealth’s ability to manage biosecurity risks through a responsive, evidence-led approach would be significantly reduced.

The abrogation of the privilege has been limited so that self-incriminatory disclosures cannot be used against the person making the disclosure in any proceedings (use and derivative use immunity). The only exceptions to this are in relation to proceedings arising out of sections 137.1 and 137.2 of the Criminal Code (in relation to false and misleading information and documents), and proceedings for the contravention of clause 532 or 533 (civil penalties for false or misleading information or documents). This approach is consistent with the Guide.

Limitations

The « Bill » contains some powers that have the potential to be exercised in a manner that impact upon the rights of a particular person. For example, the Director of Biosecurity can issue a direction requiring an aircraft or vessel to move outside of Australian territory, which might impact upon a person’s right to freedom of movement.

To ensure that these decisions only impact upon a person’s rights in circumstances where it is justified, Chapter 1 contains general protections that require the relevant decision maker to be satisfied of a number of principles when making the decision (in addition to other protections already contained in the « Bill » ). These limitations have been included to ensure that any direction given, or action undertaken, is appropriate and adapted and does not impact on a person or his or her rights any more than is necessary to manage the level of biosecurity risk posed.

This is consistent with « international » treaties such as the « International » Covenant on Civil and Political Rights and the « International » Covenant on Economic, Social and Cultural Rights .

Entry without warrant or consent

The « Bill » contains powers that allow a biosecurity officer and biosecurity enforcement officer to enter premises without a warrant or consent. These powers also have the potential to impact upon a person’s rights and therefore can only be exercised in very limited circumstances, as described below.

Biosecurity emergency

If a biosecurity emergency is declared, biosecurity officers and biosecurity enforcement officers will be able to enter premises without consent or a warrant for the purpose of assessing and managing biosecurity risks associated with the declaration pest or disease. Officers will also be able to access adjacent premises if it is necessary to access the premises where they need to exercise their assessment and management powers.

These powers are justified during an emergency period because of exceptional circumstances that led to the emergency being declared. A biosecurity emergency will only be declared by the Governor-General if the Agriculture Minister is satisfied that a pest or disease poses a nationally significant threat to plant or animal health, human health, the environment or the economy.

Access to premises is required so that officers can assess whether the declaration pest or disease is present and then, if required, undertake urgent measures to manage them. It would significantly impede the Commonwealth’s ability to work together with state and territory governments and implement a fast and effective response if biosecurity officers are required to seek warrants or consent for the premises that are likely to be affected.

The power to enter premises is limited to circumstances where the biosecurity officer suspects on reasonable grounds that the declaration pest or disease is present and is accompanied by a biosecurity enforcement officer (who is responsible for establishing entry to the premises and using force against things, such as opening doors or moving objects).

Approved arrangements

The « Bill » also allows a biosecurity enforcement officer to enter relevant premises during business hours to determine whether the Act has or is being complied with. This power can be used to access premises where biosecurity activities are being conducted under an approved arrangement.

Entry without a warrant is justified because the premises are the subject of a voluntary agreement between the Agriculture Department and an industry participant, who is approved to manage biosecurity risks on the premises in a particular way.

Biosecurity enforcement officers will be able to enter the premises and exercise their investigation and monitoring powers to determine whether the Act is being or has been complied with or that correct information has been supplied for the purposes of the Act. This will allow non-compliance to be more easily detected and ultimately reduced, leading to greater compliance with the Act and the better management of biosecurity risks overall. A biosecurity enforcement officer may also enter the premise if there are reasonable grounds to suspect there may be particular evidential material on the premises.

First points of entry

The power to enter relevant premises also allows biosecurity officers to enter premises at a first point of entry without a warrant or consent during business hours to determine whether the Act has or is being complied with.

Entry without a warrant is justified because these premises are the subject of a regulatory arrangement with the Commonwealth, where the first point is approved to be a place where goods, people and conveyances can arrive in Australian territory from overseas. As a result, premises at a first point of entry are an area of high risk for biosecurity risks entering, establishing and spreading in Australian territory and causing damage to animal and plant health, human health, the environment, local industries and the economy. It is important that these risks are managed as quickly and efficiently as possible.

Biosecurity officers may enter any premises at a first point of entry for the purpose of performing functions or exercising powers as a biosecurity officer. This will allow the officer to establish whether a biosecurity risk exists and, if required, undertake biosecurity measures to manage that risk.

The « Bill » also allows a biosecurity enforcement officer to enter the premises at a first point of entry to assess non-compliance with the Act. This will allow non-compliance to be more easily detected and ultimately reduced, leading to greater compliance with the Act and the better management of biosecurity risks overall. A biosecurity enforcement officer may also enter the premise at any time if there are reasonable grounds to suspect there may be particular evidential material on the premises.

Exemption from disallowance

Section 42 of the Legislative Instruments Act 2003 (LIA) allows some legislative instruments to be exempt from disallowance. These legislative instruments will still have to be tabled in the Parliament.

The « Bill » allows for some legislative instruments to be exempt from disallowance, for example, determinations of prohibited goods and conditionally non-prohibited goods. This is justified because it is more appropriate for Parliament to delegate the power to make determinations that involve technical and scientific decisions about the management of biosecurity risk to the Director of Biosecurity. An implication of these decisions being disallowed is that political considerations will play a role in what should be a technical and scientific decision making process. This has the potential to frustrate the risk management processes and lead to the inadequate management of biosecurity risks. This approach is consistent with the current arrangements in the Quarantine Proclamation 1998 .

Consultation about provisions of the « Bill »

The Attorney-General and the Attorney-General’s Department have been consulted on all relevant provisions of the « Bill » . In particular, approval has been provided by the Attorney-General for the approach taken in relation to higher penalty offences, exemptions from the LIA and the power for biosecurity officers and biosecurity enforcement officers to enter premises and adjacent premises without consent or a warrant.

The « Bill » ’s operation

Date of effect and application

The « Bill » provides for staggered commencement of the « Bill » . Clauses 1 and 2 of the « Bill » will commence on the day the « Bill » receives Royal Assent. The remaining clauses of the « Bill » will commence on a day fixed by proclamation, or if no day is fixed for commencement within 12 months of Royal Assent, they will commence on the day after the end of the 12 months.

Once the « Bill » receives Royal Assent, the Director of Biosecurity and the Director of Human Biosecurity will be able to make legislative instruments, and authorise various officers as outlined under Chapter 10 (through the operation of the Acts Interpretation Act 1901 ). These instruments and authorisations will come into effect when the operational provisions of the « Bill » commence.

It is intended that the majority of the clauses of the « Bill » will commence 12 months after Royal Assent. The period between commencement of clauses 1 and 2 and the remaining clauses of the « Bill » will allow time for the new requirements in the legislation to be communicated to stakeholders, industry participants and the general public and allow biosecurity officials to undergo appropriate training. It will also provide additional time for consultation with state and territory governments regarding shared responsibilities and obligations under the « Bill » .

Allowing time for communication and education is important, as a number of policies included in the « Bill » do not exist under the Quarantine Act. This includes the new powers in Chapter 6 and the enforcement provisions in Chapter 9. It is important that stakeholders are aware of the new requirements—including the introduction of civil penalty provisions and an expanded infringement notice scheme—in the « Bill » so that they are not inadvertently non-compliant with these requirements.

Proposed transitional arrangements in the Biosecurity (Consequential Amendments and Transitional Provisions) « Bill » 2014 will also allow time for stakeholders to adjust to the new legislative requirements, particularly where these requirements lead to changes in business processes. For example, for first points of entry it is proposed that most ports and landing places declared as a first port under the Quarantine Act will transition over a period of time to become a first point of entry under the Act. These ports and landing places will have three years to ensure they comply with the requirements for first points of entry in the Act. This will provide port and landing place operators an appropriate amount of time to upgrade—if necessary—their facilities, systems or processes.

« Financial » impact statement

No significant direct or indirect « financial » impact on the Commonwealth will arise from the introduction of this « Bill » .



 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Biosecurity « Bill » 2014

The Biosecurity « Bill » 2014 (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 .

Overview of the « Bill »

The purpose of the « Bill » is to provide the primary legislative means for the Australian Government to manage the risk of pests and diseases entering Australian territory and causing harm to animal, plant and human health, the environment and the economy. In achieving this purpose, the « Bill » aims to promote the right to health, the right to life and also the right to an adequate standard of living, including food, water and housing as provided under the « International » Covenant on Economic, Social and Cultural Rights (ICESCR) and the « International » Covenant on Civil and Political Rights (ICCPR).

The « Bill » is intended to replace the century-old Quarantine Act 1908 (the Quarantine Act) to provide a modern regulatory tool aimed at better managing biosecurity risks in current and future trading environments. The « Bill » allows for the management of a broader range of biosecurity risks at the border and provides for additional powers to monitor and manage biosecurity risks when they are detected in Australian territory to help prevent pests and diseases from impacting upon human, animal or plant health, the environment and the economy.

The « Bill » provides an effective and adaptive range of biosecurity measures to manage the public health risk posed by serious communicable diseases. It will provide a range of measures which can be tailored to accommodate an individual’s circumstances and aims to ensure individual liberties and freedoms are considered in conjunction with the disease risk. It will provide for consideration of personal freedoms and rights to review in decision-making. The « Bill » is consistent with Australia’s « international » obligations under the World Health Organization’s « International » Health Regulations 2005 .

The legislation enables a risk based approach to compliance, ensuring that enforcement measures are appropriate to achieve the regulatory outcome sought. The « Bill » aims to reflect the shared responsibility for biosecurity between governments at all levels, business, industries, trading partners and the community. It is designed to promote good governance, shared responsibility, efficient processes and procedural fairness.

The « Bill »  is also designed to draw upon, support and give effect to various « international » and domestic « agreements » and obligations. Internationally, these include:

·          the Agreement on the Application of Sanitary and Phytosanitary Measures (the SPS Agreement)

·          the « International » Convention for the Control and Management of Ships’ Ballast Water and Sediments (the Ballast Water Convention)

·          the « International » Health Regulations 2005 ( « International » Health Regulations)

·          the Convention on Biological Diversity (the Biodiversity Convention)

·          the United Nations Convention on the Law of the Sea , and 

·          the Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries (the Torres Strait Treaty).

Domestically, these include the Intergovernmental Agreement on Biosecurity and various emergency response deeds, including the Emergency Animal Disease Response Agreement, Emergency Plant Pest Response Deed and the National Environmental Biosecurity Response Agreement. The Commonwealth intends to work collaboratively with state and territory governments to complement existing powers and « agreements » in the management of biosecurity risks (however, the Commonwealth will cover the field in some circumstances, as expressly stated in the « Bill » ).

List of human rights

The « Bill » will engage, or has potential to engage, the following rights:

·          Article 6(1) of the ICCPR - Right to life

·          Articles 7 and 10 of the ICCPR -Right to freedom from torture and cruel, inhuman or degrading treatment

·          Article 9 of the ICCPR - Right to liberty and freedom from arbitrary detention

·          Articles 9(4) and 14(5) of the ICCPR - Right to seek review

·          Article 12 of the ICCPR - Right to freedom of movement

·          Article 14(2) of the ICCPR - Right to the presumption of innocence (reverse burden provisions)

·          Article 14(3) of the ICCPR - Right to be free from self-incrimination

·          Article 14 (7) of the ICCPR - Right not to be tried or punished again for an offence for which a person has already been finally convicted or acquitted

·          Article 17 of the ICCPR - Right to protection from arbitrary interference with privacy

·          Article 22 of the ICCPR - Right to freedom of association

·          Article 24(1) of the ICCPR and Article 3 of the Convention on the Rights of the Child - Rights of the child

·          Article 6 of the ICESCR - Right to work

·          Article 11(1) of the ICESCR - Right to an adequate standard of living, including food, water and housing

·          Article 12 of the ICESCR - Right to health

·          Article 15 of the ICESCR - Right to enjoy and benefit from culture , and

·          Articles 3 and 5 of the Convention on the Rights of Persons with Disabilities - Rights of persons with disabilities.

Discussion: general protection clauses and civil penalties

General protections and principles affecting decisions

To ensure that the decision to exercise certain powers under the « Bill » is reasonable and proportionate to achieve a legitimate objective, clause 32 provides a range of principles that a biosecurity official must be satisfied of when making certain decisions, including:

·          that exercising the power is likely to be effective in, or to contribute to, achieving the purpose for which the power is to be exercised

·          that exercising the power is appropriate and adapted to achieve that purpose

·          that the manner in which the power is to be exercised is no more restrictive or intrusive than is required in the circumstances

·          if the power is to be exercised in relation to an individual—that the power is no more restrictive or intrusive than is required in the circumstances, and

·          if the power is to be exercised during a period—that the period is only as long as is necessary.

Where powers are to be exercised in relation to a conveyance, the biosecurity official must also consider the impact of the exercise of the power on the health and safety of any persons on board the conveyance. Decisions to which these principles apply are specified in this statement under each human right that may be engaged by the « Bill » .

To ensure the exercise of certain powers in Chapter 2 is reasonable and proportionate to achieve a legitimate objective, clause 34 provides a range of principles that a person making a decision must be satisfied of, including:

·          that exercising the power, or imposing the biosecurity measure, is likely to be effective in, or to contribute to, managing the risk

·          that exercising the power, or imposing the biosecurity measure, is appropriate and adapted to manage the risk

·          that the circumstances are sufficiently serious to justify exercising the power, or imposing the biosecurity measure

·          that the power, or the biosecurity measure, is no more restrictive or intrusive than is required in the circumstances

·          that the manner in which the power is to be exercised, or the biosecurity measure is to be imposed, is no more restrictive or intrusive than is required in the circumstances, and

·          if the power is to be exercised or the biosecurity measure imposed during a period—that the period is only as long as is necessary.

The normal principles of administrative law also apply to the exercise of powers in clauses to which the principles under clauses 32 and 34 apply, such as reasonableness, proportionality and natural justice—as they do to the « Bill » as a whole (except where express limitations apply, such as in Chapter 8 which deals with emergencies). Additionally, a number of the decisions in the « Bill » to which these clauses apply have tests of reasonableness built into them.

Assessment of civil penalties

The Parliamentary Joint Committee on Human Rights Practice Note 2 notes that civil penalty provisions may engage criminal process rights under Articles 14 and 15 of the ICCPR, regardless of the distinction between criminal and civil penalties in domestic law. When a provision imposes a civil penalty, an assessment is required as to whether it amounts to a ‘criminal’ penalty for the purposes of ICCPR.

The civil penalty provisions in the « Bill » should not be considered ‘criminal’ for the purposes of human rights law. While a criminal penalty is deterrent or punitive, the majority of provisions are aimed at objectives that are regulatory or disciplinary in nature. For instance, most provisions do not apply to the general public, but to a sector or class of people who should reasonably be aware of their obligations under the « Bill » (e.g. operators of incoming vessels), and should be considered ‘disciplinary’ rather than ‘criminal’. In many cases, the civil penalty provisions in the « Bill » are provided as disciplinary alternatives to the punitive or deterrent criminal offences. Civil penalties will also enable an effective disciplinary approach to dealing with non-compliance by corporations.

The severity of the civil penalties should be considered low; they are all pecuniary penalties (rather than a more severe punishment like imprisonment), there is no sanction of imprisonment for non-payment of penalties and the maximum amount of each civil penalty is the same or lower than the corresponding criminal offence (except where applied to corporations).

Based on the above factors, the cumulative effect of the nature and severity of the civil penalties in the « Bill » is unlikely to be considered ‘criminal’ for the purposes of human rights law. However, where certain civil penalty provisions could limit human rights—such as by reversing the onus or proof, or abrogating the privilege against self-incrimination—justification has been included. This is to make clear that the provisions are reasonable, proportionate and adapted to achieve a legitimate objective in the event that they are considered criminal in the context of « international » human rights law.

Assessment of compatibility with human rights

Right to life

Article 6(1) of the ICCPR includes a duty on governments to take appropriate steps to protect the right to life of those within its jurisdiction, and an obligation to investigate arbitrary or unlawful killings or punish offenders. The United Nations Committee General Comment 6 (1982) states:

‘…the Committee has noted that the right to life has been too often narrowly interpreted. The expression "inherent right to life" cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures. In this connection, the Committee considers that it would be desirable for State parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics.’

A key objective of the « Bill » is to promote the right to life by preventing harm to human, animal and plant health through managing the risk of pests and diseases entering, establishing or spreading in Australian territory.

Chapters 2, 5 and 8 of the « Bill » promote the right to life by providing powers to control the spread of communicable diseases that may cause serious harm to human health.

For example, Chapter 2 promotes the right to life by enabling the Health Minister to prescribe requirements in relation to individuals and operators of certain aircraft or vessels that are entering or leaving Australian territory. These requirements may be imposed for the purpose of preventing the entry, establishment or spread of listed human diseases (clause 44 and 45).

Chapter 5 promotes the right to life by regulating the use of ballast water and management of sediment by Australian and foreign vessels in Australian seas to create an Australian-wide ballast water and sediment management regime. The creation of offences for releasing unmanaged ballast water and sediment under this regime may prevent ballast water that contains human diseases, such as cholera, from being released in Australian seas (see clause 270).

Chapter 8 of the « Bill » provides for the Governor-General to declare that a human biosecurity emergency exists if the Health Minister is satisfied that a listed human disease is posing a severe and immediate threat, or that is of a nationally significant scale (clause 475).

Summary: The « Bill » promotes the right to life under Article 6(1) of the ICCPR.

Right to freedom from torture and cruel, inhuman or degrading treatment

The right of individuals not to be subjected to cruel, inhumane or degrading treatment is guaranteed by Article 7 of the ICCPR. This right is an absolute right, and is not subject to permissible limitations. Article 10 of the ICCPR further protects the right of an individual to be treated with humanity and dignity if detained.

Chapters 2 and 10 of the « Bill » include provisions that may engage these rights.

Chapter 2

Part 3 of this chapter provides a number of biosecurity measures that can be included under a human biosecurity control order. These include decontamination (clause 89) and traveller movement measures (clause 96). These biosecurity measures are necessary for the legitimate objective of managing the risk of listed human diseases emerging, establishing or spreading in Australian territory. However, these clauses may operate to engage the right to freedom from degrading treatment, as outlined below. A range of tests and protections are included in the « Bill » to ensure this right is not limited.

Clause 60 provides that a human biosecurity control order may only be imposed on an individual if the officer is satisfied of the principles set out in clause 34. The officer must also be satisfied that the individual has one or more signs of a listed human disease, or has been exposed to a listed disease (or another individual who has signs or symptoms of a listed human disease), or has failed to comply with an entry requirement under clause 44 and therefore poses a risk to the broader community.

Clause 89 provides that an individual and their clothing and personal effects may be required to be decontaminated under a human biosecurity control order. In some cases, decontamination may require a person to remove their clothing, which could be degrading or humiliating if appropriate protections were not in place. Decontamination may only be included in a human biosecurity control order if the officer is satisfied that it would contribute to the managing of the risk of contagion of a listed disease, or a listed human disease entering, or emerging, establishing itself or spreading in Australian territory (clause 84). The control order must state why the measure is required, how it is to be undertaken, the rights to review in relation to the order, and the details of a chief human biosecurity officer that can be contacted for information and support (clause 61). The contents of the order must also be read out to the individual (clause 63).

If the individual refuses to consent to the decontamination, an officer may request the Director of Human Biosecurity to give a direction for the individual to comply (clause 72). However, in order to give a direction for an individual to comply, the Director must review the decision, including the diagnosis of any listed human diseases specified in the order and the inclusion of the measure to decontaminate the individual, and take into account any reason the individual gives for refusing to consent to the measure. The Director must also be satisfied on reasonable grounds that decontamination would contribute to reducing the risk of contagion of the listed disease, or the listed disease spreading in Australian territory. If the Director gives a direction for the individual to comply, the individual may be able to apply for merits or judicial review of the decision in accordance with clause 76 of the « Bill » and the Administrative Decisions (Judicial Review) Act 1977 . If the individual is required to comply with the measure, force must not be used to require them to do so (clause 95).

Clause 101 provides that officers of Customs may prevent individuals from boarding an outgoing passenger aircraft or vessel if doing so would contravene a traveller movement measure is in place under a human biosecurity control order. This clause is necessary for the legitimate objective of preventing listed human diseases from spreading to other countries and meeting Australia’s obligations under the « International » Health Regulations. The clause does not limit officers from using force to prevent the person from boarding the aircraft or vessel, which could potentially result in degrading treatment. Although the clause does not prevent officers from using force to prevent the person from boarding the aircraft or vessel, they must not use more force or subject the person to greater indignity than is necessary to prevent them from boarding the aircraft or vessel.

Clause 103 provides that an individual may be detained if they fail to comply with a requirement to remain at a place under clause 68, or with an isolation measure under clause 97. A number of protections are included in the « Bill » to ensure that the power to detain individuals is only used when necessary and proportionate to a legitimate objective and that individual’s right to be free from degrading treatment are protected during detention.

An individual who is detained for failing to comply with an isolation measure may only be detained for the purposes of taking the individual to a medical facility (clause 103). If an individual is required to remain at a place or placed under an isolation order, and they are not an Australian citizen, then they must be informed of their right to seek consular « assistance » (clause 102). In addition, officers must provide a reasonable time to allow the individual to seek consular « assistance » and facilitate communication with a consular office if requested. This aims to ensure that all individuals are able to understand why they are being asked to remain at a place or be isolated regardless of language or nationality.

If an individual is detained, clause 104 specifies that officers must not use more force or subject the individual to greater indignity than is necessary and reasonable to detain the person or prevent them from escaping. Further to this, detention must be in a place that, in the officer’s opinion, affords adequate personal privacy. Clause 104 also requires the Commonwealth to advise the individual of their right to contact anyone, including a legal representative and to provide facilities for the ill individual to contact that person. A person who has been detained for failing to comply with a requirement to remain at a place must be released after six hours (clause 105). A person detained for failing to comply with an isolation measure must be released when they have been taken to the medical facility specified in the control order, or within 72 hours, whichever is earlier. Additionally, the officer that detains the person must also inform the person that they may communicate, or attempt to communicate, with any person and the officer must give the person the facilities to enable them to do so.

Chapter 10

Clauses 558 to 561 provide for decontamination of an individual and their clothing and personal effects. These provisions relate to the management of the risk of a pest or disease, rather than the risk of contagion of a listed human disease as provided for in Chapter 2. These clauses are necessary for the legitimate objective of managing the biosecurity risk associated with the person or their clothing. However they may require a person to remove their clothing which could be degrading or humiliating. A range of protections are included in the « Bill » to ensure that this right is not limited.

An officer may only request decontamination of the person, or require decontamination of the person’s clothing or personal effects, if they suspect on reasonable grounds that the person may have been exposed to a pest or disease and the officer is satisfied that decontaminating the person, clothing or personal effects is likely to be effective in or contribute to managing the biosecurity risk (clause 558). Force must not be used against an individual to require them to comply with a direction to undergo decontamination given under clause 559, or require an individual’s clothing or personal effects to be decontaminated under clause 560. Additionally, clause 551(3) provides that a biosecurity officer who requires an individual to allow his or her clothing to be decontaminated must take the individual to a place that affords adequate personal privacy to the individual and provide the individual with suitable alternative clothing if the individual does not have any.

The principles affecting decisions to exercise certain powers (clause 32) also apply to a decision to decontaminate an individual or their clothing or personal effects. In particular, the biosecurity official must be satisfied that, if the power is to be exercised in relation to an individual, the power is no more restrictive or intrusive than is required in the circumstances. Clauses 36 to 40 of Chapter 2 also apply to this clause, which provide a range of protections for children and incapable persons.

Summary: The « Bill » does not limit the right to freedom from torture and cruel, inhuman or degrading treatment under Article 7 of the ICCPR, or the right of an individual to be treated with humanity and dignity if detained under Article 10 of the ICCPR.

Right to liberty and freedom from arbitrary detention

Article 9 of the ICCPR protects the right of all individuals to liberty and freedom from arbitrary detention. The right to personal liberty requires that persons not be subject to arrest and detention except as provided for by law and provided that neither the arrest nor the detention is arbitrary. The right applies to all forms of detention where people are deprived of their liberty.

Provisions in Chapter 2 may operate to limit this right.

Chapter 2

This Chapter provides powers for individuals to be required to remain at a place (clause 68), remain isolated at a medical facility (clause 97) or detained (clause 103). These clauses are necessary for the legitimate objective of assessing and managing the risk of contagion of a listed human disease. However, these clauses may operate to limit the right to liberty and freedom from arbitrary detention. To ensure these clauses are reasonable and proportionate to the legitimate objective, a range of tests and protections apply.

An individual may only be required to remain at a place under clause 68 if an officer intends to impose a human biosecurity control order under clause 60 and an individual may only be required to remain isolated at a medical facility under clause 97 under a human biosecurity control order. Human biosecurity control orders may only be imposed if an officer believes that an individual has signs or symptoms of a listed human disease, has been exposed to a listed human disease or has failed to comply with an entry requirement under clause 44 and therefore poses a risk to the broader community. An individual may only be required to remain at a place for up to six hours and this period may not be extended (clause 68). After that time the officer must apply measures in a human biosecurity control order or release the individual.

If the individual required to remain at a place or be isolated is not an Australian citizen, then they must be informed of their right to seek consular « assistance » (clause 102). In addition, officers must provide a reasonable time to allow the individual to seek consular « assistance » and facilitate communication with a consular office if requested (clause 102).

If an individual does not consent to an isolation measure (clause 97), they may seek internal review by the Director of Human Biosecurity of the direction for the individual to comply (clause 7). In conducting a review, the Director of Human Biosecurity must give consideration to factors affecting the health of the individual and the reasons why they do not consent to the measure. The Director must also be satisfied that the biosecurity measure contributes to reducing the risk of a listed human disease entering, emerging, establishing itself or spreading in Australian territory. The « Bill » prescribes timeframes for the Director to complete the review to limit the time that an individual’s liberty may be restricted.

An individual may be detained if they fail to comply with a requirement to remain at a place under clause 68, or if they fail to comply with an isolation measure that they have been required to comply with under clause 76 (clause 103). Before an individual is detained, a human biosecurity officer must be satisfied of the principles of general protection (clause 34). In addition, an individual may only be detained if the officer is satisfied the individual may pose a significant risk of contagion without detention. The power to detain individuals has been vested only in law enforcement officers under subclause 103(3) as they have sufficient training and skills to ensure the power is exercised in line with Commonwealth guidelines.

Additional protections apply to detention, including that the individual must be advised of their right to contact anyone, including a legal representative (clause 104). Clause 104 also provides that the individual must be taken, as soon as possible, to a place that provides adequate personal privacy to the individual, either at the specified medical facility (for failing to comply with an isolation measure), or at the place where the detainee was when the officer was satisfied that the control order should be imposed (for failing to remain at a place). An individual who has been detained for failing to comply with an isolation measure under clause 97 must be released when they have been taken to the medical facility or when they are no longer required to comply with the isolation measure (clause 105).

Individuals may also seek external merits review of the direction to comply with the isolation measure under Administrative Appeals Tribunal Act 1975 (clause 76) or the Administrative Decisions (Judicial Review) Act 1977 (clause 80).

Summary: The right to liberty and freedom from arbitrary detention under Article 9 of the ICCPR may be permissibly limited in these instances because a range of tests and protections apply to these clauses to ensure the exercise of the power is reasonable and proportionate to achieving the legitimate objective, and adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion.

Right to seek review

Article 9(4) of the ICCPR protects the right of an individual who is deprived of his liberty by arrest or detention to ‘be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention’. Article 14(5) also provides that ‘everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law’.

The « Bill » engages this right as a person can be imprisoned as a result of being convicted of an offence under this Act. Additionally, Chapter 2 contains provisions that may result in an individual being required to remain at a place for up to six hours (clause 68), be isolated at a medical facility (clause 97), or detained (clause 103) in certain circumstances. The Criminal Code and the Australian criminal justice system more broadly, provide review rights that are available in these circumstances. These review rights ensure consistency with Australia’s « international » obligations.

Summary: The « Bill » does not limit the right to seek review under Article 9(4) of the ICCPR. Where the « Bill » does engage this right, it does so in accordance with the Criminal Code and as a part of Australia’s broader criminal justice system to ensure consistency with Australia’s « international » obligations.  

Right to freedom of movement

The right to freedom of movement under Article 12 of the ICCPR includes the right to move freely within a country for those who are lawfully within the country, the right to leave any country and the right to enter a country of which you are a citizen. The right may be limited in certain circumstances, including where the limitation is justified on any of the following grounds: to protect national security, public order, public health or morals or the rights and freedoms of others. The limitation must be necessary and proportionate to protect the purpose for which it is imposed and should be as least intrusive as possible to achieve the desired result.

Chapters 2, 4, 5, 6, 8 and 11 contain clauses which may operate to limit this right.

Chapter 2

Clauses 44 and 45 enable the Health Minister to determine requirements for individuals who are entering or leaving Australian territory. Entry requirements allow the Commonwealth to prevent the risk of the entry, emergence, establishment and spread of a listed human disease at Australia’s borders. Exit requirements seek to prevent the spread of listed human diseases to passengers on aircraft or vessels, or to other countries, in line with Australia’s obligations as a signatory to the « International » Health Regulations. Entry requirements may include the requirement for individuals to provide evidence of specified vaccination or treatment, or provide a declaration on their health status if they have travelled from a country where there is a disease outbreak. Exit requirements may include individuals undergoing screening, such as completing a health declaration prior to leaving Australia. These clauses are necessary for the legitimate objective of assessing and managing the risk of contagion of a listed human disease in relation to people entering and leaving Australia and ensuring Australia’s « international » obligations under Annex 1B of the « International » Health Regulations are met.

These requirements are consistent with recommendations of the World Health Organization under Part III of the « International » Health Regulations, to prevent the global spread of communicable disease. Part III of the « International » Health Regulations allows the WHO to make temporary recommendations in response to Public Health Events of « International » Concern. These recommendations may include health measures to prevent or reduce the « international » spread of disease. Health measures are defined in the « International » Health Regulations to be measures to prevent the spread of disease or contamination, but do not include security or law enforcement measures. Individuals that have not complied with an entry requirement may present a risk of contagion and therefore measures may be required to manage potential risk to human health.

If an individual fails to meet entry or exit requirements under clause 44 or 45 they may be required to remain at a place (clause 68), practice restricted behaviour (clause 87), be restricted from travelling to certain places (clause 96), be isolated (clause 97), prevented from boarding an outgoing aircraft (clause 101) or detained (clause 103). These measures are only available under a human biosecurity control order, or if measures imposed under a control order have not been complied with (except for the requirement to remain at a place under clause 68, which may be applied if an officer intends to impose a control order).

A human biosecurity control order may only be applied if an individual has signs or symptoms of (or has been exposed to) a listed human disease, or if the individual has not complied with an entry requirement under clause 44, and therefore poses a risk to the broader community. Before imposing a control order, an officer must be satisfied of the principles of general protection in relation to human health (clause 34). These strict limitations in the application of a human biosecurity control order ensure that measures applied relate only to the management of a listed human disease or entry requirements and are a proportionate and legitimate limitation to an individual’s freedom of movement.

An individual may only be required to remain at a place for up to six hours and this period may not be extended (clause 68). After that time the officer must apply a human biosecurity control order or release the individual.

Restricting behaviour measures (clause 87) are only available under a human biosecurity control order. These measures may require a person to remain in their homes, or not visit specific places for a specified period of time. This may consequentially prevent individuals from attending work or education for the specified time. Certain members of the community are particularly vulnerable to some communicable diseases, such as children and the elderly. These measures are necessary to meet the legitimate objective of reducing the risk of spread to these members of the community. An ill individual may be required by a human biosecurity control order to attend a specified medical facility to facilitate assessment and treatment of ill individuals, including undergoing an examination, providing body samples for diagnosis, treatment or undergoing a vaccination (clauses 90, 91 and 92). It is essential, where an individual is suspected of suffering from a listed human disease, that the individual be moved to an appropriate place where medical treatment and privacy can be assured.

Traveller movement measures (clause 96) may be included under a human biosecurity control order. These measures may be used to temporarily restrict individuals from travelling on « international » passenger aircraft and vessels for up to 28 days. Passenger aircraft and vessels often carry large numbers of passengers in close proximity for long periods of time and temporary restrictions may be necessary to meet the legitimate objective of preventing ill individuals from travelling, while they present a risk of contagion to other passengers. These restrictions also prevent the spread of listed human diseases to other countries, in line with Australia’s obligations as a signatory to the « International » Health Regulations.

As a measure of last resort, a human biosecurity control order may specify that an ill individual is required to be isolated at a specified medical facility (clause 97). Isolation would be applied in situations where an individual presents a significant risk of contagion and does not consent to a less restrictive measure, or isolation is the most or only effective measure in managing the listed human disease. If the individual being isolated is not an Australian citizen, they must be informed of their right to seek consular « assistance » . In addition, officers must provide a reasonable time to allow the individual to seek consular « assistance » and facilitate communication with a consular office if requested (clause 102). Clause 93 enables management of communicable diseases that may require long term medication but not hospitalisation or isolation. This clause will enable individuals who do not, or no longer, pose a serious risk of contagion to continue their medication and complete their treatment outside of a medical facility.

Clauses 75 to 79 provide mechanisms for review of the direction for an individual to comply with isolation and traveller movement measures, including review under the Administrative Appeals Tribunal Act 1975 (clause 76) and the Administrative Decisions (Judicial Review) Act 1977 (clause 80).

Clause 101 enables an officer of Customs to prevent an individual from boarding an outgoing passenger aircraft or vessel. This clause is necessary for the legitimate objective of managing the risk of contagion of listed human diseases, and in doing so, meeting Australia’s obligations under the « International » Health Regulations. An officer may only prevent an individual from boarding an aircraft or vessel if a traveller movement measure is in force under a human biosecurity control order and the individual would contravene the measure if they boarded the aircraft or vessel.

If an individual who is not an Australian citizen is required to remain at a place or placed under an isolation order, they must be informed of their right to seek consular « assistance » (clause 102). In addition, officers must provide a reasonable time to allow the individual to seek consular « assistance » and facilitate communication with a consular office if requested.

Clause 103 provides that an individual may be detained if they fail to comply with a requirement to remain at a place under clause 68, or with an isolation measure under clause 74. An individual who is detained for failing to comply with an isolation measure may only be detained for the purposes of taking the individual to a medical facility (clause 103). This is necessary for the legitimate objective of ensuring that individuals that may have a listed human disease are treated and the risk of contagion is managed. Clause 104 requires the Commonwealth to advise the individual of their right to contact anyone, including a legal representative or a consulate, and to provide facilities for the ill individual to contact that person.

Clause 113 enables the Director of Human Biosecurity to establish a human health response zone for the legitimate objective of preventing, or reducing the risk of, a listed human disease emerging, establishing or spreading in Australian territory or a part of Australian territory. These zones may be used, for example, to manage small incidents such as a localised disease outbreak or a laboratory hazard. In declaring the response zone, the Director of Human Biosecurity may determine requirements for people entering or leaving the zone, or require individuals to evacuate the zone or not enter the zone.

To ensure that response zones are a proportionate and legitimate restriction of an individual’s freedom of movement, the Director must be satisfied that the requirements are appropriate and adapted to prevent, or reduce the possibility of, the emergence, establishment or spread of the specified listed human disease (subclause 113(4)). The Director must also consult with the Chief Health Officer in the relevant state or territory prior to declaring the zone. The determination must be made public and may only be in place for three months. The Director of Human Biosecurity must not set requirements in a zone that subject individuals to biosecurity measures imposed under a human biosecurity control order (subclause 113(5)). These measures must still be imposed using a control order and the associated protections of human rights and rights to review would apply.

Chapter 4

Clause 217 enables a biosecurity officer to direct the person in charge of a conveyance not to leave the conveyance for a specified period. This clause is necessary for the legitimate objective of managing the biosecurity risks associated with conveyances as the person in charge of a conveyance may be required to move the conveyance or to assist a biosecurity officer exercising powers in relation to the conveyance. This clause may operate to limit the right to freedom of movement as the person would not be able to leave the conveyance while subject to the direction. To ensure this clause is reasonable and proportionate to the legitimate objective, the period which the direction can be given for must be no longer than 24 hours.

A number of other clauses in Chapter 4 provide for directions to be given relating to the movement of conveyances, or require vessels and aircraft to land or moor at specific places, including:

·          directing the person in charge or operator of a conveyance to secure the conveyance (clause 198)

·          directions relating to the movement of a conveyance (clause 202)

·          directions relating to the movement of certain aircraft or vessels, including to a place outside of Australian territory (clause 206)

·          directions relating to the movement of exposed conveyances (clause 207)

·          requiring aircraft to land a first point of entry (clause 237)

·          requiring aircraft to be brought to relevant biosecurity entry point at a first point of entry (clause 238)

·          requiring aircraft to land, or not to land, at a specified landing place or places (clause 240)

·          requiring aircraft not to land at any landing place in Australia territory (clause 241)

·          requiring aircraft to land or not to land at specified landing place in order to manage human health risks (clause 242) (protections apply within)

·          requiring vessels to be brought to relevant biosecurity entry point (clause 246)

·          requiring vessels to be moored or not to be moored at a specified port (clause 248)

·          requiring vessels not to be moored at any port in Australian territory (clause 249), and

·          requiring vessel to be moored, or not to be moored at a specified port due to human health risks (clause 250)

These clauses are necessary for the legitimate objective of managing biosecurity risks associated with conveyances (and goods and people on board) by ensuring they arrive at appropriate places. If necessary to manage unacceptable risks, powers can also be used to prevent vessels from arriving at places. These clauses may operate to limit the right to free movement of passengers on board the conveyance to which the direction or requirement relates, as although they are not required to remain on board the conveyance, they may not be able to disembark from it (for example if the aircraft is in flight when a direction is given).

These clauses only apply to conveyances that are subject to biosecurity control. Directions requiring an aircraft to land or not to land at a specified landing place can only be given if a biosecurity officer is satisfied that the direction is necessary to manage biosecurity risk associated with the aircraft or any person or thing on board the aircraft (clause 240(2)). For a direction not to land in Australian territory, the Director of Biosecurity must be satisfied that the level of biosecurity risk associated with the aircraft or any person or thing on board the aircraft is unacceptable and that biosecurity measures cannot be taken to reduce the risk to an acceptable level (clause 241(3)). If the direction relates to a human health risk, it may only be given if the chief biosecurity officer or a human biosecurity officer is satisfied that the direction is necessary to manage human health risks associated with the aircraft or any person or thing on board the aircraft (clause 242(2)).

Prior to issuing a direction under clause 206, 241 or 249 the Director of Biosecurity must also take into account the principles affecting decisions to exercise certain powers (clause 32), including considering the impact of issuing the direction on any persons on board the conveyance. Directions given under clauses 241 and 249 must be revoked if the level of biosecurity risk is no longer unacceptable. Operators could also reasonably be expected to be aware of the first point of entry and biosecurity entry point requirements set out in clauses 237, 238, 246 and 248 as they are common requirements relating to « international » travel.

Chapter 5

Clause 303 enables the Director of Biosecurity to exercise a range of powers with respect to the movement of a vessel for the management of ballast water, including keeping a vessel out of a port or requiring the vessel to remain at a specified place. This clause is necessary for the legitimate objective of preventing significant damage to Australia’s marine environment and adverse affects to related industries. For example, a vessel may be ordered to remain at a specified place to investigate whether an offence has been committed, or, if an offence has been committed, to prevent any further risk of the spread of exotic pests or diseases from the release of ballast water held on the vessel. This will help to ensure that the objects of the « Bill » in relation to ballast water—to provide for managing the biosecurity risks related to ballast water and to give effect to Australia’s « international » rights and obligations—are met and maintained.

Clause 303 is necessary to achieve this objective because the ability to regulate the movement of vessels is required to prevent potential threats to the marine environment and to ensure the overall effectiveness of the ballast water management regime. However, this clause may operate to limit the right to free movement, for example where a direction requiring a vessel to stay out of a port results in individuals being hindered from immediately disembarking the vessel at port.

The Director of Biosecurity may only issue a direction under clause 303 if they have clear grounds for believing that an offence against Chapter 5 has been committed. Additionally, they must take into account the principles affecting decisions to exercise certain powers (clause 32). There is no requirement that individuals must remain on board a vessel subject to a direction.

A decision under this clause is a reviewable decision under clause 574. Further, if a vessel is unduly detained or delayed, the Commonwealth is required to pay reasonable compensation for any losses or damage incurred by the owner of the vessel as a result of the detention or delay (clause 307).

Chapter 6

Clauses 365, 366, 367 and 370 enable the Director of Biosecurity to declare a biosecurity response zone, determine powers that may be exercised in the zone and enable biosecurity officers to exercise those powers. These powers include setting entry and exit requirements, including directing persons to leave the zone (clause 367(c)). These clauses are necessary for the legitimate objective of managing biosecurity risk posed by diseases and pests in a biosecurity response zone. However, these clauses may operate to limit the right to freedom of movement as they may prevent individuals from entering or exiting a biosecurity response zone.

The Director of Biosecurity may only declare a biosecurity response zone under clause 365 if a biosecurity officer suspects, on reasonable grounds, that a disease or pest that poses an unacceptable biosecurity risk may be present in or on goods or premises in the area and the Director is satisfied that it is necessary to declare a zone for the purpose of managing the biosecurity risk posed by the pest or disease. Directions to leave a biosecurity response zone under clause 367 may only be for a maximum of 24 hours. Additionally, the Director must take into account take into account the principles affecting decisions to exercise certain powers (clause 32) when making a decision under Chapter 6.

Chapter 8

Clauses 445 and 446 enable the Agriculture Minister to determine emergency requirements, give directions and take actions during a biosecurity emergency period, including restricting or preventing the movement of persons, goods or conveyances or causing goods or conveyances to be removed from specified places. These clauses are necessary to achieve the legitimate objective of dealing with biosecurity emergencies of national significance; however, they may operate to limit the right to free movement.

The Agriculture Minister may only determine a requirement under clause 445 if he or she is satisfied that it is appropriate and adapted to prevent or control the establishment or spread of the declaration disease or pest in Australian territory or part of Australian territory. In giving a direction requiring a person not to enter premises under clause 446, the Minister (including delegated officers such as the Director of Biosecurity, biosecurity officers, biosecurity enforcement officers, or a national response agency executive) must be satisfied that the direction is appropriate and adapted to preventing or controlling the establishment or spread of the declaration disease or pest in Australian territory.

Before the Agriculture Minister makes a decision to exercise a power under clause 446, the Minister must also be satisfied of a range of protections (listed in clause 447), including:

·          that exercising the power is likely to be effective, or contribute to, achieving the purpose for which the power is to be exercised

·          the manner in which the requirement is applied is no more restrictive or intrusive than is required in the circumstances

·          if the power is to be exercised in relation to an individual, that the power is no more restrictive or intrusive than required in the circumstances, and

·          if the power is exercised during a period, that the period during which the power is to be exercised is only for as long as necessary.

Similarly, clauses 477 and 478 enable the Health Minister to determine requirements, give directions, or take actions during a human biosecurity emergency period including restricting or preventing the movement of persons, goods or conveyances. These clauses are necessary to achieve the legitimate objective of dealing with biosecurity emergencies of national significance. However, they may operate to limit the right to free movement.

The Minister must be satisfied that a requirement or direction is necessary to: prevent or control the entry of the listed human disease into Australian territory, or the emergence, establishment or spread of the listed human disease in Australian territory; prevent or control the spread of the listed human disease to another country; or give effect to a recommendation made by the World Health Organization under the « International » Health Regulations (clauses 477 and 478).

Before determining a requirement, the Health Minister must also be satisfied that of a range of protections, including:

·          that the requirement or direction is likely to be effective, or contribute to, achieving the purpose for which it is to be determined

·          the requirement or direction is appropriate and adapted to achieve the purpose for which it is to be determined

·          the requirement or direction, or the manner in which the requirement is to be applied, is no more restrictive or intrusive than is required in the circumstances, and

·          that the period during which the requirement or direction is to be exercised is only as long as necessary.

A direction under 478 must not require an individual to be subject to biosecurity measures that may be set out in a human biosecurity control order, such as isolation, treatment or movement measures. This means that these more invasive or restrictive measures can only be required if the criteria relating to biosecurity control orders are met. 

Chapter 11

Clauses 618 to 624 of Chapter 11 set out a scheme by which the Director of Biosecurity and the Director of Human Biosecurity may jointly declare parts of Australian territory to which a modified version of certain parts of Chapters 2, 3 and 4 apply. The scheme will be used to manage biosecurity risks associated with parts of Australian territory that have a different risks status to the rest of Australian territory, such as Christmas Island and the Cocos (Keeling) Islands. It will enable regulation of the movement of people, goods and conveyances between such parts and the rest of Australian territory.

These clauses are necessary to achieve the legitimate objective of managing biosecurity risk between parts of Australian territory, however they may operate to limit freedom of movement by, for example, requiring vessels moving between parts of Australian territory to arrive at a first point of entry as if they were arriving from outside Australian territory.

Before making a declaration under clause 619 in order to regulate movements between parts of Australian territory, the Director of Biosecurity and the Director of Human Biosecurity must be satisfied that there is an unacceptable level of biosecurity risk associated with the movements if they are not regulated, and the application of the affected provisions because of the proposed declaration is appropriate and adapted to managing biosecurity risks associated with the movements.

Summary: The right to freedom of movement under Article 12 of the ICCPR may be permissibly limited in these instances because these clauses are necessary for the protection of public health, and the protection of the rights and freedoms of others (for example, the right to an adequate standard of living, including food, water and housing under Article 11(1) of the ICESCR). A range of tests and protections also apply to ensure the exercise of these powers is reasonable and proportionate to the legitimate objective and that adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion.

Right to the presumption of innocence (reverse burden provisions)

Article 14(2) of the ICCPR states that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. The right to presumption of innocence is also a fundamental common law principle.

Laws which shift the burden of proof to a defendant, commonly known as ‘reverse burden provisions’, can be considered a limitation of the presumption of innocence. This is because a defendant’s failure to discharge a burden of proof or prove an absence of fault may permit their conviction despite reasonable doubt as to their guilt. This includes where an evidential or legal burden of proof is placed on a defendant.

When a defendant bears an evidential burden in relation to an exception it means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. This can be justified in circumstances where the facts in question are peculiarly within the knowledge of the defendant.  

Reverse burden offences will not necessarily be inconsistent with the presumption of innocence provided that the reverse burden pursues a legitimate objective and is reasonable, necessary and proportionate to achieving that objective. Whether a reverse burden provision impermissibly limits the right to the presumption of innocence will depend on the circumstances of the case and the particular justification for the reverse burden.

The Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) notes that placing the burden of proof on the defendant should be limited to where the matter is peculiarly within the knowledge of the defendant and where it is significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. The Guide also notes that a reverse burden provision is more readily justified if:

·          the matter in question is not central to the question of culpability for the offence

·          the penalties are at the lower end of the scale, and

·          the conduct proscribed by the offence poses a grave danger to public health or safety.

An additional factor to consider is whether the offences only impose an evidential burden (as the prosecution must still disprove the matters beyond reasonable doubt if the defendant discharges the evidential burden).

The « Bill » may operate to limit the right to be presumed innocent through imposing an evidential burden on the defendant in relation to a range of matters. Clauses in which an evidential burden is imposed on the defendant, and where strict liability applies, are outlined below. Chapter 4 of the Guidewas considered in the development of these clauses and is considered consistent with the proposed reverse burden of proof. Agreement of the Attorney-General was also received in relation to these clauses.

The following clauses include offences for which an exception applies if a person is authorised to engage in the conduct under the Act or another Australian law:

·          clause 48 (allowing goods to be unloaded or loaded, or people to embark or disembark, before pratique has been granted)

·          clause 151 and paragraph152(2)(a) (unloading, receiving or possessing goods from a vessel displaying the prescribed quarantine signal)

·          clauses 216, 330, 351 and 457 (dealing with goods or conveyances to which a notice is affixed)

·          clause 376 (interfering with equipment set up in biosecurity response zone).

It is necessary that the defendant bears the evidential burden in these clauses in order to achieve the legitimate objective of ensuring the objects of the Act are met. These clauses are reasonable and proportionate to the legitimate objective because the defendant will have the information or knowledge that is evidence of the exception (that they were authorised by law to undertake the conduct).

A number of civil penalty provisions in the « Bill » place an evidential burden on the defendant, including:

·          clauses 129, 139, 203, 214, 322, 363, 373, 374, 381, 382, 391, 392, 401 and 456 (interfering, removing or defacing notices or biosecurity control orders)

·          clauses 130, 204 and 323 (moving goods or conveyances to which a direction has been given or notice affixed)

·          clause 393(interfering with equipment set up in biosecurity monitoring zone), and

·          clauses 601 and 607 (moving or interfering with withheld goods or detained conveyances).

These provisions are unlikely to be classified as criminal for the purposes of human rights law, given they operate in a regulatory context and, while they impose not insubstantial pecuniary penalties, they are not of a level of severity that would justify classification as 'criminal' (see assessment of civil penalties at page 21). However, if they were considered criminal, their inclusion would still be justified based on the reasoning set out above in relation to authorised persons.

Clause 438, 439 and 532 create civil penalties for giving false or misleading information or documents. These also place an evidential burden on the defendant in relation to proving that the information or documents were not false or misleading in a material particular (that is, they must provide evidence that the misleading information is trivial or inconsequential). These clauses are necessary to achieve the legitimate objective of ensuring information provided to a biosecurity industry participant is correct. These clauses are reasonable and proportionate to the legitimate objective because the defendant will have the information or knowledge that is evidence of the exception (that the information or documents were not relevant).

These clauses also provide an exception where a biosecurity industry participant (or official in clause 532) has failed to take reasonable steps to inform the person that they may be liable to a civil penalty for contravening the provision. The defendant bears the evidential burden with respect to these exceptions, as whether or not a person has been informed that they may be liable to a civil penalty provision for contravening this clause is something peculiarly within the knowledge of that person. It would be difficult for the prosecution to provide evidence that the person has been informed when this evidence can only be known by that person and the biosecurity industry participant. It would also be significantly more difficult and costly for the prosecution to provide evidence that a document is false or misleading than for a defendant to provide evidence of the matter themselves.

A number of other clauses in Chapters 3, 5 and 10 also place the evidential burden of proving exceptions to an offence on the defendant.

Chapter 3

Clause 120 creates an offence for not giving notice of goods that are, or are intended to be, unloaded in Australian territory. The defendant bears the evidential burden of proving any exceptions, which will be prescribed in the regulations. This clause is necessary in order to achieve the legitimate objective of assessing the biosecurity risk of goods that are, or are intended to be brought into Australian territory. This clause is reasonable and proportionate to the legitimate objective because the defendant will have the information or knowledge that is evidence of the exception (for example, that their goods were brought in as accompanied baggage, if such an exception were prescribed). Any exceptions prescribed under this clause will be consistent with the principles set out in the Guide.

Clauses 143 and 188 create offences relating to bringing or importing goods into Australian territory. These offences contain exceptions where the defendant bears the evidential burden of proving the exception (for instance under subclause 143(7) a defendant may rely upon the exception that they contravened the direction because they issued the same direction to another person who failed to comply with it). It is necessary that the defendant bears the evidential burden in these clauses in order to achieve the legitimate objective of ensuring goods that potentially pose a biosecurity risk may be located by biosecurity officials. These clauses are reasonable and proportionate to the legitimate objective because the defendant will have the information or knowledge that is evidence of the exception. For example, under clause 188 (receiving or possessing prohibited goods etc brought or imported into Australian territory) if the defendant did not bring or import the goods into Australian territory, the information or facts about how they obtained the goods, such as information about where they purchased them, will be uniquely in their knowledge.

A number of clauses in Chapter 3 create offences relating to moving, possessing or receiving certain goods, including; receiving or possessing goods unloaded from an aircraft or vessel in contravention of Division 6 of the Chapter (clause 149), receiving or possessing goods unloaded from an aircraft or vessel displaying the prescribed quarantine signal (clause 153) and receiving or possessing prohibited goods (clause 188). These offences contain exceptions where the defendant bears the evidential burden of proving the exception (for example, proving that they did not know that the goods they received were in contravention of Division 6). It is necessary that the defendant bears the evidential burden in these clauses in order to achieve the legitimate objective of ensuring the biosecurity risk associated with the goods is managed. These clauses are reasonable and proportionate to the legitimate objective because the defendant will have the information or knowledge that is evidence of the exception.

Clause 186 creates a basic offence for contravening conditions applying to conditionally non-prohibited goods, and additional offences for doing so and obtaining commercial advantage, causing harm to the environment or causing economic consequences. This clause contains an exception to these offences where the person did not do (or omit to do) the act that constituted the failure to comply with the condition, did not aid, abet, counsel or procure the act or omission and was not in any way knowingly concerned in or party to the act or omission. The defendant bears the evidential burden of proving the exception. This is necessary in order to achieve the legitimate objective of ensuring that conditions relating to precenting biosecurity risk material being brought into Australian territory are not contravened. This clause is reasonable and proportionate to the legitimate objective because the defendant will have the information or knowledge that is evidence of the exception (for example, if a condition is that a permit must be obtained to being in the goods they will be able to produce the permit).

Chapter 4

Clause 193 creates an offence for failing to give a pre-arrival report. Exceptions to this requirement may be prescribed in the regulations; the defendant will bear the evidential burden of proving any exception. This is necessary in order to achieve the legitimate objective of ensuring pre-arrival reports are provided and risks associated with incoming goods, conveyances and people can be assessed and managed. This clause is reasonable and proportionate to the legitimate objective because the defendant will have the information or knowledge that is evidence of the exception.

Chapter 5

Clauses 271, 276, 277, 279, 282, and 283 provide exceptions to the offence of discharging ballast water in Australian seas provided for in clause 270. For example, it is an exception that ballast water has been managed for discharge, that discharge is part of an acceptable ballast water exchange, or that ballast water was taken up and discharged at the same place. The defendant bears the evidential burden with respect to these exceptions.

In addition, the defendant bears the evidential burden of proving an exception for the following clauses:

·          clause 284, which creates an offence for failing to report a discharge of ballast water relating to an emergency, an accident or to minimise pollution

·          clause 294, which creates an offence in relation to failing to keep requisite records in relation to an Australian vessel’s ballast water management system

·          clause 299, which provides a exception to the offence of disposing sediment in Australian seas (under clause 298), and

·          clause 305, which provides an offence for contravening a direction under Division 3 of Part 6 of Chapter 5.

A similar justification applies to these clauses in that the defendant will have the information or knowledge that is evidence of the exception (that is, they will have the appropriate records, such as the ship’s log, to show they did not commit the offence).

It is necessary that the defendant bears the evidential burden in these Chapter 5 clauses in order to achieve the legitimate objective of ensuring the biosecurity risk associated with ballast water is appropriately managed in Australian seas. These clauses are reasonable and proportionate to the legitimate objective because the defendant will have the information or knowledge that is evidence of the exception.

Chapter 10

Clause 571 creates an offence where a person fails to return an identity card in the prescribed circumstances. The defendant bears the evidential burden of proving the exception that the identity card was lost or stolen. It is necessary that the defendant bears the evidential burden in this clause in order to achieve the legitimate purpose of preventing identity cards from being obtained and used by unauthorised persons. This clause is reasonable and proportionate to the legitimate objective because the defendant will have the information or knowledge that is evidence of this exception, and also because the penalty for this offence is low (one penalty unit).

Summary: The offence-specific exceptions included in the « Bill » are compatible with Article 14(2) of the ICCPR. In consideration that the offences specified above:

·          impose an evidential, rather than legal, burden on the defendant, and

·          the burden relates to facts which are readily within the person’s knowledge

the offences are necessary, reasonable and proportionate to the legitimate objective of protecting Australia’s human, plant and animal health, and the environment and economy.

Right to the presumption of innocence (strict liability offences)

Article 14(2) of the ICCPR states that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. The right to presumption of innocence is also a fundamental common law principle.

When ‘strict liability’ applies to an offence, the prosecution is only required to prove the physical elements of an offence, they are not required to prove fault elements, in order for the defendant to be found guilty. The defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code ). Strict liability is used in circumstances where there is public interest in ensuring that regulatory schemes are observed and it can reasonably be expected that the person was aware of their duties and obligations. Strict liability offences can be considered a limitation of the presumption of innocence because the defendant can be found guilty without the prosecution being required to prove fault.

Strict liability offences will not necessarily be inconsistent with the presumption of innocence provided that removal of the presumption of innocence pursues a legitimate objective and is reasonable, necessary and proportionate to achieving that objective. Whether a strict liability provision impermissibly limits the right to the presumption of innocence will depend on the circumstances of the case and the particular justification for an offence being a strict liability offence.

The « Bill » contains some strict liability offences. These offences have been used when there is a strong public interest in managing biosecurity risks appropriately and preventing serious damage to human, plant and animal health, local industries, the economy and the environment. The application of strict liability in the « Bill » and the offences to which it relates have been developed in line with the Senate Standing Committee for the Scrutiny of Bills Sixth Report of 2002 on Application of Absolute and Strict Liability Offences in Commonwealth Legislation and the Guide, except for the Chapter 5 offences which impose higher maximum penalties than those recommended in the Guide. Agreement of the Attorney-General was received in relation to these clauses.

The offences in the « Bill » to which strict liability applies are outlined below.

Chapter 2

Clause 58 provides a strict liability offence where a person fails to comply with a requirement to either answer a question or provide written information under the information gathering powers of Chapter 2 (clause 58). This strict liability offence for failure to provide required information is necessary to addresses public health risk. The offence is reasonable and proportionate to the legitimate objective as the offence is not punishable by imprisonment and imposes a maximum penalty of 60 penalty units, which is at the lower end of the scale.

Information sought relating to listed human diseases is vital to address public health risk and it is essential that as much information is collected as quickly as possible. This information will be uniquely known to the individual and individuals may be able to provide important details about the epidemiology of a disease, the source of a disease and the potential exposure of themselves and other individuals to the disease. Ideally this would occur before exposed individuals have the opportunity to depart the airport and enter the community and potentially spread the disease to family and friends.

Wherever possible, the Commonwealth will rely on voluntary disclosure. However, in some circumstances, an individual may be unwilling to disclose information about their health status, potential exposure or travel history. In such cases, the need to address public risk justifies the application of the strict liability offence for failure to provide required information.

The monitoring and investigation powers available in Chapter 9 are not appropriate for this purpose as the information being sought must be collected as soon as possible to allow effective management. This is because the Chapter 9 powers have a number of restrictions around them (such as judicial approval of warrants) that reduce their responsiveness in these circumstances.

Clause 37 provides special protections for individuals who may be temporarily incapable of understanding requirements or complying with a measure due to illness. An incapable person who is not accompanied by a parent, guardian or other authorised person must not be subject to a requirement under Chapter 2.

Chapter 3

Chapter 3 provides a strict liability offence where a person receives or has in their possession prohibited or suspended goods brought or imported into Australian territory (clause 188). The clause provides exceptions that are additional to the defence of honest and reasonable mistake of fact that is available under section 9.2 of the Criminal Code . These include where the goods were not brought or imported into Australian territory, the goods were not prohibited or suspended at the time they were brought in, or the goods are the progeny (offspring) of other goods that were legally brought or imported into Australian territory. This offence is necessary to achieve the legitimate objective of deterring conduct which involves receiving or possessing goods which pose an unacceptable biosecurity risk. It is reasonable and proportionate to the legitimate objective as the offence is not punishable by imprisonment, the penalty is low (maximum 60 penalty units) and additional exceptions are available.

Chapter 4

Chapter 4 provides a strict liability offence where a person in charge of a conveyance fails to display the prescribed quarantine signal in the circumstances and manner prescribed by the regulations (clause 221). The defence of honest and reasonable mistake of fact under section 9.2 of the Criminal Code applies to the clause. This offence is necessary to achieve the legitimate objective of ensuring the requirement to display the prescribed quarantine signal is met. The offence is reasonable and proportionate to the legitimate objective as it is not punishable by imprisonment and imposes a maximum penalty of 50 penalty units, which is at the lower end of the scale.

Chapter 5

Chapter 5 contains strict liability offences where:

·          a person in charge or operator of a vessel in Australian seas discharges ballast water (subclause 270(3)) - 500 penalty units

·          a person in charge or operator of a vessel in Australian seas discharges ballast water for the purpose of safety, accident or pollution minimisation and fails to comply with reporting requirements under subclause 284(4) - 500 penalty units

·          a person in charge of a vessel does not have a ballast water management system as required by subclause 292(2) - 200 penalty units

·          a person in charge of a vessel fails to make a record of ballast water operations and the disposal of sediment in accordance with subclause 293(3) - 200 penalty units

·          a person in charge of a vessel fails to retain records in accordance with subclause 294(4) - 200 penalty units

·          a person in charge or operator of a vessel in Australian seas disposes sediment, other than to a sediment reception facility (subclause 298(3)) - 500 penalty units

·          the owner of an Australian vessel fails to produce a ballast water record, or a copy of the record, in accordance with subclause 301(4) - 80 penalty units, or

·          a person in charge of a vessel fails to comply with a direction under Division 3, Part 6 (subclause 305(1)) - 2000 penalty units.

The defence of honest and reasonable mistake of fact under section 9.2 of the Criminal Code is available for the above ballast water offences. Some of these offences contain additional exceptions: exceptions to the offence under subclause 270(3) are contained in Divisions 3 to 8 of Part 2 of Chapter 5; exceptions to the offence under subclause 284(4) are contained in clauses 271, 276, 277, 279 and 282; clause 299 sets out specific exceptions in relation to the offence under subclause 298(3); and subclauses 305(2), 305(3) and 305(4) set out exceptions available to the offence under clause 305.

The application of strict liability in these clauses is necessary for the legitimate objective of preventing potentially significant damage to Australia’s marine environment and adverse affects to related industries . They will help ensure that the objects of the « Bill » in relation to ballast water are met and maintained and give effect to Australia’s « international » rights and obligations. These strict liability offences are necessary to achieve this legitimate objective because they are imposed in order to effectively deter contravention of ballast water obligations under the Act.

The application of strict liability in the above clauses is consistent with the Ballast Water Convention. Where relevant, the penalties for these clauses are consistent with equivalent offences and penalties in the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (see in particular sections 21, 22(1B)(1), 22(1B)(3), 23(5), 25(3), 27(1)(m), 27(2) and 27A(5)). These higher maximum penalties are proportionate given the potentially significant harm to the marine environment that could be cause by the commission of the offences. Additionally, the clauses are only directed at persons in charge, operators or owners of vessels, who can be expected to be responsible and aware of the requirements of the legislation.

Therefore due to the regulatory nature of the scheme and the availability of exceptions for these clauses, the high penalties are reasonable, proportionate and necessary to achieve the legitimate objective of effective management of ballast water in Australian seas.

Chapter 10

Clause 556 contains a strict liability offence where a person does not comply with a direction given by a biosecurity officer to provide suitable and sufficient food and sleeping accommodation for the officer. This offence is necessary to achieve the legitimate objective of enabling an officer to perform functions or duties, or exercise powers under the Biosecurity Act. This strict liability offence is reasonable and proportionate to the legitimate objective as it is not punishable by imprisonment and imposes a maximum penalty of 10 penalty units, which is at the lower end of the scale.

Clause 571 contains a strict liability offence where a person has been issued with an identity card and does not return it within 14 days of ceasing to be an officer. This offence is necessary to achieve the legitimate objective of ensuring that identity cards cannot be obtained and misused by persons that are not authorised under the legislation. The offence is reasonable and proportionate to the legitimate objective as it is not punishable by imprisonment and imposes a maximum penalty of one penalty unit, which is at the lower end of the scale.

Summary: The strict liability offences included in the « Bill » are compatible with Article 14(2) of the ICCPR. In consideration that the offences specified above:

·          are not punishable by imprisonment

·          have comparatively low penalties (or where higher penalties apply, they are justified)

·          make available a range of exceptions, and

·          the offences are necessary, reasonable and proportionate to the legitimate objective of protecting Australia’s human, plant and animal health, and the environment and economy.

Right to be free from self-incrimination

Article 14(3)(g) of the ICCPR protects the right of an individual to be free from self-incrimination in the determination of a criminal charge by providing that a person may not be compelled to testify against him or herself or confess guilt. The common law also recognises the privilege against self-incrimination which applies unless expressly or impliedly overridden by statute. The privilege against self-incrimination may be subject to permissible limits. Any limitations must be for a legitimate objective and be reasonable, necessary and proportionate to that objective.

Chapters 2 through 9 contain clauses which may operate to limit this right.

The « Bill » operates to limit the right to be free from self-incrimination in certain circumstances by expressly removing the privilege against self-incrimination in the following information-gathering clauses of the « Bill » (as listed in clause 635):

·          clauses 44, 45, 69, 70, 85 and Division 6 of Part 2 of Chapter 2 (information gathering powers for human biosecurity)

·          clauses 120, 121, 122, 126 and 127 (requiring a person to answer questions or produce documents to assess the level of biosecurity risk of goods brought into Australian territory)

·          clauses 193, 194, 195, 196, 200 and 201 (requiring a person to answer questions or produce documents to assess level of biosecurity risk of conveyances entering Australian territory)

·          clauses 267 and 268 (reporting ballast water discharges in Australian seas)

·          clauses 319 and 320 (requiring a person to answer questions or produce documents relating to goods or premises for the purpose of assessing biosecurity risk)

·          subclause 437(1) (audit powers in relation to approved arrangements)

·          clauses 450 and 451 (requiring a person to answer questions or produce documents relating to biosecurity emergencies)

·          clauses 481 and 484 (requiring information for monitoring and investigation purposes)

Removing the privilege in these circumstances is necessary to achieve the legitimate objective of effective assessment and management of biosecurity risks to human, plant and animal health, the environment and the economy.

Upholding the privilege in relation to individuals who have information regarding a potential biosecurity or human biosecurity risk could have significant consequences such as contagion of a listed human disease, reduced agriculture, fisheries or forestry productivity, serious environmental damage or increased costs associated with controlling pests and diseases. An animal disease outbreak (such as foot-and-mouth disease) has the potential to cause significant and long term damage to Australian industries and the reputation of Australia as a reliable producer of quality food and fibre.

Whilst in some cases it may be feasible to obtain information by other means (for example, warrants), the additional time taken to obtain such information may significantly increase the risk of a disease or pest entering, establishing or spreading to Australia, or within Australian territory. Without these limitations, the Commonwealth’s ability to manage biosecurity risks through a responsive, evidence-led approach will be significantly reduced. Removal of the privilege ensures that the assessment of biosecurity risk and application of response measures can occur as urgently as necessary and reflects the magnitude of the potential impacts biosecurity risks pose to Australia.

These limitations are reasonable and proportionate to achieving the objective, as clause 635 provides that self-incriminatory disclosures cannot be used against the person who made the disclosure either directly in court (use immunity) or indirectly to gather other evidence against the person (derivative use immunity). The only exception to the use and derivative use immunity are in relation to proceedings arising out of sections 137.1 and 137.2 of the Criminal Code (in relation to false and misleading information and documents) and proceedings for the contravention of clause 532 and 533 of the « Bill » (in relation to false and misleading information and documents).

Summary: These limitations of the right to be free from self-incrimination under Article 14(3)(g) of the ICCPR are permissible as protections apply to ensure the exercise of these powers is reasonable and proportionate to achieving the legitimate objective and adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion.

Right not to be tried or punished again for an offence for which a person has already been finally convicted or acquitted  

Article 14(7) of the ICCPR prohibits an individual from being tried or punished again for an offence for which he or she has already been finally convicted or acquitted in accordance with the law and penal procedure of each country—commonly known as the prohibition on double jeopardy. This prohibition is limited to proceedings relating to a criminal charge. Despite this limitation however, the approach under « international » and comparative human rights law has been to look at the substance and the effect of the proceedings themselves, rather than their label under domestic law, when determining whether a proceeding relates to a civil or criminal charge. From an « international » perspective therefore, it is possible for a civil penalty provision which subjects a person to a significantly high penalty that is intended to be punitive or deterrent in nature to constitute a ‘criminal charge’ for the purposes of the prohibition on double jeopardy.

The civil penalty provisions contained in the « Bill » are a distinct penalty regime from criminal sanctions and provide a proportionate and effective mechanism to punish actions that may contravene Australia’s biosecurity laws. The civil penalty provisions under the « Bill » cannot be used to subject a person to imprisonment. Subclause 520(1) of the « Bill » provides that a court may not make a civil penalty order under Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act) against a person for a contravention of a civil penalty provisions of the « Bill » where the person has been convicted of an offence under an Australian law or been found by a court to have contravened a civil penalty provision under an Australian law that is the same, or substantially the same as conduct constituting a contravention under the Biosecurity Act. This protects a person from being penalised twice for the same conduct under Australian law. Similarly, subclause 520(2) provides for a stay of proceedings for a civil penalty order under the Biosecurity Act during corresponding criminal or civil proceedings.

Clause 520 modifies the application of Part 4 of the Regulatory Powers Act, which provides for the circumstances where a court may not make a civil penalty order, may stay proceedings and may commence proceedings to take into account interactions between Commonwealth and state or territory legislation. This has been done to address the potential for an individual to contravene a civil penalty or criminal provision under both a Commonwealth and state or territory law due to the same activity. This departure has been agreed to by the Attorney-General’s Department.

Summary: Given the operation of these clauses it is unlikely that a person convicted of a civil offence under the « Bill » will become subject to an additional proceeding for conduct that is the same or substantially the same as the conduct constituting the first offence unless new evidence relating to the conduct comes to light. The practical operation of these provisions, as well as the usual operation of the rules of evidence, makes it highly unlikely that Article 14(7) would be engaged by the operation of the civil penalty provisions of the « Bill » .

Right to protection from arbitrary interference with privacy

Article 17 of the ICCPR protects the right to be free from arbitrary or unlawful interference with an individual’s privacy, family, home or correspondence. This right may be subject to permissible limitations where those limitations are provided by law and are non-arbitrary. In order for limitations not to be arbitrary, they must seek to achieve a legitimate objective and be reasonable, necessary and proportionate to this purpose.

Chapters 2, 3, 4, 6, 7, 8, 9, and 10 contain clauses which may operate to limit this right.

Chapter 2

Entry and exit requirements under clauses 44 and 45 may include requirements to provide declarations or evidence relating to an individual’s health status or medical treatments, or information on where they have travelled prior to entering Australia. For example, individuals may be required to produce evidence that they have received a vaccination for yellow fever if they have travelled through an area where there is a risk of yellow fever transmission. To ensure that these requirements are a proportionate and legitimate restriction of an individual’s privacy, these requirements apply only for the purposes of preventing the entry, establishment and spread of listed human diseases in Australian territory, preventing listed human diseases from spreading to another country, or on recommendation by the World Health Organization under the « International » Health Regulations.

Clause 51 provides that the Health Minister may determine preventative biosecurity measures to be taken by classes of persons. This may include, for example, requiring blood samples from individuals for testing. These requirements may only apply for the purpose of preventing behaviour or practice that may cause, or contribute to, a listed human disease entering, emerging, establishing itself or spreading in Australian territory. The Health Minister must also be satisfied that the measure is appropriate and adapted to prevent, or reduce, the risk of the disease entering, emerging, establishing itself or spreading in Australian territory. The determination may only be in force for a period of up to one year.

Clauses 55 and 56 enable officers to ask questions and require answers from individuals. In certain situations, it may be vital that officers can quickly obtain information from individuals in order to prevent the entry, emergence, establishment or spread of listed human diseases. Wherever possible, the Commonwealth will rely on voluntary disclosure of this information, however in some circumstances an individual may be unwilling to disclose information about their health status, potential exposure and travel history. In such cases, the need to address public risk will justifies the requirement for individuals to answer questions or provide documents under these clauses.

To ensure that there is no arbitrary interference with an individual’s privacy, the requirement to provide information under clauses 55 and 56 must be for the purposes of preventing a listed human disease from entering, emerging, establishing or spreading in Australian territory, or preventing a listed human disease from spreading to another country. Biosecurity officials may only ask questions and require documents if they are satisfied that an individual has been exposed to a listed human disease; exposed to another individual who has signs or symptoms of a listed human disease; the questions relate to human remains or an individual who has died in transit or on arrival in Australia, or; the person is subject to a human biosecurity control order or in a human health response zone.

Clause 69 enables an officer who intends to impose a human biosecurity control order to require an individual to provide prescribed contact information for the individual. This clause is necessary for the legitimate objective of ensuring an individual who may have a listed human disease can be contacted. The protections in Chapter 11 described at the end of this section would apply to the collection and storage of this information.

Clause 85 provides that a human biosecurity control order may require an individual to provide an officer with prescribed contact information for any individual with whom the person has been, or will be, in close proximity to. A range of criteria must be met in order for a human biosecurity control order to be imposed, including that the officer imposing the order must be satisfied that the individual has one or more signs or symptoms of a listed human disease, or has been exposed to a listed human disease (or another individual who has signs or symptoms of a listed human disease), or has failed to comply with an entry requirement under clause 44. The principles of general protection (clause 34) must also be met before the order is imposed. This clause is necessary for the legitimate objective of ensuring that individuals who may have been exposed to a listed human disease can be contacted, and if necessary, assessed and treated. This clause constitutes an authorisation for the purposes of the Privacy Act 1998.

Clause 91 provides that an individual may be required by a human biosecurity control order to provide body samples for diagnosis. This clause only applies for the purpose of determining the presence in the individual of listed human diseases and if the individual has undergone examination under clause 90. A range of criteria must be met in order for a human biosecurity control order to be imposed, as outlined above in relation to clause 85. If a person does not consent to providing body samples for diagnosis, they may make an application under the Administrative Decisions (Judicial Review) Act 1977 for review of the direction to comply (clause 80).

Chapter 2 also provides for sharing of personal information between agencies in specific circumstances. If an individual is subject to a traveller movement measure in a human biosecurity control order, clause 98 includes a requirement that the following Commonwealth bodies are notified using a travel movement measure alert:

·          the Agriculture Department

·          the Immigration Department

·          the Foreign Affairs Department

·          the Australian Customs and Border Protection Service, and

·          the National Focal point.

To protect an individual’s privacy, the alert is restricted to the specified Commonwealth bodies, all of whom have responsibility relating to the movement of conveyances, goods and passengers into and from Australia. In addition, clause 98 restricts the information which can be shared to ensure that only the information necessary to clearly identify the individual subject to the measure and any known travel details of that individual.

A traveller movement measure alert informs the responsible Commonwealth bodies to ensure ill passengers are prevented from boarding a passenger airline or vessel. This manages the risk of contagion to other passengers in the confines of a passenger aircraft or vessel and the risk of spread of a listed human disease to another country. To protect an individual’s privacy and reputation, clause 98 specifies that traveller movement alerts must be destroyed within six months of no longer being in force.

Part 2 of Chapter 11 also includes a range of protections relating to the collection, storage and disclosure of protected information. Clause 580 provides that only certain persons may collect, disclose, or use information, and that they may only do so for a permissible purpose (a purpose which promotes the objects of the Act). Clause 585 provides an offence for improper collection or use of protected information.

Chapters 3, 4 and 5

These chapters contain clauses allowing a biosecurity officer to ask questions or to require persons to provide documents (clauses 126, 127, 200 and 201) and provide reports or notices to enable assessment of the risk associated with goods or conveyances in Australian territory, or intending to enter Australian territory (clauses 120, 121, 122, 194, 195, 196, 267 and 268). By exercising powers to ask questions or require persons to provide documents, notices or reports, a biosecurity officer may incidentally require the provision of personal information. These clauses are necessary for the legitimate objective of assessing the level of biosecurity risk associated with goods or conveyances in, or intending to enter, Australian territory. Biosecurity officers need access to this information in order to properly assess the level of biosecurity risk associated with the goods or conveyances and then to be able to manage any biosecurity risks appropriately. However, the collection, use, storage and sharing of personal information may operate to limit the right to privacy.

The application of clauses 124, 125, 200 and 201 is restricted to circumstances where a biosecurity officer suspects on reasonable grounds that a person or persons has relevant information or documents required to achieve the legitimate objective of assessing the level of biosecurity risk. Reporting and notification obligations under clauses 120, 121, 122, 194, 195, 196, 267 and 268 apply only in particular circumstances and the persons required to provide the information (such as the owner or operator of the aircraft or vessel) can be reasonably expected to be aware of these obligations. 

Additionally, Part 2 of Chapter 11 includes a range of protections relating to the collection, storage and disclosure of protected information. Clause 580 provides that only certain persons may collect, disclose, or use information and that they may only do so for a permissible purpose (a purpose which promotes the objects of the Act). Clause 585 also provides an offence for improper collection or use of protected information.

Chapter 6

This chapter provides for powers to enter premises (clause 315) and for powers to be exercised on those premises, including the ability to ask questions about goods or premises (clause 319), require documents to be produced and take extracts or copies of documents (clause 320) and inspect and sample anything on the premises (clause 318). These powers are necessary for the legitimate objective of assessing the level of biosecurity risk associated with the premises. Without these powers biosecurity officers would not have sufficient information to effectively assess or manage onshore biosecurity risks. However, these clauses may operate to limit the right to protection from arbitrary interference with privacy by enabling the entry of premises, including residential premises, the searching of premises and the taking of documents which may include personal information.

These powers can only be exercised in particular circumstances and reflect the serious harm that may be caused by biosecurity risks arising onshore. The principles affecting decisions to exercise certain powers (clause 32) apply to all decisions made under Chapter 6.

Additionally, entry to premises under Chapter 6 is only allowed with consent or a warrant. A warrant to enter premises may only be granted if there are reasonable grounds for suspecting that a pest or disease that poses an unacceptable level of biosecurity risk may be present on the premises, or it is reasonably necessary to monitor whether such a pest or disease has entered, established itself or spread in the premises. Officers entering premises under a warrant must also provide identification to the appropriate person for the premises (clause 502).

Chapter 8

This chapter provides for powers to control the establishment or spread of a declared disease or pest in Australian territory during a biosecurity emergency period (such as a severe and widespread outbreak of foot-and-mouth disease that affects multiple Australian states). Such powers include the power to ask questions or require documents to be produced (clauses 450 and 451) and enter premises without a warrant or consent (clause 470). These powers are necessary for the legitimate objective of managing biosecurity risks during a biosecurity emergency period. If these powers were not provided for, biosecurity officers would be unable to gather sufficient information to effectively assess and manage biosecurity risks during an emergency period. However, these clauses may also operate to limit the right to privacy for the same reasons set out above in relation to Chapters 3, 4 and 6.

These powers may only be exercised during a biosecurity emergency period, which can only be declared by the Governor-General if the Agriculture Minister is satisfied that a disease or pest poses a severe and immediate threat, or is causing harm, on a nationally significant scale to animal or plant health, the environment or economic activities relating to animals, plants or the environment; and the declaration is necessary to prevent or control the establishment or spread of the disease or pest (clause 443).

Additionally, the application of clauses 450 and 451 is restricted to circumstances where a biosecurity officer suspects on reasonable grounds that a person or persons has relevant information or documents required to achieve the legitimate objective. Entry to premises under clause 470 is only allowed during a biosecurity emergency period for the purpose of controlling the establishment or spread of a declared disease or pest in Australian territory. When making a decision to enter premises under clause 470, a biosecurity official must also be satisfied of the principles affecting decisions to exercise certain powers (clause 32). Additional protections include that an enforcement officer entering premises without a warrant under Chapter 8 must announce that he or she is authorised and provide identification (clause 514). The protections in Part 2 of Chapter 11 relating to the collection, storage and disclosure of protected information also apply to these clauses.

Further to this, officers would also be required to meet the requirements of the Australian Government Investigations Standards (AGIS), consistent with the Commonwealth Fraud Control Guidelines. This includes the requirement that staff involved in investigations meet minimum levels of training or qualifications and that the department meets the minimum standards for effective and efficient management of investigations, including record keeping. Quality assurance reviews (QAR) of investigations can also be undertaken to establish whether an investigation was conducted in a way that complied with the AGIS. QARs may be conducted by the Australian Federal Police in relation to criminal investigations and, in relation to non-criminal investigations, can be conducted by another agency with the necessary skills and capacity.

Chapter 9

This chapter provides for compliance and enforcement powers, including for powers to be drawn from the Regulatory Powers Act. Clause 498 of this chapter and sections 18 and 48 of the Regulatory Powers Act, provide for powers to enter premises, which enables a number of monitoring and investigation powers to be exercised on those premises. These powers include the ability to search the premises, inspect documents or things on the premises, take extracts or copies of documents and sample anything on the premises (sections 19 and 49 of the Regulatory Powers Act and subclauses 482(1), 482(2), 485(1) and 485(2) of the « Bill » ). Additional powers available include the powers to seize evidence (sections 49 and 52 of the Regulatory Powers Act) and ask questions and seek production of documents (sections 24 and 54 of the Regulatory Powers Act).

These powers are necessary for the legitimate objective of ensuring that relevant information required under the Act and information required to assess compliance with the Act, is accessible and available to biosecurity officials when required. However, these clauses may operate to limit the right to privacy as they enable entry to premises that may be a person’s residence and inspection, copying and sampling of potentially personal information.

Entry to premises is only allowed with consent or a warrant and a warrant to enter premises may only be granted for the purposes of:

·          determining whether the Act has been, or is being, complied with

·          determining whether information supplied for the purposes of the Act is correct, or

·          there are reasonable grounds for suspecting that there may be evidential material on the premises.

The threshold tests that are laid out above are designed to ensure that any interference with the right to privacy is lawful and is only to ensure compliance with the Act and manage biosecurity risks.

A number of protections are in place to ensure that any interference with the right to privacy is lawful and protect individuals’ rights including:

·          obligations on biosecurity enforcement officers when entering with consent or under warrant, which include the requirement that consent of the occupier is only to be given voluntarily; and where entry is with a warrant, the requirement that an announcement must be made before entry and details of the warrant given to the occupier (section 25 to 28, 55 to 58 of the Regulatory Powers Act and clauses 500 to 504 of the « Bill » ), and

·          the limitations on use of force against things (subclauses 482(8) and 485(8) and clause 505 of the « Bill » ).

Entry to premises without a warrant is only provided for in specific circumstances listed in clause 513, which include:

·          entering landing places or ports for the purposes of performing function or exercising powers under the Biosecurity Act (clause 252(2))

·          during biosecurity emergencies (clause 470(1))

·          entering adjacent premises during a biosecurity emergency for the purpose of gaining access to other premises to exercise powers (clause 472(1)), and

·          monitoring or searching premises at which biosecurity activities are carried out by a biosecurity industry participant that is covered by an approved arrangement, or at a first point of entry (clauses 511 and 512).

Protections apply in these circumstances including the requirement for announcement before entry (clause 514) and rights of the appropriate person for the premises (as defined under clause 9) to observe the exercise of powers while on the premises (clause 516). Stakeholders affected by clause 252(2) will be informed of this power through the public release of a determination by the Director of Biosecurity or the Director of Human Biosecurity establishing a place to be a first point of entry. Additionally, entry to premises under this clause is only allowed if the biosecurity official is satisfied of the principles affecting the decision to exercise certain powers (clause 32).

Entry to premises without a warrant or consent is provided for in clauses 511 and 512, as the relevant premises relate to an approved arrangement, where consent to entry is implied by the voluntary nature of the arrangement (and will be a condition of the approved arrangement). Additionally, the premises may only be entered during business hours. Entry under clause 512 is limited to situations where a biosecurity officer has reasonable grounds for suspecting that there may be evidential material on the premises.

Chapter 9 also provides the Director of Biosecurity and the Director of Human Biosecurity with the ability to apply a fit and proper person test and gather personal information from applicants (clauses 530 and 531). The fit and proper person test is necessary for the legitimate objective of ensuring that persons covered by approved arrangements or who have been granted import permits (including for high risk goods) are persons that are able to appropriately and responsibly manage biosecurity risks. The personal information that is to be supplied under clause 531 is designed to work in conjunction with the fit and proper persons test and will allow confirmation of a person’s identity. These clauses may operate to limit the right to privacy as they expressly require the release of personal information.

Clauses 530 and 531 specify that the fit and proper person test and collection of personal information for applications powers can be applied to approved arrangements and import permits. They are not requirements placed on the general public—that is, they only extend to circumstances where the legislation provides a permission based on voluntary application by a person. Additional provisions linking to either the fit and proper persons test or collection of personal information are required to be specified in the regulations.

Clause 530 further provides an exhaustive list of the matters that the Director of Biosecurity and Director of Human Biosecurity must have regard to in determining whether a person is fit and proper, for example, whether a person has been convicted of an offence against the Quarantine Act. Additionally, Part VIIC of the Crimes Act 1914 applies to the fit and proper person test. This allows, in certain circumstances, that the person does not need to disclose spent convictions and requires persons who are aware of the spent convictions to disregard the convictions.

The above clauses involving the collection, use and storage of personal information are also subject to the confidentiality information clauses (Part 2 of Chapter 11). These limit the circumstances and purposes for which personal information obtained in accordance with the Act can be recorded, disclosed or used (for example, contacting the applicant regarding the application). Additionally, the powers contained in these clauses are required to be exercised in compliance with the Privacy Act 1988, which means that there are additional protections on the use and storage of personal information collected under these clauses.

Summary: These limitations of the right to protection from arbitrary interference with privacy under Article 17 of the ICCPR are permissible as tests and protections apply to ensure the exercise of these powers is reasonable and proportionate to achieving the legitimate objective and adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion.

Right to freedom of association

Article 22 of the ICCPR protects the right of individuals to free association with others. It also states that the only permissible limitations to this right are those ‘which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others’. In all cases, restrictions must be provided for by legislation (or imposed in conformity with legislation), must be necessary to achieve the desired purpose and must be proportionate to the need on which the limitation is based.

Chapters 2, 6 and 8 contain clauses which may operate to limit this right.

Chapter 2

Clause 97 provides that an individual may be required by a human biosecurity control order to remain isolated at a specified medical facility. This clause is necessary for the legitimate objective of preventing the contagion of listed human diseases; however it may limit the right to freedom of association. This measure can only be applied under a human biosecurity control order, which may only be imposed if an officer believes that an individual has signs or symptoms of a listed human disease, has been exposed to a listed human disease or has failed to comply with an entry requirement under clause 44 in relation to a listed human disease and therefore poses a risk to the broader community. The general protections (clause 34) must also be taken into account in imposing the control order. If the individual required to be isolated is not an Australian citizen, then they must be informed of their right to seek consular « assistance » . In addition, officers must provide a reasonable time to allow the individual to seek consular « assistance » and facilitate communication with a consular office if requested (clause 102).

Clause 103 provides that an individual may be detained if they fail to comply with a requirement to remain at a place under clause 68, or if they fail to comply with an isolation measure under clause 76. This clause is necessary for the legitimate objective of preventing contagion of listed human diseases. Before an individual is detained, a human biosecurity officer must be satisfied of the principles of general protection (clause 34). In addition, an individual may only be detained if the officer is satisfied that detention is necessary because, without it, the individual may pose a significant risk of contagion. Additional protections apply to detention, including that the individual must be advised of their right to contact anyone, including a legal representative (clause 104).

Clause 113 enables the Director of Human Biosecurity to determine a human health response zone for the legitimate objective of preventing, or reducing the risk of, a listed human disease emerging, establishing or spreading in Australian territory. These zones may be used, for example, to manage small incidents such as a localised disease outbreak or a laboratory hazard. In declaring the response zone, the Director of Human Biosecurity may determine requirements for not entering or leaving the zone. This may consequentially restrict individuals from attending places where a large number of people may gather, such as a shopping centre, school, work or sporting event. Restricting the movement of ill individuals from such venues protects the right of other individuals within of the community to freedom of association while reducing risk of being exposed to a listed human disease.

To ensure that response zones are a proportionate and legitimate restriction of an individual’s right to free association, under subclause 113(4), the zone must only be for preventing or controlling the spread of a listed human disease and the Director must be satisfied that the requirements are appropriate and adapted to prevent, or reduce the possibility of, the emergence, establishment or spread of the specified listed human disease.

The Director must also consult with the Chief Health Officer in the relevant state or territory prior to declaring the zone. The determination must be made public and may only be in place for three months.

Chapter 6

Clauses 365, 366, 367 and 370 enable the Director of Biosecurity to declare a biosecurity response zone, determine powers that may be exercised in the zone and enable biosecurity enforcement officers to exercise those powers, as outlined above in relation to the right to freedom of movement. These clauses may also operate to limit the right to freedom of association as they may prevent individuals from entering or exiting a biosecurity response zone and interacting with people within the zone. To ensure these clauses are reasonable and proportionate to the legitimate objective, a range of tests and protections apply which are outlined in relation to the right to freedom of movement above.

Chapter 8

Clauses 445 and 446 enable the Agriculture Minister to determine emergency requirements, give directions and take actions during a biosecurity emergency period, including restricting or preventing the movement of persons, goods or conveyances or causing goods or conveyances to be removed from specified places, as outlined above in relation to the right to freedom of movement. They may also operate to limit the right to free association. To ensure these clauses are reasonable and proportionate to the legitimate objective, a range of tests and protections apply, which are outlined in relation to the right to freedom of movement above.

Summary: These limitations to the right to freedom of association under Article 22 of the ICCPR are permissible because these clauses are necessary for the protection of public health. A range of tests and protections also apply to ensure the exercise of these powers is reasonable and proportionate to the legitimate objective and that adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion.

Rights of the child

Article 24 of the ICCPR provides for the right to such measures of protection as are required by a child’s status as a minor, on the part of their family, society and the State. In addition, Australia’s human rights framework also considers the Convention on the Rights of the Child (Article 3).

Chapter 2 contains a number of provisions that protect the rights of the child. Clause 36 provides that a child who is subject to a requirement under the chapter may be accompanied by a parent, guardian, next of kin or other authorised person. Clause 37 provides that children must not be subject to biosecurity measures under Chapter 2 unless reasonable steps have been taken to contact a parent, guardian or next of kin of the child. In cases of urgent or life threatening medical needs, an officer must meet those needs first, and then the officer must take reasonable steps to contact a parent or guardian. On contacting a parent, guardian or next of kin, these protections must be explained to them and to allow an accompanying person to accompany the child. Clause 38 provides that officers may give directions to accompanying persons for a child for the purpose of ensuring the child complies with the direction. An accompanying person for a child may also give consent on behalf of the child for the purposes of managing risks to human health. Clause 39 provides that a parent, guardian or next of kin may authorise another person to be an accompanying person for the child. These protections ensure that a responsible person for the child can give informed consent in relation to the child.

These protections also apply to clause 558 of Chapter 11 (decontaminating an individual) as if the section were in Chapter 2 (clause 558(6)).

Summary: The « Bill » protects the rights of the child under Article 24 of the ICCPR as a range of tests and protections apply to ensure that where powers are exercised in relation to children, the exercise of powers is reasonable and proportionate to achieving a legitimate objective and adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion.

Right to work

Articles 6(1), 8 and 8(1)(a)  of the ICESCR protect the right of everyone to the opportunity to gain his or her living by work which he or she freely chooses or accepts and rights in work, including the enjoyment of just and favourable conditions of work. This right may be subject only to such limitations 'as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society'.

Chapters 7 and 11 of the « Bill » contain provisions which may limit this right.

Clauses 423 and 597 provide for the suspension or revocation of permits or approved arrangements to recover unpaid cost recovery charges. The powers under this clause are necessary to achieve the legitimate objective of ensuring the Commonwealth is able to cease providing services to clients when the costs associated with the provision of those services have not been paid. However, they may limit the right to work by preventing a person from working under an approved arrangement or importing goods under an import permit.

Potential engagement with the right to work under this clause is reflective of the business-like arrangement between persons wishing to import goods and the Commonwealth and allows the Commonwealth to cease providing services and activities when the user of those services or activities does not pay for them.

These penalties can only be imposed when a person is liable to pay a cost recovery charge that is due and payable and cannot be imposed arbitrarily. To ensure clients of the system are given sufficient warning about a potential suspension or revocation of a permit or approval, the Director of Biosecurity is required to provide written notice that a charge is outstanding before invoking these powers. The decisions to revoke or suspend a permit or approved arrangement are reviewable decisions (see Part 1 of Chapter 11). The recovery of costs that are due and payable in relation to goods and vessels is a reasonable and proportionate response to non-payment, even in circumstances where the right to work is engaged.

Summary: The right to work Articles 6(1), 8 and 8(1)(a) of the ICESCR may be permissibly limited in these circumstances as tests and protections apply to these clauses to ensure the exercise of the power is reasonable and proportionate to achieving the legitimate objective and adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion.

Right to an adequate standard of living, including food, water and housing

Article 11(1) of the ICESCR protects the right to an adequate standard of living, including food, water and housing. To protect this right, governments have an obligation to ensure the availability and accessibility of the resources necessary for the realisation of the right. Article 4 of ICESCR provides that rights such as this may be subject to permissible limitations only where those limitations are provided by law and are for the purpose of promoting the general welfare in a democratic society.

The United Nations Committee on Economic, Social and Cultural Rights General Comment 12 (1999) notes that, in the context of food, the concept of adequacy is to a large extent determined by prevailing social, economic, cultural, climatic, ecological and other conditions. Within this context, adequacy is also linked to the notion of sustainability, which implies food security and that food should be accessible for both present and future generations.

The right to water has been recognised by the United Nations Committee as a subset of the rights contained in the « International » Convention on Economic, Social and Cultural Rights. In particular, the right to water is recognised under Article 11(1) (right to an adequate standard of living) and Article 12 (right to highest attainable standard of health) in General Comment 15 (2003). The General Comment provides:

‘Water is required for a range of different purposes, besides personal and domestic uses, to realize many of the Covenant rights. For instance, water is necessary to produce food (right to adequate food) and ensure environmental hygiene (right to health). Water is essential for securing livelihoods (right to gain a living by work) and enjoying certain cultural practices (right to take part in cultural life). Nevertheless, priority in the allocation of water must be given to the right to water for personal and domestic uses. Priority should also be given to the water resources required to prevent starvation and disease, as well as water required to meet the core obligations of each of the Covenant rights.’

By minimising or preventing harm caused to plants and animals that could severely impact upon Australia’s food production systems and food security the « Bill » represents a positive measure to protect the right to food. In managing the risk of pests and diseases entering, establishing or spreading in Australian territory, the « Bill » also represents a positive measure to protect the right to water. For instance, Chapter 5 of the « Bill » provides for the management of the risk of water borne pests and diseases in ballast water.

In addition to promoting these rights, some provisions in Chapter 6 of the « Bill » may also operate to limit the right to an adequate standard of living, including food, water and housing.

Clauses 365 and 367 enable the Director of Biosecurity to declare a biosecurity response zone in relation to premises, such as a residence and enable biosecurity enforcement officers to exercise a range of powers in that zone. The powers provided for under these clauses are necessary for the legitimate objective of assessing and managing biosecurity risk posed by diseases and pests in the biosecurity response zone. For example, clause 367 enables a biosecurity enforcement officer to direct a person to leave the zone for a specified period. This power assists with the management of biosecurity risk by facilitating the treatment or destruction of goods and premises within the zone in a safe manner. However, these clauses may potentially operate to limit the right to housing as they may prevent individuals accessing their residence.

Under clause 365 the Director of Biosecurity may only declare a biosecurity response zone if a biosecurity officer suspects, on reasonable grounds, that a disease or pest that poses an unacceptable biosecurity risk is on the premises and the Director is satisfied that it is necessary to declare a zone for the purpose of managing the biosecurity risk posed by the pest or disease. An additional safeguard also applies to clause 367 that a direction to leave a biosecurity response zone may only be for a maximum of 24 hours.

Clause 344 enables the Director of Biosecurity to approve a biosecurity officer to require premises be destroyed, which could include a person’s residence. This clause is necessary for the legitimate objective of managing the biosecurity risk associated with premises. However, it may operate to limit the right to housing as it may result in a person’s residence being destroyed.

The power is only available in relation to premises that cannot be treated and are specified in a biosecurity control order or a biosecurity response zone determination, which requires the Director of Biosecurity to be satisfied that the zone or control order is necessary for the purposes of managing biosecurity risk. Additionally, the power will only be available to officers if it is specified by the Director in the zone determination or biosecurity control order. Before exercising power under Chapter 6, a biosecurity official must also be satisfied of the principles affecting decisions to exercise certain powers (clause 32). The decision to destroy premises under clause 344 is also a reviewable decision under Part 1 of Chapter 11 and premises must not be destroyed during the review period unless the officer is satisfied disease or pest poses a high level of biosecurity risk that cannot be managed for long enough to allow for review of the decision. Compensation to the owner of the premises may also be available under clauses 633 and 634.

Summary: The « Bill » represents a positive measure to protect the right to an adequate standard of living, including food, water and housing under Article 11(1) of the ICESCR. Where it limits this right, the limitations are permissible as tests and protections apply to ensure the exercise of these powers is reasonable and proportionate to achieving a legitimate objective and adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion.

Right to health

Article 12 of the ICESCR promotes the right of all individuals to enjoy the highest attainable standards of physical and mental health. This includes the application of measures for the prevention, treatment and control of epidemic, endemic, occupational and other diseases (Article 12(2)).

The United Nations Committee on Economic, Social and Cultural Rights has stated in General Comment 14 (2000) that health is a ‘fundamental human right indispensable for the exercise of other human rights’ and that the right to health is not to be understood as the right to be healthy, but rather entails a right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.

Article 4 of the ICESCR provides that countries may subject economic, social and cultural rights (such as the right to health) only to such limitations ‘as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.’ The United Nations Committee has stated that such limitations must be proportionate and must be the least restrictive alternative where several types of limitations are available and that even where such limitations are permitted, they should be of limited duration and be subject to review.

The « Bill » takes positive steps to promote this right with the objects of the « Bill » including:

·          managing the risk of contagion of a listed human disease (as defined by clause 9)

·          managing the entry, emergence, establishment or spread of a listed human disease, and

·          giving effect to Australia’s « international » obligations as a signatory to the « International » Health Regulations.

Chapter 2 promotes the protection of public health by ensuring the Commonwealth has the power to control the spread of serious communicable diseases and also ensures any person developing signs or symptoms of these diseases is provided with prompt medical assessment and treatment. The broad range of measures available in the « Bill » allows officers to consider the disease risk together with individuals’ circumstances, including medical history and apply the most appropriate and least restrictive measure in the circumstances. The « Bill » will also ensure Australia’s obligations as a signatory to the « International » Health Regulations are met. The purpose of the « International » Health Regulations is to prevent, protect against, control and provide a public health response to the « international » spread of disease in ways that are commensurate with and restricted to, public health.

Clause 42 enables the Director of Human Biosecurity to determine that a disease is a ‘listed human disease’ if the Director is satisfied that the disease is communicable and may cause significant harm to human health. This triggers a range of powers to be available to manage the disease, including the following clauses which promote the right to health:

·          Clauses 44 and 45 - entry and exit requirements can be put in place for the purposes of preventing a listed human disease from entering, or establishing itself or spreading in Australian territory or a part of Australian territory.

·          Clauses 48 and 49 - vessels and aircraft can be prevented from unloading or loading goods, or allowing people to embark or disembark until pratique is granted

·          Clauses 55 and 56 - officers will have the power to ask questions about an individual’s health and exposure to listed human diseases for the purpose of determining the nature of, and to manage, human biosecurity risks, and

·          Clause 60 - human biosecurity control orders may be imposed which can include measures to manage human health risks.

A number of measures that may be included in a human biosecurity control order under clause 60 also promote the right to health. These include requiring an individual to provide contact details (clause 85), regularly update an officer of their health status (clause 86), restrict certain behaviour to reduce the spread of disease to others (clause 87), undergo decontamination (clause 89), provide body samples for diagnosis (clause 91), undertake treatment, or receive a vaccination (clause 92), restrict travel movement (clause 96), or be isolated at a medical facility (clause 97). 

A range of clauses are also included in the chapter to protect the right to health. Clause 35 specifies that there should be no interference with life threatening medical needs when exercising any power or imposing any measure in relation to an individual under Chapter 2. Clause 94 specifies that biosecurity measures (such as medication, treatment, or medical examination), may only be applied by officers who have appropriate medical training or clinical expertise. In addition, clause 94 requires that these measures must be conducted using appropriate medical and professional standards. Any person who exercises a power or imposes a biosecurity measure under Chapter 2 must first consider the principles of general protection under clause 34. To ensure that officials consider the principles of general protection when exercising powers under the « Bill » , biosecurity measures may only be applied to individuals by issuing a human biosecurity control order (clause 60). This requires that officials specify details of the listed human disease(s) that is (are) suspected and the biosecurity measure required to manage that disease.

A control order must only be applied for as long as is necessary, to a maximum of 28 days with no provision for extension. If the officer believes a control order is still necessary to prevent the entry, emergence, establishment or spread of a listed human disease, the officer must reapply the control order and consider the principles of general protection.

In applying a control order, the officer must explain to the individual their rights and obligations, including their rights to review. The officer must also explain why the order is being applied and the risks to the individual of the listed human disease and the contagion risk the individual may pose to the community.

Clause 72 allows the Director of Human Biosecurity to give a direction requiring compliance with a biosecurity measure. A direction to comply with a biosecurity measure is only given if the Director is satisfied the measure contributes to reducing the risk of contagion and listed human diseases entering, emerging or establishing in Australian territory. It further allows the Director to review a biosecurity measure including the diagnosis of the listed human disease in the human biosecurity control order, including an individual’s refusal to consent to the measure. The Director of Human Biosecurity must give notice of the outcome of the review within 72 hours from when a request is made or consent is refused.

Consistent with the requirements of the « International » Health Regulations, clause 108 requires that all reasonable expenses associated with an individual complying with biosecurity measures applied in a human biosecurity control order must be met by Commonwealth. This ensures that all ill individuals who are subject to public health measures do not incur undue personal cost.

In addition to protecting an individual’s right to health, Chapters 4 and 5 of the « Bill » may also operate to limit the right to health.

Chapter 4

Clauses 202, 206, 207, 209, 241 and 249 of Chapter 4 enable the Director of Biosecurity to exercise a range of powers with respect to the movement of conveyances, including directing them to remain in a specified place or move to a specified place, or not to land or moor in Australian territory. These clauses are necessary to achieve the legitimate objective of preventing harm to human, animal or plant health as they enable the assessment and management of biosecurity risks related to conveyances. However, they may also operate to limit the right to health as they may affect passengers’ access to health facilities and goods, including essential medications and services, by preventing them from disembarking from a conveyance that is subject to a direction (for example, to stay out of a port).

When making a decision to exercise powers under clauses 206, 209, 241 and 249, a biosecurity officer must satisfy the principles affecting decisions to exercise certain powers (clause 32) including the protection that a biosecurity official must consider the impact of the exercise of the power on the health and safety of any persons on board the conveyance. Clause 207 only applies to conveyances that meet the exposed conveyance criteria under clause 192 (conveyances that have been exposed to an aircraft or vessel, another conveyance or goods that are subject to biosecurity control). 

Clauses 241 and 249 give biosecurity officers powers to direct an aircraft not to land, or a vessel not to moor, at a landing place in Australian territory. Before giving a direction under this clause, a biosecurity officer must seek written approval of the Director of Biosecurity and the Director must be satisfied that the level of biosecurity risk associated with the aircraft or vessel, or any person or thing on board, is unacceptable and that biosecurity measures cannot be taken to reduce that level of biosecurity risk to an acceptable level. Additionally, such a direction must not be given for the purposes of managing human health risks associated with the aircraft or person or thing on the aircraft.

Chapter 5

Clause 303 enables the Director of Biosecurity to exercise a range of powers with respect to the movement of a vessel where the Director has grounds for believing an offence contained in the chapter has been committed. These include keeping a vessel out of a port or requiring the vessel to remain at a specified place. This clause is necessary for the legitimate objective of preventing potentially significant harm to human health, the marine environment and related industries and giving effect to Australia’s « international » rights and obligations relating to ballast water management. However these movement directions may limit the right to health as they may affect passengers’ access to health facilities and goods, including essential medications and services.

Before exercising this power, the principles affecting decisions to exercise certain powers (clause 32) must be satisfied, including the protection that a biosecurity official must consider the impact of the exercise of the power on the health and safety of any persons on board the conveyance. Additionally, the decision to exercise powers under this clause is a reviewable decision (see Part 1 of Chapter 11).

Chapter 8

Clause 446 enables the Agriculture Minister to give directions in relation to conveyances, which could include directing a vessel not to land at a port, or requiring it to remain at a specified place. This clause is necessary to achieve the legitimate objective of dealing with biosecurity emergencies of national significance. However, as above, these movement directions may limit the right to health as they may affect passengers’ access to health facilities and goods, including essential medications and services.

There are limits on the power to give directions and take actions listed in clause 447, which include that the Agriculture Minister must be satisfied of all of the following before making the decision to exercise the power:

·          that exercising the power is likely to be effective, or contribute to, achieving the purpose for which the power is to be exercised

·          the manner in which the requirement is applied is no more restrictive or intrusive than is required in the circumstances

·          if the power is to be exercised in relation to an individual, that the power is no more restrictive or intrusive than required in the circumstances, and

·          if the power is exercised during a period, that the period during which the power is to be exercised is only for as long as necessary.

 Additionally, directions under clause 446 may only be issued if a biosecurity emergency is declared under clause 443. This requires the Agriculture Minister to be satisfied that a disease or pest is posing a severe and immediate threat, or causing harm on a nationally significant scale to animal or plant health, the environment, or economic activities and that the declaration is necessary to prevent or control the establishment or spread of the disease or pest in Australian territory or a part of Australian territory. Before a biosecurity emergency is declared, the Agriculture Minister must also be satisfied that the declaration is necessary to prevent the establishment or spread of the disease or pest in Australian territory or part of Australian territory. The normal principles of administrative law also apply to the exercise of powers under this clause, such as reasonableness, proportionality and natural justice.

Summary: The « Bill » represents a positive measure to protect the right to health under Article 12 of the ICESCR. Where it limits this right, the limitations are permissible as tests and protections apply to ensure the exercise of these powers is reasonable and proportionate to achieving the legitimate objective and adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion.

Right to enjoy and benefit from culture

Article 15 of ICESCR protects the right of all persons to take part in cultural life. The United Nations Committee on Economic, Social and Cultural Rights (General Comment 21, 2009) has stated that culture encompasses:

‘ways of life, language, oral and written literature, music and song, non-verbal communication, religion or belief systems, rites and ceremonies, sport and games, methods of production or technology, natural and man-made environments, food, clothing and shelter and the arts, customs and traditions.’

The Committee has stated that cultural rights may be exercised by a person as an individual, in association with others, or within a community or group. The Committee has also stated that countries should guarantee that the exercise of the right to take part in cultural life takes due account of the values of cultural life, which may be strongly communal or which can only be expressed and enjoyed as a community by Indigenous peoples. Indigenous peoples' cultural values and rights associated with their ancestral lands and their relationship with nature should be regarded with respect and protected. Countries must take measures to recognise and protect the rights of Indigenous peoples to own, develop, control and use their communal lands, territories and resources. Indigenous peoples have the right to act collectively to ensure respect for their right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions.

Clause 617 promotes the right to take part in cultural life by allowing for exemptions to be made to enable free movement of traditional inhabitants and the performance of lawful traditional activities within the Torres Strait protected zone (in line with Articles 10 and 11 of the Torres Strait Treaty). The protected zone is a geographical zone in the Torres Strait region which was established under Article 10 of the Torres Strait Treaty in order to acknowledge and protect the traditional way of life and livelihood of traditional inhabitants, including their free movement. See clause 617 for the definition of ‘traditional inhabitant’.

Summary: The « Bill » promotes the right of all persons to take part in cultural life under Article 15 of the ICESCR.

Rights of persons with disabilities

Article 3 of the Convention on the Rights of Persons with Disabilities protects the rights of persons with disabilities. Individuals may be incapable due to disability or temporarily incapable as a result of illness (see clause 9 for the full definition of incapable person). The « Bill » protects this right by providing for special protections for the rights of individuals who may be incapable of understanding the nature and effect of requirements under the « Bill » , or may be incapable of consenting to biosecurity measures.

Such individuals may not be subject to biosecurity measures under Chapter 2 of the « Bill » unless the Commonwealth has taken reasonable steps to contact a parent or guardian. Any urgent or life threatening medical needs of the individual must first be met and a parent or guardian must then be contacted as soon as possible. However, the individual may still be required to remain at a place for up to six hours (clause 68). This allows the Commonwealth to manage any potential risk of contagion, while contacting a parent or guardian prior to the application of measures in a human biosecurity control order.

The protections in Chapter 2 also apply to subclause 558(6) (decontaminating an individual) as if the section were in Chapter 2.

Summary: The « Bill » does not limit the rights of persons with disabilities under Article 3 of the Convention on the Rights of Persons with Disabilities.

Conclusion

The « Bill » is compatible with the human rights outlined above because it advances the protection of human rights and to the extent that it may operate to limit these rights, the limitations are reasonable, necessary and proportionate to achieve legitimate objectives.

 

Minister for Agriculture,

the Hon. Barnaby Joyce MP



 

Chapter 1—Preliminary

Part 1—Preliminary

Clause 1                     Short title

This clause provides that the « Bill » , when enacted, may be cited as the Biosecurity Act 2014 (the Act) .

Clause 2                     Commencement

This clause provides for the commencement of the « Bill » . The effect of items within the table in subclause (1) is to enable different parts of the « Bill » to commence at different times. Each provision of the « Bill » specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 in the table.

Item 1 of the table provides that clauses 1 and 2 of the « Bill » (and anything in the « Bill » not elsewhere covered by the table) will commence on the day the « Bill » receives Royal Assent.

Item 2 of the table provides that the remainder of the clauses (the substantive clauses of the « Bill » ) will commence on a date to be fixed by proclamation. In the absence of proclamation within 12 months of Royal Assent, the substantive clauses will commence on the date of the day after the end of precisely 12 months.

Once the « Bill » receives Royal Assent, the Director of Biosecurity and the Director of Human Biosecurity will be able to make legislative instruments, and authorise various officers as outlined under Chapter 10 (through the operation of the Acts Interpretation Act 1901 ). These instruments and authorisations will come into effect when the substantive clauses of the « Bill » commence.

It is intended that the majority of the clauses of the « Bill » will commence 12 months plus one day after Royal Assent. The period between commencement of clauses 1 and 2 and the substantive clauses is to allow time for the new requirements in the Act to be communicated to stakeholders, industry participants and the general public, and allow biosecurity officials to undergo appropriate training. The delay will also provide additional time for consultation with state and territory governments regarding shared responsibilities and obligations under the Act.

Allowing time for communication and education is important as a number of policies included in the « Bill » do not exist under the Quarantine Act 1908 , such as the new powers in Chapter 6 and enforcement regime in Chapter 9. It is important that stakeholders are aware of the new requirements—including the introduction of civil penalty provisions and an expanded infringement notice scheme—in the « Bill » so that they are not inadvertently non-compliant with these requirements.

Clause 3                     Simplified outline of this Act

This clause provides an overview of each Chapter of the « Bill » . It provides that the « Bill » is about managing diseases and pests that may cause harm to human, animal or plant health, the economy or the environment, and sets out the general purposes of each of the Chapters of the « Bill » , including the powers that may be exercised and the functions that may be performed under the clauses of that Chapter.

Clause 4                     Objects of this Act

This clause provides that the objects of the Act are to manage:

·          biosecurity risks

·          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

·          risks related to ballast water , and

·          biosecurity emergencies and human biosecurity emergencies .

Additionally, the « Bill » will give effect to Australia’s « international » rights and obligations, including under the « International » Health Regulations 2005 , the World Trade Organization Agreement on the Application of Sanitary and Phytosanitary Measures ( SPS Agreement) and the Convention on Biological Diversity 1992 ( Biodiversity Convention) (see clause 9 for further details of these « international » « agreements » ).

The objects ensure that the « Bill » will provide a strong regulatory framework that enables the management of biosecurity risks in a modern and responsive manner and enhances Australia’s capacity to manage biosecurity risks into the future.

Any exercise of power or performance of a function or duty under the « Bill » by a biosecurity official , including by the Director of Biosecurity or Director of Human Biosecurity , must be consistent with these objects.

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

This clause defines the Appropriate Level of Protection (ALOP) for Australia. The SPS Agreement contains the basic rules on animal and plant health and food safety standards for trade between World Trade Organization member countries. It requires that sanitary (relating to human and animal) and phytosanitary (relating to plant) measures are based on science and applied only to the extent necessary to protect human, animal or plant life or health. The

SPS Agreement allows World Trade Organization members to determine their own appropriate level of sanitary and phytosanitary protection; however it must be applied in a consistent manner—this is known internationally as the ALOP.

Consistent with the SPS Agreement, Australia bases its sanitary and phytosanitary measures on « international » standards developed by the World Organisation for Animal Health, the « International » Plant Protection Convention and the Codex Alimentarius where such measures exist and where the measures meet Australia’s ALOP. This « Bill » will manage biosecurity risks , while food safety risks in imported food are managed under the Imported Food Control Act 1992 in accordance with the Australia New Zealand Food Standards Code.

The Australian Government, with the agreement of the state and territory governments, has expressed Australia’s ALOP as:

‘providing a high level of sanitary and phytosanitary protection, aimed at reducing biosecurity risks to a very low level, but not to zero.’

Australia’s ALOP is included in the « Bill » to provide additional certainty for importers and trading partners of the formulation of the ALOP that is applied when undertaking risk assessments to determine if, and under what conditions, goods may be brought into Australian territory .

When performing a function or exercising a power under the Biosecurity Import Risk Analysis (BIRA) process (outlined in Chapter 3) and risk assessments conducted for the bringing in, or importation of particular goods into Australian territory , the Director of Biosecurity must apply Australia’s ALOP. Where risks do not meet Australia’s ALOP, biosecurity measures may be identified to reduce the risk to a level that meets Australia’s ALOP. If no biosecurity measures are available to do this, the import will not be allowed. This policy recognises that Australia has the right to protect its unique biosecurity status and that a zero risk stance is impractical as it would mean that people, conveyances or goods would not be able to enter Australian territory .

Clause 6                     Act binds the Crown

This clause provides that the Act will bind the Crown in each of its capacities. This means that the Commonwealth and state and territory governments will be bound to comply with the provisions of the Act. This clause also provides that the Crown will not be liable to be prosecuted for an offence, subject to civil proceedings for a civil penalty order, or given an infringement notice. This means that the Act will apply to the Commonwealth and state and territory governments, but in a modified way so as to avoid a situation occurring where, for example, a government is liable to pay an infringement notice to itself.

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

This clause provides that the Act will extend to Christmas Island and the Cocos (Keeling) Islands . It also provides that the Act or any provision of the Act may be extended to other external territories as prescribed in the regulations. However, provisions relating to the management of ballast water , as outlined in Chapter 5, will apply to all external territories of Australia.

This clause supports the policy approach not to extend the Act to other external territories unless a formal, scientifically based, risk assessment such as a pest and disease survey has been undertaken (for example, as has been done in the case of Christmas Island and Cocos (Keeling) Islands ). This approach has been taken because the biosecurity risks associated with external territories where a risk assessment has not been undertaken are unknown, and free movement of people, conveyances and goods between such territories and mainland Australia could pose a significant biosecurity risk .

When a pest and disease survey has been completed with respect to a specific external territory it is appropriate that the Act apply to that territory to ensure that any identified biosecurity risks are able to be managed. This is consistent with the objects of the Act (see clause 4) and the extension of the Act to Christmas Island and Cocos (Keeling) Islands . Parliament will have the opportunity to scrutinise the extension of the Act to an external territory when the enabling regulations are tabled in each House of the Parliament.

Clause 8                     Concurrent operation of State and Territory laws

Subclause 8(1) provides that the Act does not exclude or limit the operation of a state or territory law that is capable of operating concurrently with this Act. This is subject to two exceptions which are discussed below.

Section 109 of the Constitution invalidates a state law to the extent that it is inconsistent with a Commonwealth law. Determining whether a state law is inconsistent with a Commonwealth law involves interpreting both laws. If the Commonwealth law is interpreted as operating to the exclusion of state law, the state law will be inconsistent with the Commonwealth law and invalid.

This clause applies to territory laws in the same way as it applied to state laws. While section 109 of the Constitution does not does not apply to territory laws, similar principles apply in relation to the inconsistency or repugnancy of territory laws with Commonwealth laws.

A concurrent operation provision, such as clause 8, is used in interpreting the Commonwealth law to determine whether it operates to the exclusion of state or territory law. It indicates the Parliament’s intention that the Commonwealth law should not operate to the exclusion of state or territory law to the extent that the laws are capable of operating concurrently that us it is not intended to cover the subject matter exclusively or exhaustively. In some cases, the laws may not be able to operate concurrently in specific instances despite the general intention that the laws should.

Without limiting the effect of subclause 8(1), subclause 8(3) clarifies that the Act is not intended to exclude the concurrent operation of state laws imposing offences or civil penalties, where the same or similar conduct is also an offence or subject to a civil penalty under the Act. Under subclause 8(4), subclause 8(3) applies even if the penalty, fault elements, defences or exceptions that apply to the offence or civil penalty provisions under the state law differ to those set out in the Act.

There are exceptions to the application of this clause in provisions relating to the prohibition or restriction of bringing in or importing goods into Australian territory (Part 3 of Chapter 3), ballast water (Chapter 5) and biosecurity emergencies or human biosecurity emergencies (Chapter 8). Clauses 172 and 265 and subclauses 445(4), 446(4), 477(5) and 478(4) respectively, set out the intended effect of those parts of the « Bill » on state and territory laws.

Part 2—Definitions

Clause 9                     Definitions

This clause provides definitions for the « Bill » . Notes are provided below on each definition.

acceptable ballast water exchange

This definition provides that ‘acceptable ballast water exchange’ has the meaning given by clause 275. An acceptable ballast water exchange refers to a prescribed proportion (by volume) of ballast water in the tank of a vessel being discharged at an acceptable location and replaced by refilling the ballast water tank. See clause 275 and ballast water exchange for further details. This term is used in Chapter 5 in relation to ballast water management.

accompanying person , for a child or incapable person

This definition provides that the term ‘accompanying person’ for a child or incapable person refers to a parent, guardian or next of kin of the child or incapable person , or a person authorised by a parent, guardian or next of kin of a child or incapable person under clause 39 to accompany the child or incapable person .

acquisition of property

This definition provides that ‘acquisition of property’ has the same meaning as in section 51(xxxi) of the Constitution which currently provides:

‘The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.’

adjacent premises warrant

This definition provides that an ‘adjacent premises warrant’ means a warrant issued as a result of the test in item 5 of the table in clause 489 being met. That is, an adjacent premises warrant can be issued where it is reasonably necessary that one or more biosecurity enforcement officers should have access to the premises for the purpose of:

·          gaining access to adjacent premises to perform functions, or exercise powers, as a biosecurity enforcement officer , or

·          accompanying a biosecurity officer who needs to gain access to adjacent premises to perform functions, or exercise powers, under or for the purposes of the « Bill » .

Administration of a vessel

This definition provides that administration of a vessel has the same meaning as in the Ballast Water Convention which currently provides:

‘“Administration” means the Government of the State under whose authority the ship is operating. With respect to a ship entitled to fly a flag of any State, the Administration is the Government of that State. With respect to floating platforms engaged in exploration and exploitation of the sea-bed and subsoil thereof adjacent to the coast over which the coastal State exercises sovereign rights for the purposes of exploration and exploitation of its natural resources, including Floating Storage Units (FSUs) and Floating Production Storage and Offloading Units (FPSOs), the Administration is the Government of the coastal State concerned.’

affected provisions

This definition has the meaning provided by subclause 618(1) and refers to provisions which have been modified for declared movements between parts of Australian territory .

Agriculture Department

This definition provides that ‘Agriculture Department’ refers to the department administered by the Agriculture Minister .

Agriculture Minister

This definition provides that ‘Agriculture Minister’ refers to the Minister that administers the Primary Industries Levies and Charges Collection Act 1991 .

Agriculture Secretary

This definition provides that ‘Agriculture Secretary’ refers to the Secretary of the Agriculture Department . This term is used in the definition of Director of Biosecurity.

aircraft

This definition provides that ‘aircraft’ refers to any machine or craft that can derive support in the atmosphere from the reactions of the air, other than the reactions of the air against the earth’s surface. This term is used in the definition of conveyances. Chapter 4 includes specific provisions in relation to aircraft, vessels and other conveyances .

Under this « Bill » , an aircraft that is, or is to be, brought or imported into Australian territory from outside Australian territory on board another conveyance is consider to be goods from the time the aircraft is first intended to be so brought or imported until immediately after the aircraft is released from biosecurity control . This is intended to exclude such aircraft from provisions of the « Bill » that deal with biosecurity risks associated with aircraft that convey people or goods into Australian territory (for example, clause 193—pre-arrival reporting). Biosecurity risks associated with such aircraft will be managed under Chapter 3.

However, in relation Parts 1 and 3 of Chapter 11 (and any provision of the « Bill » that relates to Parts 1 and 3 of Chapter 11) an aircraft which is transported on another conveyance will not be considered goods so that the cost recovery provisions in Chapter 11 apply as if the aircraft is a conveyance (see definition of conveyance and goods in clauses 16 and 19 for further information).

ALOP (short for Appropriate Level of Protection)

See clause 5 for the meaning of ALOP.

animal

This definition provides that a reference to an animal in this « Bill » includes a dead animal and any part of an animal. Chapter 3 provides that the Director of Biosecurity and the Director of Human Biosecurity may jointly prohibit (absolutely or subject to conditions) goods from being brought or imported into Australian territory . This may include prohibiting (absolutely or subject to conditions) or requiring a permit for the bringing in or importation of live or dead animals, parts of animals or animal products as they are considered goods under this « Bill » .

appropriate ballast water records

This definition provides that a vessel is considered to have ‘appropriate ballast water records’ if it has on board records made in accordance with clause 295 for an Australian vessel and clause 296 for a foreign vessel , where the records are sufficient to allow any biosecurity risk associated with the vessel’s ballast water or sediment to be identified and assessed.

These records include a ballast water record system to record the details of a vessel’s ballast water uptake and discharge (for all vessels which carry ballast water in Australian seas ). See clauses 295 and 296 for further information.

appropriate person

This definition outlines who an ‘appropriate person’ is in relation to premises or conveyances which are the subject of certain warrants . Specifically:

·          for premises to which an entry warrant or a premises possession warrant relates, or premises entered under a provision referred to in clause 513, the appropriate person is the occupier of the premises, or another person who apparently represents the occupier, or

·          for a conveyance to which a conveyance possession warrant relates, the appropriate person is the person responsible for the conveyance , or another person who apparently represents a person responsible for the conveyance .

If an entry warrant relates to a conveyance , the appropriate person is the person occupying the conveyance , or another person who apparently represents that person (see paragraph (a) of the definition of premises in clause 9).

approved arrangement

See clause 10 for the meaning of ‘approved arrangement’.

associate

See clause 11 for the meaning of ‘associate’. 

Australian law

This definition provides that ‘Australian law’ refers to a law of the Commonwealth or a law of a state or territory. This term is also intended to include any subordinate legislation made under such a law.

Australian seas

This definition provides that ‘Australian seas’ means the waters of Australia (including the internal waters of Australia) within the outer limits of the territorial sea of Australia, including every external territory to which the Act extends (see clause 7 for the extension of the Act to external territories). This term is used in Chapter 5 in relation to ballast water management and is affected by the operation of clause 260 ( vessels in dry dock) and clause 261 ( foreign vessels near the Australian Antarctic Territory).

Australian territory

See clause 12 for the meaning of ‘Australian territory’.

Australian vessel

This definition provides that ‘Australian vessel’ refers to vessels that have Australian nationality under section 29 of the Shipping Registration Act 1981. The Shipping Registration Act currently provides that the following ships are taken to be Australian ships and to have Australian nationality:

·          registered ships, or

·          unregistered ships (other than ships required to be registered), being:

­    Australian-owned ships referred to in section 13 of the Shipping Registration Act ships wholly owned by residents of Australia or by residents of Australia and Australian nationals, or

­    ships operated solely by residents of Australia or Australian nationals or both.

The term also refers to a vessel whose administration is the Commonwealth (see Administration of a vessel ). This term is used in Chapter 5 in relation to ballast water management.

baggage

This definition provides that ‘baggage’ refers to goods that are carried on a conveyance by or for a person who is on board the conveyance (including the person in charge and members of the crew of the conveyance). This term is used in the decontamination provisions of the « Bill » (clauses 89 and 560) to specify what things may be decontaminated in addition to a person and his or her immediate personal effects.

Goods are only considered baggage if a person intended them to be carried in such a way. For example, if a person is travelling on a conveyance and an article which they had sent by post was consigned on the same conveyance , the article would not be considered his or her baggage and could not be decontaminated under clause 89 or 560. Powers in Chapter 3 relating to assessment and management of biosecurity risks associated with goods would apply in relation to the article.

ballast water

This definition provides that ‘ballast water’ has the same meaning as in the Ballast Water Convention which currently provides:

‘Water with its suspended matter taken on board a ship to control trim, list, draught, stability or stresses of the ship.’

Ballast water is an essential part of maintaining a vessel ’s safe operation and is vital to most cargo loading and unloading activities. Ballast water contains live marine organisms that, if untreated, may create a risk of exotic colonies becoming established when released into Australian seas . This has the potential to damage Australia’s marine environment and adversely affect related industries. This term is used in Chapter 5 which specifies ballast water management requirements in order to implement the majority of the Ballast Water Convention and manage biosecurity risks associated with ballast water. Chapter 5, however, does not generally apply to permanent ballast water in sealed tanks (see clause 263).

Ballast Water Convention

This definition provides that ‘Ballast Water Convention’ refers to the « International » Convention for the Control and Management of Ships’ Ballast Water and Sediments 2004 . The Convention is not yet in force, however Chapter 5 is intended to ensure that Australia has a regulatory framework for ballast water management in place once the Convention comes into effect.

ballast water exchange

‘Ballast water exchange’ refers to when ballast water in the tank of a vessel is discharged and replaced simultaneously by refilling the ballast water tank . See also acceptable ballast water exchange.

ballast water management

This definition provides that ‘ballast water management’ has the same meaning as in the Ballast Water Convention which currently provides:

‘Mechanical, physical, chemical, and biological processes, either singularly or in combination, to remove, render harmless, or avoid the uptake or discharge of Harmful Aquatic Organisms and Pathogens within Ballast Water and Sediments.’

Chapter 5 is intended to ensure that Australia has a regulatory framework for ballast water management in place once the Ballast Water Convention comes into effect, including the requirement for vessels to keep appropriate ballast water records. It will be an offence to discharge ballast water that has not been managed in accordance with the requirements set out in Chapter 5.

ballast water management certificate

This definition provides that a ‘ballast water management certificate’ has the meaning given by clause 288 and is a document which certifies that a vessel , and any equipment on the vessel , can manage the vessel’s ballast water in accordance with its ballast water management plan . Chapter 5 provides that Australian vessels need to be surveyed when requested by the Director of Biosecurity or at a time specified in the regulations in order to keep a valid certificate. Clause 288 outlines items that the certificate certifies in relation to both Australian vessels and foreign vessels , and who the certificate must be issued or endorsed by.

ballast water management plan

This definition provides that a ‘ballast water management plan’ is a document that outlines the ballast water management methods used by a vessel as well as the disposal of sediments . See clause 286 for further information.

ballast water operation

This definition provides that ‘ballast water operation’ refers to when ballast water is taken up into a vessel or discharged from a vessel (whether deliberately, accidently or part of a ballast water exchange ), or treated or circulated on a vessel for the purposes of ballast water management. This term is used in Chapter 5 in relation to ballast water management.

ballast water reception facility

This definition provides that ‘ballast water reception facility’ refers to a facility (which may include a vessel ) for receiving ballast water from vessels for treatment or disposal. Clause 278 provides the Director of Biosecurity with the ability to approve a ballast water reception facility to receive ballast water for treatment or disposal. This term is used in Chapter 5 in relation to ballast water management.

ballast water record system

This definition provides that ‘ballast water record system’ refers to a system for making and keeping records of a vessel ’s ballast water and ballast water operations in order to manage biosecurity risks associated with ballast water. This term is used in Chapter 5 in relation to ballast water management. See also appropriate ballast water records.

Biodiversity Convention

This definition provides that ‘Biodiversity Convention’ refers to the Convention on Biological Diversity 1992 , done at Rio de Janeiro on 5 June 1992, as in force for Australia from time to time. This term is used in relation to the application of this « Bill » in relation to invasive pests (see clause 26 for further information).

biosecurity activities

This definition provides that ‘biosecurity activities’ has the meaning given by clause 405 which refers to activities carried out under an approved arrangement to manage biosecurity risks associated with goods , premises or other things. For example, the treatment of goods under an approved arrangement to manage biosecurity risk associated with those goods would be considered a biosecurity activity . See Chapter 7 for further information.

biosecurity activity zone

This definition provides that a ‘biosecurity activity zone’ has the meaning given by subclause 395(1) and is a zone that may be determined by the Director of Biosecurity to manage biosecurity risks in relation to an area in Australian territory where powers are exercised or functions or duties are performed by, or on behalf of, the Commonwealth under this Act. It is intended that this zone will be used in relation to premises where an approved arrangement is in place or where a Commonwealth facility manages biosecurity risks . The Director may only make a biosecurity activity zone determination if satisfied it is necessary to manage biosecurity risks posed by the exercise of powers or performance of functions under the « Bill » in the area. A biosecurity activity zone is ongoing and will remain in force until the determination is revoked. See Part 7 of Chapter 6 for further information.

biosecurity activity zone determination

This definition provides that a ‘biosecurity activity zone determination’ means a determination made under subclause 395(1) by the Director of Biosecurity . A biosecurity activity zone determination will set out the powers available in a biosecurity activity zone .

As this type of zone is determined in relation to premises where powers or functions are performed under the Act (by, or on behalf of, the Commonwealth), consent or a warrant will not be required to enter premises in the area specified in the determination. See Part 7 of Chapter 6 for further information.

biosecurity control notice

This definition provides that a ‘biosecurity control notice’ is a notice (in the form approved by the Director of Biosecurity ) which may be affixed to goods or conveyances that are subject to biosecurity control and states that goods or conveyances are subject to biosecurity control . See clauses 129 and 203 for further information.

biosecurity control order

This definition provides that a ‘biosecurity control order’ is an order that may be made by the Director of Biosecurity under clause 353 to manage an unacceptable level of biosecurity risk in relation to goods or premises. A biosecurity order cannot be used on goods or conveyances that are subject to biosecurity control . The biosecurity risks associated with these goods or conveyances can be managed using the powers in Chapters 3 and 4.

For a biosecurity control order to be made by the Director of Biosecurity under clause 353, a biosecurity officer must suspect on reasonable grounds that a disease or pest may be present in or on goods or premises , that the disease or pest poses an unacceptable level of biosecurity risk , and that biosecurity measures are needed to reduce the biosecurity risk posed by the disease or pest to an acceptable level. The biosecurity control order will specify the biosecurity measures that a biosecurity officer may take to manage the identified biosecurity risk, such as treatment of goods or premises, or specifying entry and exit requirements in relation to premises.

If a biosecurity risk is present over an area rather than in relation to particular goods or premises , it is intended that the biosecurity risk would instead be managed by determining a biosecurity response zone in relation to the area.

biosecurity control order warrant

This definition provides that a ‘biosecurity control order warrant’ refers to a warrant issued as a result of the test in item 2 of the table in clause 489 being met. Biosecurity control order warrants may be issued by an issuing officer if the officer is reasonably satisfied that the test in clause 489 is met. It is reasonably necessary for one or more biosecurity officers or a biosecurity enforcement officers to enter the premises (without consent of the owner or occupier) in relation to which a biosecurity control order made under clause 353 which is in force to exercise powers for the purpose of managing the biosecurity risk posed by the pest or disease .

A biosecurity officer must have reasonable grounds to suspect a disease or pest is present on or in the premises that poses an unacceptable level of biosecurity risk for a warrant to be issued. A biosecurity control order warrant may only be applied for by a biosecurity enforcement officer , however the warrant may authorise one or more biosecurity officers along with one or more biosecurity enforcement officers to access the premises .

biosecurity emergency

This definition provides that a ‘biosecurity emergency’ refers to an emergency that is declared to exist under clause 443(1). The biosecurity emergency provisions in Chapter 8 outline the powers and provisions relating to biosecurity emergency declarations and the management of associated biosecurity risks . The emergency powers in the « Bill » are intended to be used in circumstances where the scale and significance of an emergency requires management at a national level. See Chapter 8 for further information.

biosecurity emergency declaration

This definition provides that ‘biosecurity emergency declaration’ refers to a declaration of a biosecurity emergency made by the Governor-General under subclause 443(1). A biosecurity emergency declaration will specify the disease or pest that the declaration relates to, the nature of the biosecurity emergency and the conditions that gave rise to it and the period during which the declaration is in force (see subclause 443(3)).

biosecurity emergency period

This definition provides that a ‘biosecurity emergency period’ refers to the period of time during which a biosecurity emergency declaration is in force under paragraph 443(3)(c).

biosecurity enforcement officer

This definition provides that ‘biosecurity enforcement officer’ refers to an officer authorised by the Director of Biosecurity under clauses 546 and 548. A biosecurity enforcement officer will have specific powers additional to those of a biosecurity officer . For example, a biosecurity enforcement officer may apply to an issuing officer for a warrant to enter premises under the « Bill » under Chapter 9. Biosecurity enforcement officers will have appropriate training and/or qualifications to exercise coercive powers under the « Bill » .

biosecurity entry point

See clause 13 for the meaning of ‘biosecurity entry point’.

biosecurity industry participant

See clause 14 for the meaning of ‘biosecurity industry participant’.

biosecurity measures

This definition provides that ‘biosecurity measures’ refers to measures to manage any of the following:

·          biosecurity risks

·          biosecurity emergencies and human biosecurity emergencies

·          the risk of contagion of a listed human disease, or

·          the risk of listed human diseases:

­    entering Australian territory or a part of Australian territory, or

­    emerging, establishing or spreading in Australian territory or a part of Australian territory .

Biosecurity measures may be required under a number of provisions of the « Bill » (for example clauses 60, 131, 205, and 335), in order to manage biosecurity risks associated with people, goods , conveyances or premises. Biosecurity measures available in relation to people include, but are not limited to, decontamination, examination, vaccination, treatment, medication or isolation. Biosecurity measures available under the « Bill » in relation to goods , conveyances and premises include, but are not limited to, movement, requiring samples, treatment, exportation or destruction. Applying biosecurity measures is a key concept in relation to managing biosecurity risks (to meet the objects of the Act) and in relation to reducing biosecurity risk to an acceptable level in order to meet Australia’s ALOP.

biosecurity monitoring zone

This definition provides that ‘biosecurity monitoring zone’ means either a permanent or a temporary biosecurity monitoring zone . Biosecurity monitoring zones are in place to monitor whether a pest or disease that may pose an unacceptable level of biosecurity risk has or is likely to enter, emerge, establish or spread in an area within Australian territory . This may be done, for example by setting up insect traps or other equipment. See Part 6 of Chapter 6 for more details.

biosecurity monitoring zone warrant

This definition provides that ‘biosecurity monitoring zone warrant’ refers to a warrant issued as a result of the test in item 4 of the table in clause 489 being met. A biosecurity monitoring zone warrant may be issued if entry to premises (without consent of the owner or occupier), is necessary in a biosecurity monitoring zone (see clause 489 for further information). A biosecurity monitoring zone warrant may only be exercised by a biosecurity enforcement officer .

biosecurity officer

This definition provides that ‘biosecurity officer’ means a person authorised under clause 545 of this « Bill » . Biosecurity officers will be the main personnel performing functions and exercising powers under this « Bill » . Biosecurity officers will have appropriate training and/or qualifications to exercise powers under the « Bill » .

biosecurity official

This definition provides that ‘biosecurity official’ is a term used to mean any of the following officers— biosecurity officer, biosecurity enforcement officer or the Director of Biosecurity .

biosecurity response zone

This definition provides that a ‘biosecurity response zone’ has the meaning given by subclause 365(1) and is a zone that may be determined by the Director of Biosecurity in order to manage biosecurity risks where risks have been identified over a specified area. The Director may make a biosecurity response zone determination if the Director is satisfied that a disease or pest is present and it is necessary for the purpose of managing the biosecurity risk posed by a disease or pest . A biosecurity response zone may be declared, for example, where a biosecurity risk may have a major impact on an industry or community or has a high potential of spreading to other areas. If the biosecurity risk is not present over a large area, the risk may instead be dealt with by making a biosecurity control order in relation to goods or premises . See Part 5 of Chapter 6 for further information.

An area may also be determined to be a biosecurity response zone under Part 5 of Chapter 6 during a biosecurity emergency period (see clause 465).

biosecurity response zone determination

This definition provides that a ‘biosecurity response zone determination’ is a determination made by the Director of Biosecurity under clause 365(1) that a specified area is a biosecurity response zone. Clause 366 specifies the content of a biosecurity response zone determination, including the powers that may be exercised in a response zone. These powers may include treatment or destruction of goods or premises which pose a biosecurity risk , and setting entry or exit requirements to the affected properties (for example, requiring people to undertake decontamination before exiting the zone).

biosecurity response zone warrant

This definition provides that ‘biosecurity response zone warrant’ refers to a warrant issued as a result of the test in item 3 of the table in clause 489 being met. Biosecurity response zone warrants may be issued if entry to premises (without consent of the owner or occupier) is necessary in a biosecurity response zone (see clause 489 for further information). A biosecurity response zone warrant may only be exercised by a biosecurity enforcement officer .

biosecurity risk

This definition provides that ‘biosecurity risk’ (except as provided by clause 310) means:

·          the likelihood of a disease or pest :

­    entering Australian territory or a part of Australian territory , or

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

·          the potential for any of the following:

­    the disease or pest to cause harm to human, animal or plant health

­    the disease or pest to cause harm to the environment , and

­    economic consequences associated with the entry, establishment or spread of the disease or pest .

Biosecurity risk is a core concept in the « Bill » and draws on and is consistent with Australia’s obligations under the SPS Agreement . See also clause 310 for the modified definition of biosecurity risk in relation to the Chapter 6.

biosecurity risk assessment warrant

This definition provides that ‘biosecurity risk assessment warrant’ refers to a warrant issued as a result of the test in item 1 of the table in clause 489 being met. Biosecurity risk assessment warrants may be issued if entry to premises (without consent of the owner or occupier) is necessary in order to assess biosecurity risks associated with goods or premises . Biosecurity risk assessment warrants may not be issued in relation to goods or conveyances which are subject to biosecurity control or goods in relation to which an exposed goods order is in force (see clause 312 for the application of Chapter 6). A biosecurity risk assessment warrant may only be exercised by a biosecurity enforcement officer .

BIRA (short for Biosecurity Import Risk Analysis)

This definition provides that ‘Biosecurity Import Risk Analysis’ (BIRA) has the meaning given by clause 166, which outlines that a BIRA is a risk analysis that may be conducted in order to evaluate the level of biosecurity risk associated with the import or proposed import of goods into Australian territory . BIRAs may identify conditions that must be met to manage the level of biosecurity risk associated with the goods to a level that achieves ALOP . Clause 167 provides that a BIRA is conducted by the Director of Biosecurity . See Part 2 of Chapter 3 for further information.

chief human biosecurity officer

This definition provides that a ‘chief human biosecurity officer’ is a medical practitioner employed by a state or territory body that has been authorised under clause 562 by the Director of Human Biosecurity .

child or incapable person

This definition provides that a ‘child or incapable person’ is:

·          a person less than 18 years old, or

·          a person who is at least 18 years old and either:

­    incapable(whether permanently or temporarily) of understanding the general nature and effect of, and purposes of carrying out a biosecurity measure , or

­    incapable (whether permanently or temporarily) of indicating whether he or she consents or does not consent to a biosecurity measure .

Christmas Island

This definition provides that ‘Christmas Island’ means the Territory of Christmas Island which is an external territory to which the Act applies (see clause 7 for the application of the Act in relation to external territories).

civil penalty provision

This definition provides that a ‘civil penalty provision’ has the same meaning as in the Regulatory Powers Act which currently provides that it is a provision that either:

·          sets out at its foot a pecuniary penalty, or penalties, indicated by the words ‘civil penalty’, or

·          another provision of an Act or a legislative instrument provides that the provision is a civil penalty provision, or that a person is liable to a civil penalty if the person contravenes the provision, and

·          the provision is:

­    a subsection, or a section that is not divided into subsections

­    a subregulation, or a regulation that is not divided into subregulations

­    a subclause (however described) of a Schedule to an Act, or of a legislative instrument, or

­    a clause (however described) of a Schedule to an Act, or of a legislative instrument, that is not divided into subclauses.

Civil penalties can be applied to a variety of contraventions of the Act, and have been included in addition to criminal offences with the intention of providing flexibility to take action where non-compliance has been identified. The Director of Biosecurity or the Director of Human Biosecurity may apply to a relevant court for a civil penalty order where a person contravenes a civil penalty provision.

coastal sea of Australia or an external Territory

This definition provides that ‘coastal sea’ of Australia or an external territory has the same meaning as in subsection 15B(4) of the Acts Interpretation Act 1901 , which currently provides:

‘the territorial sea of Australia, and the sea on the landward side of the territorial sea of Australia and not within the limits of a State or internal Territory, and includes the airspace over, and the sea-bed and subsoil beneath, any such sea.’

This term is used in the definition of Australian territory (clause 12).

Cocos (Keeling) Islands

This definition provides that Cocos (Keeling) Islands means the Territory of Cocos (Keeling) Islands . The Cocos (Keeling) Islands are an external territory to which the Act applies (see clause 7 for the application of the Act in relation to external territories).

commercial-in-confidence

See clause 15 for the meaning of ‘commercial-in-confidence’.

Commonwealth body

This definition provides that the term ‘Commonwealth body’ includes a Department of State, or an authority, of the Commonwealth. A Commonwealth body may be declared as a national response agency and its officers or employees may be authorised as biosecurity officers or biosecurity enforcement officers .

competent authority

This definition provides that a ‘competent authority’ is the authorised body of a member state that is responsible for implementing the « International » Health Regulations .

conditionally non-prohibited goods

This definition provides that ‘conditionally non-prohibited goods’ has the meaning given by subclause 174(2), which provides that conditionally non-prohibited goods are goods , or classes of goods , specified in a determination in force under subclause 174(1). The Director of Biosecurity and the Director of Human Biosecurity may jointly determine that that specified goods , or a specified class of goods , must not be brought or imported into Australian territory unless specified conditions (including conditions for administrative purposes) are complied with. See clause 174 for further information.

constitutional trade and commerce

This definition provides that ‘constitutional trade and commerce’ means trade or commerce between Australia and places outside Australia, trade or commerce among states, or trade or commerce within a territory, between a state and territory or between two territories. The definition reflects the extent of the Commonwealth's legislative power to regulate trade and commerce in reliance on section 51(i) and section 122 of the Constitution. The term is used in Division 2 of this Chapter in relation to clause 24 (severability).

conveyance

See clause 16 for the meaning of ‘conveyance’ which include any vessel , aircraft , vehicle, or train (including railway rolling stock). The regulations may prescribe additional means of transport for the purpose of this definition, which is intended to allow for new developments in transport methods into the future. In limited circumstances a conveyance may be considered to be goods (see clause 16 for further information).

conveyance possession warrant

This definition provides that a ‘conveyance possession warrant’ means a warrant issued as a result of the test in item 6 of the table in clause 489 being met. That is, a conveyance possession warrant can only be issued where:

·          a person has not complied with a request of a biosecurity officer under subclause 209(4) within a specified time period

·          a person has not complied with a request of a biosecurity officer under subclause 338(4) within a specified time period

·          a notice has been provided to the owner or the operator of the conveyance under subclauses 210(3) or 343(3), or

·          a certificate in relation to the conveyance has been issued under subclauses 210(4) or 343(4).

cost-recovery charge

This definition provides that a ‘cost-recovery charge’ means:

·          a fee imposed prescribed by regulations made for the purposes of subclause 592(1) for a fee-bearing activity , or

·          a charge imposed by:

­    the Biosecurity Charges Imposition (Customs) Act 2014

­    the Biosecurity Charges Imposition (Excise) Act 2014

­    the Biosecurity Charges Imposition (General) Act 2014

·          includes any late payment fee.

A cost-recovery charge sets out all the fee-bearing activities and charges that can be collected under the Act.

covered by , in relation to an approved arrangement

See clause 14 for the meaning of ‘covered by’, in relation to an approved arrangement .

damage, in relation to data

This definition provides that ‘damage’ in relation to data includes damage by erasure of data or addition of other data. Clause 326 provides that the Commonwealth is liable to pay compensation for damage to electronic equipment, including damage to data recorded on the equipment, where the damage occurred because insufficient care was exercised in selecting the person who was to operate the equipment or insufficient care was exercised by the person operating the equipment (see clause 326 for further information).

declaration disease or pest , in relation to a biosecurity emergency declaration and a biosecurity emergency period

This definition provides that ‘declaration disease or pest’ means the disease or pest specified under paragraph 475(3)(a) (the disease or pest to which the declaration relates) in the biosecurity emergency declaration that specifies the biosecurity emergency period . See Chapter 8 for further information.

declaration listed human disease , in relation to a human biosecurity emergency declaration and a human biosecurity emergency period

This definition provides that ‘declaration listed human disease’ means the listed human disease specified under paragraph 475(3)(a) (the listed human disease to which the declaration relates) in the human biosecurity emergency declaration that specifies the human biosecurity emergency period . See Chapter 8 for further information.

de facto partner

This definition provides that ‘de facto partner’ has the meaning given by the Acts Interpretation Act 1901 . This term is used in clause 11 dealing with the meaning of associate .

destination part

This definition provides that ‘destination part’ has the meaning given by subclause 618(2) which relates to the declared movements between parts of Australian territory .

Director of Biosecurity

This definition provides that ‘Director of Biosecurity’ refers to the person who is, or is acting as, the Agriculture Secretary , as specified in clause 540. The Director of Biosecurity has specified powers and functions under the « Bill » , including a power of general administration. Chapter 10 outlines who the Director of Biosecurity may delegate his or her powers to.

Director of Human Biosecurity

This definition provides that the ‘Director of Human Biosecurity’ refers to the person who occupies, or is acting in the position of the Commonwealth Chief Medical Officer, as specified in subclause 544(1).

disease

This definition provides that ‘disease’ refers to the signs or symptoms of an illness or infection caused by a disease agent , a collection of signs or symptoms that is clinically defined (for which the causal agent is unknown), or a disease agent that has the potential to cause an illness or infection (either directly or indirectly). This broad definition is intended to ensure the widest range of biosecurity risks and human health risks may be assessed and managed under this « Bill » .

disease agent

This definition provides that ‘disease agent’ includes, but is not limited to, a microorganism, an infectious agent and a parasite. This definition is intended to clarify what is meant by disease agent in the definition of disease .

enactment

This definition provides that ‘enactment’ means an Act of the Commonwealth, a state or a territory, as well as an instrument (including rules, regulations and by-laws) made under an Act of the Commonwealth, a state or a territory.

engag e in conduct

This definition provides that ‘engage in conduct’ means to do an act, or omit to perform an act.

entry warrant

This definition provides that ‘entry warrant’ refers to any of the following warrants authorising entry to premises :

·          a biosecurity risk assessment warrant

·          a biosecurity control order warrant

·          a biosecurity response zone warrant

·          a biosecurity monitoring warrant , and

·          an adjacent premises warrant .

environment

This definition provides that ‘environment’ includes ecosystems and their constituent parts, and natural and physical resources. ‘Environment’ is a term used in the definitions of biosecurity risk and pest . This broad definition is intended to ensure that biosecurity risks and pests may be assessed and managed in the widest possible range of circumstances.

evidential burden

This definition provides that ‘evidential burden’ in relation to a matter means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. For example, a person who bears the evidential burden in relation to adducing evidence that he or she received prohibited goods through legal means under clause 188, it means that he or she must adduce evidence that suggests the reasonable possibility that the goods were received through legal means.

exit provisions

This definition provides that ‘exit provisions’ has the meaning given by subclause 619(2) which relates to leaving Australian territory .

exposed conveyance

This definition provides that ‘exposed conveyance’ means an exposed conveyance within the meaning of subclauses 192(2) or (3). That is, an exposed conveyance is a conveyance that becomes subject to biosecurity control when it is exposed to an aircraft or vessel that is subject to biosecurity control (other than those referred to in paragraph 192(1)(a)), or a conveyance that becomes subject to biosecurity control when it re-enters Australian territory (after being exposed to another conveyance outside of Australian territory ) and is subject to paragraph 192(1)(b).

exposed goods

This definition provides that ‘exposed goods’ has the meaning given by subclause 158(3), which refers to goods (other than goods that are subject to biosecurity control ) that are suspected by a biosecurity officer, on reasonable grounds, to have been exposed to goods or a conveyance that is or are subject to biosecurity control .

exposed goods order

This definition provides that an ‘exposed goods order’ means an order made under

subclause 159(3). For an exposed goods order to be made under subclause 159(3), a biosecurity officer must suspect, on reasonable grounds, that there is an unacceptable level of biosecurity risk associated with goods that have been exposed to goods or a conveyance that is subject to biosecurity control. An exposed goods order allows a biosecurity officer to exercise the powers in Divisions 4, 5, 6, 7, 8 and 10 of Chapter 3 in relation to the exposed goods in the same way the officer would exercise those powers in relation to goods that are subject to biosecurity control . Clause 159 sets out where goods must be to enable a biosecurity officer to make an exposed goods order in relation to them.

An exposed goods order ceases to be in force if when the order expires or is revoked, or if the goods are released from biosecurity control under Division 10 of Chapter 3.

exposed to

See clause 17 for the meaning of ‘exposed to’.

Federal Circuit Court

This definition provides that ‘Federal Circuit Court’ means the Federal Circuit Court of Australia. This term is used in the definition of relevant court .

Federal Court

This definition provides that a reference to the ‘Federal Court’ is a reference to the Federal Court of Australia. This term is used in the definition of relevant court .

fee-bearing activities

See subclause 592(1) for the definition of ‘fee-bearing activities’ which refers to activities carried out by, or on behalf, of the Commonwealth in performing functions or exercising powers under the « Bill » .

first point of entry

See clause 18 for the meaning of ‘first point of entry’. This term is primarily used in Parts 3 and 4 of Chapter 4.

Foreign Affairs Department

This definition provides that ‘Foreign Affairs Department’ refers to the Department administered by the Minister administering the Diplomatic Privileges and Immunities Act 1967 . The Foreign Affairs Department is specified in clause 98 as one of the bodies and agencies that the Director of Human Biosecurity must notify if a traveller movement measure is included in a human biosecurity control order.

foreign vessel

This definition provides that ‘foreign vessel’ refers to a vessel that is not an Australian vessel. The term is used in Chapter 5 in relation to ballast water management.

goods

See clause 19 for the meaning of ‘goods’.

harbour

This definition outlines that ‘harbour’, for the purposes of the definition of port , includes:

·          a navigable estuary, river, creek or channel

·          a haven, roadstead, dock pier or jetty, or

·          any other place in or at which vessels can obtain shelter or load and unload goods or embark and disembark passengers.

 

This definition is based upon the definition of ‘harbour’ in the Navigation Act 2012 . This is to ensure consistency with other Commonwealth legislation to the extent possible while meeting the needs of the « Bill » . The definition of harbour is used in Chapter 4 in relation to a first point of entry .

Health Department

This definition provides that ‘Health Department’ refers to the department administered by the Health Minister.

Health Minister

This definition provides that ‘Health Minister’ refers to the Minister that administers the National Health Act 1953 .

Health Secretary

This definition provides that ‘Health Secretary’ refers to the Secretary of the Health Department .

high-value conveyance

This definition provides that a conveyance is considered to be a ‘high-value conveyance’ if it is of a value greater than the amount prescribed by the regulations for the purpose of this definition.

Certain powers in Chapter 4 and Chapter 6 that relate to high-value conveyances are only available to biosecurity officers with the written approval of the Director of Biosecurity . For example, clause 208 provides that a biosecurity officer may require a conveyance which poses an unacceptable biosecurity risk to be treated, however an officer must receive written approval from the Director of Biosecurity in order to require treatment that may damage a high-value conveyance. This differentiation is intended to ensure that the Director of Biosecurity (or a delegate) makes decisions that relate to high-value conveyances while still providing operational practicality for biosecurity officers to require the treatment of a conveyance (other than high-value conveyances) where necessary.

high-value goods

This definition provides that goods are considered ‘high-value goods’ if the goods are of a value greater than the amount prescribed by the regulations for the purpose of this definition.

Certain powers in Chapter 3 and Chapter 6 that relate to high-value goods are only available to biosecurity officers with the written approval of the Director of Biosecurity . For example, clause 136 provides that a biosecurity officer may require goods (other than high-value goods) which pose a biosecurity risk to be destroyed, however an officer must receive written approval from the Director of Biosecurity in order to destroy high-value goods. This differentiation is intended to ensure that the Director of Biosecurity (or his or her delegate) makes decisions that relate to high-value goods while still providing operational practicality for biosecurity officers to require treatment or destruction of goods (other than high-value goods) where necessary.

human biosecurity control order

This definition provides that a ‘human biosecurity control order’ is an order that is imposed under clause 60 on an individual that may have a listed human disease . This order enables biosecurity measures to be specified to control the risks posed by serious communicable diseases.

human biosecurity emergency

This definition provides that a ‘human biosecurity emergency’ refers to an emergency that is declared under subclause 475(1). The human biosecurity emergency provisions in Chapter 8 outline the powers and provisions relating to human biosecurity emergency declarations and the management of associated human health risks . The emergency powers in the « Bill » are intended to be used in circumstances where the scale and significance of an emergency requires management at a national level. See Chapter 8 for further details.

human biosecurity emergency declaration

This definition provides that a ‘human biosecurity emergency declaration’ refers to a declaration of a human biosecurity emergency made by the Governor-General under subclause 475(1). A human biosecurity emergency declaration will specify the listed human disease the declaration relates to, the nature of the human biosecurity emergency and the conditions that gave rise to it and the period during which the declaration is in force.

human biosecurity emergency period

This definition provides that a ‘human biosecurity emergency period’ refers to the period of time specified under paragraph 475(3)(c) during which a human biosecurity emergency declaration is in force.

human biosecurity officer

This definition provides that a ‘human biosecurity officer’ is a person authorised under clause 563 of this « Bill » .

human disease

This definition provides that a ‘human disease’ is a pest or disease that has the potential to enter, emerge, establish itself or spread in Australian territory or a part of Australian territory and cause harm to human health.

human health response zone

See clause 113 for the meaning of ‘human health response zone’. A ‘human health response zone’ is a specified area that has been determined to prevent or reduce the risk of a disease from entering, emerging, establishing itself or spreading in Australian territory or part of Australian territory and causing harm to human health. The Director of Human Biosecurity is responsible for determining a human health response zone under clause 113 of the « Bill » .

human health risk

This definition provides that a ‘human health risk’ is:

·          the likelihood of a disease or pest :

­    entering Australian territory or a part of Australian territory , or

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

·          the potential for either of the following:

­    the disease or pest to cause harm to human health, or

­    economic consequences associated with the entry, emergence, establishment or spread of the disease or pest , to the extent that the disease or pest has the potential to cause harm to human health.

human remains

This definition provides that ‘human remains’ are the remains of all or any part of the body of a deceased human, but does not include cremated remains.

Immigration Department

This definition provides that ‘Immigration Department’ refers to the department administered by the Minister administering the Migration Act 1958 . The Immigration Department is specified in clause 98 as one of the bodies and agencies that the Director of Human Biosecurity must notify if a traveller movement measure is included in a human biosecurity control order.

import , in relation to goods

This definition provides that ‘import’ in relation to goods, does not include unloading the goods for temporary purposes only (for example, to unload other goods ).

This term is used in Chapter 3 in a number of contexts, including provisions that outline the requirement to obtain a permit to bring or import certain goods into Australian territory (see Division 3 of Part 3, Chapter 3). The « Bill » also refers to goods being ‘brought in’ to Australian territory—this term is similar to ‘import’ however it also captures goods which are brought in for temporary purposes, such as goods that are on board a conveyance but are not unloaded in Australian territory (for example, ship stores), or good s that are transported by land from the port or landing place of arrival in Australian territory to another port or landing place in Australian territory on the way to a final destination outside of Australian territory .

incoming aircraft or vessel

This definition provides that ‘incoming aircraft or vessel’ means an aircraft or vessel that has entered Australian territory during a flight or voyage that commenced outside Australian territory , and intends to arrive (or has arrived) at a landing place or port in Australian territory . This term is used in Chapter 4.

incoming passenger aircraft or vessel

This definition provides that an ‘incoming passenger aircraft or vessel’ is an incoming aircraft or vessel that is a passenger aircraft or passenger vessel .

installation

See clause 20 for the meaning of ‘installation’. The definition of a vessel includes an installation for the purposes of the « Bill » .

internal waters of Australia

This definition provides that ‘internal waters of Australia’ has the same meaning as in section 10 of the Seas and Submerged Lands Act 1973 , where it is defined as:

‘any waters of the sea on the landward side of the baseline of the territorial sea’.

To avoid doubt, the definition clarifies that the internal waters of Australia includes waters within the limits of a state. This term is used in the definition of Australian seas.

« International » Health Regulations

This definition provides that ‘ « International » Health Regulations’ are the regulations prepared by the World Health Organization to prevent, protect against, control and provide a public health response to the « international » spread of disease in ways that are commensurate with, and restricted to, public health risks. Australia is a signatory to the « International » Health Regulations and a World Health Organization Member State, and is therefore obliged to enforce the « International » Health Regulations in Australia.

« international » mail centre

This definition provides that ‘ « international » mail centre’ refers to a place approved by the Chief Executive Officer of Customs under paragraph (f) of the definition of ‘Customs place’ in subsection 183UA(1) of the Customs Act 1901 . Chapter 6 provides that a permanent biosecurity monitoring zone will be in place around all « international » mail centres. See clause 376 for further information.

invasive pest

This definition provides that ‘invasive pest’ refers to a pest that is an alien species within the meaning of the Biodiversity Convention that is not capable of infesting humans, animals or plants ; acting as a vector for a disease ; or causing disease in any other way.

This definition is intended to capture invasive pests such as lantana or bitou bush that may cause harm to human, animal or plant health or the environment (by, for example, affecting plant communities or water catchments) although they do not cause harm through infesting humans, animals or plants, or acting as a vector for or cause of disease . See clauses 25 and 26 for the application of this « Bill » in relation to invasive pests.

Article 8(h) of the Biodiversity Convention imposes an obligation to 'prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species'. The Guiding Principles in relation to Article 8(h), adopted by the Conference of the Parties to the Biodiversity Convention (COP 6 Decision VI/23), define 'alien species' as referring to a species, subspecies or lower taxon, introduced outside its natural past or present distribution. Therefore, an 'alien species', for the purposes of the Convention and also this definition, can include species that are not native to a particular part of Australian territory , as well as species that are not native to Australian territory as a whole.

investigation warrant

This definition provides that ‘investigation warrant’ means;

·          a warrant issued under section 70 of the Regulatory Powers Act as it applies in relation to evidential material that relates to a provision mentioned in subclause 484(1), or

·          a warrant signed by an issuing officer under section 71 of the Regulatory Powers Act as it applies in relation to evidential material that relates to a provision mentioned in subclause 484(1).

isolation measure

This definition provides that ‘isolation measure’ refers to a biosecurity measure provided for under clause 97, which may be imposed under a human biosecurity control order . This measure requires an individual to remain isolated at a specified medical facility . This measure aims to prevent other members of the community from being exposed to a listed human disease .

issuing officer

This definition provides that ‘issuing officer’ refers to a magistrate, or Judge of the Federal Court or the Federal Circuit Court or a Judge of a state or territory court who has the power to issue a warrant under this « Bill » . It is intended that warrants provided for in Chapter 9 will be issued to allow entry to premises (including conveyances ) under this « Bill » for the purposes of assessing or managing biosecurity risks , or monitoring or investigating compliance with the Act. See clause 537 for conferral of powers on an issuing officer.

just terms

This definition provides that ‘just terms’ has the same meaning as in section 51(xxxi) of the Constitution, which currently provides:

‘the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.’

The term is used in this « Bill » in relation to acquisition of property .

landing place , in relation to aircraft

This definition provides that ‘landing place’ means any place where an aircraft can land, including an area of land or water, or an area on a building or a vessel . The term is used in Chapter 4 to outline where aircraft that are subject to biosecurity control can and cannot land. See also first point of entry.

late payment fee

See clause 595 for meaning of ‘late payment fee’, which is an additional fee that is payable if a basic charge that is due and payable under the regulations is not paid at or before the time specified in the regulations.

listed human disease

See clause 42 for meaning of ‘listed human disease’, which is a human disease that the Director of Human Biosecurity may consider to be a communicable disease that may cause significant harm to human health, and is determined in accordance with that clause.

managed for discharge

This definition provides that ‘managed for discharge’ refers to ballast water that has met the ballast water management requirements set out in Chapter 5. See clauses 272 and 275 for further information.

medical facility

This definition provides that ‘medical facility’ refers to a facility where medical assessments of individuals are conducted. This includes permanent facilities such as hospitals and clinics, and may also include facilities that are temporarily designated for this purpose.

monitoring warrant

This definition provides that ‘monitoring warrant’ means a warrant issued under section 32 of the Regulatory Powers Act as it applies in relation to this Act. A monitoring warrant may be issued if entry to premises (without consent of the owner or occupier of the premises ) is necessary in order to monitor whether the Act is, or has been, complied with or whether information provided for the purposes of the Act is correct. A monitoring warrant may only be exercised by a biosecurity enforcement officer .

National Focal Point

This definition provides that ‘National Focal Point’ refers to the designated point of contact for the sharing of information with other States party to the « International » Health Regulations , as specified in section 9 of the National Health Security Act 2007. The National Focal Point is specified in clause 98 as one of the bodies and agencies that the Director of Human Biosecurity must notify if a traveller movement measure is included in a human biosecurity control order.

national response agency

This definition provides that ‘national response agency’ refers to the Agriculture Department and all biosecurity officers and biosecurity enforcement officers , or a body that is declared to be a national response agency by the Agriculture Minister under clause 452. A national response agency may be declared to assist with the Commonwealth’s response to a biosecurity emergency. It is intended that national response agencies will be used to direct people, staff biosecurity zones, close roads and assist with the application of biosecurity measures during a biosecurity emergency .

officer of Customs

This definition provides that ‘officer of Customs’ has the same meaning as in the Customs Act 1901 . This term is used in Chapter 2.

operator of a conveyance

See clause 21 for the meaning of ‘operator’ of a conveyance .

origin part

This definition provides that ‘origin part’ has the meaning given by subclause 618(2) which relates to the declared movements between parts of Australian territory .

outgoing aircraft or vessel

This definition provides that ‘outgoing aircraft or vessel’ refers to an aircraft or vessel that is departing from Australian territory .

outgoing passenger aircraft or vessel

This definition provides that ‘outgoing passenger aircraft or vessel’ is an outgoing aircraft or vessel that is a passenger aircraft or passenger vessel .

passenger

This definition provides that ‘passenger’ refers to an individual travelling on an aircraft or vessel , but does not include the crew of that aircraft or vessel .

passenger aircraft

This definition provides that ‘passenger aircraft’ refers to an aircraft that can carry six or more passengers .

passenger vessel

This definition provides that ‘passenger vessel’ refers to a vessel that can carry 12 or more passengers .

permanent biosecurity monitoring zone

This definition provides that ‘permanent biosecurity monitoring zone’ has the meaning given by clause 378 and refers to a biosecurity monitoring zone that is permanently in place within the permissible distance of the outer boundary of a first point of entry , an « international » mail centre , a biosecurity activity zone or any other place in Australian territory prescribed by the regulations.

It is intended that permanent biosecurity monitoring zones will be used to monitor whether pests or diseases that may pose an unacceptable level of biosecurity risk have entered, or are likely to enter, emerge, establish or spread from places that are known to be subject to high traffic of goods or conveyances that are subject to biosecurity control .

permissible distance

This definition provides that ‘permissible distance’ in relation to a permanent biosecurity monitoring zone is 400 metres, or greater if prescribed in the regulations for the purposes of this definition.

permissible purpose

This definition provides that ‘permissible purpose’ means a purpose that promotes the objects of the Act (see clause 4). This term is used in provisions relating to confidentiality of information in Chapter 11. Personal information and commercial-in-confidence information may be collected for a permissible purpose (e.g. through processing a permit application). Records may be made of that information and it may be disclosed or used for a permissible purpose in the exercise of powers or performance of functions under the « Bill » (for example, to contacting the person who made the application about the application).

personal information

This definition provides that ‘personal information’ has the same meaning as in section 6 of the Privacy Act 1988 which currently provides the meaning as:

‘Information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.’

This term is used in provisions relating to confidentiality of information in Chapter 11.

person assisting

This definition provides that ‘person assisting’ has the meaning given by clause 536. A biosecurity officer may be assisted by other persons in exercising powers and performing functions referred to in subclause 536(1) if that « assistance » is necessary and reasonable. Similarly, a biosecurity enforcement officer may be assisted by other persons in entering premises , and exercising powers and performing functions referred to in subclause 536(1), if that « assistance » is necessary and reasonable. A person giving such « assistance » to a biosecurity officer or a biosecurity enforcement officer is a person assisting the officer. See clause 536 for further information.

person in charge

See clause 22 for the meaning of ‘person in charge’.

person responsible for a conveyance

This definition provides that a ‘person responsible for a conveyance ’means the owner of the conveyance , the person in charge of the conveyance or the operator of the conveyance . See clauses 21 and 22 for further information in relation to the meaning of the terms operator of a conveyance and person in charge of a conveyance .

pest

This definition provides that ‘pest’ refers to a species, strain or biotype of a plant or animal, or a disease agent , that has the potential to cause, either directly or indirectly, harm to human, animal or plant health, the economy or the environment .

This broad definition is intended to ensure that the widest range of biosecurity risks and human health risks may be assessed and managed under this « Bill » . See clauses 25 and 26 for the application of this Act in relation to pests, and also the definition of invasive pests .

plant

This definition provides that a reference to ‘plant’ in this « Bill » includes a dead plant and any part of a plant. Chapter 3 provides that the Director of Biosecurity and the Director of Human Biosecurity may jointly prohibit (absolutely or subject to conditions) goods from being brought or imported into Australian territory . This may include prohibiting (absolutely or subject to conditions) or requiring a permit for the bringing in or importation of plants, parts of plants or plant products as they are included in the definition of goods under this « Bill » .

port

This definition provides that ‘port’ includes a harbour . See the definition of harbour for further information.

possession warrant

This definition provides that ‘possession warrant’ refers to a premises possession warrant or a conveyance possession warrant that authorises the taking of possession of premises or conveyances .

PPSA security interest

This definition provides that a ‘PPSA security interest’ means a security interest within the meaning of the Personal Property Securities Act 2009 and to which that Act applies (other than a transitional security interest within the meaning of that Act). This term is used in Chapter 11 in relation to the cost recovery provisions.

The Personal Property Securities Act 2009 applies to certain security interests in person property. See section 8 (interests to which the Act does not apply), section 12 (meaning of security interest ) and Chapter 9 (transitional provisions) of that Act. Further, see section 308 of the Personal Property Securities Act 2009 for the meaning of transitional security interest.

premises

This definition provides that ‘premises’ includes a structure, building or conveyance ; a place (whether or not enclosed or built on), including a place situated underground or under water; or a part of either of the previous. This broad definition is intended to ensure that powers provided in the « Bill » are able to be exercised in the widest range of locations in order to manage biosecurity risk.

Conveyances are included in the definition of premises in most of the « Bill » as the same policy that applies to premises generally applies to conveyances (see clauses 252, 472 and 497 for examples of clauses where premises does not include a conveyance ).

premises possession warrant

This definition provides that ‘premises possession warrant’ refers to a warrant issued as a result of the test in item 7 of the table in clause 489 being met. A biosecurity enforcement officer may apply for a premises possession warrant where a biosecurity officer has requested under subclause 341(1) for the owner of premises to arrange for the premises to be dealt with or destroyed, and the request has not been complied with. Premises possession warrants will allow biosecurity officers to access to premises in order to manage biosecurity risks associated with the premises .

prescribed contact information

This definition provides that ‘prescribed contact information’ refers to the contact information that is required to be provided by the operators of passenger aircraft and passenger vessels , individuals that may be suffering from a listed human disease , or close personal contacts of individuals that may be suffering from a listed human disease (see clause 47, 69 and 85 respectively).

prescribed quarantine signal

This definition provides that ‘prescribed quarantine signal’ means the signal prescribed under subclause 221(2).

Quarantine signals are internationally-recognised signals (e.g. flags or lights) on vessels that indicate the state of health of the people on board. Quarantine signals are prescribed in this « Bill » in accordance with the « International » Code of Signals . The requirements for how the quarantine signal is to be displayed will be covered in the regulations.

prohibited goods

See subclause 173(2) for the meaning of ‘prohibited goods’, which refers to goods (or classes of goods ) that the Director of Biosecurity and Director of Human Biosecurity have jointly determined are prohibited from being imported or brought into Australian territory . The Directors may only determine that goods are prohibited goods if satisfied that the level of biosecurity risk associated with the goods (or class of goods ) is unacceptable and that biosecurity measures would not be able to be taken to reduce that level of biosecurity risk to an acceptable level. The Directors must apply the ALOP for Australia in conducting a risk assessment for the purpose of determining whether particular goods (or classes of goods ) should be prohibited goods (see subclause 173(4)).

protected information

This definition provides that ‘protected information’ refers to personal information , or information that is commercial-in-confidence that:

·          is obtained under, or in accordance with, this Act

·          is derived from a record of personal information , or information that is commercial-in-confidence , that was made under, or in accordance with, this Act, or

·          is derived from a disclosure or use of personal information, or information that is commercial-in-confidence, which was made under, or in accordance with, this Act.

This term is used in provisions relating to confidentiality of information in Chapter 11 which outlines the circumstances that a person can record, disclose or otherwise use protected information for the purposes of the Act (i.e. a permissible purpose ) (see Part 2 of Chapter 11). Also, see clause 15 for the meaning of commercial-in-confidence .

protected person

This definition provides that ‘protected person’ has the meaning given by subclause 644(6) and refers to a person protected from civil proceedings under clause 644. Civil proceedings involve legal disputes between individuals based on one person claiming that the other has failed in his or her legal duty.

Protection from civil proceedings is intended to allow those required under the « Bill » to make decisions and take action to manage biosecurity risk appropriately without the fear of being sued. This protection does not however extend to protection from criminal prosecution where a protected person is alleged to have committed an offence.

protected zone

This definition provides that ‘protected zone’ has the meaning given by clause 617 which is the zone established under Article 10 of the Torres Strait Treaty , being the area bounded by the line described in Annex 9 to the Treaty.

protected zone area

This definition provides that ‘protected zone area’ has the meaning given by clause 617 which is the protected zone established under the Torres Strait Treaty, or an area in the vicinity of the protected zone prescribed in regulations made under clause 617 . The area in the vicinity of the protected zone is included in the definition of this term to ensure that traditional inhabitants navigating protected zone vessels (which may not have access to accurate navigation equipment) are provided with a buffer zone in which they may travel while still being considered protected zone vessels.

protected zone vessel

This definition provides that ‘protected zone vessel’ has the meaning given by clause 617, which refers to a vessel that meets the conditions set out in that clause. Protected zone vessels are vessels that are used to transport traditional inhabitants in the protected zone . See clause 617 for further details of how Australia will meet its obligations under the Torres Strait Treat y in this « Bill » .

Regulatory Powers Act

This definition provides that ‘Regulatory Powers Act’ means the Regulatory Powers (Standard Provisions) Act 2014 .

related provision

This definition provides that ‘related provision’ refers to an offence against this Act or the Quarantine Act 1908 (as it applied of its own force or to the extent that it continues to apply because of the Biosecurity (Consequential Amendments and Transitional Provisions) Act 2014 , a civil penalty provision under the Biosecurity Act, or an offence against the Crimes Act 1914 or the Criminal Code that relates to the Biosecurity Act or the Quarantine Act 1908 (as it is applied of its own force or to the extent that it continues to apply because of the Biosecurity(Consequential Amendments and Transitional Provisions) Act 2014 .

release from biosecurity control

This definition provides that ‘release from biosecurity control’ refers to when goods and conveyances are no longer subject to biosecurity control . See clauses 162 and 218 for further information.

relevant court

This definition provides that ‘relevant court’ refers to the Federal Court, the Federal Circuit Court or a court of a state or territory that has jurisdiction in relation to matters arising under the « Bill » .

relevant Director , in relation to a proposed arrangement or an approved arrangement

This definition provides that ‘relevant Director’, when used in relation to a proposed arrangement or approved arrangement , refers to the Director of Biosecurity unless the arrangement provides for biosecurity activities to be carried out in relation to human health risks only. If the arrangement relates only to human health risks , the Director of Human Biosecurity is the relevant Director.

relevant person

This definition provides that ‘relevant person’ for a reviewable decision refers to a person listed in column 1 of the table in subclause 574(1), or for a reviewable decision prescribed in the regulations made for the purposes of subclause 574(2), the person prescribed in the regulations to clause 574. A relevant person, in relation to a reviewable decision , is the person that may apply for the decision to be reviewed. See clause 574 for further information.

relevant premises

See clause 510 for the meaning of ‘relevant premises’, which refers to any premises at which biosecurity activities are carried out by a biosecurity industry participant that is covered by an approved arrangement and any landing place or port that is determined to be a first point of entry .

reportable biosecurity incident

This definition provides that ‘reportable biosecurity incident’ refers to an incident relating to a biosecurity risk that must be reported to a biosecurity officer or the Director of Biosecurity (for incidents reportable in Chapter 3) or the relevant Director (for incidents reportable in Chapter 7).

Division 8 of Part 1 of Chapter 3 provides that in relation to goods that are subject to biosecurity control , the Director of Biosecurity may determine that an act, or omission or event is a reportable biosecurity incident. Reportable biosecurity incidents will be listed in a legislative instrument made by the Director of Biosecurity . See clauses 155 and156 for further information.

In Chapter 7, clause 431 provides that a report must be made to the relevant Director if an act, omission or event specified in an approved arrangement occurs, or if a condition of the approved arrangement requires a report to be made to the relevant Director if an act, omission or event specified in the condition occurs. See clauses 431 and 432 for further information.

Reportable biosecurity incidents are intended to ensure persons in charge of goods , persons in charge of vessels or aircraft that bring goods into Australian territory , and biosecurity industry participants report any biosecurity incidents to a biosecurity officer or the Director of Biosecurity in order to ensure the biosecurity risk is assessed and managed.

reviewable decision

This definition provides that a ‘reviewable decision’ has the meaning given by subclauses 574(1) and (2). Subclause 574(1) lists decisions that are reviewable and subclause 574(2) provides that regulations may prescribe further decisions that are reviewable decisions.

Applications can be made to the Administrative Appeals Tribunal for a decision made personally by the Director of Biosecurity, or for a decision that has been reviewed by the Director of Biosecurity or other internal reviewer. It is intended that reviewable decisions will allow people in relation to whom a decision has been made under this Act to have the decision reviewed if the person is not satisfied that the decision was made correctly, and potentially re-made if the original decision was found to be incorrect.

sanitation health risk

The definition provides that ‘sanitation health risk’ has the meaning prescribed under clause 255(1)(a). Clause 255 provides for the regulations to establish a scheme for ship sanitation, which must give effect to the « International » Health Regulations .

sediment

This definition provides that ‘sediment’ has the same meaning as Sediments in the Ballast Water Convention , which refers to ‘matter settled out of ballast water within a ship’. This term is used in Chapter 5 in relation to ballast water management .

sediment reception facility

This definition provides that ‘sediment reception facility’ refers to a facility in Australian territory for receiving sediment from vessels for treatment or disposal in a way authorised under a Commonwealth law or a state or territory law (if the facility is in a state or territory). This term is used in Chapter 5 in relation to ballast water management .

ship’s pilot

This definition provides that ‘ship’s pilot’ refers to a person who does not belong to, but has the conduct of, a vessel . The term is commonly used to refer to a person with extensive knowledge of conditions applicable to the port that a vessel wishes to enter. The ship’s pilot boards the vessel to pilot it into the port and ensure it docks safely. This term is used in the definition of person in charge of a conveyance .

SPS Agreement

This definition provides that ‘SPS Agreement’ refers to the Agreement on the Application of Sanitary and Phytosanitary Measures 1994 set out in Annex 1A to the World Trade Organization (WTO) Agreement as in force for Australia from time to time. The SPS Agreement contains the basic rules on animal and plant health and food safety standards for trade between World Trade Organization member countries. It requires that sanitary (relating to human and animal) and phytosanitary (relating to plant) measures are based on science and applied only to the extent necessary to protect human, animal or plant life or health. The SPS Agreement allows World Trade Organization members to determine their own appropriate level of sanitary and phytosanitary protection ( ALOP ), which must be applied in a consistent manner.

State or Territory body

This definition provides that a reference to a ‘state or territory body’ includes a Department of State, or an authority of a state or territory.

subject to biosecurity control

This definition provides that ‘subject to biosecurity control’ has the meaning given by clause 119 in relation to goods , and clause 191 or clause 192 in relation to conveyances . Goods and conveyances that arrive from outside Australian territory —or in some circumstances, interact with goods or conveyances that have arrived from outside Australian territory —provide a direct pathway for biosecurity risks to enter into Australian territory . This « Bill » makes those goods and conveyances subject to biosecurity control. When goods or conveyances are subject to biosecurity control, biosecurity officers can exercise powers in relation to them to manage any associated biosecurity risks .

survey authority

This definition provides that ‘survey authority’ refers to a person authorised by the Director of Biosecurity under clause 289 to be a survey authority. Regulations can prescribe a scheme for survey authorities to perform a number of functions in relation to ballast water management certificates of Australian vessels on behalf of the Commonwealth (see clause 290) . The Director of Biosecurity may only authorise a survey authority under this clause if the Director is satisfied the person has suitable qualifications to perform these functions.

suspended goods

See subclause 182(2) for meaning of ‘suspended goods’, which provides that suspended goods are goods that the Director of Biosecurity has determined must not be brought, or imported , into Australian territory for a specified period.

tank

This definition provides that ‘tank’ includes a space or compartment. The term is used in the definition of ballast water exchange. This definition is intended to ensure that any space or compartment that can contain ballast water is captured by the term ballast water exchange .

temporary biosecurity monitoring zone

This definition provides that ‘temporary biosecurity monitoring zone’ has the meaning given by subclause 384(1) and refers to a biosecurity monitoring zone in relation to which the Director of Biosecurity has made a temporary biosecurity monitoring zone declaration . It is intended that temporary biosecurity monitoring zones will be used to monitor whether pests or diseases that may pose an unacceptable level of biosecurity risk have, or are likely to, enter, emerge, establish or spread from a specified area within Australian territory .

temporary biosecurity monitoring zone determination

This definition provides that a ‘temporary biosecurity monitoring zone determination’ is a determination made under clause 384(1) that specifies the particular biosecurity measures or powers that a biosecurity officer may use to manage an identified biosecurity risk in a temporary biosecurity monitoring zone . Clause 385 specifies the required contents of a temporary biosecurity monitoring zone determination.

this Act

This definition provides that any reference to ‘this Act’ includes instruments made under the Biosecurity Act and the Regulatory Powers Act applying in relation to this Act.

Torres Strait Treaty

See clause 617 for the meaning of ‘Torres Strait Treaty’, which refers to the Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters 1978.

Articles of the Torres Strait Treaty that are relevant to this « Bill » include:

·          Article 10.3 which states that ‘the principle purpose of the Parties in establishing the protected zone is to ‘acknowledge and protect the traditional way of life and livelihood of the traditional inhabitants including their traditional fishing and free movement’

·          Article 11.3 which states that, ‘subject to the other provisions of the Torres Strait Treaty , each Party shall continue to permit free movement and the performance of lawful traditional activities in and in the vicinity of the protected zone by the traditional inhabitants of the other Party’, and

·          Article 16 which states that ‘each Party shall apply immigration, customs, quarantine and health procedures in such a way as not to prevent or hinder free movement or the performance of traditional activities in and in the vicinity of the protected zone by the traditional inhabitants of the other Party ’.

See clause 617 for further details.

traditional activities

See clause 617 for the meaning of ‘traditional activities’, which refers to the meaning given in the Torres Strait Treaty .

traditional inhabitant

See clause 617 for the meaning of ‘traditional inhabitant’, which refers to the meaning given in the Torres Strait Treaty.

traveller movement measure

This definition provides that ‘traveller movement measure’ refers to a biosecurity measure provided for under clause 96 that may be imposed under a human biosecurity control order . This measure requires that an individual does not leave Australian territory on an outgoing passenger aircraft or passenger vessel for up to 28 days. This measure seeks to prevent the spread of listed human diseases to other passengers , and to prevent the « international » spread of the disease.

unduly detained or delayed

This definition provides that ‘unduly detained or delayed’ in relation to ballast water management refers a vessel being unduly detained or delayed under articles 7.2, 8, 9, or 10 of the Ballast Water Convention. These articles relate to undue detainment or delay in the course of:

·          requiring additional surveys or certifications that are not required under the Convention

·          investigating a suspected violation of the Convention and subsequent sanctions against a vessel

·          inspection and sampling to determine whether a vessel is in compliance with the Convention, and

·          detaining a vessel that has violated the Convention.

Chapter 5 provides that if a vessel is unduly detained or delayed as a result of an action undertaken by a biosecurity officer , the owner may claim reasonable compensation from the Commonwealth (see clause 307). This is intended to safeguard owners against « financial » loss if a vessel is detained longer than was required to ensure compliance with the ballast water management provisions of the « Bill » , or if there was no basis for the detention.

United Nations Convention on the Law of the Sea

This definition provides that ‘United Nations Convention on the Law of the Sea’ refers to the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982 in force for Australia from time to time . This term is used in clause 30 in relation to foreign vessels.

vessel

This definition outlines which types of conveyances are considered to be a ‘vessel’ under this « Bill » . The term refers to any kind of vessel used in navigation by water, however propelled or moved, including a barge, lighter or other floating craft, and an air-cushion vehicle (or other similar craft, used wholly or primarily in navigation by water). This definition provides that vessel also includes an installation, and any floating structure.

Under this « Bill » , a vessel (except in relation to Chapter 5) that is, or is to be, brought or imported into Australian territory from outside Australian territory on board another conveyance is consider to be goods from the time the vessel is first intended to be so brought or imported until immediately after the vessel is released from biosecurity control . This is intended to exclude such vessels from provisions of the « Bill » that deal with biosecurity risks associated with aircraft that convey people or goods into Australian territory (for example, clause 193—pre-arrival reporting). Biosecurity risks associated with such vessels will be managed under Chapter 3.

However, in relation Parts 1 and 3 of Chapter 11 (and any provision of the « Bill » that relates to Parts 1 and 3 of Chapter 11) a vessel which is transported on another conveyance will not be considered goods so that the cost recovery provisions in Chapter 11 apply as if the vessel were a conveyance (see definition of conveyance and goods in clauses 16 and 19 for further information).

warrant

This definition provides that ‘warrant’ refers to any warrant issued under clause 488 or clause 492 or an investigation warrant or a monitoring warrant .

World Trade Organization Agreement

This definition provides that ‘World Trade Organization Agreement’ refers to the Marrakesh Agreement 1994 that established the World Trade Organization. See SPS Agreement for how this Agreement relates to this « Bill » .

Clause 10                   Meaning of approved arrangement

This clause provides that an approved arrangement is an arrangement for which an approval is in force under paragraph 406(1)(a), including a varied arrangement for which an approval is in force under paragraph 406(1)(a) as it applies because of subclause 412(3).

In order to be approved, an arrangement must meet the requirements set out in the regulations, the applicant must meet a fit and proper person test (see clause 530), and the relevant Director must consider that the level of biosecurity risk associated with the operation of the arrangement is acceptable. Once an application has been approved by the relevant Director , the applicant will become a biosecurity industry participant . All arrangements will be supported by an audit model that ensures the biosecurity risks are being adequately managed.

Chapter 7 outlines the scope and principles of approved arrangements, the processes for application, approval and any subsequent changes to an arrangement with a biosecurity industry participant .

Clause 11                   Meaning of associate

This clause defines the term ‘associate’ which is used in clauses 179, 410 and 530.

Subclause 11(1) provides that the word ‘associate’ covers a person who is or was a consultant, adviser, partner, representative on retainer, employer or employee of the first person or a corporation the first person is employed by or has shares in; a spouse, de facto partner , or family member of the first person; a family member of a spouse or de facto partner of the first person or any other person who was directly or indirectly concerned with or in a position to control the business or an undertaking of the first person or a corporation he or she is employed by or has shares in. (See section 2D of the Acts Interpretation Act 1901 for the meaning of de facto partner ).  Guidance is provided on who may be a ‘child’ or a ‘parent’ of a person.

The intent of the associates’ test is to ensure that an applicant for a permit to bring or import goods into Australian territory , an arrangement or a person who holds an approved arrangement is a suitable person to be responsible for managing biosecurity risks , in light of the potential consequences of non-compliance. It aims to do this by preventing a person the relevant Director has determined should not hold a permit or an approved arrangement from obtaining another arrangement via an associate, such as a family member or business partner, on his or her behalf; or by ensuring a person involved in the behaviour that resulted in non-compliance of the first person can be refused a permit or an arrangement or have his or her approved arrangement suspended or revoked if the relevant Director deems it appropriate. The term ‘associate’ is also used in clause 530 to provide guidance as to who is a fit and proper person.

Clause 12                   Meaning of Australian territory

This definition outlines the application of provisions referring to ‘Australian territory’. A reference in a provision of this « Bill » to Australian territory is defined to mean a reference to Australia, Christmas Island , the Cocos (Keeling) Islands (and any external Territory to which that provision extends), and the airspace over these areas. It also refers to the coastal sea of Australia, of Christmas Island , of the Cocos (Keeling) Islands (and of any other external Territory to which that provision extends).

Clause 13                   Meaning of biosecurity entry point

This clause defines the term ‘biosecurity entry point’ for aircraft , vessels and goods in relation to first points of entry . Clauses 224 and 230 allow the Director of Biosecurity to designate a specified area of a port or landing place as a ‘biosecurity entry point’ in a first point of entry determination. These designated entry points are flexible non-mandatory enforcement tools intended to ensure that aircraft , vessels and goods with a specific type of biosecurity risk (i.e. timber) are being taken to the appropriate place within a first point of entry where biosecurity risks can be managed effectively.

Clause 14                   Meaning of biosecurity industry participant and covered by

This clause clarifies terms used in Chapter 7. It defines the term ‘biosecurity industry participant’ to mean a person who is the holder of an approved arrangement (until the agreement is approved, the person is referred to as an ‘applicant’). It also explains that the biosecurity industry participant is considered to be ‘covered by’ the approved arrangement . Provisions in the « Bill » that refer to a biosecurity industry participant covered by an arrangement refer to a biosecurity industry participant who is operating in accordance with his or her approved arrangement . See Chapter 7 for further information.

Clause 15                   Meaning of commercial-in-confidence

This clause defines the meaning of the term ‘commercial-in-confidence’ in relation to information. Under this « Bill » , information is considered commercial-in-confidence if a person can demonstrate to the Director of Biosecurity that all of the following apply in relation to the information:

·          release of the information would cause competitive detriment to the person

·          the information is not in the public domain

·          the information is not required to be disclosed under another Australian law , and

·          the information is not readily discoverable.

This term is used in the definition of protected information .

Clause 16        Meaning of conveyance

This clause provides that the term ‘conveyance’ refers to any vessel , aircraft , vehicle, or train (including railway rolling stock). The regulations may prescribe additional means of transport for the purpose of this definition, which is intended to allow for new developments in transport methods into the future. Chapter 4 provides for the management of biosecurity risks associated with conveyances in Australian territory .

This clause also provides that a reference to a conveyance does not include a reference to a conveyance while it is goods because of subclause 19(2) (except in relation to Part 3 of Chapter 11 and any clause of this « Bill » to the extent that it relates to that Part)

A reference to an aircraft does not include a reference to an aircraft while it is considered goods because of subclause 19(2).

A reference to a vessel does not include a reference to a vessel while it is considered goodsbecause of subclause 19(2) (except in Chapter 5 and any clause of this « Bill » to the extent that it relates to that Chapter). These exceptions are provided so that ballast water can be managed under Chapter 5 in relation to a vessel carried on board another conveyance, and the cost recovery provisions in Chapter 11 will continue to apply to a conveyance carried on board another conveyance.

Under subclause 19(2), a conveyance (carried conveyance) that is, or is to be, brought or imported into Australian territory from outside Australian territory on board another conveyance is consider to be goods from the time the carried conveyance is first intended to be so brought or imported until immediately after the carried conveyance is released from biosecurity control . This is intended to exclude such carried conveyance from provisions of the « Bill » that deal with biosecurity risks associated with conveyances that convey people or goods into Australian territory (for example, clause 193—pre-arrival reporting). Biosecurity risks associated with such aircraft will be managed under Chapter 3.

However, in relation Parts 1 and 3 of Chapter 11 (and any provision of the « Bill » that relates to Parts 1 and 3 of Chapter 11) a carried conveyance which is transported on another conveyance will not be considered goods so that the cost recovery provisions in Chapter 11 apply as if the carried conveyance is a conveyance (see definition of goods in clause 19 for further information).

Clause 17                   Meaning of exposed to

This clause provides the meaning of the term ‘exposed to’. This term is used in Chapters 2, 3 and 4 to describe persons and things that have been in physical contact with, in close proximity to, or exposed to, contamination, infestation or infection from other people or things. In this clause, ‘thing’ includes goods , conveyances and premises . Powers are available in Chapters 2, 3 and 4 in relation to goods , conveyances or premises and people that are exposed to other people or things in order to manage biosecurity risks associated with exposure.

Clause 18                   Meaning of first point of entry

This clause defines the term ‘first point of entry’ in relation to aircraft , vessels and goods that are subject to biosecurity control . In relation to aircraft and vessels that are subject to biosecurity control , a first point of entry describes the landing place or port where aircraft and vessels must arrive after entering Australian territory, as determined under paragraph 223(1)(a) or paragraph 229(1)(a).

In relation to goods that are subject to biosecurity control , or exposed goods in relation to which a exposed goods order is in force, a first point of entry describes a landing place or port determined under clause 223(1)(b) or clause 229(1)(b) to be a first point of entry for those goods (or a class of goods that includes those goods ).

See Part 3 of Chapter 4 for further details.

Clause 19        Meaning of goods

This clause provides that the term ‘goods’ includes the following:

·          an animal

·          a plant (whether moveable or not)

·          a sample or specimen of a disease agent

·          a pest

·          mail, and

·          any other article, substance or thing (including, but not limited to, any kind of moveable property).

Under subclause 19(2), a conveyance (carried conveyance) that is, or is to be, brought or imported into Australian territory from outside Australian territory on board another conveyance is consider to be goods from the time the carried conveyance is first intended to be so brought or imported until immediately after the carried conveyance is released from biosecurity control . Once the carried conveyance has been released from biosecurity control it will be treated as a conveyance . For example, a car that is being imported into Australia will be treated as a good until it is released from biosecurity control when it will be treated as a conveyance.

This is intended to exclude such carried conveyance from provisions of the « Bill » that deal with biosecurity risks associated with conveyances that convey people or goods into Australian territory (for example, clause 193—pre-arrival reporting). Biosecurity risks associated with such conveyances will be managed under Chapter 3.

It will also allow the Director of Biosecurity to grant import permits in relation to carried conveyances such as farming or mining machinery under clause 179 and place conditions on the importation or bringing in of the conveyance . These conveyances will be managed as goods at the border, consistent with other types of cargo and consignments.

However, in relation Parts 1 and 3 of Chapter 11 (and any provision of the « Bill » that relates to Parts 1 and 3 of Chapter 11) a carried conveyance which is transported on another conveyance will not be considered goods so that the cost recovery provisions in Chapter 11 apply as if the carried conveyance is a conveyance .

For the purposes of Parts 1 and 3 of Chapter 3, and any other provision of this Act to the extent that it relates to either of those Parts, the carried conveyance continues to be goods after it is released from biosecurity control . This ensures that a notice revoking the release from biosecurity control under clause 164 can be issued making the carried conveyance subject to biosecurity control again where the goods have been released by mistake or based on incorrect information provided to a biosecurity officer or biosecurity industry participant .

The clause clarifies that the definition of goods does not include ballast water , human remains or except as provided by subsections 19(2) and (3) a conveyance . The biosecurity risks associated with ballast water , human remains and conveyances will be managed under the powers available in Chapters 5, 2 and 4 respectively.

Clause 20                   Meaning of installation

This clause provides that the term ‘installation’ refers to a structure that is either attached to or resting on—or attached semi-permanently or permanently—to a structure that is:

·          attached to or resting on—the seabed

·          able to float or be floated

·          able to move or be moved, as an entity from one place to another, and

·          is, or is to be, wholly or principally used in:

­    exploring or exploiting natural resources (such as fish or minerals) with equipment that is on or forms part of the structure, or

­    operations or activities associated with, or incidental to, activities in relation to exploring or exploiting natural resources.

This term is used in the definition of vessel.

Clause 21                   Meaning of operator of a conveyance

This clause provides that ‘operator’ in relation to a conveyance, means:

·          if there is a body corporate or an unincorporated body responsible for the operation of the conveyance —that body, and

·          in any other case—the person in charge of the conveyance .

Thisterm has an alternative meaning when it is used in Chapter 5. In Chapter 5, operator of a conveyance has the same meaning as ‘company’ in the Annex to the Ballast Water Convention which currently provides that company means:

‘the owner of the ship or any other organisation or person such as the manager, or bareboat charterer, who has assumed the responsibility for operation of the ship from the owner of the ship and who on assuming such responsibility has agreed to take over all the duties and responsibilities imposed by the « International » Safety Management Code .’

Clause 22                   Meaning of person in charge

This clause defines the term ‘person in charge’. The term may refer to the owner of a thing or a person in possession or control of a thing .

In relation to goods , person in charge refers to the owner of the goods or a person (other than a biosecurity officer or biosecurity enforcement officer ) who is in possession or control of the goods. Person in charge of goods also includes a biosecurity industry participant who is in possession or control of the goods as authorised by an approved arrangement covering the biosecurity industry participant . A biosecurity industry participant is not a person in charge for the purposes of subclauses 134(7), 336(6), 626(5) and 628(7).

In relation to conveyances , person in charge refers to the person in charge or command of the conveyance , but does not include a ship’s pilot . Ship’s pilots are excluded from this definition as although they may be in charge of a conveyance , they are not legally responsible for the conveyance in the same way as an owner, operator or captain of the conveyance would be.

The concept of person in charge is used in the « Bill » instead of owner (the term generally used in the Quarantine Act 1908 ), as it reflects the broad range of people who are responsible for goods and conveyances . The inclusion of a broad range of people in the definition is intended to increase the operational practicality of the « Bill » , for example where the owner of a conveyance is not in Australian territory and a biosecurity officer needs to give a direction in relation to the conveyance in order to assess or manage biosecurity risk .

Part 3—Constitutional and « international » law provisions

Division 1—Introduction

Clause 23                   Simplified outline of this Part

This outline sets out the Part’s objectives. This Part contains provisions relating to the Constitution (such as the constitutional powers relied on for this Act), the application of the Act in relation to pests, protections in the Constitution, as well as provisions that ensure that the Act is consistent with the rights that foreign aircraft and vessels have under the United Nations Convention on the Law of the Sea .

Division 2—Constitutional and « international » law provisions

Clause 24                   Severability

This clause provides for continued operation of the « Bill » (or provisions of the « Bill » ) in the event of a successful constitutional challenge. It sets out the various constitutional heads of power upon which the « Bill » can draw if its operation is expressly confined to acts or omissions under those constitutional powers. This clause is intended to ensure that the « Bill » is given the widest possible operation consistent with Commonwealth constitutional legislative power.

This clause provides that the « Bill » draws on the following constitutional powers:

·          Quarantine power

section 51(ix) of the Constitution

·          External affairs power

section 51(xxix) of the Constitution

·          Trade and commerce power

section 51(i) of the Constitution

·          Fisheries power

section 51(x) of the Constitution

·          Aliens power

section 51(xix) of the Constitution

·          Corporations power

section 51(xx) of the Constitution

·          Territories and Commonwealth places power

section 122 of the Constitution and the Commonwealth Places (Application of Laws) Act 1970

·          Postal power

section 51(v) of the Constitution

·          Sickness benefits power

section 51(xxiiiA) of the Constitution

·          Census and statistics power

section 51(xi) of the Constitution

Clause 25                   Application of this Act in relation to pests that are quarantine risks or invasive pests

The definition of 'pest' in clause 9 of the « Bill » is broadly expressed to capture a wide range of pests. Subclause 25(1) limits the application of the Act (other than Part 1 of Chapter 8) to those pests which may pose biosecurity risks (paragraph (a)) or are invasive pests (paragraph (b)). See clause 9 for the definition of ‘invasive pest’ and clause 26 for the application of the Act in relation to invasive pests.

Part 1 of Chapter 8, which deals with biosecurity emergencies, applies only to pests which may pose biosecurity risks (subclause 25(2)).

Together with the definition of 'pest', clause 25 is intended to ensure that the widest range of pests that may pose a biosecurity risk can be dealt with under the Act, consistent with Commonwealth legislative power.

Clause 26                   Application of this Act in relation to invasive pests

This clause provides for the application of the Act in relation to invasive pests where this relies only on the external affairs power as engaged by the Biodiversity Convention (see clause 9 for the definition of invasive pest).

The external affairs power (section 51(xxix) of the Constitution), in its treaty implementation aspect, supports legislation that is capable of being reasonably considered appropriate and adapted to fulfilling the obligations and benefits of a treaty ( Victoria v Commonwealth (1996) 187 CLR 419 at 487-488). Clause 26 is intended to limit the effect of the Act to ensure that, in its application to invasive pests, it is appropriately supported by the external affairs power.

The clause does this by limiting the extent to which a provision of the Act confers a power, function or right, or imposes an obligation, in relation to an invasive pest to the circumstances set out in subclause 26(2). First, it is limited to the purpose of preventing the introduction of, or controlling or eradicating, invasive pests which threaten ecosystems, habitats or species. The second limitation is that the conferral of the power, function or right, or imposition of the obligation, must be reasonably capable of being considered appropriate and adapted to give effect to Australia's obligations under Articles 7 and 8 of the Biodiversity Convention. For example, Article 8(h) of the Convention imposes obligations on Australia to prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species.

The effect of paragraph 26(1)(b) is that the limitations in subclause 26(2) do not apply where the application of provisions of the Act to invasive pests would be supported by other sources of legislative power, that is, other than the external affairs power as engaged by the Biodiversity Convention.

Clause 27                   Compensation for acquisition of property

This clause is intended to ensure, for the purposes of section 51(xxxi) of the Constitution, that if the operation of the Act results in the acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay reasonable compensation to the person. This clause also provides for the person to institute court proceedings if the Commonwealth and the person do not agree on the amount of compensation. See also clause 9 for definitions of acquisition of property and just terms.

Clause 28                   Freedom of interstate trade, commerce and intercourse

This clause provides that a power or function conferred by this Act is not to be exercised in a way that prevents free trade and commerce among the states and territories of Australia.

Clause 29                   Commonwealth not to give preference

This clause is intended to ensure that a power of function conferred by this Act is not exercised or performed in a way that gives preference to one state or part of one state. This clause is not intended to limit the Commonwealth’s ability to consider differences in biosecurity risk between the states and territories that are based on valid scientific evidence.

Clause 30                   Application of the Act to foreign aircraft and vessels

This clause provides that the Act only applies to foreign aircraft or vessels to the extent that the application is consistent with the exercise of rights of foreign aircraft or vessels in accordance with the United Nations Convention on the Law of the Sea, above or in any of the following:

·          the territorial sea of Australia

·          the exclusive economic zone, or

·          waters of the continental shelf.

Part 4—Principles affecting decisions to exercise certain powers

Clause 31                   Simplified outline of this Part

This outline sets out the Part’s objectives. This Part provides that a biosecurity official who is making a decision to exercise a power under certain provisions of this Act must first consider the principles set out in this Part. The principles aim to ensure that the power is exercised only if exercising the power is likely to be effective in, or to contribute to, achieving the purpose for which the power is to be exercised, is appropriate and adapted for its purpose, and is no more restrictive or intrusive than is required. It also provides that where a power is to be exercised in relation to a conveyance, the biosecurity official must consider the impact of the exercise of the power on the health and safety of any persons on board the conveyance.

Clause 32                   The principles

This clause outlines a list of factors, known as ‘the principles’, which a biosecurity official must be satisfied of before exercising a number of specified powers in the « Bill » . The principles must be applied to the following decisions made under the specified clauses of the « Bill » (or instruments in force under these specified clauses).

If the power is to be exercised in relation to a conveyance, subclause (3) provides the biosecurity official must also consider the impact of the exercise of the power on the health and safety of any persons on board the conveyance. This is consistent with Article 6 of the « International » Covenant on Civil and Political Rights (ICCPR) which provides for the right to life. For example, when making the decision to issue a direction for an aircraft or vessel not to go to a specific location, or be secured, a biosecurity official should consider whether the conveyance has adequate fuel and supplies to comply with this direction and whether any persons on board require life saving medical treatment.

These principles have been included in the « Bill » to ensure that any direction given or action undertaken is necessary, appropriate, and adapted and does not impact on a person or their rights any more than is necessary to manage the level of biosecurity risk posed. This is consistent with « international » treaties such as the ICCPR and the « International » Covenant on Economic, Social and Cultural Rights . These principles provide an appropriate balance between individual rights and the management of biosecurity risks, allowing a biosecurity officer to exercise the necessary powers to manage biosecurity risks.

Subclause (4) provides that the principles are not required to be applied in relation to the making of a biosecurity control order or the making of a legislative instrument under Chapter 6 (including a biosecurity control order or a legislative instrument made under Chapter 6 in accordance with Division 5 or 6 of Part 1 of Chapter 8). This is because the decision to make a biosecurity control order or a legislative instrument does not directly impact upon an individual or his or her rights. The impact will occur when a biosecurity official exercises the powers listed in the order, therefore the principles will apply to the decisions that may be included in the order.

See also clause 34, which provides for principles affecting the exercise of power under

Chapter 2.

Chapter 2—Managing biosecurity risks: human health

Part 1—General protections and listing human diseases

Division 1—Introduction

Clause 33                   Simplified outline of this Part

This clause sets out the Part’s objectives. The Part provides that a biosecurity official must consider general protection principles when exercising a power or imposing a biosecurity measure under Chapter 2 of this Act to ensure that the powers are used only when the circumstances are sufficiently serious to justify them, and only if the biosecurity measure is likely to be effective, is proportionate to the risk, is the least restrictive or intrusive and only for as long as necessary to manage the disease risk.

This Part also ensures that the exercise of powers does not conflict with an individual’s urgent or life threatening medical needs and sets out additional steps that must be carried out before subjecting a child or incapable person to a requirement under Chapter 2.

Division 2—Protections

Subdivision A—General protections

Clause 34                   The principles

All decisions made under Chapter 2 are bound by principles of general protection. 

The person making the decision must be satisfied of all the following matters:

·          that exercising the power, or imposing the biosecurity measure, is likely to be effective in preventing, reducing or controlling the risk

·          that exercising the power or imposing the biosecurity measure is proportionate to the risk

·          that the circumstances are sufficiently serious to justify exercising the power, or imposing the biosecurity measure

·          that the power, or the biosecurity measure, is the least restrictive or intrusive power that could be exercised in relation to, or measure that could be imposed on, the individual

·          that the manner in which the power is to be exercised, or the biosecurity measure is to be imposed, is the least restrictive or intrusive manner, and

·          that the period during which the power is to be exercised, or the biosecurity measure is to be imposed, is only for as long as necessary.

The principles are intended to inform all decisions made under this Chapter. An officer, in making a decision, must take into account each of these principles. The principles provide for consideration of the rights enshrined in the « International » Covenant on Civil and Political Rights , the Convention on the Rights of the Child , the personal protections enshrined in the « International » Health Regulations 2005 ( « International » Health Regulations), the seriousness of the circumstances and the balance between the public interest in giving an order or including a measure against the public interest in upholding the individual’s liberty.

These decisions are made by the officer, using their personal knowledge of infectious disease control in a public health capacity. The principles can inform internal review, merits review and judicial review, thus adding an additional layer of protection for an individual affected by a decision.

Administrative guidelines issued by the Director of Human Biosecurity will provide officials with guidance in relation to the exercise of their powers.

Clause 35                   No interference with urgent or life-threatening medical needs

This clause expressly provides that the urgent or life-threatening medical needs of an individual will prevail over the provision of any measures under this Chapter to address human biosecurity risk.

Officers must ensure that, when making a decision with respect to human biosecurity risk, that they first consider the urgent or life-threatening medical needs of the individual. This is in addition to considerations of the principles set out in clause 34.

Subdivision B—Protections for children or incapable persons

Clause 36                   Child or incapable person may be accompanied

To ensure compliance with Commonwealth guidelines and « international » obligations, this clause requires that a child or incapable person may be accompanied while subject to the clauses of this Chapter (see clause 9 for definitions of ‘child’ and ‘incapable person’).

The only exception to this requirement is set out in clause 41 where an officer who intends to impose a human biosecurity control order (see Part 3, Division 2) on a child or incapable person, may require that person to remain at the place where the officer became satisfied that a human biosecurity control order should be imposed on that person (see clause 68).

Clause 37                   Officer to contact parent, guardian or next of kin of                                 unaccompanied child or incapable person

A child or incapable person must not be subject to a requirement under this Chapter unless an officer has taken reasonable steps to contact a parent, guardian or next of kin. To avoid doubt, an officer must address the urgent or life-threatening needs of the child or incapable person in the first instance.

This clause creates an obligation on an officer to contact the parent, guardian or next of kin of a child or incapable person to ensure they are accompanied or provided with the option of being accompanied while under a human biosecurity control order. An officer bears an obligation to explain the rights of a parent, guardian or next of kin under clauses 36 and 39 and allow them to accompany the child or incapable person.

The requirements under this Chapter may not be carried out on the child or incapable person if a parent, guardian or next of kin has indicated they wish the child or incapable person to be accompanied, until the accompanying person is physically accompanying the child or incapable person.

Clause 38                   Requirement to comply with direction

An accompanying person must comply with any direction given to them by an officer. This clause explicitly provides that an accompanying person is obligated to comply with directions of an officer, despite not being subject to a human biosecurity control order themselves.

This clause creates an offence for contravening a direction given to an accompanying person by a biosecurity officer, human biosecurity officer or chief human biosecurity officer, for the purpose of ensuring the compliance of the child or incapable person with a requirement under this Chapter. A contravention of this clause will give rise to a maximum penalty of five years imprisonment, or a fine of 300 penalty units, or both.

Clause 572 provides that these directions may be given orally or in writing (including by electronic means) and that later directions supersede earlier directions. This ensures that officers can provide direct and timely directions to the accompanying person of a child or incapable person in managing their associated human biosecurity risks.

Clause 39                   Parent, guardian or next of kin may authorise person to accompany child or incapable person

A parent, guardian or next of kin may nominate another person to accompany a child or incapable person for the purposes of this Chapter. This clause addresses circumstances where a parent, guardian or next of kin are unable to be with the child or incapable person themselves. This ensures that children and incapable persons always have access to a person who can make decisions on their behalf.

Clause 40                   Giving consent

An accompanying person may give consent on behalf of a child or incapable person. To avoid doubt, this clause makes it explicit that the consent of an accompanying person under Part 3 is taken to be consent of the child or incapable person. Conversely, if an accompanying person does not consent, it is taken that the child or incapable person does not consent.

Clause 41                   Exception for requiring an individual to remain at a place

A child or incapable person can be subject to the requirement to remain at a place (clause 68) without being accompanied or the officer taking reasonable steps to contact a parent, guardian or next of kin.

This clause is provided where there is an urgent need to address a potential risk of contagion. This may result in a child or incapable person being moved to a medical facility as a priority and there may not be sufficient time to contact a parent, guardian or next of kin. However, no further measures can be applied to, or actions taken in regard to, the child or incapable person until a parent, guardian or next of kin is contacted.

Division 3—Listing human diseases

Clause 42                   Listing human diseases

In addition to the principles at clause 34 above, powers and functions under the human biosecurity chapter are restricted to managing a listed human disease. This clause vests the Director of Human Biosecurity with the power to declare a disease to be a listed human disease, if they consider that the disease may be communicable and cause significant harm to human health.

Many of the powers and functions within this Chapter are personally invasive. To ensure there are appropriate safeguards for individuals, the powers and functions in this Chapter flow only in response to preventing or managing the entry, establishment, emergence or spread of a listed human disease in Australia or to another country.

The instrument declaring listed human diseases is exempted from the disallowance section 42 of the Legislative Instruments Act 2003 . This ensures the Commonwealth will have the continual use of powers and functions in this Chapter to control serious communicable diseases.

The decision to determine, vary or revoke a listed human disease determination is a technical and scientific decision that is made based on whether the human biosecurity risk is able to be satisfactorily managed. Subjecting these determinations to disallowance could undermine the technically and scientifically based decision making process and frustrate risk management processes. In addition, disallowance of a determination made under this clause could lead to inadequate management of biosecurity risks posed by listed human diseases.

Part 2—Preventing risks to human health

Division 1—Introduction

Clause 43                   Simplified outline of this Part

This clause sets out the Part’s objectives. This Part allows the Health Minister to prescribe requirements in relation to individuals, and operators of certain aircraft or vessels, that are entering or leaving Australian territory. The Part also sets out powers to require operators of an overseas aircraft or vessel to provide 24 hour contact information to the Director of Human Biosecurity. This allows for the Commonwealth to share information and plan for management of human biosecurity risks.

The powers in this Part also allow pratique to be granted for incoming aircraft and vessels, and for things to be unloaded from, and persons to disembark from, aircraft or vessels. This Part further allows the Minister to apply preventative measures to prohibit or restrict a practice or process which would contribute to the establishment or spread in Australian territory of a listed human disease. The Act provides officers the power to ask questions about an individual’s health and exposure to listed human diseases for the purpose of determining the nature of, and management of risks.

Division 2—Entry and exit requirements

Clause 44                   Entry requirements

This clause vests the Health Minister with powers to determine one or more requirements for all individuals or classes of individuals entering Australia. These requirements may only be for the purpose of preventing the entry, establishment, or spread of a listed human disease.

This clause allows the Commonwealth to identify risks to human health posed by individuals intending to enter Australia, and establish mitigating measures to be performed prior to arrival to address any potential risks.

The requirements primarily relate to the provision of information to inform officers of the individual’s risk status; however some requirements may require the individual to undertake a vaccination or course of treatment prior to arrival in Australia. Requirements under this clause may include requiring Yellow Fever certification (a recommendation under Article 36 and Annexes 6 and 7 of the « International » Health Regulations) and identifying when individuals have travelled to high risk areas.

If an individual fails to comply with an entry requirement as determined by the Health Minister, an officer may impose a human biosecurity control order on that individual (see clause 60).

This clause states that a determination made under subclause 44(2) (determination of entry requirements) or an instrument that varies or revokes a determination made under subclause 44(2) is a legislative instrument, but is not subject to disallowance under section 42 of the Legislative Instruments Act 2003

The decision to determine, vary or revoke a listed human disease determination is a technical and scientific decision that is made based on whether the human biosecurity risk is able to be satisfactorily managed. Subjecting these determinations to disallowance could undermine the technically and scientifically based decision making process and frustrate risk management processes. In addition, disallowance of a determination made under this clause could lead to inadequate management of human biosecurity risks.

This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as it is critical for the management of human biosecurity risks that information required to be shared under this clause can be sought in a timely fashion.

Whilst the privilege against self-incrimination is abrogated in relation to this clause, the « Bill » provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person.

Clause 45                   Exit requirements

This clause provides that the Health Minister may activate exit requirements for individuals or operators of overseas passenger vessels or aircraft leaving Australia, for the purpose of preventing the spread of a listed human disease to another country. Exit requirements may also be activated if a recommendation has been made to the Minister by the World Health Organization under

Part III of the « International » Health Regulations.

Similar to the requirements for entry above, exit requirements allow the Commonwealth to identify human biosecurity risks posed by individuals intending to leave Australia. The requirements provide a spectrum of options to respond to the range and scale of human biosecurity risks. These include providing public information in airports and seaports to advise of human biosecurity risks; and provision for the Commonwealth to conduct screening of passengers as they exit Australia.

These requirements have been drafted to be consistent with recommendations under the « International » Health Regulations (e.g. Article 43) relating to the taking of additional health measures to help prevent the « international » spread of disease.

This clause states that a determination made under subclause 45(2) (determination of an exit requirement) or an instrument that varies or revokes a determination made under subclause 45(2) is a legislative instrument, but is not subject to disallowance under section 42 of the Legislative Instruments Act 2003

The decision to determine, vary or revoke an exit requirement determination is a technically and scientifically based decision making process incorporating whether the human biosecurity risk is able to be satisfactorily managed. Subjecting these determinations to disallowance could undermine the technically and scientifically based decision making process and frustrate risk management processes. In addition, disallowance of a determination made under this clause could lead to inadequate management of risks to human health.

This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as it will allow biosecurity officers to determine whether an unacceptable.

Whilst the privilege against self-incrimination is abrogated in relation to this clause, the « Bill » provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person (see clause 635).

Clause 46                   Civil penalties for failing to comply with certain entry and exit requirements

This clause sets the penalty for individuals failing to comply with entry requirements under clause 44, for operators failing to comply with a requirement to perform a specified treatment, or for individuals who fail to comply with exit requirements specified under paragraphs 45(6)(d), (e), (f), (g), or (h). The maximum civil penalty for contravention of entry or exit requirements is 30 penalty units.

The penalty levels in this clause reflect the severity of the potential consequences if requirements for entry or exit are not complied with. For example, an entry requirement may be determined for individuals landing in Australian territory from overseas to provide information about their exposure to a listed human disease. If an individual does not share that information, the biosecurity risk associated with that person may not be adequately managed, which may result in the spread of the specified listed human disease within Australian territory.

Division 3—Contact information for operators

Clause 47                   Requirements for operators to provide 24/7 contact information

An operator of an incoming or outgoing passenger aircraft or vessel must provide the Director of Human Biosecurity with the prescribed contact information for an individual nominated by the operator. The prescribed information will include phone, fax and email contact details.

The contact information is intended to be used to allow the Director to contact operators about a listed human disease outbreak or an individual or class of individuals. The ability to contact operators quickly allows the Commonwealth to share information and plan and prepare for any risks to human health that is present on the operator’s aircraft or vessel.

This clause, together with the amendments to the National Health Security Act 2007 sharing of information clauses, allows the operator to provide information to the Commonwealth about human biosecurity risk on their vessel or aircraft without contravening the Privacy Act 1988 .

An operator is liable to a civil penalty if the operator contravenes the requirement to provide 24/7 contact information for a nominated individual, or the information provided is not kept up-to-date, or the information is provided in contravention of the manner prescribed by the regulations. The maximum civil penalty for each contravention is 120 penalty units. This will encourage operators to provide and maintain up to date contact information so that they can be reached in the event of human biosecurity risk associated with their operations.

Division 4—Pratique

Clause 48                   Positive pratique

Pratique is a permission to enter an Australian port, disembark and embark persons, and unload and load goods. An operator of an incoming vessel or aircraft cannot perform these activities unless pratique has been granted in some form.

The operator is liable for a civil penalty if he or she contravenes the requirement not to unload or disembark persons before pratique has been granted. The maximum civil penalty for contravention is 120 penalty units. This is to ensure risks to human health can be identified and managed before the vessel or aircraft is unloaded or disembarked. It will be an exception to the civil penalty if the operator is authorised under this Act or under another Australian law to unload or load a thing or to disembark or embark persons.

The positive pratique clause is automatically granted to all incoming vessels and aircraft arriving in Australian territory at an authorised landing place or port, unless the aircraft or vessel is a class specified by the Director of Human Biosecurity as being subject to negative pratique (see clause 49). This clause allows for permission to disembark and unload to be given automatically, on entry into Australian territory and where no risks to human health have been reported.

Clause 49                   Negative Pratique

This clause allows the Director of Human Biosecurity to specify the circumstances in which positive pratique is not granted and when negative pratique must be given. These circumstances may relate to reporting of signs and symptoms of, or exposure to a listed human disease (as part of pre-arrival reporting - see clause 193); or issues relating to ship sanitation (contained in Part 5 of Chapter 4).

The Director may specify in a legislative instrument the classes of incoming vessels and aircraft that are to be subject to requirements for complying with negative pratique and those requirements. These requirements must be consistent with Articles 28.2 and 43 of the « International » Health Regulations.

This clause states that requirements specified under this clause is a legislative instrument, but is not subject to disallowance under the Legislative Instruments Act 2003 . The decision to determine, vary or revoke the requirements should be a technical and scientific decision based on whether the human biosecurity risk is able to be satisfactorily managed. Subjecting these determinations to disallowance could undermine the technically and scientifically based decision making process and frustrate risk management processes. In addition, disallowance of a determination made under this clause could lead to inadequate management of human biosecurity risks.

In the absence of positive pratique, a biosecurity officer must grant an aircraft or vessel negative pratique. The requirements of being granted negative pratique may relate to additional pre-arrival reporting obligations, treatment measures or inspection on arrival, or the requirement for a biosecurity officer to be present for unloading or disembarking. To ensure granting of pratique is as efficient and will have the least impact on industry as possible, negative pratique can be granted orally or in writing.

If an officer grants pratique orally that officer must create a written record as soon as possible after the aircraft or vessel arrives. Under subclause 49(4) this notification is not a legislative instrument for the purposes of subsection 5(1) of the Legislative Instruments Act 2003 . This reflects that the record is administrative in nature.

Clause 50                   Pre-departure reporting

This clause allows the Director of Human Biosecurity to specify, in a legislative instrument, information that is required to be provided by operators of specified outgoing « international » aircraft or vessels (pre-departure reporting). The instrument will also prescribe the manner in which, and the period during which, the information is required to be provided.

An operator or the person in charge of an incoming passenger vessel or aircraft may be required to make a pre-departure report, containing information as specified by the Director. If an operator or person in charge finds that information provided was incomplete or incorrect, he or she must provide that information as soon as reasonably practicable. The information contained in a pre-departure report is intended to provide the Commonwealth with information about the individuals, cargo and aircraft/vessel, in order to manage any potential risks to human health.

The Commonwealth may use pre-departure information to notify the next « international » destination port’s National Focal Point of an impending biosecurity risk, which is consistent with the Commonwealths obligations under the « International » Health Regulations to prevent the « international » spread of disease.

An operator is liable to a civil penalty if the operator contravenes the requirement to provide information in accordance with this clause. The maximum civil penalty for a contravention is 120 penalty units.

This clause states that a legislative instrument made under clause 50 is not subject to disallowance under section 42 of the Legislative Instruments Act 2003 . The decision to create, vary or revoke an instrument made under this clause should be a technically and scientifically based decision making process on whether the human biosecurity risk is able to be satisfactorily managed. Subjecting these determinations to disallowance could undermine the technical and scientific based decision making and frustrate risk management processes. In addition, disallowance of a determination made under this clause could lead to inadequate management of human biosecurity risks.

Division 5—Preventative biosecurity measures

Clause 51                   Determining preventative biosecurity measures

This clause provides that where there is a biosecurity risk posed by a listed human disease, and an identified behaviour, practice or process would contribute to the entry, establishment or spread of the disease, the Health Minister has the power to determine human biosecurity measures to prohibit, require or restrict the behaviour, practice or process.

The biosecurity measures that may be determined in relation to a class of persons 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/or

·          conducting specified tests on specified goods.

The Minister must be satisfied that the biosecurity measure is appropriate and adapted to prevent, or reduce the risk of, the entry, emergence, establishment or spread in Australian territory, of the disease and that the measure is appropriate in the circumstances. The determination must specify the period in which it is in force and has a maximum duration of 12 months.

Before making the determination, the Minister must consult with each state and territory Minister responsible for Health and the Director of Biosecurity.

This clause allows the Commonwealth, in a domestic context, to prescribe biosecurity measures to respond to an outbreak of a disease or the reasonable belief that there is likely to be an outbreak of a disease as a result of a specified behaviour, practice or process. The measures that may be imposed under this clause provide for temporary management of a human biosecurity risk within a state or territory, until the state or territory is able to create clauses within their own legislation to manage the risk in the long term.

The determination will specify the Commonwealth powers and functions available to the state or territory to manage the risk; and the state or territory officers who are to be vested with those powers/functions, in consultation with the state or territory.

In practice, only one determination will be made in relation to a particular behaviour or practice. Agreement of a state or territory would be sought before the determination would apply in that state or territory.

This clause states that a determination under this clause is a legislative instrument, but is not subject to disallowance under section 42 of the Legislative Instruments Act 2003 . The decision to determine, vary or revoke the requirements should be a technically and scientifically based decision making process on whether the human biosecurity risk is able to be satisfactorily managed. Subjecting these determinations to disallowance could undermine the technical and scientific based decision making and frustrate risk management processes. In addition, disallowance of a determination made under this clause could lead to inadequate management of risks to human health.

The civil penalty for contravention of this clause is contained in clause 52.

Clause 52                   Civil penalty for failing to comply with preventative measures

This clause sets the penalty for failing to comply with a preventative biosecurity measure in a determination by the Health Minister under subclause 51(2). The maximum civil penalty for a contravention is 120 penalty units.

The penalty levels in this clause reflect the severity of the potential consequences if preventative biosecurity measures are not complied with. For instance a failure to comply could lead to an outbreak of a listed human disease in Australian territory.

Clause 53                    Requirements to destroy disease agents on incoming or outgoing            aircraft or vessels

This clause provides for the development of regulations that require operators of incoming aircraft or vessels to undertake measure to destroy disease agents which have the potential to cause a listed human disease and may exist on the aircraft or vessel. This ensures that the disease agents can be destroyed and the potential risk to human health by the agents can be appropriately managed.

Division 6—Information gathering powers

Clause 54                   Who may ask questions and require written information

This clause provides that certain officers may require answers to questions, or written information. These officers are:

·          the Director of Human Biosecurity

·          a chief human biosecurity officer

·          human biosecurity officer

·          biosecurity officer

·          a member or special member of the Australian Federal Police

·          a member of the police force of a state or territory, or

·          a protective services officer within the meaning of the Australian Federal Police Act 1979.

Throughout this Division, an officer is taken to be any of those listed above. These officers must be able to ask questions and request written information of individuals in order to determine the nature of, and manage, risk to human health. Under this clause all officers have powers to ask individuals questions relating to their health and exposure to listed human diseases. The application of clause 34 means that the powers in this Division must be exercised in accordance with the principles set out in that clause.

This Division is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high as collecting accurate and timely information in relation to an individual to determine the level of risk to human health associated with the individual will allow that risk to be assessed and then appropriately managed.

The offence for contravention of this clause is contained in clause 58. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 contain offences for providing false or misleading information or documents.

Clause 55                   Asking questions and requiring answers from particular individuals

This clause provides that an officer may ask questions and require answers where:

·          a human biosecurity control order is in force (see clause 60 to clause 67), or

·          an individual is in a human health response zone (see clauses 113 to 115).

This power allows an officer to ask questions of an individual who is in a biosecurity response zone, or if a human biosecurity control order is in force. Questions may only be asked in relation to the level of risk to human health.

While this clause allows officers to ask questions of a broader scope than in clause 54 above, the questions must still be related to assessing biosecurity risks. The Act also contains separate powers to allow officers to ask questions in relation to biosecurity risks posed by goods (Chapter 3) and conveyances (Chapter 4).

The offence for contravention of this clause is contained in clause 58. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 contain offences for providing false or misleading information or documents.

Clause 56                   Asking questions and requiring answers from any individual

This clause differs from clause 55 above, in that an officer may ask any person questions or to provide written information if:

·          the officer is satisfied that an individual has one or more signs or symptoms of a listed human disease

·          the officer is satisfied the person has been exposed to another individual who has signs or symptoms of a listed human disease, or

·          the question relates to human remains, a death in transit or an individual who has died on arrival.

The power allows an officer to ask questions of fellow passengers, crew or family and friends that were travelling with the ill individual. The presence of a sign or symptom of a listed human disease provides a sufficient causal link to justify asking questions of those who have travelled near the ill individual or an individual who has died in transit.

The purpose of asking questions has been cast broadly to include the purpose of preventing the entry, establishment, emergence, or spread of a disease and preventing the spread of a listed human disease in Australian territory, or part of Australian territory or to another country.

The offence for contravention of this clause is contained in clause 58. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 contain offences for providing false or misleading information or documents.

Clause 57                   Requiring an individual to provide written information

This clause allows an officer to require an individual to provide written information if:

·          the officer is satisfied that an individual has one or more signs or symptoms of a listed human disease

·          the officer is satisfied the person has been exposed to another individual who has signs or symptoms of a listed human disease, or

·          the question relates to human remains, a death in transit or someone who has died on arrival.

This clause allows an officer to ask questions of fellow passengers, crew or family and friends that were travelling with the ill individual. The presence of a sign or symptom of a listed human disease provides a sufficient causal link to justify asking questions of those who have travelled near the ill individual or an individual who has died in transit.

The purpose of asking questions has been cast broadly to include the purpose of preventing the entry, establishment, emergence, or spread of a disease and preventing the spread of a listed human disease to another country and determining the level of risk to human health associated with the relevant individual.

The offence for contravention of this clause is contained in clause 58. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 contain offences for providing false or misleading information or documents.

Clause 58                   Offence for failing to comply with a requirement

A person commits a strict liability offence if a person fails to answer a question or provide written information when required under this Division. The maximum penalty for a contravention is 60 penalty units. This is appropriate as the information gathered from the individual may be vital to address a serious public health risk and it is essential that as much information as possible is collected quickly.

This means that the prosecution will have to prove that the person contravened the provision, but not the fault elements of the offence (intention, knowledge, recklessness or negligence). However, the accused person will still be able to rely on the defence in the Criminal Code (section 9.2) of honest and reasonable mistake of fact.

In all cases, this information may be uniquely known to the individual, and each individual may be able to provide important details about the epidemiology of the disease, the source of the disease, and the potential exposure of themselves and other individuals to the disease. This information is vital to address public health risk, and it is essential that as much information is collected as quickly as possible. Ideally this would occur before exposed individuals have the opportunity to depart the airport and enter the community, and potentially spread the disease to family and friends.

Alternative powers, such as monitoring and investigation powers, or enforcement, are not appropriate as the information being sought must be collected as soon as possible, to allow the Commonwealth to develop a picture of the disease needing to be managed, and the number of individuals potentially infected and in need of intervention.

Wherever possible, the Commonwealth will rely on voluntary disclosure; however, in some circumstances, an individual may be unwilling to disclose information about their health status, potential exposure or travel history. In such cases, the need to address public risk justifies the application of the strict liability offence for failure to provide required information.

Clause 37 also provides special protections for individuals who may be temporarily incapable of understanding requirements or complying with a measure due to illness. An incapable person must not be subject to a requirement of Chapter 2 of the « Bill » unless an officer has taken reasonable steps to contact a parent, guardian or next of kin, and any urgent or life threatening medical needs must be met in the first instance.

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

Division 1—Introduction

Clause 59                   Simplified outline of this Part

This clause sets out the Part’s objectives. The Part determines the range of measures that can be implemented under a human biosecurity control order to manage the risk posed by listed human diseases. The powers of human biosecurity control order measures include vaccination, restricting the individual’s behaviour and ordering the individual to remain isolated. The Part sets out that an individual may consent to a measure included in a human biosecurity control order.

An individual who refuses to consent to a measure (other than an isolation measure or traveller movement measure) is not required to comply unless a direction has been given by the Director of Human Biosecurity. An individual who is given a direction from the Director to comply must do so immediately or in some circumstances, may apply for judicial review within the specified period before being required to comply with the measure.

The application of clause 34 means that the powers in this Division must be exercised in accordance with the principles set out in that clause.

Division 2—Imposing human biosecurity control orders on individuals

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

Clause 60                   Imposing a human biosecurity control order on an individual

This clause provides that a human biosecurity control order can be imposed to manage risks to human health posed by an individual. This clause outlines the officers who can impose a human biosecurity control order, noting that some measures imposed under a human biosecurity control order are personally invasive and therefore restricted in their application to those officers with clinical expertise or who are medical practitioners. This clause also provides the threshold test for applying a human biosecurity control order.

A human biosecurity control order may only be applied where there are signs and symptoms of or exposure to a listed human disease; or an entry requirement relating to a listed human disease under subclause 44(6) has not been complied with. This restricts intervention to only those diseases identified by the Director of Human Biosecurity as warranting Commonwealth intervention.

A human biosecurity control order may be imposed on an individual on arrival in Australian territory. To facilitate this, the ability to apply the human biosecurity control order in the first instance is vested with a biosecurity officer. A biosecurity officer is restricted from applying any measures that require clinical expertise or qualifications to make informed decisions about management of an individual with a listed human disease.

The application of clause 34 means that the powers in this Division must be exercised in accordance with the principles set out in that clause.

Clause 61                   Contents of a human biosecurity control order

This clause provides that a human biosecurity control order must include the following information:

·          the grounds under which the human biosecurity control order was imposed, that is, which limb of the threshold test at subclause 60(2) has been satisfied

·          the listed human disease in relation to which the order is imposed (this can include more than one listed human disease where the signs or symptoms are not sufficiently clear to point to only a single disease; noting that some listed human diseases will initially exhibit the same signs and symptoms)

·          any signs or symptoms of the listed human disease

·          the prescribed contact information required under clauses 69 and 70

·          each biosecurity measure imposed or to be imposed and an explanation as to why the measure is required (this forms a record of events under the human biosecurity control order; and information about how the biosecurity measure is to be undertaken)

·          the period in which the order is in force - up to a maximum of 3 months

·          the human biosecurity control order must also explain the responsibilities and liabilities of the individual and the Commonwealth. Paragraphs 61(1)(h) and (i) outlines this, including requirements to notify of contact details, review and offences for non-compliance

·          contact details of a chief human biosecurity officer that an individual may contact for information and support

·          information about review rights and offences for failure to comply

·          other information considered appropriate y the officer imposing order and any other information required by the regulations.

The content outlined in this clause provides information for the individual and other officers to facilitate the management of a listed human disease.

The requirement to provide an explanation why a particular measure is being imposed helps the individual to understand why they are subject to a human biosecurity control order. It also imposes an obligation on the officer to turn their mind to the reasons for imposing a measure, and that they have considered the principles in making the decision.

A maximum duration of an order of 3 months has been specified in part to address the difficulties with diagnosing and treating the disease. The principles in clause 34 apply to ensure an officer does not apply a measure or enforce the human biosecurity control order for longer than is reasonably necessary to address the risk.

The order cannot be extended. If the time expires and the individual still requires management, a new human biosecurity control order must be created. This ensures all the tests are revisited and also provides that a human biosecurity control order cannot be kept in place indefinitely.

The provision of contact details for a chief human biosecurity officer is to ensure an individual has an avenue to contact a medical practitioner who can provide expert advice during the period that the order is in force.

Consent is not required by an individual before a human biosecurity control order is imposed, however there are requirements for notifying a person they are subject to an order (see clause 63) and consent is required for all biosecurity measures. There are also a range of review mechanisms in relation to a human biosecurity control order (see Subdivisions D and E of this Part).

Clause 62                   Form of a human biosecurity control order

This clause provides that a human biosecurity control order must be in the form approved by the Director of Human Biosecurity. This allows for consistent application of the requirements of the Act. A human biosecurity control order is not a legislative instrument for the purposes of subsection 5(1) of the Legislative Instruments Act 2003 . This reflects that the human biosecurity control order is administrative in nature.

Clause 63                   Giving a human biosecurity control order to an individual

This clause requires officers to give a copy of the human biosecurity control order to the individual. The officer must also read the human biosecurity control order to the individual. If the contents of the order are not read out or the written human biosecurity control order is not provided within 24 hours the human biosecurity control order is invalid.

As a human biosecurity control order does not require consent to be applied, it is essential that a person is given a copy of the human biosecurity control order. It is also good regulatory practice that a person is made aware that they are subject to obligations under the Act.

The requirement to read out the human biosecurity control order and follow up with a written copy was developed to address issues that arise in remote locations where the officer may be making verbal orders over the phone. They must follow up with the written copy, which may be sent electronically.

Clause 64                   Varying a human biosecurity control order

This clause provides that a variation to a human biosecurity control order must be related to the risk posed by the person or be of a minor technical nature. There are limitations on the power to vary, as not all officers may apply all measures. A chief human biosecurity officer, a human biosecurity officer or a biosecurity officer may only vary measures that he or she may validly impose. This prohibits biosecurity officers from varying a measure that is restricted in its application to a human biosecurity officer or a chief human biosecurity officer.

Any additional powers listed in the varied biosecurity control order must be deemed appropriate for managing the risk posed by the listed human disease to which the order relates by the officer. A variation to a human biosecurity control order must be in writing and will take effect immediately after it is made. Consistent with clause 62, a human biosecurity control order which has been varied is not a legislative instrument.

Clause 65                   Giving notice of a variation to a human biosecurity control order

Consistent with giving a human biosecurity control order to an individual at clause 63, This clause requires the officer to give a copy of the varied human biosecurity control order to the individual as soon as practicable. The officer must also cause the variations to the human biosecurity control order to be read to the individual. If the contents of the varied order are not read out or the written human biosecurity control order is not provided within 24 hours the human biosecurity control order is invalid.

Clause 66                   Revoking a human biosecurity control order

This clause provides for a chief human biosecurity officer or a human biosecurity officer may revoke a human biosecurity control order in two circumstances :

·          if the officer is satisfied that the individual does not pose a risk of contagion; or

·          the order no longer contributes to reducing the risk of a listed human disease entering, emerging, establishing or spreading in Australia.

This clause allows for an officer to revoke a human biosecurity control order where there is no longer a contagion risk or where the risk is widespread in the community and a human biosecurity control order no longer contributes to reducing or controlling the risk. This ensures that Commonwealth intervention is only sustained for as long as is necessary or appropriate to manage the risk.

A human biosecurity control order may also expire. An officer may specify when all measures applied expire and thus the human biosecurity control order also expires. Alternatively the human biosecurity control order expires after 3 months if not revoked earlier (see also clause 61).

If a chief human biosecurity officer or a human biosecurity officer determines that there is no longer an unacceptable level of risk posed by the listed human disease to which the order relates, for instance after successful treatment, the order may be revoked rather than allowing the order to lapse. This reflects the potentially invasive nature of powers that can be exercised under a human biosecurity control order.

A revocation must be in writing, is not a legislative instrument and will take effect immediately after it is made.

This clause also outlines the notice requirements for the revocation of the human biosecurity control order. The notification requirements for a revocation of a human biosecurity control order are the same as those set out in clause 63— an officer must give the individual a written notice revoking the order.

Clause 67                   Notifying Director of Human Biosecurity of imposition, variation or revocation of human biosecurity control order

This clause requires all officers imposing, varying or revoking human biosecurity control orders to inform the Director of Human Biosecurity that this has occurred.

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

Clause 68                   Requiring an individual to remain at a place

This clause allows an officer to require an individual to remain at specified place for up to six hours. This allows the officer time to seek information and impose a human biosecurity control order if it is required. It also allows for contacting a parent or guardian if clause 37 applies. The individual may be detained (see clause 103) for up to six hours to enforce this requirement.

Clause 69                   Providing contact information

This clause provides that, if an officer intends to impose a human biosecurity control order on an individual, the officer may require an individual to provide prescribed contact information. The contact information required will be prescribed in the Regulations, and will include the individual’s name, address, contact phone number and passport number.

An individual is required to immediately comply with this request; if the he or she does not immediately comply, he or she is liable for a civil penalty. The maximum penalty for contravention is 12 months imprisonment, or a fine of 60 penalty units, or both. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 contain offences for providing false or misleading information or documents.

This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as it is critical for the management of human biosecurity risks that personal information required to be shared under this clause can be sought in a timely fashion and that person can be contacted as required.

Whilst the privilege against self-incrimination is abrogated in relation to this clause, the « Bill » provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person.

Clause 70                   Requirement for an individual to notify changes to contact information

This clause sets out that an individual subject to a human biosecurity control order must notify a chief human biosecurity officer as soon as practicable if their prescribed contact information which has been provided in the order, changes. It is essential that the Commonwealth has valid contact information for any individual subject to a human biosecurity control order.

A person is liable to a civil penalty if the person contravenes the requirement to notify a chief human biosecurity officer of a change in the individual’s contact information. The maximum penalty for contravention of this clause is 12 months imprisonment, or a fine of 60 penalty units, or both. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 contain offences for providing false or misleading information or documents.

This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as it is critical for the management of human biosecurity risks that personal information required to be shared under this clause is on hand so that person can be contacted as required.

Whilst the privilege against self-incrimination is abrogated in relation to this clause, the « Bill » provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person.

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

Clause 71                   Consenting to a biosecurity measure

This clause sets out that a person may consent to a biosecurity measure included in a human biosecurity control order. If it is practicable to do so, the consent must be recorded in writing on the order.

If an individual does not consent to or withdraws their consent to a measure, then an officer may apply to the Director of Human Biosecurity for a direction to comply under

paragraph 72(5)(a). Clause 74 sets out when the individual is required to comply with a measure.

Clause 72                   Director of Human Biosecurity may give direction requiring compliance

This clause allows for the Director of Human Biosecurity to make an administrative decision as to the validity of a measure under a human biosecurity control order and to issue a direction to comply. A failure to comply with this direction permits the Director to seek enforcement of the decision by a court. The Director will only make such a direction after an officer makes a request for such a direction under subclause 71(3) or a previous direction that is still in force has not been complied with at the end of 25 days.

In circumstances where an individual has refused to comply with a biosecurity measure, an officer may request the Director to issue a direction to an individual to comply with the biosecurity measure. In deciding whether to issue a direction, the Director must conduct a review of the diagnosis and the biosecurity measure proposed to be included in the human biosecurity control order. The Director must take into account the reasons why the individual has refused to consent, and factors which may affect that individual’s health. The Director may also take into account any other matter they consider relevant.

If requested, the Director must perform a review and advise the individual of the outcome of that review within 72 hours.  The clause also specifies the different calculations for the 72 hour period based on the type of measure imposed.

The Director may give a direction requiring an individual to comply with the measure only if the Director is satisfied that the measure contributes to reducing the risk of contagion of the listed human disease or the disease entering, emerging, establishing or spreading in Australian territory.

An individual may be able to apply for merits of judicial review of a decision to give a direction in accordance with this clause (see clause 74 and the Administrative Decisions (Judicial Review) Act 1977 (Administrative Decisions (Judicial Review)  Act). If an individual refuses to comply with a direction, the Director may be able to apply for an injunction requiring compliance under Part 7 of the Regulatory Powers Act.

Clause 73                   When a direction to comply with biosecurity measures ceases to be in force

This clause specifies when a direction given in accordance with clause 72 to comply with a biosecurity measure ceases to be in force. A biosecurity measure ceases to be in force if:

·          a period of 28 days passes

·          a new notice is provided to the individual

·          the measure is removed from the human biosecurity control order

·          the individual is not required to comply with the direction based on a first determination under the Administrative Decisions (Judicial Review) Act or the decision is set aside by the Administrative Appeals Tribunal, or

·          the traveller movement measure or human biosecurity order ceases to be in force.

Clause 74                   When an individual is required to comply with a biosecurity measure

This clause sets out that if the Director of Human Biosecurity issues a direction to comply with measures under clause 85 (managing contacts), clause 89 (decontamination), clause 90 (examination), clause 91 (body samples), or clause 92 (vaccination or treatment), the individual is required to comply with the direction when:

·          the 7 day period to seek external merits review under the Administrative Decisions (Judicial Review) Act has expired and an application has not been made or

·          an application for review has been made under the Administrative Decisions (Judicial Review) Act, the application has been finally determined, and the resulting order is that the individual is required to comply with the measure.

 

An individual must comply with measures under clause 86 (contacting officer with health status), clause 87 (restricting behaviour), clause 88 (risk minimisation), clause 93 (medication), clause 96 (traveller movement measure) or 97 (isolation measure), the individual is required to comply with the direction when:

·          the individual has consented to the measure

·          the Director has given a direction to comply under clause 72 and that direction is still in force, or

·          in the case of traveller movement and isolation measures, if the individual has refused consent and 72 hours has not passed since he or she refused to consent to the measure.

Although the « Bill » does not include any specific clauses, this does not negate the general right of all individuals to seek a second medical opinion in relation to their medical diagnosis and treatment. If an individual seeks a second medical opinion, the Director of Human Biosecurity may take this into account when making a decision to issue a direction requiring an individual to comply with a biosecurity measure.

The offence for contravention of this clause is contained in clause 107.

Subdivision D—AAT review of isolation and traveller movement measures

Clause 75                   Obligations on Director of Human Biosecurity relating to Administrative Appeals Tribunal application

This clause obliges the Director of Human Biosecurity to inform individuals of their right to apply for review of isolation and traveller movement measures by the Administrative Appeals Tribunal and provided with reasonable facilities to enable the individual to do so.

Clause 76                   Applications

This clause sets out that where the Director of Human Biosecurity has issued a direction to an individual to comply with an isolation or traveller movement measure, this power provides an individual with an automatic, independent avenue for merits review of that decision through the Administrative Appeals Tribunal. The Commonwealth bears the obligation of informing individuals of their right to seek review.

In the situation where an individual is subject to more than one decision, this clause specifies that an application made with respect to a decision (the first decision) is also taken to be an application relating to a further decision (the second decision), unless the Administrative Appeals Tribunal gives the individual notice to make a separate application. This allows the Administrative Appeals Tribunal to review similar decisions together, or direct the individual to make a second application if the second decision is of a different nature.

To ensure the appropriate management of the biosecurity risk, the Administrative Appeals Tribunal must make a decision within 7 days of receiving an application under clause 74(1).

Clause 77                   Reasons and documents

This clause specifies that section 28 (obtaining reasons for decision) of the Administrative Appeals Tribunal Act 1975 will not apply in respect to a direction by the Director of Human Biosecurity to comply with an isolation or traveller movement measure. Clause 72 requires the Director of Human Biosecurity to provide reasons for requiring an individual to comply with a biosecurity measure. In addition, this clause instead places an obligation for the Director of Human Biosecurity to provide to both the Administrative Appeals Tribunal and the individual, reasons for the decision and every other document that is in the Director’s possession or under his/her control, and is relevant to the review of the decision by the Administrative Appeals Tribunal. The operation of section 28 of the Administrative Appeals Tribunal Act 1975 requiring that an individual required to comply with a decision be provided with reasons for the decision, and section 37 requiring the lodgement of documentation with the Administrative Appeals Tribunal, are superseded by requirements within clause 77 of this legislation.

The Director must be notified as soon as possible under subsection 29(11) of the Administrative Appeals Tribunal Act that an application for review has been made, and must lodge all relevant documents within 2 days. In the instance where a second decision is made with respect to an individual, the Director must inform the Administrative Appeals Tribunal as soon as possible that a second decision has been made, and relevant documents must be lodged within 2 days.

The Administrative Appeals Tribunal may extend the timeframe for any documents to be lodged, and this will ordinarily be in writing. However this may not occur during times where the Administrative Appeals Tribunal is required to manage the review of a large number of decisions in a short period of time.

Clause 78                   Time period for making a decision

This clause requires the Administrative Appeals Tribunal to make a decision with respect to directions which are in force within 7 days of receiving the application, to ensure the continued ability of the Commonwealth to protect public health and manage the risk of contagion posed by an individual. The Administrative Appeals Tribunal may extend the time to make a decision if they are satisfied it is reasonable to do so, but may only extend the time period once.

If the Administrative Appeals Tribunal does not make a decision within 7 days, or within the specified extended time period, then the decision by the Director of Human Biosecurity is taken to be affirmed. If the direction has ceased to be in force then the Administrative Appeals Tribunal is not taken to have made a decision.

Clause 79                   Limitation on Administrative Appeals Tribunal power to stay etc. decisions

This clause prevents the Administrative Appeals Tribunal from making an order to stay a decision despite subsections 41(2) to (6) of the Administrative Appeals Tribunal Act. Individuals that are subject to an isolation or traveller movement measure have demonstrated signs or symptoms of, or exposure to, a listed human disease. The individual has been isolated or restricted from travelling because they pose a serious communicable disease risk to the community. This prevents an individual from being released from isolation or travelling on an « international » passenger airline or vessel, while they pose a risk of contagion to the community.

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

Clause 80                   Time period for making applications under the Administrative Decisions (Judicial Review) Act 1977

This clause sets out that under the Administrative Decisions (Judicial Review) Act 1977 , an individual has 28 days to seek review of an administrative decision. The Commonwealth has a reduced capacity for managing the risk of contagion during the period that an individual has available to submit an application for review. This clause requires individuals to submit the application for review within 7 days, to allow for the continued management of disease risk. The Commonwealth bears the obligation of informing individuals of their right to seek review.

Clause 81                   Judicial review of isolation and traveller movement measures

This would allow an individual to seek review of a traveller movement measure or isolation measure under the Judiciary Act 1903 , the Administrative Decision (Judicial Review) Act, or under section 75 of the Constitution. This clause is necessary to ensure no breach of human rights, and to prevent the spread of disease during a review period

Under this clause, a requirement for an individual to be subject to a traveller movement measure, or remain isolated under a human biosecurity control order, remains in force unless a court finally determines the validity of the decision to impose the requirement.

Whilst an individual may seek review of the decision to impose a traveller movement measure or isolation order in a court; this clause ensures that they must remain in isolation, or the traveller movement measure remains in place, until the court has comprehensively reviewed the case and made a final determination.

The intention of this clause is to ensure that where an individual is subject to a traveller movement measure, or has been placed in isolation to manage their disease risk, a temporary injunction cannot be sought to release the individual, pending a court determination as to the validity of the decision to impose the measure in question. This manages the potential risk of contagion in Australian territory posed by an individual.

This clause does not extend the ordinary operation of an isolation or traveller movement measure. Isolation and traveller movement measures will cease to be in force if they would have ordinarily expired while the individual seeks review.

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

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

Clause 82                   Who can include a biosecurity measure in a human biosecurity control order

This clause sets out the type of biosecurity measures that can be by different classes of officers established in Chapter 10.

A chief human biosecurity officer or a human biosecurity officer may include any biosecurity measure set out in Subdivision B of this Division.  For example, restricting behaviours, decontamination or examination requirements for individuals. This is appropriate as people appointed as chief human biosecurity officers and human biosecurity officers have medical or clinical expertise to allow them to make appropriate decisions to manage risks relating to human health.

Biosecurity officers may only include a restricted range of biosecurity measures in a human biosecurity control order. Biosecurity officers do not have medical expertise and are therefore restricted to applying biosecurity measures that are not personally invasive and do not require medical expertise to apply. As such a biosecurity officer can only require an individual to provide contact information or take risk minimisation measures such as wearing protective clothing (see clauses 85 and 88).

Clause 83                   Informing individuals of the risk

This clause requires all officers to take reasonable steps to explain the risk of a listed human disease to the individual’s health and the health of the public.

It is intended that this step will assist in obtaining consent to the taking of biosecurity measures. It also imposes an obligation on the Commonwealth to explain the risks and ensure the individual can make an informed decision about the management of their health.

Clause 84                   Test for including a biosecurity measure in a human biosecurity control order

This clause sets out that there is a single threshold test for the application of any and all biosecurity measures, that the application of a measure contributes to reducing or controlling the risk of contagion of a listed human disease; or a listed human disease entering, emerging, establishing itself or spreading in Australian territory.

The use of a single threshold test for the application of all biosecurity measures allows for consistent decision making and reduces the administrative burden of satisfying multiple tests for the management of a single listed human disease.

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

Clause 85                   Managing contacts

In many cases, an individual will have exposed others to a listed human disease before they are identified by an officer. In these circumstances, the Commonwealth will seek to identify and contact any individuals who have travelled with, or been in close contact with, the ill individual. The Commonwealth may then follow up with the individual and their contacts to inquire after their health and to ascertain if they have any signs or symptoms of a listed human disease.

This is essentially a contact tracing power, and also acts as an authorisation for sharing protected information that would otherwise be in contravention of the Privacy Act 1988 .

This power may be imposed by a chief human biosecurity officer or human biosecurity officer.

Clause 86                   Contacting officer with health status

This clause requires a person to contact an officer with information regarding the presence or absence of signs or symptoms of a listed human disease for a specified period of time. The order may also require the individual to report if specified signs or symptoms disappear.

In many cases an individual will not have sufficient signs or symptoms of a listed human disease to warrant intensive intervention; however they may pose a risk, and may be asked to provide updates to a specified officer on the presence or absence of signs or symptoms of a listed human disease. This allows the Commonwealth to monitor an individual while allowing them to continue their journey or return home. If an individual develops further signs or symptoms, an officer may vary a human biosecurity control order and apply additional biosecurity measures to better manage the risk.

This power may be imposed by a chief human biosecurity officer or human biosecurity officer.

If an individual refuses to comply with such a requirement, the Director of Human Biosecurity may issue the individual with a direction to comply under subclause 72(5).

Clause 87                   Restricting behaviour

This clause sets out that an individual may be required to do, or not to do, any of the following activities:

·          go to and remain at the individual’s intended place of residence for a specified period

·          not to visit a specified place or class of place where there is an increased risk of contagion or

·          not to have contact with a class of individuals where the class is of increased risk of exposure.

In some circumstances, an individual who has, or is suspected of having, a listed human disease does not have to be managed in a medical facility. The most effective and least restrictive and invasive decision may be to allow the individual to go home, subject to restrictions in their behaviour. This restriction may include advising them to not go to work or to places where there is a high risk of contagion. It may also include restricting their exposure to particular classes of people, such as children, pregnant women or the elderly.

The terminology with respect to ‘specified place or class of place’ has been described in terms of the risk of contagion rather than in terms of the type of place, so as not to restrict its application to places of a certain size or character. It may include a workplace, school or hospital facility.

This power may be imposed by a chief human biosecurity officer or human biosecurity officer.

If an individual refuses to comply with such a requirement, the Director of Human Biosecurity may issue the individual with a direction to comply under subclause 72(5).

Clause 88                   Risk minimisation interventions

This clause allows an officer to require an individual to wear specified clothing or equipment. The officer must specify the circumstance where they must be worn; the period in which it is to be worn and instructions for correct wear. For listed human diseases that are respiratory in nature, effective mitigation measures may include wearing facemasks and gloves to prevent the spread of airborne disease particles.

This power may be imposed by a chief human biosecurity officer, human biosecurity officer, or biosecurity officer.

If an individual refuses to comply with such a requirement, the Director of Human Biosecurity may issue the individual with a direction to comply under subclause 72(5).

Clause 89                   Decontamination

This clause allows for decontamination of an individual and their personal effects. An officer must specify in the human biosecurity control order that decontamination is required, when and where the decontamination is to take place and who is to conduct the decontamination.

This power, if applied, is intended to be undertaken immediately to contain the contagion risk or to prevent establishment, emergence or spread of a listed human disease.

Decontamination of an individual may be exercised by chief human biosecurity officers or human biosecurity officers as they will have appropriate training to deliver the treatment effectively.

Who will undertake the decontamination of personal effects including any baggage must be specified in the human biosecurity control order.

This decontamination power is separate from decontamination powers provided for in Chapter 10 relating to the management of biosecurity risks (see clauses 588-561).

Clause 90                   Undergoing an examination

This clause allows for a chief human biosecurity officer or a human biosecurity officer to require an individual to undertake a specified examination relating to the diagnosis of a listed human disease.

Safeguards have been provided by restricting the undertaking of an examination to a medical facility and providing that an individual may seek a review of the decision.

This power may be imposed by chief human biosecurity officers or human biosecurity officers.

The application of clause 94 to this clause means that the vaccination or treatment required by this clause must be carried out in a manner consistent with either appropriate medical standards, or other appropriate or relevant professional standards.

Clause 91                   Requiring body samples for diagnosis

This clause provides that an individual may be required to provide body samples for determining the presence of a listed human disease. Regulations must specify requirements for taking, storage, transport and labelling of samples, and uses for which body samples may be collected.

Samples may also be provided to the World Health Organization, on request, for use in detecting, assessing or responding to a listed human disease. This is consistent with Australia’s obligations under the « International » Health Regulations to assist the World Health Organization and State Parties in addressing « international » disease threats.

Safeguards have been provided with respect to this power by restricting the collection of body samples subsequent to examination at a medical facility.

Body samples may only be required by a chief human biosecurity officer or a human biosecurity officer.

The application of clause 94 to this clause means that the taking body samples required by this clause must be carried out in a manner consistent with either appropriate medical standards, or other appropriate other relevant professional standards.

Clause 92                   Receiving a vaccination or treatment

This clause provides that an individual subject to a human biosecurity control order may be required to receive a specified vaccination or undergo a specified form of treatment in order to manage a listed human disease. This requirement may only be imposed after an examination at a medical facility has been undertaken.

This power may be imposed by a chief human biosecurity officer or a human biosecurity officer.

The application of clause 94 to this clause means that the vaccination or treatment required by this clause must be carried out in a manner consistent with either appropriate medical standards, or other appropriate other relevant professional standards.

Clause 93                   Receiving medication

This clause provides that an individual subject to a human biosecurity control order may be directed to take medication to manage a listed human disease outside of a specified medical facility. The human biosecurity control order must specify how much medication is to be taken and for how long the medication is to be taken for.

Management of some communicable diseases may require long term medication but not hospitalisation, and this allows for individuals who no longer present a risk of contagion to continue medication and complete their treatment outside of a medical facility.

This power may be imposed by a chief human biosecurity officer or a human biosecurity officer.

The application of clause 94 to this clause means that the treatment required by this clause must be carried out in a manner consistent with either appropriate medical standards, or other appropriate other relevant professional standards.

If an individual refuses to comply with such a requirement, the Director of Human Biosecurity may issue the individual with a direction to comply under subclause 72(5).

Clause 94                   Appropriate medical or other standards to be applied

This clause provides that a biosecurity measure conducted under clause 90 (examination), clause 91 (body samples), or clause 92 (vaccination or treatment) and clause 93 (medication) must be carried out in a manner consistent with appropriate medical standards and/or other relevant professional standards.

The clause is intended to ensure that appropriate medical and/or professional standards are complied with by chief human biosecurity officers and human biosecurity officers in undertaking personally invasive measures.

Clause 95                   No use of force to require compliance with certain biosecurity measures

This clause prevents the use of force against an individual to require them to comply with any biosecurity measures imposed in this Subdivision (see clauses 85-93), that are included in a human biosecurity control order. However, reasonable force may be used to prevent an individual from boarding an overseas vessel or aircraft in contravention of a traveller movement measure (clause 96); or to detain a person who fails to comply with an isolation order (clause 97).

The use of force is restricted to law enforcement for the purposes of clause 103 and requiring a person to remain at a place in clause 68; and to an officer of customs for the purpose of clause 101.

Clause 96                   Traveller movement measure

This clause provides that an individual subject to a human biosecurity control order may be placed under a traveller movement measure, which has the effect of restricting the individual’s departure from Australia territory on an overseas passenger aircraft or vessel for up to 28 days.

Travel restrictions apply only to overseas passenger aircraft and vessels. An individual may leave Australian territory on any other aircraft or vessel. Overseas passenger aircraft and vessels pose a high risk of contagion because they carry many passengers that will be in close proximity to the ill individual for many hours.

A traveller movement measure may only be applied where an individual poses a significantly high risk of contagion risk and has either indicated an intention to leave Australia territory or is suspected of intending to do so.

This power does not require consent however the individual must be notified that they are subject to the restriction. If a restriction is applied, a traveller movement alert must be issued; notifying border agencies and state and territory health departments of the details of the restriction (see clause 98).

This power may be imposed by a chief human biosecurity officer or human biosecurity officer.

Clause 97                   Isolation measure

This clause sets out that an individual subject to a human biosecurity control order may be required to remain isolated at a specified medical facility until the individual is authorised, in writing, to leave. Isolation in many cases is considered the measure of last resort, and is applied where consent is not given by the individual for less invasive or less restrictive measures or alternative measures have not been effective.

This power may be imposed by a chief human biosecurity officer or human biosecurity officer.

If an individual refuses to comply with such a requirement, the Director of Human Biosecurity may issue the individual with a direction to comply under subclause 72(5). In addition the person may be detained under Subdivision B of Division 4 of this Part.

Subdivision C—Provisions relating to traveller movement measures

Clause 98                   Traveller movement measure alert

This clause provides that the Director of Human Biosecurity must alert the agencies and departments in subclause 98(1) and may alert the additional operators, agencies and departments in subclause 98(3) that a traveller movement measure has been applied to an individual in a human biosecurity control order.

Failure to notify a required person, body or agency does not affect the traveller movement measure that has been applied by the Director.

Notifications provided by the Director must be in writing and be made within 24 hours of the decision to impose a traveller movement measure to an individual.

The Director of Human Biosecurity must further notify anyone who they notified under this clause, if a traveller movement measure ceases to be in force. The clause clarifies that the notification is not a legislative instrument originally for the purposes of subsection 5(1) of the Legislative Instruments Act 2003 . This reflects that the notice is administrative in nature.

Clause 99                   Contents of traveller movement measure alert

This clause provides that an alert made under clause 98 must include the name of the individual, his or her passport number, and a statement that a restriction is in force in relation to the individual and they must not board an outgoing passenger aircraft or vessel for the duration of the restriction.

The alert must also specify the duration of the measure, any known travel details of the individual and the contact details for a chief human biosecurity officer that may be contacted for information in relation to the measure. This information must also include information prescribed by the regulations (if any).

The alert must contain essential information to allow Commonwealth agencies and operators to correctly identify and enforce a traveller movement measure.

As the information contained in the alert is sensitive and personal in nature, it must be dealt with in accordance with the Privacy Act 1988 .

Clause 100                 Destruction of a traveller movement measure alert

This clause requires that all Commonwealth agencies and operators that are provided with a traveller movement measure alert must destroy the alert within 6 months of being advised that the alert is no longer in force. A person who fails to destroy a movement measure alert within the 6 month period is liable to a civil penalty. The maximum penalty for contravention is 120 penalty units.

Clause 101                 Prevention from leaving Australian territory

This clause sets out that a Customs officer may prevent an individual who is subject to a traveller movement measure from boarding an overseas passenger aircraft or vessel. The officer must not use more force than is necessary and reasonable to prevent the individual from boarding the aircraft or vessel.

An individual cannot be detained or arrested under this clause. While they are prevented from boarding the aircraft or vessel, they are free to leave the passenger terminal. The intent of this clause is to comply with Australia’s obligations under the « International » Health Regulations to prevent the « international » spread of communicable diseases.

Division 4—Other provisions relating to human biosecurity control orders

Subdivision A—Consular « assistance »

Clause 102                 Consular « assistance »

This clause sets out that where a biosecurity officer or human biosecurity officer has applied a measure in a human biosecurity control order that requires an individual to remain at a place (clause 68) or isolated (clause 97); or an individual is detained (clause 103), and the individual is a non-citizen; the officer must as soon as practicable inform the individual that they may request consular « assistance » .

An officer must provide an individual with the opportunity to contact their consular for « assistance » when any measure that results in restricting the individual’s liberty is included in a human biosecurity control order.

Subdivision B—Detention

Clause 103                 Detention

This clause allows a law enforcement officer to detain an individual if they fail to comply with an isolation measure (clause 97)or fail to remain at a specified place required (clause 68). Detention can only be required if a chief human biosecurity officer or a human biosecurity officer is satisfied of the principles in subclause 32(2) and that the detention is necessary because the individual may pose a significant risk of contagion. These tests ensure that detention is only required in circumstances where the community could be at significant risk.

Detention may only be performed by an officer of the Australian Federal Police, a state or territory police officer or a protected services officer.

When enforcing an isolation order in a human biosecurity control order, the detention is for the purpose of moving the individual to the medical facility specified in that order. If the individual refuses to comply with an isolation order, the Commonwealth may seek an injunction from the court requiring the individual to stay isolated.

In all decisions relating to the management of human biosecurity risk, the conflicting interests of the individual versus the community must be considered. In some circumstances, the community risk is such that the individual must be detained to ensure they do not endanger the health of others. This may require an individual to be isolated.

The power to detain an individual has been vested only in law enforcement officers as they have sufficient training and skills to ensure the power is exercised in line with Commonwealth guidelines. A state or territory police officer can only detain an individual under this section consistently with any agreement between that state or territory and the Commonwealth.

Clause 104                 Rules relating to detention

This clause sets out that an officer must not use more force, or subject any individual to greater indignity, than is necessary and reasonable to detain the individual and prevent them from escaping detention. An officer must detain the individual in a place that affords the individual personal privacy.

As soon as practicable after detaining the person, the officer must inform the detainee that they may communicate with any person, including a legal representative, and this must be facilitated.

Clause 105                 Release from detention

This clause provides that detention must not be used as de-facto arrest power and is only applicable to ensure to ensure an individual remains at a specified place, or complies with an isolation measure.

Where detention is used to require an individual to remain at a place under clause 68, detention must end after 6 hours. It cannot be re-applied. An officer must make a decision whether to take further action within the 6 hours or the individual must be released.

When the detention under subclause 104(2) is for the purposes of enforcing an isolation order,  an individual is released from detention once they have been taken to the medical facility specified in the isolation order. However, the individual is still required to remain isolated at the medical facility as specified in the human biosecurity control order.

Clause 106                 Offence for escaping from detention

This clause sets out that an individual commits an offence if the individual escapes from a detention under clause 103.

The maximum penalty for the contravention is 5 years imprisonment, or a fine of 300 penalty units, or both.

The criminal penalties available are higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers . This reflects the severity of the potential consequences of an offence. 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 environment and the economy.

Subdivision C—Miscellaneous

Clause 107                 Offence for failing to comply with a human biosecurity control order

This clause imposes a penalty on individuals if they fail to comply with a biosecurity measure included in a human biosecurity control order, after the Director of Human Biosecurity has given a direction for that individual to comply with the requirement under clause 74.

The maximum penalty for a contravention is 5 years imprisonment, or a fine of 300 penalty units, or both.

The criminal penalties available are higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers . This reflects the severity of the potential consequences of an offence. 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 environment and the economy.

Clause 108                 Expenses incurred complying with human biosecurity control orders

This clause sets out that the Commonwealth is liable to pay for reasonable expenses incurred in complying with a biosecurity measure as part of a human biosecurity control order. This clause is consistent with the recommendations of the « International » Health Regulations.

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

Division 1—Introduction

Clause 109                 Simplified outline of this Part

This clause sets out the Part’s objectives. The Part permits human remains to enter Australia without restriction. This Part sets out powers for the Director of Human Biosecurity to specify requirements to specific classes of remains. The Director of Human Biosecurity will also have the power to determine which entry and exit requirements apply.

Division 2—Managing deceased individuals

Clause 110                 Human remains brought into Australia territory

This clause sets out that human remains are permitted into Australia without restriction unless they are a class of remains specified under subclause 110(2). The Director of Human Biosecurity may specify in an instrument the classes that are subject to particular requirements, and what those requirements are. Any requirements specified in the instrument must relate to the prevention or reduction of the risk of a listed human disease entering, emerging, establishing or spreading in Australian territory.

This clause states that a determination made under this clause is a legislative instrument, but is not subject to disallowance under section 42 of the Legislative Instruments Act 2003

The decision to determine requirements relating to the entry or management of a class of human remains into Australian territory or part of Australian territory is a technical and scientific decision based on whether the risk of a listed human disease is able to be satisfactorily managed. Subjecting these determinations to disallowance could undermine the technical and scientific based decision making and frustrate risk management processes. In addition, disallowance of a determination made under this clause could lead to inadequate management of risk to human health.

A person who contravenes a requirement for bringing in human remains or managing human remains after bringing them into Australia territory is liable to a civil penalty. The maximum civil penalty for a contravention is 30 penalty units.

Clause 111                 Officer may specify requirements for managing human remains

This clause gives a biosecurity officer, human biosecurity officer, or chief human biosecurity officer the power to give a direction and manage any human remains if an officer is satisfied the remains are likely to be infected with a listed human disease or if a person has not complied with a requirement specified under subclause 110(2) in relation to the remains, in either case, the officer must give a written notice to the person responsible for the remains.

A person who contravenes a direction is liable to a civil penalty. The maximum civil penalty for a contravention is 30 penalty units.

Clause 112                 Individuals who have died in transit or on arrival

This clause provides for the Director of Human Biosecurity to specify requirements in an instrument for the management of individuals that die in transit or on arrival into Australian territory.  Any requirements specified in the instrument must relate to the prevention or reduction of the risk of a listed human disease entering, emerging, establishing or spreading in Australian territory.

Consistent with the management of human remains at clause 110, individuals who have died in transit are to be managed as individuals under the Act. Unlike the importation of human remains, there is no person who is clearly responsible for an individual who has died in transit. On arrival, the individual will be referred to the state or territory for management. This clause allows the Director of Human Biosecurity to manage any imminent risk of a listed human disease posed by the human remains at the point of arrival in Australia and before they become the responsibility of the state or territory.

This clause states that a determination made under this clause is a legislative instrument, but is not subject to disallowance under section 42 of the Legislative Instruments Act 2003

  

The decision to determine requirements relating to management of individuals who have died in transit or on arrival in Australian territory is a technical and scientific decision based level of risk posed by a listed human disease. Subjecting these determinations to disallowance could undermine the technically and scientifically based decision making process and frustrate risk management processes. In addition, disallowance of a determination made under this clause could lead to inadequate management of contagion risks.

A person who contravenes a requirement is liable to a civil penalty. The maximum civil penalty for a contravention is 30 penalty units.

Division 3—Human Health Response Zones

Clause 113                 Determining human health response zones

This clause sets out that the Director of Human Biosecurity may determine that a specified area of a state or territory is a biosecurity response zone if the Director is satisfied that it is necessary for the purposes of preventing the emergence, establishment or spread in Australia of a listed human disease. The determination must specify the listed human disease to which the determination relates and any entry or exit requirements for individuals entering or leaving the zone.

The Director must be satisfied that the requirements are appropriate and adapted to prevent, or reduce the possibility of, the emergence, establishment or spread in Australia, of the specified listed human disease. The determination can only be in place for up to 3 months.

This clause has been drafted to address isolated, short term incidents or outbreaks of a listed human disease. It allows the Commonwealth to activate clauses to manage the risk of contagion, and is designed to complement existing state and territory legislation. If the incident or outbreak spreads beyond a single state or territory, an emergency would be declared and the zone will cease to be in force.

This clause states that a determination made under this clause is a legislative instrument, but is not subject to disallowance under section 42 of the Legislative Instruments Act 2003

Subjecting these determinations to disallowance could undermine the technically and scientifically based decision making process and frustrate risk management processes. In addition, disallowance of a determination made under this clause could lead to inadequate management of human biosecurity (see Part 2, Chapter 8).

Clause 114                 Consultation requirements

This clause sets out that before making a determination under clause 113, the Director of Human Biosecurity must consult with the chief health officer for each state or territory in which the zone will lie; and the Director of Biosecurity.

This clause ensures that the state or territory in which the zone is created is fully aware of the intervention of the Commonwealth to address the biosecurity risk. The Director of Biosecurity is also notified in the event the risk has implications for animal or plant health or where biosecurity officers are requested to assist in managing the risk within the zone.

Clause 115                 Notification requirements

This clause places an obligation on the Commonwealth to make public the declaration of a response zone. It is essential that individuals directly affected by the declaration of the zone are notified that clauses of the « Bill » may be applicable to them.

This requirement is in addition to the requirement under the Legislative Instruments Act 2003 that requires the determination to be published on the Federal Register of Legislative Instruments.

Clause 116                 Civil penalty for failing to comply with a requirement of a human health response zone determination

This clause imposes a civil penalty on individuals who fail to comply with a requirement that is specified in a human health response zone determination under clause 113.

A person who contravenes a requirement is liable to a civil penalty. The maximum civil penalty for a contravention is 30 penalty units.

This is important to encourage individuals to comply with requirements to prevent or reduce the risks of contagion to the community.

Chapter 3—Managing biosecurity risks: goods

Part 1—Goods brought into Australia territory

Division 1—Introduction

Clause 117                 Simplified outline of this Part

This outline sets out the Part’s objectives. This Part provides powers to manage biosecurity risks associated with goods brought or imported into Australian territory from outside Australian territory. When goods enter Australian territory, they become subject to biosecurity control, which means that a range of powers become available to assess and manage biosecurity risks associated with the goods.

This Part provides for the management of goods that are or will be subject to biosecurity control, including:

·          requiring a notice to be given for goods that are, or are intended to become, subject to biosecurity control

·          requirements relating to unloading goods at landing places or ports in Australian territory (including from vessels displaying a quarantine signal)

·          powers to assess and manage biosecurity risks associated with goods )and to assess and manage goods which are exposed to these goods)

·          powers for biosecurity officers to give directions concerning the unloading of goods from a conveyance, and

·          reporting requirements in the event of a biosecurity incident relating to goods.

This Part also sets out the ways that goods are released from biosecurity control.

Clause 118                 Objects of this Part

This clause outlines the objects of this Part, which are to provide for the assessment of the level of biosecurity risk associated with goods being brought or imported into Australian territory; and to provide for biosecurity measures to be taken in relation to those goods if the level of biosecurity risk associated with them is considered to be unacceptable.

In this Chapter, ‘goods’ may include a conveyance that is being carried on board another conveyance, for the purposes of Parts 1 and 3 of this Chapter (see clauses 16 and 19 for information). These conveyances will be managed as goods at the border, consistent with other types of cargo and consignments.

This will allow conveyances—such as agricultural or mining machinery—to be subject to import permits requirements and conditions.

Treating these conveyances like goods means that biosecurity risks can be appropriately managed through permit conditions and a single notice of intention to unload goods can be used to deal with conveyances—such as cars—as a consignment and gather more accurate information about them for assessing the level of biosecurity risk prior to arrival.

The biosecurity risks with these conveyances will be assessed and managed using the powers available in Chapter 4.

Division 2—Goods are subject to biosecurity control

Clause 119                 Goods brought into Australian territory are subject to biosecurity control

This clause applies in relation to goods that are brought into Australia territory on an aircraft or vessel that has entered Australian territory during a flight or voyage that commenced outside Australian territory. Any goods that arrive from outside Australian territory provide a direct pathway for biosecurity risks to enter into Australian territory.

These goods become subject to biosecurity control when the aircraft or vessel carrying the goods enters Australian territory. When goods become subject to biosecurity control, a range of powers in the « Bill » become available to assess or manage the biosecurity risks associated with the goods. This trigger point for goods becoming subject to biosecurity control reflects the need to assess biosecurity risks associated with goods brought into Australia from overseas, and enable management of those risks.

Goods which are subject to biosecurity control will remain subject to biosecurity control until they have been released from biosecurity control in accordance with Division 10 of this Part.

Goods will be released when they no longer pose a biosecurity risk or once they leave Australian territory (see clause 162).

However, goods on board a conveyance which leaves Australian territory on a journey between places in Australian territory will become subject to biosecurity control again when the conveyance re-enters Australian territory. This ensures that the powers required to assess and manage any biosecurity risks associated with the goods are available if they are required and reflects that the goods still pose a biosecurity risk.

For example, a vessel arriving from overseas may arrive at an Australian port and after unloading some goods may move to another Australian port to unload other goods. This clause ensures that if the vessel happens to leave Australian territory on its voyage to the other Australian port, the goods on board the vessel become subject to biosecurity control again when the vessel re-enters Australian territory and any risks associated with the goods can be assessed and managed at the second port.

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

Clause 120                 Notice must be given of goods to be unloaded in Australian territory

Clause 120 sets out the requirements for a notice to be provided that goods are intended to be brought or imported into Australian territory and unloaded at a port or landing place.

This notice requirement will apply to goods originating outside Australian territory including transhipped goods and goods brought in for temporary purposes. An example of transhipped goods is where a container is unloaded at a port, travels to another port by road, and is loaded onto another vessel.

The notice will allow the Commonwealth to gather important information about goods that assists with the accurate and timely assessment and management of biosecurity risks. This may include information about the country of origin and a description of the goods such as the main material from which the goods are made. Biosecurity officers can use this information to determine what risk management activities are necessary to deal with goods subject to biosecurity control when a conveyance arrives in Australian territory.

This clause also sets out the requirements of the notice. Specifically, the notice must

·          include the information in relation to the goods that is prescribed by the regulations

·          be given in the manner, and to the person prescribed by the regulations

·          be given at a time or during the period prescribed by the regulations (which may be at any time before or after the goods are unloaded at a landing place or port in Australian territory), and

·          be in a form or forms approved by the Director of Biosecurity.

The requirements for a notice are prescribed in the regulations. This gives the Commonwealth more flexibility to amend the information required, or the requirements for how and when and in what form the information should be given. The information required may change over time, as the nature and levels of biosecurity risk changes.

The notice must be given by a person prescribed by the regulations in relation to the goods. The prescribed person will be the person who has access to the information set out in the notice.

A person prescribed by the regulations in relation to the goods who contravenes the requirement to provide a notice will commit an offence and is liable to a civil penalty. The maximum penalty for contravention of this provision is two years imprisonment, or 120 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 of this Act create offences and civil penalties for providing false or misleading information or documents.

T he regulations may also prescribe exceptions to the requirement to give a notice under this clause. This will provide flexibility and reduce red tape on individuals where there other screening and reporting requirements in place. For example, it is envisaged that personal baggage will be exempted from these requirements as any relevant information in relation to goods will be provided in the incoming passenger card.

The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply.

See the Human Rights Compatibility Statement for further information on this reverse burden provision.

The clause provides that the obligation to provide a notice applies and is required to be complied with, regardless of whether the person is in Australian territory or overseas. This ensures that biosecurity officers will have access to the notice when required to make an assessment of the level of biosecurity risk associated with the goods.

This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as collecting accurate and timely information through a notice will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and put appropriate biosecurity measures in place to address any risk.

Allowing a person to use the privilege and refuse to provide important information, could result in a significant biosecurity risk remaining unmanaged. It would also undermine the management of biosecurity risks, as officers would be forced to rely on warrants to obtain routine information required in a notice. This is impractical and time consuming, particularly given the significant number of goods that are brought in or imported into Australian territory.

Whilst the privilege against self-incrimination is abrogated in relation to this clause, the « Bill » provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person.

Clause 121                 Notice of goods to be unloaded in Australian territory—requirement to give additional or corrected information

This clause creates an obligation on the person who provided notice under clause 120 to provide additional or corrected information where the information provided in the original notice is incomplete or incorrect. This means that a person must provide updated information once they realise the information provided in the notice is incomplete or where circumstances have changed resulting in the information previously provided no longer being correct. This ensures that biosecurity officers are provided with the most accurate information possible to assess and manage biosecurity risks.

This obligation only applies to information that is relevant to assessing the level of biosecurity risk associated with the good. For example, a person will not need to provide corrected information once the goods are released from biosecurity control.

A person who contravenes the requirement to provide additional or corrected information will commit an office and is liable to a civil penalty. The maximum penalty for a contravention is two years imprisonment, or 120 penalty units, or both if the elements of a fault-based offence are established. The maximum civil penalty for a contravention is 120 penalty units. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 of this Act create offences and civil penalties for providing false or misleading information or documents .

Similarly to clause 120, a person will be required to give the additional or corrected information regardless of whether they are in Australian territory or overseas.

This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as ensuring the information contained in a notice is correct and complete will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and put appropriate biosecurity measures in place to address any risk.

Allowing a person to use the privilege and withhold correct or further information, could result in a significant biosecurity risk being mismanaged. It would also undermine the management of biosecurity risks, as officers would be forced to rely on warrants to obtain routine information required in a notice. This is impractical and time consuming, particularly given the significant number of goods that are brought in or imported into Australian territory.

Whilst the privilege against self-incrimination is abrogated in relation to this clause, the « Bill » provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person.

Clause 122                 Power to obtain extra information relating to goods covered by a notice under section 120

This clause provides a biosecurity officer with the power to require additional information in relation to goods to that are subject to a notice under clause 120, prior to the goods becoming subject to biosecurity control.

This will allow 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.

This clause provides biosecurity officers with the power to:

·          require a person to answer questions in relation to the goods, where a biosecurity officer suspects on reasonable grounds that the person has information in relation to the goods, or

·          require a person to produce documents in relation to the goods, where a biosecurity officer suspects on reasonable grounds that the person has custody or control of specific documents in relation to goods.

A biosecurity officer may make copies of, or take extracts from any document that has been produced, and may remove the document from the place where it was produced in order to make copies or take extracts.

A person who contravenes the requirement to answer questions, provide information or produce documents commits an offence and is liable to a civil penalty. The maximum penalty for a contravention is two years imprisonment, or 120 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 of this Act create offences and civil penalties for providing false or misleading information or documents.

The clause provides that the obligation to provide a notice applies and is required to be complied with, regardless of whether the person is in Australian territory or overseas. This ensures that biosecurity officers will have access to the notice when required to make an assessment of the level of biosecurity risk associated with the goods.

This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as ensuring the information contained in a notice is correct and complete will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and put appropriate biosecurity measures in place to address any risk.

Allowing a person to use the privilege and refuse to answer questions, give information or produce documents relating to goods that are the subject of a report in clause 120, could result in a significant biosecurity risk remaining unmanaged. It would also undermine the management of biosecurity risks, as officers would be forced to rely on warrants to obtain further information to assess the level of biosecurity risk associated with the goods. This is impractical and time consuming, particularly given the significant number of goods that are brought in or imported into Australian territory.

Whilst the privilege against self-incrimination is abrogated in relation to this clause, the « Bill » provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person.

Division 4—Assessment of level of biosecurity risk

Clause 123                 Biosecurity risk assessment powers

This clause provides that the assessment powers in this Division apply and can be exercised in relation to goods that are subject to biosecurity control or exposed goods which have an exposed goods order in force (see Division 9) for the purposes of assessing the level of biosecurity risk.

Clause 124                 Direction to secure goods

This clause provides a biosecurity officer with the power to secure goods in a specified manner―for example, by giving a direction to ensure that the goods not be moved. A biosecurity officer may direct the person in charge of goods to secure the goods.

This will allow a biosecurity officer to exercise the other assessment powers in this Division to assess the level of biosecurity risk associated with the goods, and will limit the possibility that any biosecurity risks associated with the goods will spread.

A person who contravenes a direction to secure the good is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. In addition, a person may be liable to a civil penalty for moving, dealing with or interfering with goods that has been secured in accordance with a direction given under this clause (see clause 130).

If judicial review is sought in relation to a direction under this clause, the direction will remain in force until a court determines the validity of the direction (clause 538). This ensures that any biosecurity risk remains secure while a final decision is made.

Clause 572 applies to this clause, allowing a biosecurity officer to issue a direction orally or in writing (including electronically). It also ensures that any later directions override an earlier one if there is any inconsistency.

Clause 125                 Inspecting goods and taking samples

This clause provides a biosecurity officer with the power to inspect and take samples of goods to identify whether a disease or pest is present and assess the level of biosecurity risk associated with the goods. A biosecurity officer may inspect, search and physically examine the goods.

A biosecurity officer may take and test samples of the goods themselves or he or she may direct a person in charge of the goods to deliver samples of the goods, or arrange for a person with appropriate qualifications or expertise to take samples and test the goods. For example, where the goods are in a remote location, the biosecurity officer may arrange for a suitably qualified local person to take samples and send them to be assessed.

A person who contravenes this clause is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units.

Clause 126                 Asking questions about goods

This clause provides biosecurity officers with the power to require a person to answer questions in relation to the goods if the biosecurity officer suspects on reasonable grounds that a person has information in relation to the goods.

This will ensure that biosecurity officers have access to all the necessary information to make an accurate and timely assessment of the level of biosecurity risk associated with the goods. For example, a biosecurity officer may ask questions or seek information about the previous movements of the goods in order to determine whether the goods have been in a location known to have a specific biosecurity risk.

A person who contravenes this clause is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. In addition, section 137.1 of the Criminal Code and clause 532 of this Act create an offence and civil penalty for providing false or misleading information.

This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as it will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and put appropriate biosecurity measures in place to address that risk.

Allowing a person to use the privilege and refuse to answer questions or provide important information could result in a significant biosecurity risk remaining unmanaged. It would also undermine the management of biosecurity risks, as officers would be forced to rely on warrants to obtain routine information required in a notice. This is impractical and time consuming, particularly given the significant number of goods that are brought in or imported into Australian territory.

Whilst the privilege against self-incrimination is abrogated in relation to this clause, the « Bill » provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person.

Clause 127                 Requiring documents in relation to goods to be produced

This clause provides biosecurity officers with the power to require a person to produce documents in relation to goods. Where a biosecurity officer suspects on reasonable grounds that a person has custody or control of specific documents in relation to goods, the biosecurity officer may require the person to produce those documents. A biosecurity officer may make copies of, or take extracts from any document that has been produced, and may remove the document from the place where it was produced in order to make copies or take extracts.

Similar to clause 126, this power assists biosecurity officers to assess the level of biosecurity risk associated with the goods by ensuring that the biosecurity officer has access to all the necessary information to determine the level of biosecurity risk. A person who contravenes the requirement to produce documents is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. In addition, section 137.2 of the Criminal Code and clause 533 of this Act create an offence and civil penalty for providing false or misleading documents.

This clause is not subject to the privilege against self-incrimination (see clause 635). Similarly to the justification provided in clause 126, the privilege against self-incrimination is abrogated to give biosecurity officers timely access to documents to effectively assess risks and ensure that appropriate biosecurity measures are in place to manage identified biosecurity risks.

Whilst the privilege against self-incrimination is abrogated in relation to this clause, the « Bill » provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person.

Clause 128                 Movement of goods

This clause provides biosecurity officers with the power to give directions to a person in charge of goods to:

·          not move, deal with or interfere with the goods

·          move the goods as soon as practicable to a specified place, or

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

This will allow a biosecurity officer to issue movement directions in relation to the goods to ensure that appropriate biosecurity risk assessment and management activities can be carried out. For example, a biosecurity officer may give a direction for timber products to be moved away from forested areas to ensure that any biosecurity risks associated with the timber do not spread.

The biosecurity officer will also have an ability to cause goods to be moved. This power can be used, for example where a person in charge contravenes a direction to move the good.

A person who contravenes a direction to relating to the goods is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. In addition, a person may be liable to a civil penalty for moving, dealing with or interfering with goods that has been secured in accordance with a direction given under this clause (see clause 130).

Clause 129                 Biosecurity control notice may be affixed to goods or given to person in charge of goods

This clause provides a biosecurity officer with the power to affix a biosecurity control notice to, or near to, the goods or to provide a notice to the person in charge of the goods. This notice is used to inform the person that the movement of the goods is restricted, so that a biosecurity officer can carry out an assessment of the biosecurity risk associated with the goods.

This clause provides that a person must not interfere with, remove or deface the notice affixed to the goods unless the person is authorised to do so under an approved arrangement (see clause 10 for the meaning of approved arrangement), or he or she has been given a direction by a biosecurity official or otherwise has permission under the Act.

A person who interferes with, removes or defaces the notice in contravention of this clause is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. It will be an exception to be authorised under an Australian law to interfere, remove or deface the notice.

The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply.

See the Human Rights Compatibility Statement for further information on this reverse burden provision.

Clause 130                 Unauthorised persons must not move etc. goods in relation to which direction has been given or notice has been affixed

This clause applies to:

·          goods that are secured in accordance clause 124

·          goods that are subject to movement direction or have been moved under clause 128, or

·          goods to which a biosecurity control notice is affixed under clause 129.

A person must not move, deal or interfere with these goods unless the person:

·          is authorised to do so under an approved arrangement,

·          has been given a direction under the Act by a biosecurity official, or

·          has permission under clause 557.

A person who moves, interferes or deals with the goods in contravention of this clause is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units.

It will be an exception to be authorised under this Act or another Australian law to move, interfere or deal with the goods.

The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply.

See the Human Rights Compatibility Statement for further information on this reverse burden provision.

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

Clause 131                 Biosecurity measures may be required in relation to goods

This clause provides that where a biosecurity officer suspects, on reasonable grounds, that the level of biosecurity risk associated with the goods that are subject to biosecurity control is of an unacceptable level, the officer may require biosecurity measures to be taken in relation to the goods as set out in this Division.

These biosecurity measures allow a biosecurity officer to manage biosecurity risks to an acceptable level. This power also extends to exposed goods (see clause 161).

Clause 132                 Movement of goods

This clause provides that biosecurity officers can require:

·          goods to be moved to a particular place

·          goods to be left at a specified place for a specified period of time, or

·          any other action relating to the movement of the goods.

This allows biosecurity officers to goods to be moved to a location where risk management activities can be undertaken or to prevent the pest or disease from spreading and establishing in Australian territory. For example, a biosecurity officer may give a direction to move a shipping container to a wash bay.

Clause 138 allows a biosecurity officer to direct the person in charge of the goods to carry out this biosecurity measure.

Clause 133                 Treatment of goods

This clause provides biosecurity officers with the power to require that goods be treated in a specific manner.

If the goods are high-value goods―that is the value of the goods is greater than the amount prescribed in the regulations―the goods must not be treated in a way that the biosecurity officer suspects may damage the goods without the written approval of the Director of Biosecurity. This extra step reflects the impact ordering such a treatment might have on the owner of the goods and the potential loss of value caused by the treatment.

Regardless of the value of the goods, if the treatment might damage the goods, a person in charge must be asked to agree to the treatment (see clause 134).

This power ensures that biosecurity officers can order necessary treatments for goods to manage biosecurity risks and reduce those risks to an acceptable level. For example, a biosecurity officer may require goods with an ant infestation to be fumigated.

Clause 138 allows a biosecurity officer to direct the person in charge of the goods to carry out this biosecurity measure.

Clause 134                 Treatment that may damage goods

This clause outlines the requirements for notifying the person in charge of goods where a biosecurity officer suspects on reasonable grounds that the treatment required under clause 133 is likely to damage the goods.

Before any treatment is carried out on the goods, a biosecurity officer must, by notice in writing or orally, inform a person in charge of the goods that the goods are required to be treated in a specified manner which is likely to result in damage to the goods and request the person to agree to the treatment of the goods. If the biosecurity officer suspects on reasonable grounds that the goods pose a high level of biosecurity risk and need to be treated as soon as practicable, the officer will be able to carry out the specified treatment without having to notify the person in charge.

If a notice is given to the person in charge of the goods requesting their agreement to treatment, and the person does not respond or does not agree to the treatment within 30 days, a biosecurity officer may in writing request that the person arrange for the goods to be dealt with or destroyed within a specified period. If the person in charge of the goods does not comply with this request the biosecurity officer may take possession of the goods and cause them to be exported out of Australian territory, destroyed or otherwise disposed of.

This clause allows a biosecurity officer to seek agreement and give a notice orally as well as or instead of in writing. This is appropriate for situations where the biosecurity officer is in direct contact with the person in charge of the goods, for example, at an airport where the officer is inspecting a person’s baggage.

The notification requirement gives a person in charge of goods a reasonable opportunity to address the biosecurity risks associated with the goods―with appropriate consequences―if the biosecurity risks have not be managed.

The clause excludes a biosecurity industry participant from the definition of ‘person in charge’ of goods if the biosecurity industry participant is in possession or control of goods only because of a direction given to the participant by a biosecurity officer. This reflects that it would not be appropriate for the biosecurity industry participant to agree to treatment that may damage goods, where they do not have a relationship to the owner of the goods and the goods are only in their possession because of the actions of the biosecurity officer.

Clause 135                 Export of goods

This clause allows a biosecurity officer to require goods to be exported from Australian territory. The biosecurity officer may arrange for the goods to be exported or direct a person in charge of the goods to arrange for the goods to be exported. Exporting offers an alternative way to deal with the biosecurity risks (in addition to treatment or destruction of the goods).

As these provisions apply to goods that have been brought or imported into Australian territory, it is appropriate that the goods can be exported, to ensure that the biosecurity risks can be managed. For example, it is envisaged that these goods would be returned to their country of origin.

A person who contravenes a direction to export the goods may commit an offence or be liable to a civil penalty (see clause 140).

Clause 136                 Destruction of goods

This clause provides biosecurity officers with the power to require that goods be destroyed. If the biosecurity officer suspects on reasonable grounds that the goods cannot be effectively treated to reduce the biosecurity risk to an acceptable level, the biosecurity officer may, subject to the notification and approval requirements, require the goods to be destroyed.

If the goods are high-value goods―that is the value of the goods is greater than the amount prescribed in the regulation―the goods must not be destroyed without written approval of the Director of Biosecurity. The decision to require high-value goods be destroyed is a reviewable decision under clause 574. If a review is being undertaken, the good can only be destroyed if the biosecurity officer is satisfied that the goods pose a high level of biosecurity risk and the risks cannot be managed for long enough to allow a review to be finally determined.

The requirement that the Director approve the destruction of high-value goods along with the review function reflect the « monetary » outlay that an owner may have invested in the good and ensures that an owner or person in charge is able to access review mechanisms to protect his or her goods.

A biosecurity officer must not cause high-value goods to be destroyed until the end of the review period, for any review of the decision to destroy the good to be completed or until an application for review (including an appeal) has been determined. If the goods have been destroyed, because the biosecurity risks cannot be managed for the duration of any review or appeal, no application for review can be made and any review or related proceedings are taken to be discontinued.

Clause 138 allows a biosecurity officer to direct the person in charge of the goods to carry out this biosecurity measure.

Clause 137                 Regulations may provide for other biosecurity measures

The clause allows for regulations to prescribe additional biosecurity measures that a biosecurity officer may use in relation to goods under this Division.

The clause limits the biosecurity measures that can be prescribed by the regulations. The biosecurity measures in the regulations must not be:

·          measures that are of a kind set out in Division 4 of this Part (biosecurity risk assessment powers)

·          a measure of another kind set out in this Division, or

·          a biosecurity measure relating to decontamination (see Division 2 of Part 4 of Chapter 10).

This ensures that the regulations do not contain biosecurity measures already available in the Act. It also ensures that any notification or processes in place in the legislation are not circumvented. For example, an additional prescribed biosecurity measure may include a requirement that certain animals are to be isolated (quarantined).

This clause also allows for other matters relating to a prescribed biosecurity measure to be set out in the regulations. This can include matters such as notification requirements and limitations on carrying out prescribed biosecurity measures during review periods (if the exercise of the prescribed biosecurity measure is a reviewable decision).

Clause 138 allows a biosecurity officer to direct the person in charge of the goods to carry out a biosecurity measure under clauses 132, 133, 136 or 137.

Clause 138                 Powers of biosecurity officer if biosecurity measures are required

The clause provides that where a biosecurity officer requires biosecurity measures to be taken in relation to goods under clauses 132 (movement), 133 (treatment), 136 (destruction) or a regulation made under clause 137 (prescribed biosecurity measure), the biosecurity officer can direct a person, or arrange for a person to carry out the biosecurity measures. The biosecurity officer can also carry out the biosecurity measure personally.

Where the biosecurity officer gives a direction to a person to carry out a biosecurity measure, or arranges for someone to carry out the biosecurity measure, the biosecurity officer may supervise the person carrying out the biosecurity measures. This ensures that the biosecurity measures are carried out properly, and where they have not been carried out in accordance with the directions, the biosecurity officer can take action to manage the biosecurity risks.

A person who is given a direction to carry out a biosecurity measure under this clause may commit an offence or contravene a civil penalty provision (see clause 140 for further information)

Clause 139                 Biosecurity officer may affix notice to goods

Clause 139 allows a biosecurity officer, to affix a notice to goods in relation to which biosecurity measures have been required under this Division or a regulation made under clause 137.

This notice must state that the level of biosecurity risks associated with the goods is unacceptable, that biosecurity measures have been required in relation to those goods and that a person may be liable to a civil penalty or offence if they move or interfere with the goods to which the notice relates (see clause 141). The notice is designed to inform a person not to move or interfere with the goods. If it is not possible to affix the notice to the goods, the person exercising the power may affix the notice as near to the goods as reasonably practicable.

A person must not interfere with, remove or deface the notice unless the person is authorised to do so under an approved arrangement (see clause 10) or they been given a direction or permission by a biosecurity official or otherwise has permission under the Act. An unauthorised person who interferes with, removes or defaces the notice may be liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. It will be an exception to be authorised under an Australian law to interfere, remove or deface the notice.

The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply.

See the Human Rights Compatibility Statement for further information on this reverse burden provision.

Clause 140                 Person must comply with direction to take biosecurity measures

This clause provides that a person must comply with a direction to take biosecurity measures. A person will commit an offence and be liable to a civil penalty if they contravene a direction under clause 135 to export the goods or under clause 138 to take measures given by a biosecurity officer under this Division (see clauses 132, 133, 136 and 137). The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units.

The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers . This reflects the severity of the potential consequences of an offence. 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.

A court would 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.

Clause 141                 Unauthorised persons must not move etc. goods to which notice has been affixed

This clause provides that a person must not move, deal or interfere with the goods where a notice has been affixed under subclause 139(1) unless the person is authorised to do so under an approved arrangement (see clause 10 for the meaning of approved arrangement), or he or she has been given a direction by a biosecurity official or otherwise has permission under the Act.

An unauthorised person who moves, deals or interferes with these goods commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units.

The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers . This reflects the severity of the potential consequences of an offence. If the goods are moved or interfered with biosecurity risk associated with the goods may spread which has the potential to cause serious damage to plant and animal health, Australia’s local industries, the economy and the environment.

A court would 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.

It will be an exception to be authorised under an Australian law to move, interfere or deal with the goods.

The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply.

See the Human Rights Compatibility Statement for further information on this reverse burden provision.

These powers are required to ensure biosecurity officers can carry out functions under this Part by affixing notices to goods restricting their movement so that biosecurity measures can be conducted to manage any identified biosecurity risks.

Division 6—Unloading goods at landing places or ports

Clause 142                 Application of this Division

This Division applies in relation to goods that are or will be subject to biosecurity control and are intended to be unloaded from an aircraft or vessel carrying the goods at a landing place or port in Australian territory. The powers in this Division also apply in relation to exposed goods (see clause 161).

Clause 143                 Person in charge may allow goods to be unloaded from aircraft or vessel subject to direction etc.

Clause 144                 Person may unload goods from aircraft or vessel subject to direction etc.

These clauses outline the circumstances in which:

·          a person in charge of an aircraft or vessel can allow the unloading of goods at a landing place or port, and

·          a person, such as a stevedore, can unload goods from a vessel or aircraft.

These clauses provide that goods can be unloaded:

·          subject to any directions given by a biosecurity officer, or

·          in accordance with the requirements in clauses 145, 146, 147, 148 and 151.

Subject to meeting the requirements in clauses 145, 146, 147, 148 and 151, goods will be able to be unloaded from a vessel or aircraft without any intervention from biosecurity officers. This will allow goods which do not pose a biosecurity risk to move smoothly through the border, reducing delays on individuals and businesses.

A biosecurity officer may give the person in charge of aircraft or vessels, or another person, a direction relating to the unloading of the goods from the 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 shipping container.

A person who contravenes a direction given by a biosecurity officer under these clauses commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units.

The criminal penalties available are higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers . This reflects the severity of the potential consequences of the commission of the offence. 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.

A court would 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.

It will be an exception to both the offence and civil penalty in clause 143, if the person in charge of the aircraft of vessel gave a direction to a person under clause 144, and the direction was in the same terms as that given by a biosecurity officer, and the other person contravened the person in charge’s direction. For example, if a biosecurity officer directs the person in charge of a vessel not to unload a container, and the person in charge has passed that direction on to the stevedore, if the stevedore unloads the container, the person in charge will not be liable.

The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply.

See the Human Rights Compatibility Statement for further information on this reverse burden provision.

Notwithstanding these clauses, nothing may be unloaded from the aircraft or vessel unless pratique has been granted in relation to the aircraft or vessel (see clauses 48 and 49).

Clause 145                 Goods must not be unloaded except at first point of entry for those goods or with permission

Clause 146                 Permission to unload goods at landing place or port other than first point of entry for those goods

Clause 145 provides that a person in charge of a vessel or aircraft that brought goods into Australian territory must not allow the goods that are subject to biosecurity control to be unloaded unless:

·          the landing place or port is a first point of entry for those goods, or

·          permission has been given by the Director of Biosecurity for the goods to be unloaded at that port or landing place.

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 to manage the biosecurity risks (see clauses 223 and 229 for further information). This clause ensures that in the event a first point of entry is determined to receive specific goods, the biosecurity risk assessment process for determining a first point of entry is not circumvented and that biosecurity risks associated with unloading goods at places that are not first points of entry are appropriately managed.

A person who unloads goods at a landing place or port that is not a first point of entry for those goods, without permission from the Director, commits an offence and is liable to a civil penalty. The maximum penalty for contravening clause 145 is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units.

Clause 146 provides that a person in charge or the operator of an aircraft of vessel that is intending to bring goods into Australian territory may request the Director of Biosecurity to give permission to unload the goods at a first point of entry not determined to receive those goods. On receiving a request, the Director may—by notice in writing—give permission. This permission may be subject to conditions. This allows the Director to place any conditions that are appropriate for the management of biosecurity risks associated with the goods. For example, permission to unload timber at a place that is not a first point of entry may be given on the condition that there are fumigation facilities available to manage any biosecurity risks associated with the timber.

This clause provides flexibility for industry by ensuring that alternative arrangements can be made to unload goods at a landing place or port not determined to receive those goods.

A person who has been given permission to unload the goods subject to conditions and contravenes the conditions commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units.

The person in charge of the aircraft or vessel commits an offence if the operator has been given permission subject to conditions and the conditions have been contravened. The operator of the aircraft or vessel commits an offence if the person in charge has been given permission subject to conditions and the conditions have been contravened. The maximum penalty for contravention of both these offences is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units.

The criminal penalties available are higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers . This reflects the severity of the potential consequences of an offence. If the goods were unloaded without permission or a condition was contravened biosecurity risk associated with the goods may spread which has the potential to cause serious damage to plant and animal health, Australia’s local industries, the economy and the environment.

A court would 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.

Notwithstanding these clauses, nothing may be unloaded from the aircraft or vessel unless pratique has been granted in relation to the aircraft or vessel (see clauses 48 and 49).

Clause 147                 Goods must be brought to biosecurity entry point for those goods at first point of entry

Clause 148                 Permission to bring goods to alternative biosecurity entry point

These clauses apply if:

·          the aircraft or vessel that brought goods into Australian territory has arrived at a first point of entry for that aircraft or vessel, 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.

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—allowing biosecurity risks associated with the aircraft, vessel or goods to be managed at a specific location within the landing place or port (see clauses 224 and 230 for further explanation).

A person in charge of the aircraft or vessel must ensure goods that are unloaded are brought to a biosecurity entry point as soon as practicable, unless the person in charge has been given:

·          a direction by a biosecurity officer, or

·          permission in accordance with clause 148 for the goods to be brought to an alternative biosecurity entry point.

A person who unloads goods in contravention of this requirement commits an offence and is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units.

Clause 147 provides biosecurity officers with the power to give directions to the person in charge or the operator of a vessel or aircraft. The direction may require that the goods be brought to an alternative biosecurity entry point at the first point of entry. A biosecurity officer will be able to use the direction power to manage biosecurity risks associated with the goods.

A person who has been given a direction and contravenes the direction commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both if the elements of a fault-based offence are established. The maximum civil penalty for a contravention is 120 penalty units.

A person in charge of the aircraft or vessel who has been given a direction and the direction has been contravened commits an offence and is liable to a civil penalty. The maximum penalty for a contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units.

The operator of the aircraft or vessel who has been given a direction and the direction has been contravened commits an offence and is liable to a civil penalty. The maximum penalty for contravention of both these offences is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units.

Clause 148 outlines the process for the Director of Biosecurity to give permission to unload goods at an alternative biosecurity entry point. A person in charge, or an operator, of an aircraft of vessel that brought goods into Australian territory may request the Director of Biosecurity to give permission to unload the goods at a biosecurity entry point that is not a biosecurity entry point for those goods. On receiving a request, the Director may—by notice in writing—give permission.

This permission may be subject to conditions. This allows the Director to place any conditions that are appropriate for the management of biosecurity risks associated with the goods. For example, a condition on unloading timber products at a biosecurity entry point that is not a biosecurity entry point for timber, may include storing the timber products at a premise under an approved arrangement or away from plants or trees.

This clause provides flexibility to industry by ensuring that alternative arrangements can be made to unload goods at biosecurity entry points not determined to receive those goods.

A person who has been given permission subject to conditions and contravenes the conditions commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units.

The person in charge of the aircraft or vessel who contravenes conditions of a permission to unload goods at an alternative biosecurity entry point commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units.

The operator of the aircraft or vessel who contravenes conditions of a permission to unload goods at an alternative biosecurity entry point commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units.

These clauses 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 goods at places that are not a biosecurity entry point are appropriately managed.

It is appropriate that both the operator of the aircraft or vessel and the person in charge of the goods are liable to these offences, as they will either be giving permission for the goods to be unloaded from the vessel or aircraft, or be the person unloading the goods.

The criminal penalties available are higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers . This reflects the severity of the potential consequences of an offence. If directions are not complied with or the goods were unloaded without permission or a condition was contravened biosecurity risk associated with the goods may spread which has the potential to cause serious damage to plant and animal health, Australia’s local industries, the economy and the environment.

A court would 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.

Notwithstanding these clauses, nothing may be unloaded from the aircraft or vessel unless pratique has been granted in relation to the aircraft or vessel (see clauses 48 and 49).

Clause 149                 Receiving or possessing goods unloaded from aircraft or vessel in contravention of this Division

This clause provides that a person who receives or has in his or her possession goods that were unloaded from an aircraft or vessel in contravention of this Division is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units.

It will be an exception if the person did not know, or could not reasonably be expected to know that the goods were unloaded in contravention of this Division.

The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply.

See the Human Rights Compatibility Statement for further information on this reverse burden provision.

Division 7—Unloading goods from vessel displaying prescribed quarantine signal

Clause 150                 Application of this Division

This Division applies in relation to goods that are subject to biosecurity control including exposed goods (see clause 161) and are unloaded from a vessel that is displaying the prescribed quarantine signal.

Clause 151                 Unloading goods from vessel displaying prescribed quarantine signal

This clause provides that a person must not unload goods from a vessel in Australian territory if the goods are subject to biosecurity control or are exposed goods (see clause 161) and the vessel is displaying the prescribed quarantine signal (see clause 221 for further information).

A vessel displaying a quarantine signal has been deemed to pose an unacceptable level of biosecurity risk. This clause ensures that the biosecurity risks are not spread by unloading the goods from the vessel.

A person who unloads goods in contravention of this clause commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers . This reflects the severity of the potential consequences of an offence. If goods are unloaded from a vessel displaying the prescribed quarantine signal biosecurity risk associated with the goods may spread which has the potential to cause serious damage to plant and animal health, Australia’s local industries, the economy and the environment.

A court would 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.

It will be an exception to be authorised under this Act or under another Australian law to unload goods from a vessel displaying the prescribed quarantine signal.

The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply.

See the Human Rights Compatibility Statement for further information on this reverse burden provision.

Clause 152                 Receiving or possessing goods unloaded from vessel displaying prescribed quarantine signal

This clause provides that a person must not receive or have in his or her possession goods unloaded from a vessel that is displaying the prescribed quarantine signal and the goods are subject to biosecurity control or are exposed goods. This clause does not apply if the person is authorised to do so under an approved arrangement, or he or she has been given a direction by a biosecurity official or otherwise has permission under the Act.

This clause appropriately places responsibility on people receiving or possessing goods to ensure that they are aware of the circumstances of the goods arrival and biosecurity status.

A person who receives goods unloaded in contravention of this clause commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units.

The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers . This reflects the severity of the potential consequences of an offence. Goods that are unloaded from a vessel displaying the prescribed quarantine signal potentially pose a high level of biosecurity risk. Biosecurity risk associated with the goods may spread which has the potential to cause serious damage to plant and animal health, Australia’s local industries, the economy and the environment.

A court would 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.

It will be an exception if the person did not know, or could not reasonably be expected to know that the goods were unloaded in contravention of this Division or if the person is authorised under an Australian law.

The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply.

See the Human Rights Compatibility Statement for further information on this reverse burden provision.

Division 8—Reporting biosecurity incidents

Clause 153                 Application of this division

This Division applies obligations to report biosecurity incidents to goods that are subject to biosecurity control. The Division also applies in relation to exposed goods (see clause 161).

Clause 154                 Director of Biosecurity may determine acts, omissions or events to be reportable biosecurity incidents

This clause provides the Director of Biosecurity with the ability to determine via legislative instrument, what constitutes a biosecurity incident in relation to goods that are subject to biosecurity control or exposed goods (see clause 161). A biosecurity incident can be an act, omission or event. The reporting of biosecurity incidents will allow for biosecurity officers to efficiently manage biosecurity risks associated with an incident.

It is important that 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.

For example, a person in charge of timber products may be required to report any insect activity. This will allow biosecurity officers to assess if the insect activity is a biosecurity risk and if necessary, carry out biosecurity measures to manage the biosecurity risks associated with those insects.

Clause 155                 Reporting by person in charge of aircraft or vessel carrying goods

Clause 156                 Reporting by person in charge of goods

These clauses provide that a person in charge of an aircraft or vessel that brought goods into Australia and the person in charge of goods once they are unloaded must report any biosecurity incident that he or she is aware of to the Director of Biosecurity or a biosecurity officer as soon as practicable after becoming aware of the incident. It is important that 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.

It is appropriate that the requirement to report these incidents sits with the person in charge of the aircraft, vessel or goods as he or she is most likely to become aware that a biosecurity incident has occurred as he or she is in possession of the goods.

A person who fails to report a biosecurity incident commits an offence and is liable to a civil penalty. The maximum penalty for a contravention is two years imprisonment, or 120 penalty units, or both if the elements of a fault-based offence are established. The maximum civil penalty for a contravention is 120 penalty units.

The obligation to report a biosecurity incident applies whether or not the person was in Australian territory when they became aware of the biosecurity incident. This reflects that an incident can occur outside Australian territory, and that having an incident reported as soon as practicable allows for the efficient management of biosecurity risks.

Clause 157                 How reports must be made

Clause 157 outlines the process for how reports of biosecurity incidents are to be made. This clause provides the Director of Biosecurity the ability to determine―by legislative instrument―the information that must be included in the report (required by clauses 155 and 156) and the way in which the report must be made.

If a report is not made in accordance with these requirements, the report is not taken to have been made the person who made or was required to make the report may have committed an offence or be liable to a civil penalty. This ensures that all reports are made in the appropriate manner, allowing for biosecurity measures (if required) to be carried out in a timely manner.

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

Clause 158                 Application of this Division

This Division applies to goods if a biosecurity officer suspects, on reasonable grounds, that the goods have been exposed to goods or conveyances that are subject to biosecurity control and goods in relation to which a biosecurity control order under clause 159 has been made. These goods are defined as exposed goods.

This Division extends some of the powers available in this Part to exposed goods, allowing for biosecurity risks associated with exposed goods to be efficiently assessed and managed.

Clause 159                 Assessment and management of biosecurity risk associated with exposed goods

A biosecurity officer may exercise the powers in Division 4 of this Part for the purpose of identifying and assessing the level of biosecurity risk associated with exposed goods. If the biosecurity officer suspects on reasonable grounds that the biosecurity risks associated with exposed goods is unacceptable, the biosecurity officer may issue an exposed goods order in accordance with clause 160―extending some of the powers in this Part to manage the biosecurity risks with the exposed goods.

The assessment powers in Division 4 of this Part can only be exercised in relation to exposed goods if the goods:

·          are within the precincts of a landing place or port

·          are onboard a conveyance which is subject to biosecurity control (see Division 2 of Part 2 of Chapter 4)

·          are on premises owned or controlled by the Commonwealth where biosecurity measures can be taken for the purpose of managing biosecurity risk, or

·          are on premises where biosecurity activities are carried out in accordance with an approved arrangement.

Limiting the exercise of these powers to these areas reflects that these are areas with a high level of biosecurity risk, which have a direct connection to the goods being brought or imported into Australian territory. It is appropriate that these powers extend to these goods, as exposed goods potentially have an unacceptable level of biosecurity risk by virtue of coming into contact with goods or conveyances that are subject to biosecurity control.

In situations where this Part does not apply and the goods are suspected of having an unacceptable level of biosecurity risk, the biosecurity risks can be assessed and managed by the provisions in Chapter 6.

Clause 160                 Exposed goods orders

This clause outlines the requirements for an exposed goods order. An exposed goods order must be in writing, specify the goods to which it relates, and the period in which it is in force.

The clause clarifies that an exposed goods order is not a legislative instrument for the purposes of section 5(1) of the Legislative Instruments Act 2003 . This is to recognise the fact that the notice is administrative in nature. The exposed goods order is intended to notify the person in charge of exposed goods that the provisions in this Part apply in relation to the goods.

A biosecurity officer must give a copy of an exposed goods order to a person in charge of the exposed goods to which the order relates, if it is practicable to do so.

Clause 161                 Effect of exposed goods order

This clause outlines the effect of an exposed goods order. If an exposed goods order is in force in relation to exposed goods, the powers in Divisions 4, 5, 6, 7, 8 and 10 of this Part will apply to the exposed goods as if they were goods subject to biosecurity control. This ensures that biosecurity officers can use the powers to manage and assess the biosecurity risks which may be associated with the goods as a result of the exposure.

An exposed goods order made in relation to exposed goods ceases to be in effect when the order expires, is revoked or the goods are released from biosecurity control in accordance with Division 10.

In the same way as clause 162 applies to goods that are subject to biosecurity control, subclause 161(3) provides that the goods are released from biosecurity control by virtue of leaving Australian territory on a conveyance on a journey between places in Australian territory and the exposed goods order has not expired or been revoked, the exposed goods order takes effect again when the conveyance re-enters Australian territory. This is appropriate as the biosecurity risks associated with the exposed goods, have not been managed to an acceptable level simply be leaving the Australian territory.

Division 10—Release of goods from biosecurity control

Clause 162                 When goods brought into Australian territory are released from biosecurity control

This clause outlines the circumstances in which goods are released from biosecurity control. Goods will be released from biosecurity control if:

·          a notice is given to a person in charge of the goods under clause 163 by a biosecurity officer

·          a written notice is given to the person in charge of the goods by a biosecurity industry participant who is authorised to release the goods in accordance with an approved arrangement

·          the goods are prescribed goods and the goods leave a designated biosecurity control release area at a first point of entry or an « international » mail centre

·          the goods are destroyed, or

·          the goods leave Australian territory.

Goods are released through these mechanisms in recognition that the goods no longer pose an unacceptable level of biosecurity risk. If goods are released from biosecurity control by leaving Australian territory on a conveyance that is on a journey between places in Australian territory, the goods become subject to biosecurity control again when the conveyance returns to Australian territory during that journey (see clause 119). This is appropriate as the biosecurity risks associated with the goods, has not been assessed or managed to an acceptable level.

Goods may be released prior to becoming subject to biosecurity control based on an assessment of the information provided via notice under clause 120. The clause clarifies that if a notice has been issued releasing the goods from biosecurity control, prior the goods became subject to biosecurity control, the goods are taken to be released immediately after they became subject to biosecurity control. This will allow these goods to move smoothly through the border ensuring that individuals and businesses are not subject to delays or additional costs.

The clause clarifies that a release notice is not a legislative instrument for the purposes of section 5(1) of the Legislative Instruments Act 2003 . This is to recognise the fact that the notice is administrative in nature. The notice is intended to notify the person in charge of the goods that the goods are released from biosecurity control.

The regulations may provide that a specified area at a first point of entry or an « international » mail centre is a designated biosecurity control release area. These designated areas reflect that it will not be possible for a biosecurity officer to personally release all goods—either orally or in writing. For example, « international » mail will be released from biosecurity control when it leaves an « international » mail centre.

The regulations will also prescribe goods that are released by this mechanism, it is envisaged that these will include personal baggage and « international » mail. This limits the goods released by the mechanism, and allows biosecurity officers to focus on goods which pose a higher level of risk. Biosecurity officers will still be able to use the assessment and management powers in this Chapter to manage any unacceptable level of biosecurity risk associated with these goods.

A biosecurity officer may refuse to release goods from biosecurity control if the goods are withheld under clause 600 because a cost-recovery charge has not been paid (see subclause 600(4)).

Clause 163                 Notice releasing goods from biosecurity control

This clause provides that a notice issued under clause 162 may be issued in writing or orally. This clause also allows for notices that are issued by an automated electronic system to release goods from biosecurity control. The automated system must comply with the requirements in the regulations. An automated notice is taken to be issued by a biosecurity officer so that the practical effect of this notice is to release the goods under clause 162.

This provision also makes it clear that an automated release notice in relation to goods has no effect to the extent that it is inconsistent with an earlier direction given in relation to the goods by a biosecurity officer under this Act.

Clause 164                 Revoking notice releasing goods from biosecurity control

This clause outlines the process for revoking a notice issued under clause 162 releasing goods from biosecurity control.

If a biosecurity officer or biosecurity industry participant suspects on reasonable grounds that the goods pose an unacceptable level of biosecurity risk the biosecurity officer may revoke the notice issued under clause 162—ensuring that the goods are still subject to biosecurity control. This will allow biosecurity officers to use the powers in Divisions 4 and 5 of this Chapter to assess, and if necessary, manage biosecurity risks associated with the goods.

This ability to revoke a notice given under clause 162 is necessary to manage biosecurity in circumstances where the goods have been released by mistake or based on incorrect information provided to a biosecurity officer or biosecurity industry participant.

A biosecurity officer may revoke a notice releasing goods from biosecurity control that was given to a person by a biosecurity officer or automated electronic system, by informing the person in writing or orally of the revocation.

If a biosecurity industry participant gave a person in charge of goods a written notice releasing goods from biosecurity control, the biosecurity industry participant or a biosecurity officer may revoke the notice by informing the person in writing of the revocation. Biosecurity industry participant are also afforded this power as they are likely to be in a position to identify any biosecurity risks associated with released goods that are being managed under their approved arrangement.

It is appropriate that these goods are managed under the powers available in this Chapter as it provides a direct link with the goods being brought into Australia and ensures that the biosecurity risk management powers that are available at the border—such as exporting the goods—can be used.

Chapter 6 powers are available for goods that are not subject to biosecurity control. However tis provision is intended to be used in cases where goods have been mistakenly released or incorrect information has been provided. For example, a good has been released from biosecurity control based on documentation and when it arrives a biosecurity officer notices that it is infested with insects. Chapter 6 powers in this instance would be administratively burdensome on the department and may result in delayed responses to biosecurity risks.

The clause clarifies that a written revocation notice is not a legislative instrument for the purposes of section 5(1) of the Legislative Instruments Act 2003 . This is to recognise the fact that revocation is administrative in nature. The revocation notice is intended to notify the person in that the goods are subject to biosecurity control.

Part 2—Biosecurity Import Risk Analyses

Division—Introduction

Clause 165                 Simplified outline of this Part

This outline sets out the Part’s objectives. This Part confers on the Director of Biosecurity the power to conduct Biosecurity Import Risk Analyses (BIRA). A BIRA can be conducted for goods or a particular class of goods that may be imported or are proposed to be imported. A BIRA is an evaluation of the level of biosecurity risk associated with the goods. It also identifies conditions that must be met to manage the level of biosecurity risk associated with the goods to a level that achieves Australia’s Appropriate Level of Protection (ALOP).

Division 2—Biosecurity Import Risk Analyses

Clause 166                 What is a Biosecurity Import Risk Analyses (BIRA)

This clause defines a BIRA as a scientific evaluation of the level of biosecurity risk associated with goods that may be imported, or are proposed to be imported, into Australian territory. The BIRA can identify conditions that must be satisfied to manage the level of biosecurity risk to achieve Australia’s appropriate level of protection (ALOP) (see clause 5 for further information on ALOP).

This clause clarifies that a BIRA can consider and recommend biosecurity measures that are varied based on the level of biosecurity risk in a part of Australian territory. For example, in a recent Import Risk Analysis two quarantine pests associated with stone fruit production in the United States of America were of regional concern to Western Australia (in addition to other quarantine pests of concern to the whole of Australia). As a result, specific import conditions were identified and placed on stone fruit being imported to Western Australia, in addition to the import conditions applied for the whole of Australia.

A BIRA provides information and advice to the Director of Biosecurity to take into account when assessing an import permit application.

Clause 167                 Director of Biosecurity may conduct a BIRA

This clause confers the power for the Director of Biosecurity to undertake a BIRA in relation to particular goods or particular classes of goods and provides that the Director must apply Australia’s ALOP in conducting the BIRA. The application of Australia’s ALOP ensures that any biosecurity measures identified to manage the risks to meet Australia’s ALOP will be science-based sanitary and phytosanitary measures consistent with Australia’s rights and obligations under the SPS Agreement .

The Director of Biosecurity can determine the order in which BIRAs are conducted subject to any direction from the Agriculture Minister under clause 168.

Clause 168                 Agriculture Minister may direct Director of Biosecurity to commence a BIRA

This clause provides that the Agriculture Minister may issue a written direction to the Director of Biosecurity to commence a BIRA in relation to a particular good or a particular class of good. Aside from this direction, the clause provides that the Director of Biosecurity is not subject to any directions from the Agriculture Minister or the Commonwealth Government about the conduct, findings or outcomes relating to the BIRA. This means that although the Agriculture Minister can ensure that BIRAs are being conducted in accordance with Australia’s « international » trade priorities, the BIRA process and scientific decision-making are independent from any direction or influence.

The clause clarifies that a direction from the Agriculture Minister is not a legislative instrument for the purposes of section 5(1) of the Legislative Instruments Act 2003 . This is to recognise the fact that written direction to commence a BIRA is an administrative direction by the Minister.

Written directions of this nature will be based on the « international » trade policies and priorities of the government of the day. This is further reinforced by the requirement that written direction must be tabled in both Houses of Parliament with 15 sittings days of the written notice being issued. This allows for Parliamentary oversight over the directions being given.

Clause 169                 Process for conducting a BIRA

This clause provides that the BIRA process must be conducted in accordance with the process prescribed by the regulations and take into account the matters set out in the guidelines made by the Director of Biosecurity. Because the BIRA process is largely administrative in nature the details of the process are to be included in the regulations and administrative guidelines that support this Part rather than in the « Bill » .

The Director of Biosecurity can in writing make guidelines setting out matters to be taken into account when conducting a BIRA. It is intended that the guidelines will include a range of guidance material and may include, for example, factors to be considered when deciding whether to commence a BIRA process or how the biosecurity risk identified should be assessed against Australia’s ALOP. The guidelines must be made publicly available on the Agriculture Department’s website to ensure that the BIRA process is transparent for industry and other persons who have a legitimate interest in the outcome of the BIRA process. For the purposes of section 5(1) of the Legislative Instruments Act 2003 , the guidelines are not a legislative instrument. This is to recognise the fact that guidelines issued for BIRAs are administrative in their nature.

The Director of Biosecurity may also request that the Director of Human Biosecurity prepare a statement of the human health risk associated with the proposed importation of the goods. This ensures that human health impacts are properly considered in the BIRA process.

Clause 170                 Reports

This clause provides that the regulations must require the Director of Biosecurity to prepare draft, provisional and final BIRA reports.

Each of the reports must be published and contain the information prescribed by the regulations. It is intended that stakeholders will be able to comment on the draft BIRA report. The provisional BIRA report will build on the draft BIRA report, taking into account stakeholder comments.

Once completed, the BIRA report provides information and advice to the Director to take into account when assessing the prohibition or conditions required for goods, the import of goods and assessing any import permit application. The decision to grant the import permit is made using a variety of information, including, but not limited to, information contained in the BIRA report.

Part 3—Prohibited Goods etc.

Division 1—Introduction

Clause 171                 Simplified outline of this Part

This Part provides the Director of Biosecurity and the Director of Human Biosecurity with the power to jointly determine goods that must not be brought or imported into Australian territory (prohibited goods) and goods that may be brought or imported into Australian territory subject to conditions (conditionally non-prohibited goods). This Part also allows permits to be issued to bring or import certain conditionally non-prohibited goods into Australian territory.

In addition, the Director of Biosecurity will have the power to determine that the bringing or importation of certain goods into Australian territory is suspended for up to six months. The Part also outlines offences and civil penalty provisions.

Clause 172                 Exclusion of State and Territory laws

This clause indicates Parliament's intention that Part 3 of Chapter 3 covers the field in relation to prohibiting or restricting the bringing in or importing of goods into Australian territory for the purposes of managing biosecurity risks associated with the goods. Accordingly, the Act should operate to exclude any state or territory law that purports to prohibit or restrict the bringing in or importing of goods on biosecurity grounds.

Section 109 of the Constitution invalidates a state law to the extent that it is inconsistent with a Commonwealth law. Determining whether a state law is inconsistent with a Commonwealth law involves interpreting both laws. If the Commonwealth law is interpreted as operating to the exclusion of state law, the state law will be inconsistent with the Commonwealth law and invalid. A provision such as clause 172, which sets out Parliament's intention to exclude the operation of state laws will be used in interpreting the Commonwealth law to determine whether it does exclude a particular state law.

An example of where the Act may operate to the exclusion of a state law would be if a state law purports to prohibit the importation of a good on biosecurity grounds and the Act permits the importation. The state law may be inconsistent with the Commonwealth law under section 109 of the Constitution; if so the Act would prevail and the goods would be able to be imported.

It is intended that conditions on the importation of goods into Australian territory will be based on the outcomes of a national risk assessment process, which takes account of variances in biosecurity risk which may occur in parts of Australia.

This clause applies to territory laws in the same way as it applied to state laws. While section 109 of the Constitution does not apply to territory laws, similar principles apply in relation to the inconsistency or repugnancy of territory laws with Commonwealth laws.

This provision is intended to increase certainty about roles and responsibilities with respect to bringing or importing goods into Australian territory. Consistent with the World Trade Organization’s SPS Agreement, authority to import goods into Australian territory will also authorise the goods to be imported into a state or territory on the same conditions (if any). The risk assessment process will consider regional differences between states and territories and will allow for different import conditions where differences are based on scientific grounds.

Division 2—Prohibited goods and conditionally non-prohibited goods

Clause 173                 Prohibited goods

Clause 174                 Conditionally non-prohibited goods

These clauses provide that the Director of Biosecurity and the Director of Human Biosecurity may jointly determine that certain goods or classes of goods that are brought into Australian territory or imported, are prohibited absolutely (prohibited goods) or are prohibited unless certain conditions are satisfied (conditionally non-prohibited goods). The conditions can be in relation to the way the goods are used and may include that the goods not be brought or imported into Australian territory unless a permit, authorising the goods to be bought or imported into Australian territory, has been issued under Division 3 of this Chapter.

The Director of Biosecurity and the Director of Human Biosecurity can only prohibit the bringing in or importation of a good (or class of goods) if they are satisfied that the level of biosecurity risk associated with the goods or the class of goods, is unacceptable and biosecurity measures would not be able to be taken to reduce that level of biosecurity risk to an acceptable level. The power to prohibit the bringing in or importation of goods into Australian territory provides protection from serious diseases and pests posing unacceptably high biosecurity risk coming into Australian territory.

Consistent with the SPS Agreement the Director of Biosecurity and the Director of Human Biosecurity must apply the Australia’s ALOP in conducting a risk assessment for the purpose of determining whether particular goods, or a particular class of goods, should be either prohibited goods or conditionally non-prohibited goods.

This clause states that the determinations for prohibited goods and conditionally non-prohibited goods are legislative instruments, but are not subject to disallowance under section 42 of the Legislative Instruments Act 2003.

The decision to determine prohibited or conditionally non-prohibited goods is a technical and scientific decision based on whether the biosecurity risk is able to be satisfactorily managed. Therefore it is appropriate for the Parliament to delegate to the Director of Biosecurity and the Director of Human Biosecurity (whichever relevant) the power to make these determinations. Subjecting these determinations to disallowance could undermine the technical and scientific based decision making and frustrate risk management processes.

These determinations are critical to the management of biosecurity risks posed by the importation of certain types of goods. If these determinations were to be disallowed, all goods would be allowed in regardless of their pest and disease status. This could have a significant impact on the economy and may lead to restrictions being put on Australia’s exports by trading partners. In addition, disallowance of a determination made under this clause could lead to inadequate management of the biosecurity risks posed to human, plant and animal health, Australia’s local industries, the environment and the economy.

The relevant Director will be able to vary or revoke a determination in accordance with subsection 33(3) of the Acts Interpretation Act 1901.

Clause 175                 Security may be required in relation to conditionally non-prohibited goods

This clause provides the Director of Biosecurity with the discretion to require security to be given to conditionally non-prohibited goods that are intended to be, or are brought or imported into Australian territory. The Director of Biosecurity must have regard to criteria prescribed by the regulations when considering whether a security will be required. The regulations may prescribe the range of matters set out in this clause, including the form, amount, timing of the security and circumstances when the security may be kept and used by the Commonwealth.

Securities can be used to ensure that the Commonwealth is not left to meet the costs of applying biosecurity measures to non-compliant goods. This is particularly relevant where the importer of the goods is not an Australian resident as it is difficult to take enforcement action to recover costs for biosecurity measures undertaken with respect to the goods such as treatment, destruction or export of the goods.

If a permit to import conditionally non-prohibited goods is required under this Act, the Director of Biosecurity may refuse to consider the application for the permit until the security is given.

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

Clause 176                 Application of this Division

This Division applies in relation to conditionally non-prohibited goods that must not be brought or imported into Australian territory unless the Director of Biosecurity has granted a permit.

A permit allows the Commonwealth to manage biosecurity risks associated with bringing in conditionally non-prohibited goods into Australian territory. In issuing a permit, the Director of Biosecurity may place conditions on the permit which may for example, relate to managing biosecurity risks for importation and the use or disposal of the goods.

Clause 177                 Person may apply for permit

This clause provides that a person may make an application to the Director of Biosecurity for a permit to bring in or import conditionally non-prohibited goods. The permit will authorise the applicant or a person acting on behalf of the applicant to bring or import goods into Australian territory. The permit application must be in a form approved by the Director of Biosecurity and the application must include the information prescribed by the regulations.

Under clause 592, the regulations may prescribe that an application must be accompanied by a specified fee.

Clause 531 provides that the Director of Biosecurity may, by legislative instrument, specify kinds of personal information that are required to be provided with an application for a permit. If personal information is required to be provided with the application and the information is not provided, the application is taken not to have been made.

Permits are used administratively to place conditions on goods, as well as to collect data and track the location of certain classes of goods that may pose a biosecurity risk.

Clause 178                 Dealing with application

This clause provides that the Director of Biosecurity must make a decision in relation to an import permit application within a decision-making period prescribed by the regulations for an application of that kind.

This allows the Director to identify a specific period of time in which a category of applications must be considered. This is required because of the broad range of biosecurity risks posed by imported goods and the various conditions required to manage the risks to an acceptable level. Some applications will be straight forward and require a shorter consideration period. Others will cover goods which pose different levels of biosecurity risk and require a longer decision-making period for the Director to consider whether the biosecurity risks can be managed appropriately.

The decision-making period begins on the day the application was received by the Director. If the Director does not make a decision within the decision-making period, the Director is taken to have refused the application. This is to ensure there is a definite end point where a decision is taken to have been made and the applicant can apply for a review of the decision if they choose.

For the purpose of making a decision regarding an application, the Director can issue a written notice requesting that the applicant, or any other person the Director considers may have information relevant to the application, provide specified information or documents relevant to the application within a specified period.

The initial decision-making period identified in the regulations is extended every time the Director makes a request for information. The period of time for the extension commences when the additional request is made and ends the day the additional information or documents are received by the Director, or the last day of the period identified by the Director in his or her request if the information or documents are not received.

The initial decision making period can also be extended for the purposes of conducting activities prescribed in the regulations. These prescribed activities will assist the Director in assessing an application and considering any conditions required to manage biosecurity risks associated with the import to an acceptable level. For example, it is envisaged that the decision making-period may be extended in circumstances where the biosecurity risks associated with the goods need to be reassessed. The period of time for the extension commences when the activity is started and ends on the day when the activity ends.

This ensures that if the Director requires additional information in order to properly assess an application (particularly more complex applications) and make a decision regarding whether the biosecurity risks can be managed to a satisfactory level, the Director has time to request and receive this information before the decision-making period runs out and a decision to refuse the application is considered to have been made (which attracts review rights under clause 574).

Clause 179                 Director of Biosecurity may grant permit

This clause allows the Director of Biosecurity to grant a permit authorising particular goods or a particular class of goods to be brought or imported into Australian territory when an application is received under clause 177. In making this decision the Director is under an obligation to apply Australia’s ALOP to any risk assessment undertaken.

This clause outlines the matters that the Director must take into account in making a decision. The Director must consider:

·          if the permit were to be granted, the level of biosecurity risk associated with the goods

·          whether it is necessary to impose conditions to reduce the biosecurity risk to an acceptable level, and

·          any personal information that is required to be provided with the application for the permit (see clause 531).

In deciding whether to grant a permit, the Director may also consider whether the applicant is a fit and proper person who is likely to adhere to any import conditions (see clause 530) or is an associate of a person whose application for a permit under clause 177 has been refused, as well as any other matters relating to the goods or applicant the Director considers relevant.

The Director may refuse to grant a permit if the applicant is an associate to a person who has been refused a permit under clause 177 or who has had a permit revoked under clause 181. This aims to do prevent a person that the Director has determined should not hold a permit from obtaining another permit via an associate, such as a family member or business partner, on his or her behalf.

The ability to consider other relevant matters provides the Director with flexibility to consider a variety of factors relating to the goods or the applicant, such as the applicants history of complying with permit conditions.

In addition the Director is permitted to refuse to consider an application where the requirement for a security to be paid under clause 175 has not been met.

The Director must issue a permit in writing. In deciding whether to grant a permit, the Director is not subject to directions from the Agriculture Minister in relation to the application (see clause 543). A decision to refuse to grant a permit is reviewable under clause 574.

Clause 180                 Conditions of permit

This clause provides that a permit issued under clause 179 may be subject to conditions as specified in the permit. This provides the mechanism for ensuring the conditions on conditionally non-prohibited goods are complied with. For example, wood products being imported from overseas may be required as a condition of the permit to undergo fumigation or heat treatment prior to leaving their place of export.

This clause also provides the Director of Biosecurity with the power to, in accordance with the regulations, vary or revoke a condition on a permit, or impose further conditions on the permit. These powers are intended to ensure that the biosecurity risks associated with the bringing in, or importation, of goods continue to be managed to an acceptable level. If the Director is not satisfied this is the case, he or she can require that conditions attached to a permit be varied or revoked; or that further conditions are imposed. For example, where a new biosecurity risk has been identified in relation to goods under a permit, the Director may vary a permit, to impose a condition that manages the newly identified biosecurity risk.

Conditions on a permit may:

·          require the holder of the permit to do specified things in relation to the goods to which the permit relates, and

·          be required to be met either before or after the goods are brought or imported into Australian territory.

The conditions provide flexibility to manage biosecurity risks associated with goods being brought or imported into Australian territory. Conditions may include a requirement that a good not be used for certain purposes—for example that goods imported as animal feed not be used for human consumption.

A decision to impose, vary or revoke a condition on a permit is reviewable under clause 574.

A person who holds a permit issued under clause 179 may commit an offence or be liable to a civil penalty if the person contravenes a condition of the permit (see clause 187).

Clause 181                 Variation, suspension or revocation of permit

This clause provides that the Director may in accordance with the regulations, vary, suspend or revoke a permit issued under clause 179. In deciding whether to vary, suspend or revoke a permit, the Director of Biosecurity is not subject to directions from the Agriculture Minister in relation to the application (see clause 543).

These powers are intended to ensure that the biosecurity risks associated with the bringing in, or importation, of goods continue to be managed to an acceptable level and that conditions on the permit are complied with. If the Director is not satisfied this is the case, the Director can require that a permit be varied, suspended or revoked.

For example, a permit may be varied where additional conditions are required to identify biosecurity risks or revoked where the holder is no longer deemed to be a fit and proper person, or is an associate of a person who has had a permit revoked.

A decision to impose, vary or revoke a condition on a permit is reviewable under clause 574.

Where a permit is revoked, any permit conditions will continue to apply to the goods that have previously been brought in or imported. This ensures the ongoing management of biosecurity risks.

Division 4—Suspended goods

Clause 182                 Director of Biosecurity may suspend bringing or importation of goods into Australian territory for a period

This clause outlines when the Director of Biosecurity may make a determination to suspend the bringing or importation of specified goods or a class of goods for a period of up to six months. This suspension extends to goods for which a permit has been issued (see clause 184). The Director may only suspend the bringing in or importation of specified goods or class of goods if he or she is satisfied that the level of biosecurity risk associated with the goods, or class of goods, is unacceptable. These goods are called ‘suspended goods.’ For example, if there was a foot-and-mouth disease outbreak in another country, the Director may make a determination suspending the bringing in or importation of all animals or specified animal product into Australian territory from that country.

In making this decision the Director is under an obligation to apply Australia’s ALOP to any risk assessment undertaken. The determination made under this clause must set out the reasons for the suspension.

This clause states that a suspended good determination is a legislative instrument, but is not subject to disallowance under section 41 of the Legislative Instruments Act 2003 .

The decision to suspend the importation or bringing in of specified goods or a specified class of goods is a technical and scientific decision based on whether the biosecurity risk is able to be satisfactorily managed. Therefore it is appropriate for the Parliament to delegate to the Director the power to make this determination. Subjecting these determinations to disallowance could undermine the technical and scientific based decision making and frustrate risk management processes.

A determination made under this clause is critical to the management of biosecurity risks posed by the importation of goods. If these determinations were to be disallowed, all goods would be allowed in, regardless of their pest and disease status. This could have a significant impact on the economy and may lead to restrictions being put on Australia’s exports by trading partners. In addition, disallowance of a determination made under this clause could lead to inadequate management of the biosecurity risks posed to human, plant and animal health, Australia’s local industries, the environment and the economy.

A determination made under this clause will prevail over any determination made under clause 174 to the extent of the inconsistency. This ensures that the suspension will take precedence. This is appropriate given the potential seriousness of biosecurity risks associated with a suspension.

Clause 183                 Variation of determination suspending bringing or importation of goods into Australian territory

The Director of Biosecurity can vary a determination made under clause 182 to extend the period of suspension specified in the determination for a further period of up to six months. If after this time the level of biosecurity risk is still unacceptable, the determination of prohibited goods will be amended. The period of suspension can be extended more than once.

This clause does not limit the application of subsection 33(3) of the Acts Interpretation Act 1901 in relation to a determination under clause 182.

Clause 184                 Effect on permit of suspended goods determination

Where a determination is made under clause 182 suspending the bringing in or importation of prescribed goods, it is deemed that any current permits in respect of those suspended goods are also suspended for the time specified.

The intention is to ensure that any permits issued prior to the suspension of the good in the determination are automatically suspended at the time the determination comes into effect to ensure that these goods do not enter Australian territory. The suspension will only take effect from the date of the determination, and will not retrospectively affect the validity of the permit that was issued prior to the determination being made. Permit holders will be directly notified in writing that permits have been suspended. In addition to directly notifying affected import permit holders, a public notification will usually be published on the import condition database (currently ICON) and through an industry notice both published on the Agriculture Department website and distributed to major stakeholders.

A person who was the holder of a permit that is taken to have been suspended may commit an offence and be liable to a civil penalty provision if the person contravenes a condition of the permit that continues to apply because of subclause 181(3) (see clause 187).

Division 5—Offences and civil penalty provisions

Clause 185                 Bringing or importing prohibited goods or suspended goods into Australian territory

This clause creates offences for bringing or importing prohibited goods or suspended goods into Australian territory. The clause includes aggravated offences where commercial advantage is obtained, where harm is caused to the environment, or where there are economic consequences.

A person who brings or imports into Australian territory prohibited goods or suspended goods commits an offence and is liable to a civil penalty. The maximum penalty for a basic fault based contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units.

A person who brings or imports into Australian territory prohibited goods or suspended goods and obtains or may obtain a commercial advantage over the person’s competitors or potential competitors commits an offence. The maximum penalty for a contravention of this kind is ten years imprisonment, or 2000 penalty units, or both. An example would be the importation of prohibited plant bulbs or seeds for a nursery business and thereby creating a commercial advantage over other nurseries.

A person who brings or imports into Australian territory prohibited goods or suspended goods and the importation has caused or has potential to cause harm to the environment or has had or has the potential to have economic consequences commits an offence. The maximum penalty for a contravention of this kind is ten years imprisonment, or 600 penalty units, or both. For example a person intentionally brings in a biological agent with an animal disease with the intention to cause damage to Australia’s livestock industries. This offence is intended to protect the integrity of Australia’s borders.

The clause clarifies that if a person is found not guilty of the offences relating to obtaining commercial advantage, causing harm to the environment or causing economic consequences, the person may be found guilty of the basic fault based offence.

The penalties in this clause are higher than those outlined in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers . This reflects the severity of the potential consequences of an offence. Obtaining a commercial advantage from bringing in or importing prohibited goods are aggravated circumstances that warrant the additional penalty because of the added « monetary » benefit that can be gained by an individual involved in this behaviour.

Additionally, these types of goods pose significant biosecurity risks, which may result in serious damage to plant and animal health, Australia’s local industries, the economy and the environment. Depending upon the nature and scale of the biosecurity risk, the social and economic costs of controlling and cleaning up the damage may be far greater than even the maximum penalties imposed by the « Bill » . Therefore, the overall objective is to increase compliance with the Act and decrease the need to resort to prosecution to achieve this aim.

A court would 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. The penalties for this offence are intended to reinforce the deterrent effect of the « Bill » and allow the court a greater capacity to respond meaningfully and proportionally to the worst breaches.

Clause 186                 Contravening conditions applying to conditionally non-prohibited goods brought or imported into Australian territory

This clause creates offences for bringing or importing conditionally non-prohibited goods into Australian territory and contravening a condition specified in the determination made under clause 174. The clause includes aggravated offences where commercial advantage is obtained or where harm is caused to the environment or there are economic consequences.

A person who brings or imports into Australian territory conditionally non-prohibited goods and contravenes a condition specified in the determination commits an offence and is liable to a civil penalty. The maximum penalty for a basic fault based contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units.

A person who brings or imports into Australian territory conditionally non-prohibited goods and contravenes a condition specified in the determination made under subclause 174(1) and obtains a commercial advantage over the person’s competitors or potential competitors by this contravention commits an offence. The maximum penalty for contravention of this kind is ten years imprisonment, or 2000 penalty units, or both. For example, an importer may be granted a permit which imposes the condition that a good is only permitted for animal use but instead uses the good for human consumption in order to avoid the cost of the requisite permit.

A person who brings or imports into Australian territory conditionally non-prohibited goodsand contravenes a condition specified in the determination made under subclause 174(1) and the contravention has caused or has potential to cause harm to the environment or has had or has the potential to have economic consequences commits an offence. The maximum penalty for contravention is ten years imprisonment, or 600 penalty units, or both.

The penalties in this clause are higher than those outlined in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers . This reflects the severity of the potential consequences of an offence. Obtaining a commercial advantage from contravening a condition specified in a determination made under subclause 174(1) are aggravated circumstances that warrant the additional penalty because of the added « monetary » benefit that can be gained by an individual involved in this behaviour.

Additionally, these types of goods pose significant biosecurity risks, which may result in serious damage to plant and animal health, Australia’s local industries, the economy and the environment. Depending upon the nature and scale of the biosecurity risk, the social and economic costs of controlling and cleaning up the damage may be far greater than even the maximum penalties imposed by the « Bill » . Therefore, the overall objective is to increase compliance with the Act and decrease the need to resort to prosecution to achieve this aim.

A court would 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. The penalties for this offence are intended to reinforce the deterrent effect of the « Bill » and allow the court a greater capacity to respond meaningfully and proportionally to the worst breaches. The clause clarifies that if a person is found not guilty of the offences relating to obtaining commercial advantage, causing harm to the environment or causing economic consequences, the person may still be found guilty of the basic fault based offence.

It will be an exception to the offence, if the person who brought or imported the goods into Australian territory:

·          did not do the act, or omit to do the act, that constituted the failure to comply with the condition

·          did not aid, abet, counsel or procure that act or omissions, and

·          was not in any way, knowingly concerned in, or party to, that act or omission (whether directly or indirectly and whether by an act or omission of the person).

This provides an exception to a person who brought or imported the goods and who did not contravene or was not involved in the contravention of a condition.

The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply.

See the Human Rights Compatibility Statement for further information on this reverse burden provision.

Clause 187                 Contravening conditions of a permit

This clause creates offences for contravening a condition of a permit issued under clause 179. The clause also creates an offence for contravening a condition of a permit where a permit has been suspended or revoked under clause 181 and the condition on the permit continues to apply due to subclause 181(3).

A person who contravenes a condition on a permit which is in force commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units.

A person who contravenes a condition on a permit which has been suspended or revoked and the conditions on the permit continue to apply due to subclause 181(3) commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units.

The penalties in this clause are higher than those outlined in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers . This reflects the severity of the potential consequences of an offence. Given the potential seriousness of the biosecurity risks posed by conditionally non-prohibited goods it is appropriate that the court be able to impose a high penalty. For example, conditions placed on a permit are intended to reduce the level of biosecurity risk to an acceptable level. If the conditions are not complied with, the goods will pose an unacceptable biosecurity risk which has the potential to cause serious damage to plant and animal health, Australia’s local industries, the economy and the environment.

A court would 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.

Clause 188                 Receiving or possessing prohibited or suspended goods brought or imported into Australian territory

This clause sets out a strict liability offence for a person who receives, or has in their possession prohibited or suspended goods that have been imported into Australian territory whilst those goods were determined to be prohibited or suspended goods.

 

A person who contravenes this clause commits an offence and is liable to a civil penalty. The maximum penalty for a contravention is 60 penalty units.

This is appropriate as there are strong public safety concerns in ensuring that prohibited goods and suspended goods are not to be managed outside of the specified and managed pathway to which they have been restricted. By creating a strict liability offence when a person receives or possesses prohibited or suspended goods, each person with any potential involvement in the movement of these goods is able to be prosecuted.

This means that the prosecution will have to prove that the person contravened the provision, but not the fault elements of the offence (intention, knowledge, recklessness or negligence). However, the accused person will still be able to rely on the defence in the Criminal Code (section 9.2) of honest and reasonable mistake of fact.

See the Human Rights Compatibility Statement for further information on this strict liability offence.

It will be an exception to this offence if:

·          the goods were not brought or imported into Australian territory

·          the defendant did not bring or import the goods into Australian territory

·          the defendant brought or imported the goods into Australian territory, but at the time they were brought in they were not prohibited goods or suspended goods, and

·          the goods are the progeny of other goods that were legally brought or imported into Australian territory.

The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply.

See the Human Rights Compatibility Statement for further information on this reverse burden provision.

The findings of the Commonwealth Ombudsman support the approach towards strict liability offences in suspected importation offences. [7] As highlighted in paragraph 4.5 of the report, it is not presently an offence to own illegally imported goods, whilst it is an offence to import those same goods. Clause 188 gives effect to the recommendations of the Commonwealth Ombudsman by requiring the defendant to adduce evidence that either they did not import or bring in the prohibited or suspended goods, or that the goods are the progeny of other legally imported goods.

Chapter 4—Managing biosecurity risks: conveyances

Part 1—Introduction

Clause 189                 Objects of this Chapter

This clause provides that the main objects of Chapter 4 are:

·          to provide for the assessment of the level of biosecurity risk associated with conveyances entering Australian territory (see clause 12 for the meaning of Australian territory) from outside Australian territory, including by:

­    controlling the places where those conveyances can land or be moored,

­    controlling the movement of conveyances that are subject to biosecurity control while they are in Australian territory

·          to provide for biosecurity measures to be taken in relation to conveyances where the level of biosecurity risk is considered unacceptable, and

·          to give effect to Australia’s rights and obligations in relation to ship sanitation for the purposes of the « International » Health Regulations.

In this Chapter, a conveyance does not include a conveyance being carried on board another conveyance (see clause 16 for the meaning of conveyance).

Part 2—Conveyances entering Australian territory etc.

Division 1—Introduction

Clause 190                 Simplified outline of this Part

This outline sets out the Part’s objectives. Key provisions include when conveyances become subject to biosecurity control, pre-arrival reporting, powers to assess the level of biosecurity risk, powers to undertake biosecurity measures, persons leaving conveyances that are subject to biosecurity control, releasing conveyances from biosecurity control and when quarantine signals must be displayed.

Division 2—Conveyances that are subject to biosecurity control

Clause 191                 Aircraft and vessels entering Australian territory

This clause applies to an aircraft or vessel (see clause 9 for the definitions of aircraft and vessel) that has entered Australian territory during a flight or voyage that commenced outside of Australian territory. An aircraft or vessel that arrives from outside Australian territory provides a direct pathway for biosecurity risks to enter into Australian territory.

The aircraft or vessel becomes subject to biosecurity control when the aircraft or vessel enters Australian territory. When an aircraft or vessel becomes subject to biosecurity control, a range of powers in this Part become available to assess and manage any biosecurity risks associated with the aircraft or vessel. This trigger point for an aircraft or vessel becoming subject to biosecurity control reflects the need to assess biosecurity risks associated with aircraft or vessel entering Australian territory from overseas, and enable management of those risks.

An aircraft or vessel which is subject to biosecurity control will remain subject to biosecurity control until it has been released from biosecurity control in accordance with Division 7 of this Part. A conveyance will be released when it no longer poses a biosecurity risk or once it leaves Australian territory (see clause 218).

However, an aircraft or vessel which leaves Australian territory on a journey between places in Australia territory will become subject to biosecurity control again when it re-enters Australian territory. This ensures that the powers required to assess and manage any biosecurity risks associated with the aircraft or vessel are available if they are required and reflects that the aircraft or vessel still poses a biosecurity risk.

For example, a vessel from overseas may arrive at a port in Melbourne, unload goods, and then travel on to a port in Tasmania. This provision ensures that if the vessel happens to leave Australian territory (i.e. outside of 12 nautical miles) on its voyage to the Tasmanian port, and is released from biosecurity control under clause 218, the vessel will become subject to biosecurity control again when it re-enters Australian territory and any risks associated with the vessel can be assessed and managed when it arrives in Tasmania.

Clause 192                 Conveyances exposed to other conveyances that are subject to biosecurity control

This clause provides that a conveyance that is not already subject to biosecurity control will become subject to biosecurity control if it is exposed to (see clause 17 for the definition of ‘exposed to’):

·          an aircraft or vessel that is subject to biosecurity control because it enters Australian territory on a journey that commenced outside of Australian territory (see clause 191)

·          a conveyance that is subject to biosecurity control under this clause (i.e. an exposed conveyance), or

·          goods that are subject to biosecurity control and of a kind prescribed in the regulations.

This ensures that a conveyance can become subject to biosecurity control if it interacts with another conveyance or goods that poses a biosecurity risk, allowing biosecurity officers to assess and manage any biosecurity risks that may have transferred from the second conveyance to the first.

For example, a vessel is moored next to a second vessel that is infested with Asian Gypsy Moths. These moths can fly or be blown between the two vessels, which means there is now a risk that the first vessel has become infested. This clause allows the first vessel to be considered an exposed conveyance and become subject to biosecurity control, giving biosecurity officers access to powers to assess and manage any risks associated with the first vessel.

A conveyance will also become subject to biosecurity control if, in the course of a journey, it leaves Australian territory and is exposed to another conveyance while it is outside Australian territory, then re-enters Australian territory. An exposed conveyance will remain subject to biosecurity control, until it is released (see clause 218).

Similar to clause 191, this ensures that conveyances that travel between places in Australian territory, and in doing so leave Australian territory, become subject to biosecurity control again if they re-enter Australian territory. This gives biosecurity officers the powers required to assess and manage any biosecurity risks associated with that conveyance.

The Director of Biosecurity can determine by legislative instrument that this clause does not apply in relation to specified conveyances or specified conveyances in specified circumstances. This means that an exemption can be given by the Director for different types of interactions between different types of conveyances that pose a minimal biosecurity risk and those conveyances will not become subject to biosecurity control. For example, an exemption may be given to a Royal Australian Navy vessel that interacts with another vessel to refuel.

The Director may vary or revoke a legislative instrument giving an exemption under subsections 33(3) and (3AA) of the Acts Interpretations Act 1901 .

Division 3—Pre-arrival reporting etc.

Clause 193                 Pre-arrival reporting

This clause provides that the operator of an aircraft or vessel must give a pre-arrival report if:

·          the aircraft or vessel intends to enter, or enters, Australian territory on a flight or voyage that commenced outside Australian territory

·          the aircraft or vessel intends to enter, or enters, Australian territory after being exposed to another conveyance while outside Australian territory

·          the aircraft or vessel intends to be exposed to a conveyance that is subject to biosecurity control, or

·          the aircraft or vessel intends to be exposed to prescribed goods referred to in clause 192 that are subject to biosecurity control.

Pre-arrival reporting 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. Biosecurity officers can use this information to determine what risk management activities might be necessary when the conveyance arrives in Australian territory.

The obligation to provide a pre-arrival report rests with the operator of the aircraft or vessel, as he or she is the person who is in charge of the conveyance and has access to the required information (see clause 21 for the definition of operator).

A pre-arrival report must:

·          include the information in relation to the aircraft or vessel that is prescribed by the regulations

·          be given in the manner, and to the person prescribed by the regulations

·          be given during the period prescribed by the regulations (which may be at any time before or after the aircraft or vessel enters Australian territory, or is exposed to another conveyance in Australian territory), and

·          be in a form or forms approved by the Director of Biosecurity.

The information required may change over time, as the nature and levels of biosecurity risks change. Prescribing the more detailed requirements for a pre-arrival report in the regulations allows the Commonwealth to respond more quickly and flexibly to any change in risk.

The regulations may also prescribe different reporting requirements for different classes of aircraft or vessels. This recognises that different classes of aircraft or vessels do not always pose the same level of biosecurity risk and it is not always appropriate for them to be subject to the same requirements.

A person who contravenes the requirement to give a pre-arrival report commits an offence and is liable to a civil penalty. The maximum penalty for a contravention is two years imprisonment, or 120 penalty units, or both. The maximum civil penalty for contravention is 120 penalty units. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 of this « Bill » create offences and civil penalties for providing false or misleading information or documents.

The regulations may also prescribe exceptions to the requirement to provide a pre-arrival report. This is intended to allow reporting by exception for particular aircraft and vessels, where a report is only required if certain criteria is met. For example, an aircraft operator whose aircraft poses a low risk may be granted an exception where he or she is only required to provide a pre-arrival report if a specific thing happens (like a death on board).

It is also intended that exemptions will apply in relation to operators of aircraft or vessels which do not pose an unacceptable level of biosecurity risk. For example, exceptions to pre-arrival reporting requirements may apply to vessels that only travel between ports in Australian territory and installations outside Australian territory in circumstances where the installation only interacts with vessels departing from Australian territory. In these circumstances there is a low level of biosecurity risks associated with the interaction between the vessel and the installation and the pre-arrival report is not required to assess biosecurity risks.

The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply.

See the Human Rights Compatibility Statement for further information on this reverse burden provision.

This clause applies whether or not the person is in Australian territory when he or she is required to give a pre-arrival report. This is to ensure that the pre-arrival report can be required before the aircraft or vessel enters Australian territory and received with enough time for a biosecurity officer to assess potential risks and determine what measures might be required to manage them before the aircraft or vessel arrives at a port or landing place.

This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as collecting accurate and timely information through a pre-arrival report will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and whether biosecurity measures are required.

Allowing a person to use the privilege and refuse to provide important information could result in a significant biosecurity risk remaining unmanaged. It would also undermine the management of biosecurity risks, as officers would be forced to rely on warrants to obtain the routine information required in a pre-arrival report. This is impractical and time consuming.

Whilst the privilege against self-incrimination is abrogated in relation to this clause, the « Bill » provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person.

Clause 194                 Pre-arrival reporting - requirement to give additional or corrected information

This clause requires an operator of an aircraft or vessel that has provided a pre-arrival report under clause 193 to provide additional or corrected information as soon as practicable if he or she becomes aware the original information is incomplete or incorrect. This obligation applies whether or not the person is in Australian territory when he or she becomes aware that the original information is incomplete or incorrect. This means that a person must provide updated information once he or she realises the information provided in the pre-arrival report is incomplete or where circumstances have changed resulting in the information previously provided no longer being correct. This ensures that biosecurity officers are provided with the most accurate information possible to assess (or re-assess) and manage biosecurity risks.

A person who contravenes the requirement to provide additional or corrected information commits an offence and is liable to a civil penalty. The maximum penalty for a contravention is two years imprisonment, or 120 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 of this « Bill » create offences and civil penalties for providing false or misleading information or documents.

This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as ensuring the information contained in a pre-arrival report is correct and complete will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and put appropriate biosecurity measures in place to address any risk.

Allowing a person to use the privilege and withhold correct or further information, could result in a significant biosecurity risk being mismanaged. It would also undermine the management of biosecurity risks, as officers would be forced to rely on warrants to obtain correct or further information relating to the pre-arrival report. This is impractical and time consuming.

Whilst the privilege against self-incrimination is abrogated in relation to this clause, the « Bill » provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person.

Clause 195                 Power to obtain extra information relating to an aircraft or vessel covered by a pre-arrival report

This clause provides a biosecurity officer with the power to require additional information in relation to a pre-arrival report under clause 193, prior to the aircraft or vessel becoming subject to biosecurity control. This will allow biosecurity officers to make a preliminary assessment of the level of biosecurity risks associated with the aircraft or vessel, ensuring that appropriate resources can be allocated to assess the risks once the aircraft or vessel arrives in Australian territory.

This clause provides biosecurity officers with the power to require a person to:

·          answer questions or provide information in writing in relation to the aircraft or vessel, where a biosecurity officer suspects on reasonable grounds that the person has information in relation to the aircraft or vessel, or

·          produce documents in relation to the aircraft or vessel, where a biosecurity officer suspects on reasonable grounds that the person has custody or control of specific documents in relation to the aircraft or vessel.

A biosecurity officer may make copies of, or take extracts from any document that has been produced, and may remove the document from the place at where it was produced in order to make copies or take extracts.

These powers are required to ensure that if a person has provided a pre-arrival report under clause 193 and there is insufficient information to allow a biosecurity officer to accurately assess the biosecurity risk posed, that officer can request that additional information be provided.

This clause provides that the obligation to provide additional information applies and is required to be complied with, regardless of whether the person is in Australian territory or overseas. This ensures that biosecurity officers will have access to the information when required to make an assessment of the level of biosecurity risk associated with the aircraft or vessel.

A person who contravenes the requirement to answer questions, provide information or produce documents commits an offence and is liable to a civil penalty. The maximum penalty for a contravention is two years imprisonment, or 120 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 of this « Bill » create offences and civil penalties for providing false or misleading information or documents.

This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as ensuring the information contained in a pre-arrival report is correct and complete will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and put appropriate biosecurity measures in place to address any risk.

Allowing a person to use the privilege and refuse to answer questions, give information or produce documents relating to the aircraft or vessel that are the subject of a report in clause 193, could result in a significant biosecurity risk remaining unmanaged. It would also undermine the management of biosecurity risks, as officers would be forced to rely on warrants to obtain further information to assess the level of biosecurity risk associated with the goods. This is impractical and time consuming.

Whilst the privilege against self-incrimination is abrogated in relation to this clause, the « Bill » provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person.

Clause 196                 Persons on incoming aircraft or vessel may be required to provide information to assess biosecurity risk

This clause provides that a person who enters, or intends to enter, Australian territory on an incoming aircraft or vessel and is included in a prescribed class of persons, must provide information required by, and in a manner approved by the Director of Biosecurity.

This allows the Director of Biosecurity to determine specific categories of persons entering Australian territory that will be required to provide specific information about themselves or their goods for the purpose of assessing biosecurity risk. For example, a person arriving from a country where there has been a biosecurity risk outbreak might be required to provide additional information about where he or she has travelled and the goods being brought back into Australia to enable a more detailed assessment of the potential biosecurity risk.

A person who contravenes the requirement to provide information is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. In addition, section 137.1 of the Criminal Code and clause 532 of this « Bill » create an offence and civil penalty for providing false or misleading information.

This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as collecting accurate and timely information from individuals who may be exposed to, or carrying goods from specific area known to pose a biosecurity risk, will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and whether biosecurity measures are required.

Allowing a person to use the privilege and refuse to provide important information, could result in a significant biosecurity risk remaining unmanaged. It would also undermine the management of biosecurity risks, as officers would be forced to rely on warrants to obtain the routine information required from incoming passengers. This is impractical and time consuming.

Whilst the privilege against self-incrimination is abrogated in relation to this clause, the « Bill » provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person.

Division 4—Assessment of level of biosecurity risk

Clause 197                 Biosecurity risk assessment powers

This clause provides that the assessment powers in this Division apply and can be exercised in relation to a conveyance that is subject to biosecurity control for the purposes of assessing the level of biosecurity risk.

Clause 198                 Securing conveyance

This clause provides a biosecurity officer with the power to secure the conveyance in a specified manner - for example, by giving a direction to ensure that the conveyance not be moved. A biosecurity officer may direct the person in charge or the operator of the conveyance to secure the conveyance. This period must not exceed 48 hours, but another direction can be given once this period expires under subsection 33(1) of the Acts Interpretation Act 1901 . Placing a time period over how long a conveyance can be secured ensures that the conveyance is only secured for as long as is necessary to assess the level of biosecurity risk and inconveniences the person in charge or the operator as little as possible.

This will allow a biosecurity officer to exercise the other assessment powers in this Division to assess the level of biosecurity risk in relation to the conveyance, and will limit the possibility that any biosecurity risk associated with the conveyance will spread.

A direction to secure a conveyance may include a direction that restricts the movement of the conveyance, restricts access to the conveyance or restricts access to a specified part of the conveyance (such as an area where food is stored). A direction to secure a conveyance does not prevent a person on board from leaving the conveyance.

A person who contravenes a direction to secure a conveyance is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. In addition, a person may be liable for a civil penalty for moving, dealing with or interfering with a conveyance that has been secured in accordance with a direction given under this clause (see clause 204).

If judicial review is sought in relation to a direction under this clause, the direction will remain in force until a court determines the validity of the direction (clause 538). This ensures that any biosecurity risk remains secure while a final decision is made.

Clause 572 applies to this clause, allowing a biosecurity officer to issue a direction orally or in writing (including electronically). It also ensures that any later directions override an earlier one if there is any inconsistency.

Clause 199                 Inspecting conveyance

This clause provides a biosecurity officer with the power to conduct a physical inspection of a conveyance. This ensures that an officer can gather information and assess the level of biosecurity risk associated with the conveyance. For example, inspecting the hull of a vessel to assess whether there is any biofouling present.

Clause 200                 Asking questions about conveyance

This clause provides a biosecurity officer with the power to require a person to answer questions or provide information in writing in relation to a conveyance, if the biosecurity officer suspects on reasonable grounds that the person has that information.

This will ensure that the biosecurity officer has access to all the necessary information to make an accurate and timely assessment of biosecurity risk associated with the conveyance. For example, a biosecurity officer may ask questions or seek information about the previous movements of the conveyance to determine whether the conveyance has been in a location known to have specific biosecurity risk, such as a location known to be infested with Giant African snails.

A person who contravenes the requirement to answer questions or provide information is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. In addition, section 137.1 of the Criminal Code and clause 532 of this « Bill » create an offence and a civil penalty for providing false or misleading information.

This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as it will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and put appropriate biosecurity measures in place to address that risk.

Allowing a person to use the privilege and refuse to answer questions or provide important information, could result in a significant biosecurity risk remaining unmanaged. It would also undermine the management of biosecurity risks, as officers would be forced to rely on warrants to obtain the routine information about the conveyance. This is impractical and time consuming.

Whilst the privilege against self-incrimination is abrogated in relation to this clause, the « Bill » provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person.

Clause 201                 Requiring documents relating to conveyance to be produced

This clause provides a biosecurity officer with the power to require a person to produce specified documents in relation to a conveyance. Where the biosecurity officer suspects on reasonable grounds that a person has custody or control of specific documents in relation to a conveyance, the biosecurity officer may require the person to produce those documents. A biosecurity officer may make copies of, or take extracts from a document that has been produced and may remove the document from the place where it was produced in order to make copies or take extracts.

Similar to clause 200, this power assists a biosecurity officer to assess the level of biosecurity risk associated with a conveyance, by ensuring that the biosecurity officer has access to all the necessary information to determine the level of biosecurity risk.

A person who contravenes the requirement to produce documents is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. In addition, section 137.2 of the Criminal Code and clause 533 of this « Bill » create an offence and civil penalty for providing false or misleading documents.

This clause is not subject to the privilege against self-incrimination (see clause 635). Similarly to the justification provided in clause 200, the privilege against self-incrimination is abrogated to give biosecurity officers timely access to documents to effectively assess risks and ensure that appropriate biosecurity measures are in place to manage identified biosecurity risks (see clause 635 for further discussion of the privilege against self-incrimination).

Clause 202                 Movement of conveyance

This clause provides a biosecurity officer with the power to give directions to the person in charge or the operator of the conveyance to:

·          not move, deal with or interfere with the conveyance

·          move the conveyance as soon as practicable to a specified place (except outside of Australian territory), or

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

Biosecurity officers can also cause the conveyance to be moved to another place (except outside of Australian territory).

This will allow a biosecurity officer to issue movement directions in relation to a conveyance to ensure that appropriate biosecurity risk assessment and management activities can be carried out. For example, a vessel that has travelled from a location that is known to have Asian gypsy moth may be directed to move to an area away from other vessels. The vessel can then be assessed at a place where there is no risk of any infestation spreading and where management activities can quickly be conducted if they are required.

The power to issue a direction under this clause has been restricted to ensure that an aircraft or vessel cannot be directed outside of Australian territory for the purpose of assessing biosecurity risk. This is because such a direction is more invasive in nature and is not appropriate, as it has not been established whether there is an unacceptable level of biosecurity risk associated with the aircraft or vessel. A direction to move a conveyance does not prevent a person on board the conveyance from leaving that conveyance.

A person who contravenes a direction in relation to the movement of a conveyance is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. In addition, a person may be liable to a civil penalty for moving, dealing with or interfering with a conveyance that has been secured in accordance with a direction given under this clause (see clause 204).

Clause 572 applies to this clause, allowing a biosecurity officer to issue a direction orally or in writing (including electronically). It also ensures that any later directions override an earlier one if there is any inconsistency.

Clause 203                 Biosecurity control notice may be affixed to conveyance or given to person in charge of conveyance

This clause provides a biosecurity officer with the power to affix a biosecurity control notice to, or near to a conveyance, or to give a biosecurity control notice to the person in charge of the conveyance. This notice is used to inform the person that the movement of the conveyance is restricted, so that a biosecurity officer can carry out an assessment of the biosecurity risk associated with the conveyance.

 

A person must not interfere with, remove or deface the notice affixed to a conveyance, unless the person:

·          is authorised to do so under an approved arrangement (see clause 10)

·          has been given a direction under this Act by a biosecurity official, or

·          has permission under clause 557.

An unauthorised person who interferes with, removes or defaces the notice is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. In addition, a person may be liable to a civil penalty for moving, dealing with or interfering with a conveyance that has been secured in accordance with a direction given under clause 204.

It is an exception if the person is authorised to engage in the conduct under this Act or under another Australian law. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply.

See the Human Rights Compatibility Statement for further information on this reverse burden provision.

Clause 204                 Unauthorised persons must not move etc. conveyance in relation to which direction has been given

This clause applies to a conveyance:

·          that has been secured in accordance with a direction given under clause 198

·          in relation to which a direction relating to movement has been given

·          that has been moved under clause 202, or

·          that a biosecurity control notice has been affixed to under clause 203.

A person must not move, deal or interfere with these conveyances unless the person:

·          is authorised to do so under an approved arrangement

·          has been given a direction under this Act by a biosecurity official, or

·          has permission under clause 557.

An unauthorised person who moves, deals or interferes with the conveyance is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units.

It is an exception if the person is authorised to engage in the conduct under this Act or under another Australian law. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply.

See the Human Rights Compatibility Statement for further information on this reverse burden provision.

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

Clause 205                 Biosecurity measures may be required in relation to conveyance

This clause provides that where a biosecurity officer suspects, on reasonable grounds, that the level of biosecurity risk associated with a conveyance that is subject to biosecurity control is of an unacceptable level, the officer may require biosecurity measures to be taken in relation to the conveyance as set out in this Division.

Clause 206                 Movement of certain aircraft and vessels

This clause applies in relation to aircraft and vessels that are subject to biosecurity control because they have entered or re-entered Australian territory (see clause 191). A biosecurity officer may direct the person in charge or the operator of the aircraft or vessel:

·          not to move, deal with or interfere with the aircraft or vessel

·          to move the aircraft or vessel, as soon as practicable, to a specified place (which may be outside of Australian territory), or

·          comply with any other direction relating to the movement of the aircraft or vessel.

A biosecurity officer can also cause an aircraft or vessel to be moved to another place, which may be outside of Australian territory.

This allows biosecurity officers to direct or move a conveyance to a location where risk management activities can be undertaken and help prevent the pest or disease from spreading and establishing in Australian territory. For example, an officer may give a direction to a vessel with a Burnt Pine Longicorn beetle infestation to move to another location where the infestation can be managed with a reduced risk of infesting other vessels.

A direction to move an aircraft or vessel, or causing an aircraft or vessel to move outside of Australian territory, can be justified in these circumstances as the level of biosecurity risk has been assessed as unacceptable and removal can be the most effective way to mitigate the risk posed. Before a direction can be given or the conveyance caused to be moved to a place outside of Australian territory, the biosecurity officer must have written approval from the Director of Biosecurity. In making the decision to direct or cause a conveyance to be removed from Australian territory, the Director must consider the principles in clause 32. The application of clause 32 means that the powers in this clause must be exercised in accordance with the principles set out in that clause. This is to ensure that an official with the appropriate level of responsibility is making a decision that is potentially invasive and may impact upon his or her rights (see clause 32 for further information).

The person in charge or the operator of the aircraft or vessel who has been given a direction and does not comply with the direction commits an offence and is liable to a civil penalty (see clause 215). In addition, the person in charge of the aircraft or vessel commits an offence and is liable to a civil penalty if the operator of the aircraft or vessel contravenes this clause, and the operator of the aircraft or vessel commits an offence and is liable to a civil penalty if the person in charge of the aircraft or vessel contravenes this clause. The maximum penalty for a contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units.

Making the person in charge and the operator jointly liable ensures that both persons who are responsible for the conduct of the aircraft or vessel can be given a direction in relation to the aircraft or vessel and be held responsible if that direction is not complied with. For example, the person in charge might be an airline carrier staff member who is responsible for scheduling flights and determining where an aircraft lands, while the operator might be a pilot who lands the aircraft. Both are responsible for the movement of the aircraft and for ensuring that any directions are complied with.

Clause 572 applies to this clause, allowing a biosecurity officer to issue a direction orally or in writing (including electronically). It also ensures that any later directions override an earlier one if there is any inconsistency.

Clause 207                 Movement of exposed conveyances

This clause applies in relation to an exposed conveyance that is subject to biosecurity control because it has been exposed to another conveyance that is subject to biosecurity control (clause 192). A biosecurity officer has the power to give to the person in charge or 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 specified place (except outside of Australian territory), or

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

A biosecurity officer can also cause the conveyance to be moved to another place, except outside of Australian territory.

Similar to clause 206, this power is required to ensure that biosecurity officers can move a conveyance to a place where biosecurity measures can be carried out. A direction must not be given to move the vessel outside Australian territory. The power to issue a direction under this clause has been restricted to ensure that an aircraft or vessel cannot be directed outside of Australian territory for the purpose of assessing biosecurity risk. This is because such a direction is more invasive in nature and this is not appropriate, as it has not been established whether there is an unacceptable level of biosecurity risk associated with the aircraft or vessel. A direction to move a conveyance does not prevent a person on board the conveyance from leaving that conveyance.

The person in charge or the operator of the conveyance who has been given a direction and does not comply with the direction commits an offence and is liable to a civil penalty (clause 215). In addition, the person in charge of the conveyance commits an offence and is liable to a civil penalty if the operator of the conveyance contravenes this clause, and the operator of the conveyance commits an offence and is liable to a civil penalty if the person in charge of the conveyance contravenes this clause (the policy reasoning for joint liability is the same as for clause 206). The maximum penalty for a contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units.

Clause 572 applies to this clause, allowing a biosecurity officer to issue a direction orally or in writing (including electronically). It also ensures that any later directions override an earlier one if there is any inconsistency.

Clause 208                 Treatment of conveyance

This clause provides a biosecurity officer may require a conveyance to be treated in a specified manner.

If the conveyance is a high-value conveyance - that is the value of the conveyance is greater than the amount prescribed in the regulations - the conveyance must not be treated in a way that the biosecurity officer suspects may damage the conveyance without the written approval of the Director of Biosecurity. This extra step reflects the impact ordering such a treatment might have on the owner of the conveyance and the potential loss of value caused by the treatment.

Regardless of the value of the conveyance, if the treatment might damage the conveyance, the person in charge or the operator of the conveyance must be asked to agree to the treatment (see clause 209).

This power ensures that a biosecurity officer can order necessary treatments to manage biosecurity risks and reduce those risks to an acceptable level. For example, a biosecurity officer may require a conveyance with infestation to be fumigated or disinsected.

Clause 209                 Treatment that may damage conveyance

This clause outlines the requirements for notifying the person in charge or the operator of a conveyance where a biosecurity officer suspects on reasonable grounds that the treatment required under clause 208 is likely to damage the conveyance.

Before any treatment is carried out on the conveyance, a biosecurity officer must, by notice in writing, inform the person in charge or operator of the conveyance that the conveyance is required to be treated in a specified manner, which is likely to result in damage to the conveyance and request the person in charge or operator to agree to the treatment of the conveyance.

However, if a biosecurity officer suspects on reasonable grounds that there is a high level of biosecurity risk associated with the conveyance that must be treated as soon as practicable, the officer can carry out the specified treatment without having to provide the notification.

If a notice is given to the person in charge or operator of the conveyance requesting their agreement to the treatment, and the person does not respond or does not agree to the treatment within 30 days, a biosecurity officer may in writing request that the person arrange for the conveyance to be dealt with or destroyed in a specified manner, or removed from Australian territory, within the period in the request.

Notice requirements ensure that a biosecurity officer can take steps to address biosecurity risks, while still giving the person in charge or the operator of a conveyance the choice of any available options for how those risks can be managed and a reasonable opportunity to carry it out.

However, if the person in charge or the operator of the conveyance does not comply with the notice by dealing with a conveyance as specified in the notice and within the required timeframe, the biosecurity officer can take further action to ensure that the risk is managed. A biosecurity enforcement officer may, with the written approval of the Director of Biosecurity, take possession of the conveyance and then a biosecurity officer can cause the conveyance to be removed from Australian territory, destroyed or otherwise disposed of.

Before providing written approval, the Director must consider the principles in clause 32. The application of clause 32 means that the powers in this clause must be exercised in accordance with the principles set out in that clause. This ensures that a more invasive decision to require treatment that might damage a conveyance, remove a conveyance from Australian territory or destroy a conveyance (which is likely to be high value), more appropriately sits at a higher level of responsibility and must be made in light of protections designed to ensure a person’s rights are adequately considered (see clause 32).

A biosecurity enfor