Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

2016-2017

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

SENATE

 

 

 

BIOSECURITY AMENDMENT (BALLAST WATER AND OTHER MEASURES) BILL 2017

 

 

 

 

 

 



REVISED EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by authority of the Deputy Prime Minister and Minister for Agriculture and Water Resources, the Hon. Barnaby Joyce MP)

 

 

 

 

 

THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE

HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED

 

BIOSECURITY AMENDMENT (BALLAST WATER AND OTHER MEASURES) BILL 2017

 

GENERAL OUTLINE

The Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017 ( Bill ) will make amendments to the Biosecurity   Act 2015  ( Biosecurity Act ) in order to strengthen Australia’s biosecurity system by better protecting both our marine ecosystems and human health.

The Bill will make essential changes to requirements for the control and management of ships’ ballast water to reduce the risk of invasive marine pests and pathogens entering Australian seas.  

The amendment to this Bill will ensure that on the face of the law, Australian vessels and foreign vessels will be eligible for the same exceptions from the offence to discharge ballast water.

Combined, the Bill and the amendment to the Bill will position Australia to be fully legislatively compliant with the  International Convention for the Control and Management of Ships’ Ballast Water and Sediments  ( Ballast Water Convention ) when it comes into force internationally on 8 September 2017.

By bringing Australia into line with the Ballast Water Convention, the Bill will reduce the risk of invasive marine pests entering Australian waters. The Bill also creates powers for a legislative instrument to be used to enable Australia to keep up to date with changes to the Ballast Water Convention without needing to amend the Act each time the Ballast Water Convention is updated.

Additionally, the Bill will build on the original intent of the Act relating to human health measures by providing additional powers designed to strengthen Australia’s ability to manage risks to human health in two ways. Firstly, by broadening the existing power to destroy exotic vectors of human diseases of concern on vessels and aircraft arriving in Australia. Secondly, by reinstating a previous power from the superseded Quarantine Act 1908 for human health officials to direct a private property to undertake control activities if an exotic vector incursion is detected.

The Bill will benefit the Australian community broadly through the strengthening of biosecurity system by enabling better  targeting of vectors capable of carrying human diseases, such as mosquitos which carry Zika virus. Additionally, the measures to manage ships’ ballast water will protect Australia’s valuable fisheries and maritime industries by reducing the risk of introducing potentially invasive and harmful aquatic organisms and pathogens into the Australian marine ecosystem.

Schedule 1 contains measures relating to the Ballast Water Convention.

Schedule 2 contains measures relating to human health.



 

 

Financial Impact Statement

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

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

The full Statement of Compatibility with Human Rights is at the end of this explanatory memorandum.

 



 

NOTES ON CLAUSES      

Clause 1 : Short title

Clause 1 provides that the Bill, when enacted, may be cited as the Biosecurity Amendment (Ballast Water and Other Measures) Act 2017 .

Clause 2 : Commencement

This Clause provides for the commencement of the Bill.

The table provides that sections 1 to 3 of the Bill and Schedule 2 will commence the day after the Bill receives the Royal Assent.

Schedule 1 of the Bill will commence when the Bill receives Royal Assent or the day the Ballast Water Convention comes into force for Australia, whichever is later. The Minister must announce, by notifiable instrument, the day on which the Ballast Water Convention comes into force for Australia. That will ensure that the relevant date is publicly known, to avoid any confusion.

Should the Ballast Water Convention not come into force for Australia, Schedule 1 of the Bill will not commence.

The Ballast Water Convention comes into force in a country three months after it is ratified by that country. While Australia has signed the Ballast Water Convention, the ratification process is ongoing.

The ratification process involves:

·          after the Bill receives Royal Assent, approval for submission to action the convention is sought from the Minister for Foreign Affairs, the Attorney-General and other ministers with a portfolio interest in the matters covered by the convention;

·          the Department of Agriculture and Water Resources and the Department of Foreign Affairs and Trade prepare convention documents for approval by the Federal Executive Council ( ExCo );

·          the convention documents are then approved by ExCo; and

·          after ExCo approval is received, the instrument of ratification is deposited to the International Maritime Organisation, effectively ratifying the convention.

Although Schedule 1 will not commence until the Ballast Water Convention comes into force for Australia, through the operation of section 4 of the Acts Interpretation Act 1901 , the Director of Biosecurity will be able to make legislative instruments under Schedule 1 once the Bill receives the Royal Assent. However those instruments cannot commence until Schedule 1 has commenced.

Clause 3 : Schedules

Legislation that is specified in a Schedule to this Bill is amended or repealed as set out in the applicable Items in the Schedule concerned, and any other Item in a Schedule to this Bill has effect according to its terms.

Schedule 1 Amendments relating to the Ballast Water Convention

Biosecurity Act 2015

Item 1: Section 3 (paragraph relating to Chapter 5)

Item 1 amends the simplified outline of the Biosecurity Act to update the description of Chapter 5 by explaining that it implements the Ballast Water Convention and regulates the ballast water and sediment of certain vessels in accordance with the United Nations Convention on the Law of the Sea ( UNCLOS ).

The amendment outlines the reporting requirements and the offences. For Australian vessels, the offences apply whether the vessel is in or is outside Australian seas. For foreign vessels, the offences only apply in Australian seas. The definition of “Australian seas” depends on whether the vessel’s nation is a party to the Ballast Water Convention or not (see Item 2).

Item 2: Paragraph 4(b)

Item 2 amends section 4 of the Biosecurity Act which sets out the objects of that Act. Section 4 includes the object of giving effect to Australia’s international rights and obligations. Item 2 adds the Ballast Water Convention and UNCLOS to the objectives to clarify that giving effect to both is part of Australia’s international rights and obligations.

Item 3: Section 9 (definition of appropriate ballast water records )

Item 3 repeals the definition of appropriate ballast water records and replaces it with a new definition that applies to both Australian vessels and to foreign vessels so that all vessels have the same records requirements. Currently, appropriate ballast water records is defined slightly differently for Australian vessels (in section 295) and foreign vessels (in section 296). The definition of appropriate ballast water records will now refer to section 295 as amended by Items 117 to 120. Section 296 will be repealed by Item 121.

Item 4: Section 9 (definition of Australian seas )

Item 4 repeals the current definition of Australian seas - being the waters within the outer limits of Australia’s territorial sea - and substitutes a new definition, in two forms.

For Australian vessels and foreign vessels whose nation is a party to the Ballast Water Convention, the new definition of Australian seas is the waters that are within the outer limits of the exclusive economic zone ( EEZ ) of Australia. The EEZ extends 200 nautical miles from the territorial sea baseline. The purpose of this Item is to align the Biosecurity Act fully with the Ballast Water Convention, in terms of the waters within which vessels come under the Biosecurity Act’s jurisdiction.

For all other foreign vessels, the new definition of Australian seas is the Australian territorial seas (see Item 5 for the definition of Australian territorial seas ).

Australian seas thus has two meanings - one for vessels whose nations are parties to the Ballast Water Convention, and another for those that are not. These differences reflect the fact that the extent of the waters in which Australia can regulate vessels whose nations are not parties to the Ballast Water Convention is narrower than for other vessels.

 

Regulation A-1.6 of the Ballast Water Convention states that a vessel must exchange ballast water outside 200 nautical miles from the nearest land if the vessel’s voyage extends beyond 200 nautical miles. The Ballast Water Convention also provides for additional protection of the Great Barrier Reef Marine Park ( GBRMP ) by excluding the GBRMP and part of the Torres Strait from being acceptable locations for ballast water exchange. To do this, the outer boundary of the GBRMP and part of the Torres Strait is considered as nearest land.

Item 5: Section 9

Item 5 inserts a definition of Australian territorial seas as being the waters within the outer limits of the territorial seas of Australia (including every external Territory).

Item 6 : Section 9 (at the end of the definition of Ballast Water Convention )

Item 6 amends the definition of Ballast Water Convention to make clear that it applies as it is in force from time to time. In other words, if the Ballast Water Convention is amended, that amended convention is that to which the Biosecurity Act refers.

Item 7: Section 9

Item 7 inserts a definition of IMO guidelines , meaning guidelines or procedures adopted from time to time by the Marine Environment Protection Committee of the International Maritime Organization ( IMO ).This allows various measures in the Bill to refer to such guidelines, and (where relevant) to keep up to date with them as they change in the future. A note outlining how to access the IMO guidelines is also inserted by Item 7.

Item 7 also inserts a definition of offshore terminal , giving it the same meaning as in the Ballast Water Convention. This clarifies that the application of compliance powers extends to offshore terminals.

Items 8 and 9 : Section 9 (paragraph (b) of the definition of relevant person )

Items 8 and 9 amend the definition of relevant person for a reviewable decision to make clear that determinations, as well as regulations, can prescribe reviewable decisions and can specify who is a relevant person for reviewable decisions. The relevant person is the person who can apply to the Director of Biosecurity for review of the decision, as set out in sections 574 to 576 of the Biosecurity Act.

See also Item 150, which works together with these Items.

Item 10: Section 9 (definition of sediment reception facility )

Item 10 repeals the definition of sediment reception facility and substitutes a new definition, which retains the original definition, but expands it to allow Australian vessels not in Australian seas to use a facility operating in accordance with IMO guidelines. This ensures that Australian vessels overseas will not commit an offence when disposing of their sediment to a reception facility that is not in Australian territory.

Paragraph (b) of the new definition, which relates to a facility in Australian territory, covers both Australian vessels in Australian seas and foreign vessels.

Item 11 : Section 9 (definition of survey authority)

Item 11 amends the definition of survey authority to refer to section 290A rather than section 289. This is to reflect amendments made at Items 88 and 94.

Item 12: Section 260

Item 12 amends section 260 to omit “Australian seas” and substitute “the territorial sea of Australia”.

The effect of this amendment is that for the purposes of Chapter 5, a vessel that is in dry dock in Australia is taken to be in the territorial sea of Australia.

For the meaning of “territorial sea”, see the Acts Interpretation Act 1901 and the Seas and Submerged Lands Act 1973 .

Item 13: Section 261

Item 13 repeals section 261 and replaces both the section and its heading.

The heading “Foreign vessels in waters adjacent to Australian Antarctic Territory” is replaced with “Foreign vessels and the Australian Antarctic Territory”.

New section 261(1) replicates the repealed section 261. Additionally, new section 261(2) provides that when a foreign vessel whose nation is a party to the Ballast Water Convention is within the outer limits of the EEZ adjacent to the coast of the Australian Antarctic Territory, it is not taken to be in Australian seas.

This amendment takes account of the new definition of Australians seas (see Item 4).

Item 14: After section 263

Item 14 creates a new section 263A which makes clear that, consistent with the Ballast Water Convention, Chapter 5 of the Biosecurity Act does not apply to warships, naval auxiliary or other vessels owned by the Australian government or a foreign government.

A similar provision will be removed from section 60 of the Biosecurity Regulation 2016 .

Item 15: Part 2 of Chapter 5 (heading)

Item 15 repeals the heading to Part 2 of Chapter 5. This amendment is required because of the amendment in Item 5 above.

Item 16: Section 266

Item 16 omits “Australian seas” with “Australian territorial seas”.  This amendment is required because of the amendment in Item 5.

Item 17: Section 267 (heading)

Item 17 repeals the heading for consistency, following the amendment in Item 5.

Item 18: Subsection 267(1)

Item 18 omits “Australian seas” with “Australian territorial seas” consistent with the amendment in Item 5.

Items 19, 20, and 21: Paragraphs 267(2)(a), (b) and (c)

Items 19, 20, and 21 to respectively alter the type of legislative instrument that sets out the requirement for a report of a ballast water discharge. Items 19, 20, and 21 repeal the need for the requirements to be set out in regulations and substitute that they may be contained in a determination.

These changes - along with new section 308A, inserted by Item 144 below - enable the Director of Biosecurity to determine what must be involved in a report of a ballast water discharge.

Moving such matters from the regulations to a determination made by the Director of Biosecurity is a consistent theme in the Bill, designed to increase flexibility and responsiveness.

Item 22 : Subsection 267(2) (note)

Item 22 replicates the amendments above, by adjusting the wording of the Note accordingly, so that it refers to “the determination” rather than “the regulations”.

Item 23: Subsection 267(3)

Item 23 mirrors Items 19, 20, and 21 by making a comparable change to the power to determine exceptions to reporting of ballast water discharges in Australian seas. The result of the amendment is that the Director of Biosecurity may prescribe such exceptions in a determination under new section 308A inserted by Item 144.

Item 24: Section 268 (heading)

Item 24 replaces the heading for consistency following the amendment in Item 5.

Item 25: Section 269

Item 25 repeals and substitutes a new simplified outline for Part 3. The key changes in the new outline explains that the offence of discharging ballast water is different for Australian vessels and foreign vessels. Australian vessels are subject to the provisions in Division 2 whether they are located in or outside Australian seas. Foreign vessels are only subject to the provisions in Division 2 when they are in Australian seas.

Item 25 replaces, for clarity, the phrase “apply” with “may apply” in reference to exceptions . And in list item (d), makes clear that the Director of Biosecurity may not only grant exemptions but also prescribe exemptions for the discharge of ballast water in Australian seas.

Item 26: Section 270 (heading)

Item 26 removes the phrase “Australia seas” from the heading to make it clear that what follows is not limited to Australian seas.

Item 27: Subsection 270(1)

Item 27 repeals and substitutes subsection 270(1) in order to distinguish between the different circumstances that apply to ballast water discharge contraventions relating to Australian vessels and foreign vessels. The key difference is that, for Australian vessels, a contravention can occur anywhere, whereas for foreign vessels, a contravention within the jurisdiction of the Biosecurity Act can only occur in Australian seas. This is consistent with changes elsewhere in the Bill, which reflect that Australia’s power to regulate foreign vessels is narrower than its power to regulate Australian vessels.

Item 28: Subsections 270(2) and (3)

Item 28 amends the offence provisions to provide that a person commits an offence if the person contravenes subsection 270(1) or new subsection 270(1A). New subsection 270(1A) is inserted by Item 27.

Item 29 : Subsection 270(3) (penalty)

Item 29 amends the wording of the penalty set out in subsection 270(3) for clarity and consistency. It does not change the number of penalty units.

Item 30: At the end of section 270

Item 30 adds an exception provision to section 270 for both Australian vessels and foreign vessels, which provides that the offences in subsections 270(1) and 270(1A) do not apply if various conditions are met. This provision seeks to ensure that both Australian vessels and foreign vessels are able to undertake the same management, or meet the same conditions, in order to be excepted from the offence to discharge ballast water.

For a vessel to be able to rely on an exception, the vessel must meet the conditions for one of the Chapter 5 exception provisions listed in paragraph 270(4)(a). This paragraph lists previously established exceptions to the offence of discharging ballast water in Australian seas. These exceptions ensure that the discharge offence does not apply when the biosecurity risk has been properly managed or in the event that the discharge was necessary to ensure the safety of the vessel or life at sea, to avoid or manage pollution, or if the discharge was an accident as a result of damage to the vessel or equipment.

Paragraphs 270(4)(b), 270(4)(c) and 270(4)(d) ensure that, if an exception applies, the vessel has also met all requirements relating to a ballast water management plan and certificate, including managing ballast water in accordance with the plan. Subparagraphs 270(4)(b)(ii) and (iii) ensure that vessels that are not required to have a plan or certificate, in accordance with exemptions provided under subsection 285A(3) or section 285B, are still eligible for the discharge offence exception. If there are specific conditions placed on vessels despite being exempt from the requirement to have a ballast water management plan and certificate under section 285B, paragraph 270(4)(d) ensures that the vessel has met those conditions to be eligible for the discharge offence exception.  

Item 31: Application of amendments

Item 31 is an application provision that makes clear that the amendments to section 270 will apply to discharges of ballast water that occur after Schedule 1 commences. The amendments do not apply retrospectively.

Item 32: Section 271

Item 32 amends section 271 to reflect the amendments made at Item 30. This amendment is required as the application of exceptions to the offence of discharging ballast water, will be set out in subsection 270(4). Section 271 requires amendment so that it does not create an exception but rather sets out the condition to be met, so that the exception set out in subsection 270(4) is available.

Item 33: Section 271 (note)

Item 33 repeals the note to section 271. The note is no longer required as the exception to the offence of discharging ballast water is now provided by the new subsection 270(4) and removed from section 271 following the amendment made by Item 32. The note is therefore redundant and can be repealed.

Item 34: Paragraph 272(a)

Item 34 omits the text “approved by the Director of Biosecurity under sections 273 and 274” and substitutes “approved for the purposes of sections 273 and 274” to more accurately reflect the amendments to sections 273 and 274 by Items 39 and 41 and the scope of new section 308A inserted by Item 144.

Item 35: Paragraphs 272(b) and (c)

Item 35 repeals paragraphs (b) and (c) and inserts a single new paragraph referring to “appropriate ballast water records”, which is defined in the amended sections 9 and 295.

Item 36: Paragraph 272(d)

Item 36 repeals “the regulations” and substitutes “the determination under section 308A” . This change is consistent with similar changes elsewhere in the Bill. Item 144 inserts the section 308A.

Item 37: Section 272 (note 1)

Item 37 amends the note for consistency with the amendment to section 295 and the repeal of section 196 (as outlined in Items 116 to 121). The effect is to reference a single definition of “appropriate ballast water records” that applies to all vessels.

Item 38: Section 272 (note 2)

Item 38 omits “The regulations” and substitutes “The determination” in the reference to section 308 to reflect the amendment of section 308 by Item 143.

Item 39: Subsections 273(1) and (3)

Item 39 omits “the regulations” and substitutes “the determination under section 308A” . This change is consistent with similar changes elsewhere in the Bill. Item 144 inserts the section 308A.

Item 40: Subsection 273(3) (note)

Item 40 replicates the amendments above, by adjusting the wording of the Note accordingly, so that it refers to “the determination” rather than “the regulations”.

Item 41: Section 274

Item 41 repeals and replaces section 274, which deals with methods of ballast water management that are approved by a foreign country. The effect of the change is to remove reference to the regulations and instead refer to the determination under new section 308A inserted by Item 144.

Item 42: Paragraph 275(1)(a)

Item 42 amends paragraph 275(1)(a) to bring it in to line with new section 308A inserted by Item 144 by allowing the Director of Biosecurity under section 308A to prescribe, by determination, the proportion of ballast water that is required to be taken up in order for ballast water to be managed for discharge.

Item 43: At the end of subsection 275(1)

Item 43 adds a new subparagraph (c) to subsection 275(1).This amendment adds a further restriction on the circumstances in which ballast water can be said to have been managed for discharge by a vessel. A determination made under new section 308A (inserted by Item 144) may specify that a particular vessel is excluded from the operation of section 275 deeming that the vessel’s ballast water has not been managed for discharge. This occurs then even though the requirements of subparagraphs 275(1)(a) and (b) have been met.

Item 44: Subsection 275(1) (note 1)

Item 44 omits “sections 295 (for Australian vessels) and 296 (for foreign vessels)” and substitutes “section 295”,which now treats Australian and foreign vessels the same with regard to the keeping of appropriate ballast water records.

Item 45: Subsection 275(2)

Item 45 omits “the regulations” and substitutes “the determination under section 308A” . This change is consistent with similar changes elsewhere in the Bill. Item 144 inserts the new section 308A.

Item 46: Paragraph 275(3)(a)

Item 46 omits “area declared by the Director of Biosecurity under subsection (4)” and substitutes “area prescribed, or an area meeting requirements prescribed, by the determination under section 308A” The amendment made by this Item aligns with new section 308A (inserted by Item 144) by providing that the area mentioned is an area specified in (or complying with) the determination under section 308A for the purposes of determining what is an acceptable ballast water exchange.

Item 47: Paragraph 275(3)(b)

Item 47 repeals paragraph 275(3)(b).

This is consistent with the approach to legislative instruments in Chapter 5, which is (wherever possible) to centralise measures in a single determination by the Director of Biosecurity, rather than having measures spread across multiple instruments including regulations, declarations and determinations.

Item 48: Paragraph 275(3)(c)

Item 48 omits “the regulations” and substitutes “the determination” . This amendment is consistent with changes elsewhere in the Bill.

Item 49: Subsections 275(4) and (5)

Item 49 repeals subsections 275(4) and (5).

This is consistent with the Bill’s approach to legislative instruments for Chapter 5, which is (wherever possible) to centralise measures in a single determination by the Director of Biosecurity, rather than having measures spread across multiple instruments including regulations, declarations and determinations.

Item 50: Section 276

Item 50 amends section 276 to reflect the amendments made at Item 30. This amendment sets out the conditions that must be met in order to be eligible for the exception from the discharge offence in section 270. Subsection 270(4) states that if the conditions in section 276 are met, in addition to other requirements detailed in subsection 270(4), the exception from the discharge offence applies.

Item 51: Section 276 (note)

Item 51 repeals the note as it is no longer relevant because of the change in Item 50. The previous note explained that meeting section 276 was an exception to the discharge offence. This is now clearly explained in subsection 270(4).

Item 52: Section 277

Item 52 amends section 277 to reflect the amendments made at Item 30. This amendment sets out the conditions that must be met in order to be eligible for the exception from the discharge offence in section 270. Subsection 270(4) states that if the conditions in section 277 are met, in addition to other requirements detailed in subsection 270(4), the exception from the discharge offence applies.

Item 53: Paragraph 277(a)

Item 53 repeals paragraph 277(a) and substitutes a new paragraph which will allow vessels to discharge to a ballast water reception facility in accordance with an approval given by the Director of Biosecurity and also to a facility that has been provided, or approved, in accordance with IMO guidelines.

This means that if the facility meets IMO guidelines, it does not need to be approved by the Director of Biosecurity. This would include facilities outside Australia, expanding the choice of such facilities available to vessels, including Australian vessels overseas.

Item 54: Section 277 (note)

Item 54 repeals the note as it is no longer relevant because of the change in Item 52.

Item 55: Subsection 278(1)

Item 55 repeals “the regulations” and substitutes “the determination under section 308A”. This change is consistent with similar changes elsewhere in the Bill. Item 144 inserts the new section 308A.

Item 56: Paragraph 278(1)(a)

Item 56 omits “a discharge” and substitutes “one or more discharges”. The effect of this amendment is to enable a single application to be made for approval of multiple discharges of ballast water to a ballast water reception facility, rather than requiring an application for each discharge.

Item 57: Paragraph 278(3)(a)

Item 57 repeals “the regulations” and substitutes “the determination under section 308A” . This change is consistent with similar changes elsewhere in the Bill. Item 144 inserts the new section 308A.

Item 58: Before section 279

Item 58 inserts a new section 278A entitled “Exception - discharge covered by prescribed conditions”. The effect of this amendment is to allow an exception in relation to a discharge of ballast water if the new section 308A’s conditions are met. However the Director of Biosecurity may only prescribe such conditions if they are consistent with the objects of the Biosecurity Act. Those objects are set out in section 4 of the Biosecurity Act, as amended by Item 2 above.

Item 59: Section 279

Item 59 amends section 279 to reflect the amendments made at Item 30. This amendment is required as the application of exceptions to the offence of discharging ballast water will be set out in subsection 270(4). Section 279 requires amendment so that it does not create an exception but rather sets out the condition to be met so that the exception set out in subsection 270(4) is available.

Item 60: Section 279 (note)

Item 60 repeals the note as it is no longer relevant because of the change made by Item 59.

Item 61: Paragraphs 280(1)(a) and (b)

Item 61 omits “or locations” and substitutes “, offshore terminals or other locations” to extend and clarify the circumstances in which an application can be made for a ballast water discharge exemption. The effect is to make clear than offshore terminals are one such location that can be specified.

Item 62: Subsection 280(3)

Item 62 repeals “the regulations” and substitutes “the determination under section 308A”. This change is consistent with similar changes elsewhere in the Bill. Item 144 inserts the new section 308A

Item 63: Section 282

Item 63 amends section 282 to reflect the amendments made at Item 30. This amendment is required as the application of exceptions to the offence of discharging ballast water will be set out in subsection 270(4). Section 282 requires amendment so that it does not create an exception but rather sets out the condition to be met so that the exception set out in subsection 270(4) is available.

Item 64 and 65: Paragraphs 282(a) and 282(c)

Items 64 and 65 add an offshore terminal to the types of places at which ballast water can be taken up and discharged, in order for section 282 exceptions - relating to take-up and discharge of ballast water at the same place - to apply.

Item 66: Section 282 (note)

Item 66 repeals the note as it is no longer relevant because of the amendment made in Item 63.

Item 67: Subsection 283(1)

Item 67 amends subsection 283(1) to reflect the amendments made at Item 30. This amendment is required as the application of exceptions to the offence of discharging ballast water will be set out in subsection 270(4). Subsection 283(1) requires amendment so that it does not create an exception but rather sets out the condition to be met so that the exception set out in subsection 270(4) is available.

Item 68: Subsection 283(1) (note)

Item 68 repeals the note as it is no longer relevant because of the amendment made in Item 67.

Item 69: Subsection 283(2)

Item 69 amends subsection 283(2) to reflect the amendments made at Item 30. This amendment is required as the application of exceptions to the offence of discharging ballast water will be set out in subsection 270(4). Subsection 283(2) requires amendment so that it does not create an exception but rather sets out the condition to be met so that the exception set out in subsection 270(4) is available.

Item 70: Section 283(2) (note)

Item 70 repeals the note as it is no longer relevant because of the amendment made in Item 69.

Item 71: Section 283(3)

Item 71 amends subsection 283(3) to reflect the amendments made at Item 30. This amendment is required as the application of exceptions to the offence of discharging ballast water will be set out in subsection 270(4). Subsection 283(3) requires amendment so that it does not create an exception but rather sets out the condition to be met so that the exception set out in subsection 270(4) is available.

Item 72: Section 283(3) (note)

Item 72 repeals the note as it is no longer relevant because of the amendment made in Item 71.

Item 73: Paragraph 284(1)(a)

Item 73 omits “Australian seas” and substitutes “Australian territorial seas” following the amendments made by Item 4.

Item 74: Subsection 284(3)

Item 74 inserts a reference to new section 278A, inserted by Item 58, to the list of sections containing exceptions to the requirement to report to the Director of Biosecurity a discharge relating to safety, accidents or pollution.

Item 75: Subsection 284(4) (penalty)

Item 75 reduces the penalty units for failure to properly report a discharge relating to safety, accident or pollution from 500 to 120 penalty units, to bring the penalty into line with matters of similar seriousness. The original penalty is considered too onerous for such a failure, and is inconsistent with the approach to penalties elsewhere in Chapter 5.

Item 76: Application of amendments

Item 76 makes clear that amendments to subsection 284(4) only apply to ballast water discharges that occur after Schedule 1 of the Bill commences. In other words, they do not apply retrospectively.

Item 77: Section 285

Item 77 amends the simplified outline of Part 4 by:

·          inserting a description of new Division 1A (Division 1A is outlined in Item 78 below)

·          updating the description of Division 2 by replacing reference to the regulations with reference to the determination under new section 308A, by adding mention of survey authorities as persons who can approve ballast water management plans, and by making clear that all vessels - not just Australian vessels - are in scope

·          updating the description of Division 3 by replacing reference to the regulations with reference to the determination under new section 308A.

Item 78: After Division 1 of Part 4 of Chapter 5

Item 78 inserts a new Division 1A - General requirement to have ballast water management plan and certificate.

Division 1A contains three sections - 285A, 285B and 285C.

Section 285A sets out the obligations (subject to section 285B) to have a ballast water management plan and certificate for Australian vessels in any seas, and for foreign vessels in Australian seas. The section provides that the determination under section 308A may prescribe vessels that are exempt from those requirements.

Section 285B provides that the determination under section 308A may prescribe a scheme for the granting to particular vessels of exemptions from the requirements of section 285A.

Section 285C sets out offences for failure to have a ballast water management plan or certificate. The offences apply to the person in charge of the vessel. The penalty is the same for Australian vessels in any seas and for foreign vessels in Australian seas, namely 200 penalty units.

The offences created under section 285C are new. This change is required to meet Australia’s obligation to establish sanctions wherever a violation of the Ballast Water Convention occurs.

Item 79: Application of amendments

Item 79 provides that new sections 285A to 285C above only apply to discharges that occur after Schedule 1 commences. In other words, they do not apply retrospectively.

Item 80: Section 286

Item 80 replaces section 286. The old section 286 distinguished between ballast water management plans for Australian vessels and those for foreign vessels. The new section 286:

·          imposes the same requirements on Australian and foreign vessels;

·          removes reference to the regulations and adds reference to new section 308A; and

·          provides that not only the Director of Biosecurity, but also a survey authority or the vessel’s Administration (meaning the government of the nation under whose authority the vessel is operating - colloquially, the nation whose flag the vessel flies), may approve a ballast water management plan.

Item 81: Transitional provision

Item 81 makes clear that the amendments to section 286 only apply to ballast water management plans approved after Schedule 1 commences. In other words, they do not apply retrospectively. However, Item 81 also ensures that ballast water management plans that were approved under the previous scheme, and are valid at the time Schedule 1 commences, continue to be valid after Schedule 1 commences.

Item 82: Section 287 (heading)

Consistent with Item 83, Item 82 amends the heading of section 287 so that it refers to “vessels” rather than “Australian vessel”.

Item 83: Section 287

Consistent with similar changes elsewhere in the Bill, Item 83 amends section 287 to replace reference to the regulations with reference (in new subsection 287(1)) to the determination under new section 308A.

Item 84: At the end of section 287

Item 84 further amends section 287 to provide that for foreign vessels, the actions taken under the section 308A determination must be on request by the vessel’s Administration (meaning the government of the nation under whose authority the vessel is operating - colloquially, the nation whose flag the vessel flies).

In other words, if the nation to which the vessel is flagged has not requested such actions, those actions cannot occur.

Item 85: Transitional provision

Item 85 provides that a ballast water management plan which is in force immediately before Schedule 1 commences is taken, when Schedule 1 commences, to have been given under the scheme prescribed by the determination under new section 308A. In other words, such plans carry forward in time, and vessels do not have to have fresh plans approved under the new scheme when Schedule 1 commences.

Item 86: Section 288

Item 86 replaces section 288, which relates to ballast water management certificates. Whereas the old section 288 had different provisions for Australian vessels and foreign vessels, the new section 288 has a single set of provisions that apply to all vessels.

The new section 288 also reflects the following changes (for all vessels) about the certificate:

·          it must certify that the vessel has a ballast water management plan approved by, or on behalf of, the vessel’s Administration (in the case of Australian vessels, this means by or on behalf of Australia)

·          it must be issued or endorsed either by the Director of Biosecurity or a survey authority, or by, or on behalf of, the vessel’s Administration

·          it must certify that the vessel meets the requirements of the section 308A determination.

The effect of these changes is primarily to harmonise requirements for Australian and foreign vessels, and to use the determination under new section 308A - rather than the regulations - to set the requirements for certificates.

This reflects a consistent theme in the Bill of moving from regulations to a determination, and of harmonising arrangements for Australian and foreign vessels where Australia has the power to do that.

Item 87: Transitional provision

Item 87 provides that the amendments to section 288 only apply in relation to ballast water management certificates issued or endorsed after Schedule 1 commences. In other words, they do not apply retrospectively. However, Item 87 also ensures that ballast water management certificates that were issued or endorsed under the previous scheme, and are valid at the time Schedule 1 commences, continue to be valid after Schedule 1 commences.

Item 88: Section 289

Item 88 repeals section 289, which relates to the ability of the Director of Biosecurity to authorise a person to be a survey authority. New Division 4 - see Item 28 - deals with that instead.

Item 89: Subsection 290(1) (heading)

Item 89 repeals the heading “Australian vessels” of section 290(1) to reflect the changes outlined in Items 90, 91 and 92.

Item 90: Subsection 290(1)

Item 90 amends subsection 290(1) - which relates to issuing or endorsing a ballast water management certificate - by replacing reference to the regulations with reference to the determination under new section 308A.        

Item 91: Subsection 290(1) (note)

Item 91 amends the note by replacing “an Australian vessel” with “a vessel”, consistent with the Bill’s theme of harmonising arrangements for Australian and foreign vessels where possible.

Item 92: Subsection 290(2)

Item 92 repeals the subsection - which related to foreign vessels - and replaces it with a provision making clear that actions under subsection 290(1) - which now relates to all vessels, as outlined in Item 91 - may only be taken in relation to foreign vessels on request by the vessel’s Administration.

This means that - for foreign vessels - actions under a scheme prescribed by the determination under new section 380A cannot be taken unless that the government of the nation to which that vessel is flagged requests it. Such actions would include issuing or endorsing a ballast water management certificate.

Item 93: Application of amendments

Item 93 provides that the above amendments to section 290 apply to any ballast water management certificate, regardless of whether the certificate was issued before or after Schedule 1 commences.

This means that, once Schedule 1 commences, certificates issued before that day can still be endorsed, withdrawn, extended or have their expiry date amended.

Were this not the case, such actions could not be taken for previously issued certificates. That would have adverse consequences for vessels, for example by preventing vessels from seeking an extension to a pre-existing certificate and thus obliging them to apply for a fresh certificate.

Item 94: At the end of Part 4 of Chapter 5

Item 94 inserts a new division: Division 4 - Survey authorities.

This new Division comprises new section 290A titled Director of Biosecurity may authorise person to be survey authority .

Section 290A takes the place of section 289, which is repealed as explained in Item 88.

The differences between old section 289 and new section 290A are minimal in their effect. They primarily reflect the Bill’s use of:

new section 285B (see Item 78) to allow a survey authority (under a scheme prescribed under new section 308A) to exempt a vessel from having a ballast water plan and certificate

·          amendments to section 287 (see Item 83) to have a determination under new section 308A prescribe a scheme for a survey authority to take various actions in relation to a vessel.

Item 95: Section 291

Item 95 amends the simplified outline for Part 5 - Ballast water records of Chapter 5. Instead of Division 2 covering record-keeping for Australian vessels and Division 3 covering record-keeping for foreign vessels, record-keeping for all vessels is now in Division 2.

Item 96: Division 2 of Part 5 of Chapter 5 (heading)

Item 96 amends the heading by replacing Division 2-Australian vessels with Division 2-Ballast water records. This reflects the fact that what follows is for all vessels, not just Australian vessels.

Item 97: Section 292 (heading)

Item 97 amends the heading by replacing “Australian vessels must have ballast water record system” with “Vessels must have ballast water record system . This reflects the fact that what follows is for all vessels, not just Australian vessels.

Item 98: Subsection 292(1)

Item 98 inserts “(whether in or outside of Australian seas)” to clarify that Australian vessels are required to have proper ballast water records regardless of whether they are in Australian seas or not.

Item 99: Subsection 292(1)

Consistent with similar changes elsewhere in the Bill, Item 99 replaces reference to “the regulations” with reference to “the determination under section 308A”.

Item 100: After subsection 292(1)

Item 100 inserts new subsection 292(1A), which provides that a foreign vessel in Australian seas must (if it is capable of carrying ballast water) have a ballast water record system that meets the requirements of the section 308A determination. This replaces old Division 3 of Part 5 of Chapter 5, which is repealed by Item 121 below.

Previously, foreign vessels in Australian seas were only required to have appropriate ballast water records. The requirement for all vessels to have a record system meets Australia’s obligations under the Ballast Water Convention.

Item 101: Paragraph 292(2)(a)

Item 101 replaces “an Australian vessel” with “a vessel”, so that a person in charge of any vessel commits an offence if the vessel is capable of carrying ballast water and does not have a ballast water record system that complies with the determination under section 308C.

This amendment applies to all vessels, because it is an obligation under the Ballast Water Convention that all vessels maintain ballast water records and that appropriate sanctions apply should this not occur.

This offence applies to all vessels. However the offence applies:

·          to Australian vessels, regardless of whether they are inside or outside Australian territory

·          to foreign vessels whose nation is a party to the Ballast Water Convention, in Australia’s EEZ

·          to foreign vessels whose nation is not a party to the Ballast Water Convention, in the Australian territorial sea.

This creates inconsistent requirements, depending on a vessel’s flag nation. However this is the only option to ensure that Australia meets its obligations under the Ballast Water Convention (to apply the requirements to Australian vessels regardless of location), while not overstepping its authority in the absence of the Ballast Water Convention being a recognised international rule or standard.

If the Ballast Water Convention reaches a ratification status that equates to an international rule or standard, Australia would have the power to impose requirements on all vessels, regardless of flag nation, consistently.

Item 102: Paragraph 292(2)(c)

Item 102 works with Item 101 to achieve the effect described in that Item.

Item 103: Application of amendments

Item 103 makes clear that regardless of whether a voyage began before or after Schedule 1 commences, once Schedule 1 commences, the requirements of amended section 292 apply.

This particularly affects foreign vessels. For example, if a foreign vessel begins its voyage several days before Schedule 1 commences and is in mid-voyage when Schedule 1 commences, the vessel is required to have a ballast water record system that complies with the determination under section 308C when it arrives in Australian seas (assuming it arrives in Australian seas after Schedule 1 commences).

Item 104: After subsection 293(1)

Item 104 inserts a new provision extending to foreign vessels in Australian seas the requirement to make a record if the vessel conducts a ballast water operation or disposes of sediment.

Previously, foreign vessels were required to have appropriate ballast water records, however there was no explicit requirement to make a record of each ballast water operation or sediment disposal.

Item 105: Subsection 293(2)

Item 105 reflects the change in Item 104, by extending the requirements for making a record to foreign vessels in Australian seas.

Item 106: Paragraph 293(2)(c)

Consistent with similar changes elsewhere in the Bill, Item 106 replaces reference to “the regulations” with reference to “the determination under section 308A”.

Item 107: Paragraph 293(3)(a)

Item 107 replaces “an Australian vessel” with “a vessel”, so that a person in charge of any vessel commits an offence if a record of a ballast water operation or sediment disposal is required to be made and is not made.

Previously, an offence only applied to persons in charge of Australian vessels. This Item extends that to foreign vessels in Australian seas. This meets Australia’s obligation under the Ballast Water Convention to have appropriate sanctions for all violations against the Ballast Water Convention.

Item 108: Paragraph 293(3)(b)

Item 108 works with Item 107 to achieve the effect described in that Item.

Item 109: Paragraph 293(4)(a)

Item 109 extends to foreign vessels in Australian seas the offence of a person making a false or misleading record using the vessel’s ballast water record system.

Previously, that offence only applied to Australian vessels. This meets Australia’s obligation under the Ballast Water Convention to have appropriate sanctions for all violations against the Ballast Water Convention.

Item 110: Application of amendments

Item 110 provides that amendments to section 293 only apply to ballast water operations and sediment disposals that occur after Schedule 1 commences.

The main effect of this is that the extension of section 293 to foreign vessels in Australian seas does not take effect until Schedule 1 commences.

Item 111: Subsections 294(1) and (2)

Consistent with earlier Items regarding ballast water records, Item 111 has the effect of no longer limiting to Australian vessels the requirements for retaining ballast water records. These requirements are extended to foreign vessels in Australian seas.

Items 112 and 113: Subsection 294(3)

Items 112 and 113 have the effect of no longer limiting to Australian vessels the arrangements for vessels being towed.

Item 114: Paragraph 294(4)(a)

Item 114 extends to foreign vessels in Australian seas the offence of a person who is an owner of a vessel failing to retain as required records made using the vessel’s ballast water record system.

Previously, that offence only applied to Australian vessels.

Item 115: Application of amendments

Item 115 provides that amendments to section 294 only apply to ballast water records made after Schedule 1 commences.

The main effect of this is that the extension of section 294 to foreign vessels in Australian seas does not take effect until Schedule 1 commences.

Item 116: Section 295 (heading)

Item 116 replaces “Australian vessel” with “vessels”, to reflect the fact that the Items below extend section 295 beyond Australian vessels.

Item 117: Subsection 295(1)

Item 117 replaces “An Australian vessel” with “A vessel”, to extend the requirements for appropriate ballast water records Australian vessels.

Item 118: Subsection 295(1) (note)

Item 118 repeals the note because it is not necessary. Ballast water management methods are dealt with in Part 3.

Item 119 and 120: Subsection 295(2)

Items 119 and 120 have the effect of no longer limiting to Australian vessels the arrangements for vessels being towed.

Item 121: Division 3 of Part 5 of Chapter 5

Item 121 repeals Division 3-Foreign vessels , because requirements for foreign vessels to have appropriate ballast water records are now covered by Division 2, as a result of Items 116 to 120 above which amend section 295.

Item 122: Section 297

Item 122 replaces the simplified outline of Part 6-Offence of disposing of sediment . The new outline explains that an offence of disposing of sediment applies to Australian vessels in any seas and to a foreign vessel only in Australian seas.

Item 123: Subsection 298 (heading)

Item 123 removes reference to “Australian seas”, since amended section 298 extends (for Australian vessels) beyond Australian seas.

Item 124: Subsection 298(1)

Item 124 replaces subsection 298(1) with new subsections 298(1) and 298(1A) to create different provisions for Australian vessels and or foreign vessels.

The effect is to apply the requirements to Australian vessels in any seas and to foreign vessels in Australian seas, whereas previously the requirements only applied to vessels in Australian seas.

The Item does not change the requirements for foreign vessels. It does change the requirements for Australian vessels, which are now bound by the provisions regardless of whether they are in or out of Australian seas.

By virtue of subsection 298(2) and (3) (which are unchanged by the Bill), this means that a person who is in charge of, or the operator of, an Australian vessel become potentially liable for an offence in any seas - not just Australian seas - if the vessel’s sediment is disposed of other than to a sediment reception facility.

Item 125: Subsections 298(2) and (3)

Item 125 inserts “or (1A)” after “subsection (1)”. The effect of this is to amend the offence provisions for disposing of sediment to reflect new subsection 298(1A), which is inserted by Item 124.

Item 126: At the end of Division 2 of Part 6 of Chapter 5

Item 126 inserts new section 299A which:

·          requires that the person in charge or operator of a vessel must report to the Director of Biosecurity if the vessel disposes of sediment in Australian territorial seas for reasons of safety, accident or pollution minimisation

·          sets out the requirements such a report must meet, as to setting out the reasons for the incident and how quickly the report must be made

·          creates an offence for failure to do so.

This strengthens section 299, by requiring that a report be made. This new obligation extends to all vessels in Australian territorial seas.

Previously, there were exceptions for disposing of sediment in Australian seas for reasons of safety, accident or pollution minimisation, but there was no obligation to report such incidents nor any offence for failure to report.

Reporting promptly to the Director of Biosecurity enhances Australia’s ability to assess any adverse consequences from the incident, and to take steps to minimise any cascade effects if necessary.

Item 127: Section 300

Item 127 amends the simplified outline of Part 7-Compliance and enforcement by explaining that:

·          the Director of Biosecurity and biosecurity officers can only enforce Chapter 5 provisions at a port or offshore terminal within the outer limits of Australia’s EEZ (subject to certain limitations in relation to vessels whose nation is not a party to the Ballast Water Convention)

·          under Division 2, a biosecurity officer may exercise powers to monitor compliance with Chapter 5.

Item 128: At the end of Division 1 of Part 7 of Chapter 5

Item 128 adds new section 300A “Purpose and location of exercise of powers”, which sets out where the powers in Part 7 may be exercised, for the purposes of Chapter 5, namely for all vessels, at a port or offshore terminal within the outer limits of the EEZ of Australia.

This means that compliance enforcement by Australia of Australian vessels cannot occur worldwide - it can only occur in the above locations - despite the fact that the Bill imposes obligations on Australian vessels in all seas.

Nonetheless, consistent with the Ballast Water Convention (once it comes into force internationally), the governments of other nations may (under their own laws) be able to take compliance enforcement action against Australian vessels when Australian vessels are within the territorial jurisdiction of those others nations.

Item 129: Division 2 of Part 7 of Chapter 5 (heading)

Item 129 amends the heading to reflect the fact that whereas the original Division 2 only applied to owners of Australian vessels, the new Division applies more broadly, including to the person in charge of or the operator of any vessel.

Item 130: Before section 301

Item 130 inserts three new sections - section 300B titled Securing vessels , section 300C titled Inspecting, and taking samples from vessels , and section 300D titled Asking questions about vessels .

Section 300B provides that a biosecurity officer may direct the person in charge or operator of a vessel to secure the vessel as directed (for a period not exceeding 48 hours), and that failure to do so incurs a civil penalty of 120 penalty units.

Section 300C provides that a biosecurity officer may conduct a physical inspection of a vessel, take samples of ballast water (or direct/arrange for others to do so), and carry out (or arrange for) tests on such samples. If a person in charge of a vessel fails to carry out a direction to deliver samples, a civil penalty of 120 penalty units applies.

Section 300D provides that a biosecurity officer may require a person to answer questions or provide written information about the vessel, if the biosecurity officer suspects, on reasonable grounds, that the person has such information.  Failure to do so incurs a civil penalty of 120 penalty units.

These three sections provide explicit powers for inspecting vessels for the purposes of assessing ballast water biosecurity. Previously powers under Chapter 3 were relied on to inspect vessels. The penalties of 120 penalty units for each of the provisions in this Item serves as a strict deterrence against non-compliance, as any contravention of these provisions could severely impede on Australia’s ability to manage biosecurity risk.

Item 131: Section 301 (heading)

Item 131 amends the heading to make clear that it applies to owners of all vessels, not just Australian vessels.

Item 132: Subsection 301(1)

Item 132 amends the subsection so that it applies to owners of all vessels, not just Australian vessels. This has the effect of also extending the offence provision in subsection 301(4) to all vessels, including foreign vessels, in all seas.

Items 133 and 134: Section 301 (note 1) and (note 2)

Items 133 and 134 remove Note 1 which is now redundant, given Item 132.

Item 135: Subsection 302(1)

Item 135 replaces subsection 302(1). The new subsection 302(1) has these differences from the old subsection 302(1):

·          instead of being limited to Australia seas, it now applies to all seas

·          the Director of Biosecurity may now give a direction to the person in charge of a vessel if the Director or a biosecurity officer:

o    is satisfied that the vessel does not have appropriate ballast water records, or that if ballast water were discharged an offence against Chapter 5 would occur, or

o    has reasonable grounds for believing that an offence against Chapter 5 has been committed.

This has the effect of expanding the circumstances in which a direction may be given.

As a result of the operation of subsection 302(2), if ballast water is discharged without a direction having first having been complied with, the offence provision in section 305 now extends to vessels in all seas, not just Australian seas.

Item 136: Application of amendments

Item 136 provides that the amendments to section 302 only apply to directions given after Schedule 1 commences. In other words, they do not apply retrospectively.

Item 137:   Paragraph 303(1)(b)

Item 137 expands the circumstances in which the Director of Biosecurity can consider a possible offence against Chapter 5 involving a foreign vessel.

Whereas previously this was limited to a foreign vessel in, or proceeding to, a port in Australian territory or an installation in Australian seas, now it extends to a foreign vessel anywhere in Australian seas.

Item 138: Paragraphs 303(2)(a) and (b)

Item 138 amends paragraphs 303(2)(a) and (b) by replacing “port in Australian territory” with “port or offshore terminal within the outer limits of the exclusive economic zone of Australia”.

The effect of this is to give the Director of Biosecurity the power to direct a person in charge of a vessel to remove the vessel from, or keep it out of, a port or offshore terminal within the outer limits of Australia’s EEZ. Previously, the Director’s power was limited to a port in Australian territory.

Item 139:  After section 304

Item 139 inserts new section 304A titled Report on failure to comply with direction .

It creates an obligation for the person in charge or the operator of a vessel to make a report to the Director of Biosecurity if that person fails to comply with a direction, and sets out what the report must cover and when it must be made

Item 140: Application of amendments

Item 140 provides that new section 304A only applies to directions given after Schedule 1 commences. In other words, it does not apply retrospectively.

Item 141: Paragraph 305(1)(a)

Item 141 extends the strict liability offence for failure to comply with a direction to the operator of a vessel, as well as the person in charge of the vessel.

This enables the direction to be given either to the operator or to the person in charge or both, which is operationally more practical than limiting it to the person in charge alone.

For the purposes of Chapter 5, the terms “operator” and “person in charge” of a conveyance (which includes a vessel) are defined in sections 21(2) and 22(2) of the Biosecurity Act.

Item 142: Paragraph 305(1)(b)

Item 142 clarifies that the direction may be given under either Division 3 or Division 2 (of Chapter 5), given that the Bill makes some amendments to Division 2.

Item 143: Section 308

Consistent with similar changes elsewhere in the Bill, Item 143 replaces reference to “the regulations” with reference to “the determination under section 308A”. It also replaces reference to the “Legislative Instruments Act 2003” with reference to the “Legislation Act 2003”, which supersedes it.

Item 144: At the end of Part 8 of Chapter 5

Item 144 insert new section 308A, which creates a power for the Director of Biosecurity to make a determination prescribing a wide range of matters required, permitted, necessary or convenient to carry out and give effect to Chapter 6.

Subsection 308A(3) makes clear what the determination may not do, including creating an offence or civil penalty, or providing powers to arrest, detain, enter, search or seize.

Subsection 308A(4) requires the determination to not be inconsistent with the regulations, and subsection 308A(5) makes clear that section 308A does not limit the power of the Governor-General to make regulations under section 645 of the Biosecurity Act.

As discussed elsewhere in this Explanatory Memorandum, the creation of new section 308A reflects a consistent theme in the Bill of moving measures related to Chapter 5 from three types of legislative instruments - regulations, declarations and determinations - to a single determination, wherever possible, to achieve greater clarity, consistency and ease of use. It also makes keeping up with changes to the Ballast Water Convention easier and quicker, enabling Australia to stay aligned with the Ballast Water Convention.

Item 145: Subsection 523(1) (after table Item 19)

Item 145 extends the provisions which are subject to an infringement notice to include subsections 300B(2), 300C(4) and 300D(2), which new subsections are explained in Item 130.

Item 146: Subsection 538(1)

Item 146 amends subsection 538(1), which deals with judicial review of directions to secure conveyances, to include new section 300B which relates to securing vessels (see Item 130).

This means that if a judicial review in sought in relation to a direction under section 300B to secure a vessel, the direction remains in force unless a court finally determines the validity of the direction. This is consistent with similar provisions elsewhere in the Biosecurity Act.

Item 147: Paragraph 542(1)(b)

Item 147 has the effect if preventing the Director of Biosecurity from delegating his/her power to make a determination under new section 308A.

This reflects the importance of the power, and keeps it in the hands of a very senior official (the Secretary of the Agriculture Department - see section 540 of the Biosecurity Act) rather than allowing it to be exercised by more junior officers.

Item 148: Subsection 574(1) (after table Item 13)

Item 148 adds to the list of reviewable decisions a decision to refuse to grant an exemption from the requirement in new subsection 285A(1) for an Australian vessel to have a ballast water management plan and certificate.

The effect of this Item is to allow the person who applied for the exemption to apply to the Director of Biosecurity for a review of the decision if the decision was made by a survey authority, or to the Administrative Appeals Tribunal if the decision was made by the Director of Biosecurity.

Item 149: Subsection 574(1) (at the end of the cell at table Item 15, column 2)

Item 149 amends the above provision to reflect the fact that a decision to cancel the approval of a ballast water management plan can be made by a survey authority or the Director of Biosecurity, and that in either case, the decision is reviewable.

Item 150: Subsection 574(2)

Item 150 allows not only the regulations but also the determination under new section 308A to provide that a decision made under a specified provision of the Biosecurity Act is a reviewable decision.

This is consistent with the Bill’s overall approach of moving from regulations to a single determination, wherever possible.

Item 151: Subsection 592(1) (note)

Item 151 amends the note to harmonise with new section 290A(3), which is outlined in Item 94.

Item 152: Paragraph 635(1)(d)

Item 152 amends the provisions regarding privilege against self-incrimination to include reference to new section 300D, which is outlined in Item 130.

The addition of section 300D to this list is necessary to ensure that the person answers the questions truthfully and provides full details to the biosecurity officer without the threat of prosecution.  This will help in the collection of accurate information to assist with responding to biosecurity risks quickly and effectively.



 

 

Schedule 2 Amendments relating to human health

Biosecurity Act 2015

 

Item 1: Section 3 (paragraph relating to Chapter 2)

Item 1 amends the simplified outline of Chapter 2, by providing that Chapter 2 now mainly, but not exclusively, deals with listed human diseases.

Item 2: Subparagraph 4(a)(ii)

Item 2 amends the objects of the Act to apply not only to listed human diseases, but also to any other infectious human disease.

Item 3: Subparagraph 4(a)(iii)

Item 3 amends the objects of the Act to apply not only to listed human diseases, but also to any other infectious human disease.

Item 4: Section 9

Item 4 provides an additional definition for the Act. The amendment provides a definition for the term vector as being an arthropod or other living carrier that transports an infectious agent from an infected plant or animal to an individual. This term is used in Chapter 4 in relation to control of vectors on incoming or outgoing aircraft or vessels, and to direct an operator of a first point of entry to carry out activities to control vectors.

Item 5: Section 43 (paragraph relating to Division 5)

Item 5 amends the simplified outline of Part 2 of Chapter 2. The amendment removes the reference to creating regulations for the purposes of destroying disease vectors for listed human diseases on aircraft and vessels. This power has been inserted into Chapter 4 of the Act and a reference to it is no longer required here.

Item 6: Section 53

Item 6 repeals the section, which relates to the power to make regulations for measures to destroy disease vectors on incoming or outgoing aircraft or vessels, in its entirety. See Item 7 below for the new location of this power.

However Item 8 below allows regulations made under section 53 to carry forward as if made under new section 204A.

Item 7: Before section 205

Item 7 inserts new Section 204A , which provides for the making of regulations that require operators of incoming aircraft or vessels to undertake measures to destroy disease vectors which have the potential to cause a listed human disease or any other human disease and may exist on the aircraft or vessel. This ensures that the vector can be destroyed and the potential risk to human health by the vector appropriately managed.

The power has been relocated from Chapter 2 to Chapter 4. The power is the same as the power repealed by Item 5 above, except that it extends not only to listed human diseases but also to any other human disease.

Item 8: Application of amendments

Item 8 provides that new section 204A, which is inserted by Item 7 above, only applies to flights and voyages that commence after Schedule 2 commences. This clarifies the situation for flights and voyages that are in progress when the law changes.

This Item also provides that regulations made under section 53 carry forward as if made under new section 204A.

Item 9 : Section 235

Item 9 amends the simplified outline of Part 4 of Chapter 4, by providing that the Part now also allows for directions to be given requiring activities to control vectors to be carried out in first points of entry.

Item 10: At the end of Division 4 of Part 4 of Chapter 4

Item 10 adds new section 252A, which provides that the Director of Human Biosecurity or a chief human biosecurity officer may direct an operator of a first point of entry to carry out activities to control vectors at that point of entry if the Director or chief has reasonable grounds to believe that those activities are required to prevent the spread or establishment of the vector.

This power allows for the management of vectors that have the potential to spread listed human diseases or other human diseases. This ensures that the vector can be destroyed and the potential risk to human health by the vector appropriately managed.

The Item requires that a chief human biosecurity officer be an officer for the state or territory in which the first point of entry is located to use this power.

A person who is given a direction to carry out activities to control vectors under this clause may commit an offence or contravene a civil penalty provision if the person fails to do so.

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 human health risks may ensue.

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.

BIOSECURITY AMENDMENT (BALLAST WATER AND OTHER MEASURES) BILL 2017

 

 

Statement of Compatibility with Human Rights

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

 

Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017

 

This 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 this Bill is to amend the Biosecurity Act 2015 (Biosecurity Act) to implement arrangements for comprehensive ballast water management, along with reinstating previous provisions relating to management of exotic vectors from the Quarantine Act 1908.

In achieving this purpose the Bill aims to promote the right to life and health under the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) and manages the serious risks posed by exotic vectors which can carry communicable diseases. The related provisions in the Bill will ensure individual liberties and freedoms are considered in conjunction with the disease risk. The Bill is consistent with Australia’s international obligations under the World Health Organisation’s International Health Regulation 2005.

The amendments relating to ballast water and sediment management are consistent with the international standard of ballast water management under the International Maritime Organisation’s International Convention for the Control and Management of Ships’ Ballast Water and Sediments .

The Bill also seeks to have ballast water and sediment management matters prescribed by disallowable determinations made by the Director of Biosecurity rather than by regulations. It makes clear, however, that the determinations may not:

·          create an offence or civil penalty

·          provide powers of arrest, detention, entry, search or seizure

·          impose a tax

·          set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in the Act

·          directly amend the text of the Act.

The Bill also makes clear that a determination that is inconsistent with the regulations has no effect to the extent of the inconsistency.

Human rights implications

This Bill engages, or has the potential to engage, the following rights:

·          Article 6(1) of the ICCPR — Right to Life

·          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 and strict liability offences)

·          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 6 of the ICESCR — Right to Work

·          Article 12 of the ICESCR — Right to Health.

 

Discussion: civil penalties

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.

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.

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.

 

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.’

The amendments proposed by the Bill in relation to human health promote the right to life by fostering prevention of the spread of human disease. The amendments provide additional powers for human biosecurity officials to control mosquitoes and other disease-carrying vectors at Australia’s airports and seaports.

While similar powers already exist in the Act, they were not available to human biosecurity officials, and it is important that the right people with the right skills and expertise are able to quickly manage these risks. The recent global outbreak of Zika virus, spread by mosquitoes, has shown us how important control of disease-carrying pests can be.

The amendments regulating the use of ballast water and the management of sediment by Australian and foreign vessels in Australian seas help protect the environment from the spread of pests and diseases that may also impact on human health. For example, preventing the release of unmanaged ballast water and sediment will help prevent human diseases, such as cholera, from being released in Australian seas.

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

 

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, 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.

Under the current Biosecurity Act, the Director of Biosecurity is empowered to exercise a range of powers with respect to the movement of a vessel for the management of ballast water and sediments, including keeping a vessel out of a port or requiring the vessel to remain at a specified place. Item 130 of the Bill will also empower a biosecurity officer to direct the person in charge or the operator of a vessel (Australian or foreign) to secure the vessel in a manner, and for a period, specified by the biosecurity officer.

This measure is necessary for the legitimate objective of preventing significant damage to Australia’s marine environment and adverse effects to related industries . For example, the person in charge or the operator of the vessel may be ordered to secure the vessel and for it to remain at a specified place. This is to investigate any biosecurity risks or threats to Australia’s marine environment which may have occurred. Further, if an offence has been committed, this measure will allow for preventing any further risk of the spread of exotic pests or diseases from the release of ballast water held on the vessel. The person in charge or the operator of the vessel will not however be required to remain with the vessel and their right to movement in this instance is not limited. 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. To ensure this measure is reasonable and proportionate to the legitimate objective, the period which the direction can be given must be no longer than 48 hours and is also limited to vessels in ports and offshore terminals in Australian territorial seas.

One of the other main measures proposed by the Bill is to extend Australia’s ballast water and sediment management regime to:

·          the outer limits of the exclusive economic zone of Australia for foreign vessels whose Administration is a party to the Ballast Water Convention (see Item 4)

·          all seas, for Australian vessels.

Extension of the ballast water and sediment management zone to the outer limits of the exclusive economic zone in relation to those vessels over which Australia is able to exercise control is necessary to better enable protection of Australia’s health and economic interests.

Control over all other foreign vessels will remain limited to those within the territorial sea of Australia (control limited to the territorial sea of Australia is what exists under the current Biosecurity Act).

The Bill (Item 14) also clarifies that the management regime does not apply to warships, naval auxiliary or other vessels owned or operated by the Australian government or the government of a foreign country.

The above amendments will affect the right to freedom of movement of vessels, and therefore all persons on the vessel, under Article 12 of the ICCPR but are permissible because they are necessary for the protection of the local and global environment, and public health. They also provide greater certainty that freedom of movement of vessels and related persons is subject to Australia’s control, is restricted as it is necessary for the public good to manage ballast water and sediments as needed. The current Biosecurity Act also maintains a range of tests and protections which ensure the exercise of powers associated with the amendments is reasonable and proportionate to the legitimate objective and that adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion. Such tests and protections include the test for giving a direction under section 559 and the general protections listed in Chapter 2, Division 2.

 

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

The Bill reconfirms that most vessels must have a ballast water management plan and a ballast water management certificate. Australian vessels require a plan and certificate in and outside Australian seas. Foreign vessels require a plan and certificate only if they are in Australian seas.

The Bill (Item 78) introduces a new offence for a person who is in charge of a vessel under Australia’s jurisdiction and the vessel does not have a ballast water management plan and a ballast water management certificate, and is not prescribed as being exempted from the need to have them. Ballast water management plans and ballast water management certificates are the main mechanisms for managing ballast water. The introduction of the new offence is required to help ensure vessels comply with ballast water and sediment requirements. It may be the case that the courts will accept that the burden of proof that the vessel has a plan and certificate lies with the person in charge of the vessel.

Laws which shift the burden of proof to a defendant, commonly known as ‘reverse burden provisions’, can be considered a limitation on 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.

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.

Whether or not a person in charge of a vessel has a ballast water management plan and a ballast water management certificate would be peculiarly within their knowledge and comes within the above terms.

For example, the amendments to section 270 (items 27 to 30 of the Bill) provide that a person in charge or the operator of a vessel contravenes the provision if the vessel discharges ballast water (whether in or outside of Australian seas for Australian vessels, and in Australian seas for foreign vessels). Subsection 270(1) provides for the offence for Australian vessels, while subsection 270(1A) provides for the offence for foreign vessels. Item 30 of the Bill provides exceptions to the offences under section 270, stating that the offences under subsections 270(1) and 270(1A) do not apply if certain conditions are met and certain plans are in place.

The exception to the offences provided by subsections 270(1) and 270(1A) are justified as:

·            It is peculiarly within the knowledge of the defendant whether the conditions required by the exceptions will have been fulfilled. For example, the defendant (the person in charge or the ship’s operator) will have access to the appropriate information and documentation, such as the ship’s records, to show that conditions have been fulfilled, such as the ballast water was discharged at a water reception facility (section 277), or that the discharge was part of an acceptable ballast water exchange (section 282).

·            It would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish that the conditions have been fulfilled. This is because the defendant will have the easiest access to appropriate records to show that conditions set out by the exception have been fulfilled.

 

It is also necessary that the defendant bears the evidential burden in order to achieve the legitimate objective of ensuring the biosecurity risk associated with ballast water is appropriately managed in Australian seas. The reversal of evidential proof is reasonable and proportionate to the legitimate objective because the knowledge of whether the defendant has evidence of the exception will be peculiarly within their knowledge and comes within the terms for the reverse burden provision to appropriately apply. 

A number of civil penalty provisions in the Bill under Item 130 (securing, inspecting and asking questions about vessel) place an evidential burden on the defendant. 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 likely justify classification as 'criminal'. The Bill (Item 130 (section 300D)) also creates a civil penalty for giving false or misleading information or documents. This also places 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).

The evidential burden placed on the defendant in Item 130 is 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).

 

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 on 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 specifies a number of provisions which affect or introduce some strict liability offences:

·          Items 101 and 107, consistent with the requirement for a foreign vessel in Australian seas to have a ballast water record system, make it a strict liability offence:

o    if the foreign vessel does not have a ballast water record system or

o    if a record required to be made in relation to the foreign vessel is not made

The offences are committed by the person in charge of the foreign vessel.

·          Item 114 extends the offence provision for not retaining required records of a ballast water record system to foreign vessels. The offence is committed by the owner of the vessel.

·          Item 124 extends the offence provision for disposing of sediment (when not at a sediment reception facility) if the Australian vessel is outside Australian seas. Currently, the offence is committed if the sediment is improperly disposed of in Australian seas. The offence is committed by the person in charge of the vessel.

·          Item 126 introduces a reporting requirement when a vessel disposes of sediment in Australian territorial seas to ensure safety of the vessel in an emergency or a saving life at sea situation, or because disposal has been accidental or is needed to avoid or minimise pollution from the vessel. The person in charge of the vessel, or the operator of the vessel, commits a strict liability offence if a report of the incident is not made to the Director of Biosecurity.

·          Item 132 extends the strict liability offence for failure to produce a record to owners of all vessels, whereas previously the offence applied only to owners of Australian vessels.

·          Item 135 has the effect of extending the strict liability offence for non-compliance with a direction not to discharge ballast water to all vessels within geographic jurisdiction (all seas for Australian vessels, the exclusive economic zone of Australia in the case foreign vessels whose administration is a party to the Ballast Water Convention, and Australian territorial seas in the case of all other foreign vessels).

·          Item 141 extends the strict liability offence for non-compliance with a direction to provide ballast water records, not to discharge ballast water, or to move a vessel, to the operator of the vessel (currently the offence is only committed by the person in charge of the vessel).

The Bill (Item 109) also extends the offence provision (which is not a strict liability offence but is mentioned here for convenience sake) for making a false or misleading record using a foreign vessel’s ballast water record system. The offence is committed by any person who makes the false or misleading record.

The application of strict liability for these Items is necessary for the legitimate objectives of preventing potentially significant damage to Australia’s marine environment and adverse effects to the related industries. They will help to 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 under the Convention and other international maritime laws. 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 Items above are only directed at persons in charge, the owner or operators of vessels, who can be expected to be responsible and aware of the requirements for the legislation. Therefore due to the regulatory nature of the scheme and the availability of exemptions for these Items, the strict liability offences are reasonable and necessary to achieve the legitimate objective of effective management of ballast water in Australian seas.

 

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.

The Bill (Item 130) incorporates information gathering powers which must be complied with. For example, section 300D in this Item allows for a biosecurity officer to require a person to follow directions to answer questions about a vessel. This may cause self-incriminatory information to be provided to a biosecurity officer . Therefore, this Bill (Item 152) amends section 635 of the Biosecurity Act to add section 300D to the list of provisions where the privilege against self-incrimination does not apply. The requirement to provide information in the ballast water context 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. This cannot be achieved without abrogating the privilege against self-incrimination and this provision is consistent with the other measures listed in section 635 of the Act.

Obtaining information is permissible as protections apply to ensure obtaining information relating to ballast water and sediment management is reasonable and proportionate to achieving the legitimate objective. 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 Biosecurity Act 2015 triggers Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act), which means that civil penalties under that Act and therefore civil penalties proposed by the Bill are and would be enforceable under that part of the Regulatory Powers Act.

As section 90 under Part 4 of the Regulatory Powers Act permits both civil and criminal proceedings, but not multiple criminal proceedings for the same conduct, Article 14(7) of the ICCPR is not infringed. Further, section 88 of the Regulatory Powers Act provides that a court cannot make a civil penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention. This protects a person from being penalised twice for the same conduct under Australian law.



 

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. Powers that involve the collection, security, use, disclosure or publication of personal information intrude on the right to privacy but are permissible when provided under law.

The Bill (Item 98) clarifies that Australian vessels, even when outside Australian seas, must have a ballast water record system. It also clarifies that a foreign vessel in Australian seas that is capable of carrying ballast water must have on board a ballast water record system that complies with the requirements prescribed by a determination made by the Director of Biosecurity. Access to these records, which may incorporate private and personal information, by Australian officials is needed to help ensure vessels are complying with ballast water and sediment requirements.

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. However these powers are necessary for the legitimate objective of assessing the level of biosecurity risk associated with the improper introduction of ballast water and sediments in Australian seas. Biosecurity officers need access to this information in order to properly assess the level of biosecurity risk associated with ballast water and sediments and then to be able to manage any biosecurity risks appropriately. Although the collection, use, storage and sharing of personal information may operate to limit the right to privacy, the incidental collection and storage of personal material is subject to the Privacy Act 1988.

 

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 to 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'.

The compliance powers clarified and developed by the Bill may affect a person’s right to work. For example, when a vessel is secured and or directed to move to a particular location, work activities aboard the vessel may become restricted or unable to be performed. Similarly, when a biosecurity officer is requesting information, gathering samples of ballast water or physically inspecting a vessel, work activities aboard the vessel may be affected. Item 130 provides Biosecurity Officers with the power to direct the person in charge of the vessel to secure the vessel for inspection in this manner. This could affect a vessel’s employees by limiting their right to work while being secured in the event that the employer in question does not remunerate employees for this time. To ensure this measure is reasonable and proportionate to the legitimate objective of managing biosecurity risk and protecting Australia’s marine environment, the period which the direction can be given must be no longer than 48 hours.

Potentially limiting a person’s right to work in this regard is considered rational and proportionate in order for biosecurity risks to be assessed and the inspection of vessels to be performed. This action assists in achieving the legitimate objective of the Bill by having the power to assess the level of risk proposed by the vessel.

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 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 health

Article 12 of the ICESCR protects 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 Biosecurity Act including:

·          managing the risk of contagion of a listed human disease (as defined by section 9 of the Biosecurity Act) or any other infectious human disease

·          managing the entry, emergence, establishment or spread of a listed human disease or any other infectious human disease; and

·          giving effect to Australia’s international obligations as a signatory to the International Health Regulations (2005) (IHR).

This Bill engages strongly with this right. In particular, this Bill advances the protection of public health by ensuring the Commonwealth has the power to control vectors that are capable of spreading serious communicable diseases.

This Bill (Schedule 2, Item 7) provides that the Regulations set requirements for incoming aircraft and vessels for the destruction of vectors, such as mosquitoes, that may carry diseases of human health concern.

This Bill (Schedule 2, Item 10) provides for authorised human health officials to require operators of airports and seaports to conduct activities to control vectors, including mosquitoes that the official has reasonable grounds to believe will reduce the risk to human health.

Any person who exercises a power under Schedule 2 of the Bill must first consider the principles of general protection under section 34 of the Biosecurity Act. The principles ensure that a power exercised is no more restrictive than is required, is appropriate and adapted to, and is likely to be effective in, achieving the purpose for which it is being exercised.

The Bill seeks to further implement Australia’s obligations as a signatory to the IHR. The purpose of the IHR 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. Consistent with the requirements of the IHR, the Bill proposes powers to restrict and prevent the spread of vectors capable of carrying communicable diseases.

 

 

 

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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Deputy Prime Minister and Minister for Agriculture and Water Resources, the Hon. Barnaby Joyce MP)