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Biosecurity Bill 2012 [2013]

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2010-2011-2012

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

SENATE

 

 

 

 

 

 

BIOSECURITY BILL 2012

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

Senator the Honourable Joe Ludwig)



 

Contents

Purpose of the Bill 1

Why is the Bill necessary? . 1

Public consultation . 2

Legislative principles . 2

Managing risk effectively . 2

Improving productivity . 3

Strengthening partnerships . 4

Sound administration . 4

Increased transparency . 5

Effect of the principle provisions . 6

Consultation about provisions of the Bill 6

Offences and penalties . 6

Criminal offences and penalties . 6

Strict liability offences . 6

Civil offences and penalties . 7

Infringement notices . 7

Enforceable undertakings . 8

Reversing the evidential burden . 8

Abrogation of the privilege against self-incrimination . 8

Limitations . 9

Entry without warrant or consent 9

Exceptions from disallowance and sunsetting . 10

Outline of the Biosecurity Bill 2012 . 12

Chapter 1 - Preliminary . 12

Chapter 2 - Managing biosecurity risks: human health . 12

Chapter 3 - Managing biosecurity risks: goods . 12

Chapter 4 - Managing biosecurity risks: conveyances . 14

Chapter 5 - Ballast water and sediment 15

Chapter 6 - Managing biosecurity risks: monitoring, control and response . 15

Chapter 7 - Approved Arrangements . 17

Chapter 8 - Biosecurity emergencies and human biosecurity emergencies . 17

Chapter 9 - Compliance . 18

Chapter 10 - Warrants . 18

Chapter 11 - Enforcement 19

Chapter 12 - Governance and officials . 19

Chapter 13 - Miscellaneous . 20

The Bill’s operation . 22

Date of effect and application . 22

Financial impact 22

Regulation impact statement 23

Executive summary . 23

Introduction and context 27

Objectives and options to achieve them .. 32

Approved arrangements . 38

First points of entry . 46

Biosecurity zones . 55

Other aspects of the legislation . 61

Preferred option, implementation and review .. 65

Appendix A - International Health Regulation requirements . 67

Appendix B - Consultation feedback . 69

Appendix C - Reference list 75

Human Rights Compatibility Statement 77

Notes on Clauses . 102

Chapter 1—Preliminary . 102

Part 1—Preliminary . 102

Part 2—Definitions . 105

Part 3—Constitutional and international law provisions . 141

Part 4— Principles affecting decisions to exercise certain powers . 143

Chapter 2—Managing biosecurity risks: Human Health . 146

Part 1—General protections and listing human diseases . 146

Part 2—Preventing risks to human health . 148

Part 3—Managing risks to human health: human biosecurity control orders . 152

Part 4—Managing biosecurity risks to human health: other biosecurity measures . 165

Chapter 3 - Managing biosecurity risks: goods . 167

Part 1—Goods brought into Australia territory . 167

Part 2—Biosecurity Import Risk Analyses . 185

Part 3—Prohibited Goods etc. 187

Chapter 4—Managing biosecurity risks: conveyances . 199

Part 1—Introduction . 199

Part 2—Conveyances entering Australian territory etc. 199

Part 3—First points of entry and biosecurity entry points . 217

Part 4—Entry points for incoming aircraft and vessels . 221

Part 5—Ship sanitation . 232

Chapter 5—Ballast water and sediment 234

Part 1—Application and interpretation . 234

Part 2—Management of discharge of ballast water 235

Part 3—Ballast water management plans and ballast water management certificates . 242

Part 4—Ballast water records . 244

Part 5—Offence of disposal of sediment 246

Part 6—Compliance and enforcement 247

Part 7—Miscellaneous . 250

Chapter 6—Managing biosecurity risks: monitoring, control and response . 251

Part 1—Introduction . 251

Part 2—Assessment of level of biosecurity risk . 252

Part 3—Biosecurity measures to manage unacceptable level of biosecurity risk . 259

Part 4—Biosecurity control orders . 271

Part 5—Biosecurity response zones . 276

Part 6—Biosecurity monitoring zones . 282

Part 7—Biosecurity activity zones . 288

Chapter 7—Approved arrangements . 292

Part 1—Introduction . 292

Part 2—Approval of proposed arrangement 292

Part 3—Variation of approved arrangement 294

Part 4—Suspension of Approved Arrangement 296

Part 5—Revocation of approved arrangement 299

Part 6—Powers and obligations of biosecurity industry participants . 301

Part 7—Other provisions . 303

Chapter 8—Biosecurity emergencies and human biosecurity emergencies . 308

Part 1—Biosecurity emergencies . 308

Part 2—Human Biosecurity emergencies . 324

Chapter 9—Powers related to ensuring compliance with this Act 327

Part 1—Monitoring . 327

Part 2—Investigation . 330

Part 3—General provisions relating to monitoring and investigation . 336

Part 4—Monitoring, searching and accessing certain premises . 337

Part 5—Miscellaneous . 339

Chapter 10—Entry to premises and warrants . 342

Part 1—Introduction . 342

Part 2—Issue of warrants . 342

Part 3—Entering premises with a warrant or consent, and taking possession with a warrant 349

Part 4—Entering premises without a warrant or consent 353

Part 5—General provisions . 355

Chapter 11—Enforcement 357

Part 1—Civil penalty provisions . 357

Part 2—Infringement notices . 362

Part 3—Enforceable undertakings . 365

Part 4—Injunctions . 366

Part 5—Miscellaneous . 368

Chapter 12—Governance and officials . 370

Part 1—Introduction . 370

Part 2—Director of Biosecurity . 370

Part 3—Director of Human Biosecurity . 373

Part 4—Biosecurity officers and biosecurity enforcement officers . 373

Part 5—Chief human biosecurity officers and human biosecurity officers . 381

Part 6—Miscellaneous . 382

Chapter 13—Miscellaneous . 384

Part 1—Review of decisions . 384

Part 2—Confidentiality of information . 386

Part 3—Recovery of costs . 390

Part 4—Exemptions from and modifications of this Act 397

Part 5—Miscellaneous . 401

 

 



BIOSECURITY BILL 2012

The Biosecurity Bill 2012 (the Bill) will provide the primary legislative means for the Australian Government to manage the risk of pests and diseases entering Australian territory and causing harm to animal, plant and human health, the environment and the economy.

Biosecurity is currently managed under the Quarantine Act 1908 and related subordinate legislation. Since the Quarantine Act was first drafted, Australia’s biosecurity risks have changed significantly. Shifting global demands, growing passenger and trade volumes, increasing imports from a growing number of countries, population expansion and climate change all contribute to the modern biosecurity environment.

 

The Quarantine Act has been progressively amended—no less than fifty times—to cater for the changing demands placed on the biosecurity system. This means that the legislation is complex to interpret and now has overlapping provisions and powers. Whilst the Quarantine Act has enabled the effective management of biosecurity risks to date, (and the Bill will largely reflect the current operation of the Quarantine Act), the Bill will provide a modern regulatory framework aimed at better managing risks in current and future trading environments.

 

Australia’s economy and environment benefit significantly from a strong biosecurity system. Australia has enjoyed a high degree of protection from biosecurity risks, based on natural advantages of relative geographical isolation, the absence of shared land borders and a border-focused system of biosecurity. These advantages have meant that the environment has been free of many pests and diseases common elsewhere and has positioned Australia well to prevent their entry. The freedom of the agricultural, fisheries and forestry sectors from the most destructive pests and diseases confers a higher degree of quality on and level of demand for Australia’s exports.

 

Australia’s biosecurity system has been subject to review several times. More recently, recommendations made for improvements to the way it operates started with review— Australian Quarantine: A shared responsibility (the Nairn review)—in 1995 and culminated in the 2008 independent review of Australia’s quarantine and biosecurity arrangements— One biosecurity: a working partnership (the Beale review). The Beale review proposed significant reforms to strengthen the system, including the development of new biosecurity legislation.

 

The legislation has been developed to simplify and clarify biosecurity regulatory requirements, enhancing Australia’s capacity to manage biosecurity risks into the future. The intended result is, where appropriate, the reduction of unnecessary regulatory and administrative burden on users of the system - whilst still ensuring a robust set of powers and mechanisms to protect Australia’s unique biosecurity status and environment.



 

A comprehensive consultation process has been undertaken to inform the development of the Bill and all interested parties were encouraged to provide input. The consultation process also aimed to raise understanding of the intended outcomes of the Bill and provide an opportunity to work with interested parties to identify and resolve potential issues.

 

During the development of the Bill, the departments consulted with state and territory governments and the Industry Legislation Working Group. The Working Group was established in 2009 and comprised representatives from the cargo, shipping, ports, supply chain and logistics, airline, airport, customs, environment, animal, plant, invasive species, primary producers and petroleum/exploration sectors.

 

A number of communication channels were utilised to ensure key information effectively reached interested parties. This included the development of dedicated interactive website which featured the exposure draft of the legislation, all supporting explanatory material, a blog, information on the consultation process and information on how stakeholders could have their say. Key consultation and communications activities have also included state and territory government, industry and public meetings, an embassy briefing and a process for interested parties to submit comments on the exposure draft of the Bill.

 

All input and comments were considered during the drafting of the legislation and the finalisation of the text of the Bill and resulted in further consideration of key aspects.

The design of the Bill is based on five key themes. Each of these themes gives effect to those discussed in the Beale review which have been adopted as government policy. This ensures that the legislation provides a modern and solid framework for good decision making and administration.

Managing risk effectively

Consistent with government policy, the department is moving to a risk-based approach to biosecurity interventions in which resources are focused on the risks of greatest biosecurity concern. The Bill enables this policy approach, providing flexible and responsive powers for biosecurity officials to appropriately and effectively manage risks.

 

Throughout the Bill, the threshold test that applies to the application of powers is a consideration of the level of biosecurity risk. The Bill will ensure that the well trained and skilled staff that manage Australia’s biosecurity system will have appropriate powers to proportionately and appropriately deal with risk when that risk is considered unacceptable. For example, biosecurity officers have powers to assess the level of biosecurity risk, these include the power to inspect goods, take samples of goods, and carry out tests on any samples taken from goods. The Bill also provides that biosecurity officers may require a person to answer questions or produce documents relating to goods if they suspect that the person has information about the goods. Having assessed the level of biosecurity risk, a biosecurity officer may then access powers to manage that risk in a variety of ways—for example, through treatment or destruction. These powers are largely consistent with those currently provided under the Quarantine Act and ensure that the officer has access to the information and tools required to identify and manage risks into the future .

 

The process for managing the threat to human health of serious communicable disease will be flexible under the Bill. The Bill will provide for consideration of personal freedoms and rights to review in decision-making. It will provide a range of measures which can be tailored to accommodate an individual’s circumstances and aims to ensure individual liberties and freedoms are considered in conjunction with the disease risk. The Bill is consistent with Australia’s international obligations under the World Health Organization’s International Health Regulations .

 

The World Trade Organization (WTO) Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) contains the basic rules on food safety and animal and plant health requirements for trade between WTO member countries. The SPS Agreement requires that sanitary and phytosanitary (biosecurity) measures are based on science and applied only to the extent necessary to protect human, animal or plant life or health. The SPS Agreement allows WTO members to determine their own level of protection; however it must be applied in a consistent manner—this is known as the Appropriate Level of Protection (ALOP). Australia’s ALOP is included in the Bill for several reasons. Importers and trading partners will have additional certainty of the standard that is being applied. It will also increase transparency in its application when assessing biosecurity risks. There is no inconsistency between Australia’s biosecurity arrangements - as enabled within this Bill - and Australia’s rights and obligations under the SPS Agreement.

 

Along with appropriate powers to implement risk-based measures at the border and onshore, the new biosecurity legislation will provide international trading partners and stakeholders with a clear understanding of the level of biosecurity risk that Australia is prepared to accept.

 

The Bill promotes a number of other international agreements, including putting a regulatory framework in place to enforce obligations under the International Convention for the Control and Management of Ships’ Ballast Water and Sediments 2004 (see Chapter 5) and extending powers to allow for the management of invasive pests consistent with articles 7 and 8 of the Convention on Biological Diversity . In relation to the management of risks to the environment, the Bill will enshrine the practice of considering environmental risks in the definition of biosecurity risks. This is the core concept of the legislation and is part of the threshold test for the use of powers to assess and manage risk. Harm to the environment is given the same weight as human, animal and plant health

Improving productivity

The Bill aims to allow flexibility to meet changing demands and to ensure the biosecurity system is effective and sustainable into the future. Risk-based interventions will reduce the administrative burden on compliant clients, enabling faster clearance at the border through better targeting and focus on higher risk commodities and stakeholder behaviours. It will also reduce delays for industry and cut the costs for clients who actively and conscientiously take account of biosecurity risks.

 

Over time, the Bill will deliver productivity benefits for businesses, industries and the government by replacing overly complex regulatory provisions and administrative practices. The removal of this complexity may reduce the costs associated with working within a complex system and the associated high levels of administration.

 

The development of a post-border regulatory framework for the Commonwealth, will complement state and territory government powers in this area. Effective post border controls will protect ongoing productivity of local industries and ensure that there are timely coordinated responses to any incursions.

 

Working more efficiently onshore and ensuring that the appropriate level of regulation (commensurate with the risk level posed) is applied, will further contribute to an effective and efficient national biosecurity system for Australia.

Strengthening partnerships

A central tenet of the Nairn and the Beale reviews was the need to strengthen the partnership approach to reflect the shared responsibility for biosecurity between the Commonwealth, state and territory governments, industry (including importers, exporters, and onshore agriculture, fisheries and forestry sectors), trading partners and the broader community. The Bill gives effect to this tenet, recognising that achieving the best biosecurity outcomes for Australia requires a partnership approach.

 

T he framework to enable approved arrangements (Chapter 7) strengthens the government’s cooperation with biosecurity industry participants by allowing stakeholders to manage the biosecurity risks associated with their operations where it is appropriate to do so. These arrangements provide an opportunity to appropriately share responsibility between government and businesses by allowing risks to be managed in the most efficient and effective way.

 

The department is also working with state and territory governments, international trading partners, and organisations to share information, have clear roles and responsibilities across the continuum and ensure every biosecurity partner is supported to effectively manage biosecurity risk.

 

This Bill provides the Commonwealth with powers to manage biosecurity risks associated with a disease or pest incursion anywhere within Australian territory (including the marine environment). These powers are intended to complement existing state controls and agreements between Australian governments, allowing the Commonwealth to work in partnership with the states and territories to manage disease or pest incursions and ensure that there are appropriate responses to management wherever the threat or harm occurs.

Sound administration

The Bill provides a high-level legislative framework to implement the government’s policy to maintain Australia’s biosecurity system. It provides the Commonwealth with the authority to develop subordinate legislative instruments, including regulations, to implement the more detailed policy. The inclusion of the operational elements in subordinate legislation provides the Commonwealth with a level of flexibility to meet changing demands and to ensure the biosecurity system is effective and sustainable into the future.

 

The Bill also provides for a responsive enforcement regime to manage contraventions of the legislation. The department will have a choice of enforcement options (administrative, civil and criminal penalties) to provide greater capacity to respond meaningfully and proportionally to the breach by the responsible person. The Bill clearly sets out the legislative requirements stakeholders must meet and the consequences of non compliance ensuring that stakeholders are aware of their responsibilities in managing biosecurity risks.

 

The Bill provides an internal and merits review framework to allow affected persons, where appropriate, to seek review of decisions made under the legislation. This ensures that people who are affected by a decision can seek review from another decision maker and an independent body to test that decision.

 

The Bill is designed to be modern legislation ensuring flexibility to adapt over time to changing and future demands, but also to provide certainty and appropriate modern review tools for those that are being regulated by the Bill.

Increased transparency

Increasing the transparency of the biosecurity system to stakeholders, including international trading partners, in the assessment and management of biosecurity risks was a key recommendation from the Beale review. Increased transparency will ensure that decisions are communicated and understood by stakeholders and will demonstrate the integrity of Australia’s biosecurity system.

 

The Bill makes transparent the Commonwealth’s role in covering the field in relation to prohibiting or restricting the bringing in or importing of goods into Australian territory for the purposes of managing biosecurity risks associated with the goods. Accordingly, the Bill operates to exclude any state or territory law that purports to prohibit or restrict the bringing in or importing of goods on biosecurity grounds where to do so, would be contrary to Commonwealth law. In this situation, the State law may be found to be inconsistent with the Commonwealth law under section 109 of the Australian Constitution ; if so the Act would prevail.

 

It is intended that conditions on the importation of goods into Australian territory will be based on the outcomes of a national risk assessment process, taking into account justified regional differences in pest and disease status.

 

The Bill will provide a statutory process to ensure transparency and accountability by clearly outlining roles and responsibilities, regulating the basis on which decisions are made and ensuring independence of scientific and operational decision making.

For example, the Agriculture Minister is prohibited from giving directions to the Director of Biosecurity in relation to the conduct of a biosecurity import risk analysis or a decision by the Director of Biosecurity to issue a permit to import goods into Australian territory. This makes clear that decisions under the Bill are science- and evidence-based assessments and that biosecurity decision making is informed by current and robust scientific and economic evidence, and operational experience.



 

Consultation about provisions of the Bill

The Attorney-General and the Attorney-General’s Department have been consulted on all relevant provisions of the Bill. In particular, approval has been provided by the Attorney-General for the approach taken in relation to merits review, reversing evidential burdens, exemptions from the Legislative Instruments Act 2003 , offence provisions and the power for biosecurity officers and biosecurity enforcement officers to enter premises and adjacent premises without consent or a warrant.

Offences and penalties

Criminal offences and penalties

Criminal sanctions are consistently used in Commonwealth legislation to sanction conduct that has the potential to cause considerable harm to society, individuals or to Australia as a whole. The penalties for offences in the Bill are intended to reinforce the deterrent effect of the Bill and allow courts with capacity to respond meaningfully and proportionally to the worst breaches. However, if a serious contravention was to occur, which significantly impacted Australia’s plant and animal health, local industries, the economy and the environment , the social and economic costs may be far greater than even the maximum fines imposed by the Bill.

 

Penalties and the possibility of imprisonment in the most serious cases are a key part of achieving and maintaining a credible level of deterrence and complement the other types of enforcement action, such as civil penalties, infringement notices and enforceable undertakings. The maximum penalties provided in the Bill reflect the level of seriousness of the offences and have been set at levels high enough to cover the worst examples of offence.

 

Penalties are generally consistent with the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers where appropriate and are generally higher where significant damage to animal, plant or human health, the environment or economy is possible, or where significant deterrence is considered necessary.

 

Strict liability offences

Strict liability offences are appropriate where for reasons such as public safety and the public interest in ensuring that regulatory schemes are observed the sanction of criminal penalties is justified. The offences also arise in a context where a defendant can reasonably be expected, because of his or her professional involvement, to know what the requirements of the law are, and the mental (or fault) elements can justifiably be excluded.

 

The application of strict liability to certain offences has been carefully considered during the drafting of the Bill. Some offences do depart from the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers . These departures have been approved by the Attorney-General as required.

 

For example, in Chapter 5 there are a number of strict liability offences in relation to conduct associated with ballast water management. It can reasonably be expected that people who are responsible for the operation of vessels, such as a person in charge or operator of the vessel, can be expected to be aware of their duties and obligations to meet safety and environmental standards that could affect the marine environment.

The strict liability offences in Chapter 5 are appropriate in this context as there is public safety and public interest reasons in ensuring that this requirement is met as contravention would result in significant biosecurity risks, which may result in serious damage to plant and animal health, Australia’s local industries, the economy and the environment. For all strict liability offences, the prosecution will have to prove the conduct of the accused person in charge or operator of a vessel. However, the accused person will still be able to rely on the defence of honest and reasonable mistake of fact.

 

These clauses impose a maximum penalty that departs from the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers . It should be noted that the offences and level of penalties are consistent with the benchmarks under the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 which is similar to this clause. This ensures consistency with other legislation dealing with discharge of liquid substances from vessels under international maritime treaties.

 

Civil offences and penalties

Civil penalty provisions have been included in this Bill to provide an alternative to prosecution for an offence. These provisions will ensure that there is an additional tool to ensure compliance with the requirements of the Bill, which was not available under the Quarantine Act.

 

The civil penalty provisions in this Bill are considered appropriate and effective where contraventions involve significant biosecurity risks, which may result in serious damage to plant and animal health, Australia’s local industries, the economy and the environment. Alternatively, civil penalties can be used in circumstances where contraventions are of a sufficient size to justify the expense and time required to take the matter to court or where because the contravention is by a body corporate the higher financial disincentive is most likely to be useful and effective. Across the Bill, the penalty for a body corporate is five times the penalty of a natural person.

 

Contraventions of a civil penalty must be proved on the balance of probabilities in a relevant court, and if proven, the court may order a monetary amount to be paid as the penalty.

 

Infringement notices

An infringement notice is a notice of a pecuniary penalty imposed on a person by statute setting out particulars of an alleged offence. Infringement notices provide a simpler and faster remedy to suspected contravention of the Bill than formal civil or criminal proceedings. It gives the person to whom the notice is issued the option of either paying the penalty set out in the notice to expiate the offence or electing to have the matter dealt with by a court.

Any provisions under the Bill to which the scheme applies must be prescribed in the regulations. The regulations will only prescribe provisions which are strict liability or civil penalties with a clear physical element. Infringement notices will be used as a low cost and efficient means by which the regulator can deal with minor offences and for wrongdoers to discharge their obligation without appearing before a court. If the person chooses not to pay the amount prescribed in the notice within the time specified, proceedings can be brought against the person in relation to the contravention.

The Bill requires that an infringement notice can be issued where the Director of Biosecurity has reasonable grounds to believe a person has contravened an infringement notice provision prescribed in the regulations.

Enforceable undertakings

The Bill will establish an enforceable undertaking scheme to encourage cooperation with directions under, and compliance with, the Act. Under the scheme, the Director of Biosecurity is able to accept written undertakings committing a person to particular action (or inaction) in order to prevent or respond to a contravention of the Act. Undertakings are enforceable in their own right and they may be entered into instead of, or in addition to, the Director of Biosecurity taking other disciplinary action. Undertakings provide a remedy other than financial sanctions to past or prospective contraventions of the Act.

 

The undertaking can be cancelled by the Director of Biosecurity through a written notice. If the Director of Biosecurity considers that a regulated party has breached their undertaking, the Director may apply to the relevant court for an order. An order may require the regulated party to compensate those who have suffered loss or damage as a result of the breach, or another order as the court believes appropriate.

Reversing the evidential burden

Some clauses of this Bill place the evidential burden onto the defendant. An evidential burden requires a person to provide evidence of an asserted fact to a court. In some instances, the Bill places an evidential burden on an individual to adduce evidence of a reasonable excuse as to why they have failed to meet a duty or obligation.

 

These provisions do not shift the legal burden to prove this fact. This shift is considered reasonable because it would be significantly more difficult for the prosecution to prove these elements, since the relevant information is known particularly to the defendant.

 

The evidential burden is also on the defendant in relation to proving an exception to the offences of receiving or possessing prohibited goods or conditionally non-prohibited goods. It is justified that the defendant bears the evidential burden in relation to these importation offences as if the defendant did not bring or import the goods into Australian territory the defendant will have particular knowledge as to how the goods were obtained (for example the defendant may have purchased the goods from a shop within Australian territory and has evidence of the transaction e.g. a receipt, evidence of the EFTPOS transfer etc.). The shifting of evidential burden for these offences also implements the recommendations of the Commonwealth Ombudsman’s 2009 Report: AQIS Compliance and Investigation Activities .

 

The reversal of the onus of evidential burden in the above circumstances is considered to be consistent with the Australian Government Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers .

Abrogation of the privilege against self-incrimination

The privilege against self-incrimination is an important common law and international law principle which provides individuals with a right not to answer questions or produce material which may incriminate the person of a criminal offence or expose the person to a civil penalty. However the privilege may be overridden in legislation where there is clear justification for doing so.

Chapters 3, 4 and 6 provide powers to ask questions and require documents that will abrogate the privilege against self-incrimination. Removing the privilege in these circumstances is necessary to deal with the pressing and substantial concern that biosecurity risks are assessed and managed effectively. The abrogation of privilege is to ensure the effective assessment and management of biosecurity risks posed by pests and diseases to plant and animal health, the environment, and the economy of Australia.

Upholding the privilege in relation to individuals who have information regarding a biosecurity risk could have significant consequences such as reduced agriculture, fisheries or forestry productivity, serious environmental damage and increased costs associated with controlling pests and diseases. A disease outbreak (such as foot and mouth disease) has the potential to cause significant and long term damage to the Australian industries and the reputation of Australia and Australian products overseas.

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

Clause 661 provides the limitation that self-incriminatory disclosures made under these clauses cannot be used against the person making the disclosure in any proceedings. The only exception to use and derivative use immunity are in relation to proceedings arising out of sections 137.1 and 137.2 of the Criminal Code (in relation to false and misleading information and documents), and proceedings for the contravention of clause 507 or 508 (civil penalties for false or misleading information or documents).

Limitations

Chapter 1 provides a series of protections that apply to particular decisions made under the Bill. The clauses provide a series of limitations that biosecurity officials must satisfy themselves of, before exercising a power under a prescribed clause. These limitations have been inserted to ensure that any direction given or action undertaken is appropriate and adapted and does not impact on a person or his or her rights any more than is necessary to manage the level of biosecurity risk posed.

 

This is consistent with international treaties such as the International Covenant on Civil and Political Rights ( International Covenant on Civil and Political Rights ) and the International Covenant on Economic, Social and Cultural Rights . These limitations provide an appropriate balance between individual rights and the management of biosecurity risks, allowing a biosecurity official to exercise the necessary powers to manage biosecurity risks.

Entry without warrant or consent

The Bill provides for a number of instances when a biosecurity officer and biosecurity enforcement officer may enter premises without a warrant. The provision for entry without warrant has been carefully considered during the drafting of the Bill and appropriately limited to the situations described below.

 

First points of entry are a source of higher biosecurity risk. It is important that these risks are managed as quickly and efficiently as possible. As such, the Bill provides that a biosecurity officer may enter any premises at a first point of entry, without the consent of the occupier or person in charge of the premises, for the purpose of performing functions or exercising powers as a biosecurity officer. This will allow a biosecurity officer to establish whether a biosecurity risk exists and undertake biosecurity measures that are necessary to address the risk. The Bill also allows a biosecurity enforcement officer to enter the premises at a first point of entry to assess non-compliance with the Act.

 

Under an approved arrangement, biosecurity enforcement officers will be able to enter ‘relevant premises’ during business hours to determine whether the Act has or is being complied with. It is appropriate in these circumstances for officers to enter without a warrant, because of the voluntary agreement between the Commonwealth and an industry participant for them to manage biosecurity risk. The ability to enter premises allows biosecurity enforcement officers to determine whether the Bill is being or has been complied with or that correct information has been supplied for the purposes of the Bill. Undertaking investigation and monitoring powers on premises will allow non-compliance to be more easily detected and ultimately reduced, leading to greater compliance with the Bill and therefore better management of biosecurity risks. A biosecurity enforcement officer may also enter ‘relevant premises’ at any time if there are reasonable grounds to suspect there may be particular evidential material on the premises.

 

During a biosecurity emergency period, biosecurity officers and biosecurity enforcement officers will be able to enter premises without consent or a warrant for the purpose of:

·          exercising assessment powers in relation to the disease or pest listed in the emergency declaration

·          exercising the powers contained in a biosecurity control order or a biosecurity response zone determination that is in force and specifies the declaration pest or disease, or

·          to set up traps or equipment in relation to the declaration pest or disease.

 

Biosecurity officers and biosecurity enforcement officers will also be able to enter premises that are adjacent to another property where they need to exercise these powers. This is required to allow for the quick entry to premises, so officers can carry out an assessment of the biosecurity risks associated with the declaration pest or disease and then, if required, urgently manage the biosecurity risks associated with them. A biosecurity officer can only enter premises if the officer suspects on reasonable grounds that the declaration pest or disease is present and the officer is accompanied by a biosecurity enforcement officer who is responsible for establishing entry to the premises and using force against things, such as opening doors or moving objects.

Exceptions from disallowance and sunsetting

The Bill provides for certain instruments to be exempt from disallowance and automatic sunsetting. Section 44 of the Legislative Instruments Act 2003 (LIA) provides that certain legislative instruments are exempt from disallowance under the LIA. A legislative instrument that is exempt from disallowance under the LIA, but is required to be registered, will still have to be tabled in the Parliament. Part 6 of the LIA provides for a comprehensive sunsetting regime (or automatic ceasing after ten years) for all non-exempt legislative instruments. The aim of sunsetting is to ensure that legislative instruments are reviewed regularly, retained only if needed, and kept up-to-date.

 

There are several examples in the Bill where the provisions exempt instruments from disallowance and sunsetting under the LIA because of the nature of the instruments. For example, the determination for prohibited goods and conditionally non-prohibited goods are legislative instruments. However, the determinations are exempt from disallowance. This is consistent with the current approach of the Quarantine Proclamation 1998 in that it is appropriate for the Parliament to delegate to the Director of Biosecurity the power to make this determination involving technical and scientific decisions in order to manage risks to Australia’s biosecurity. Subjecting these determinations to disallowance could undermine the technical and scientific based decision making and frustrate risk management processes. In addition, disallowance of a determination made under this clause could lead to inadequate management of the biosecurity risks posed to human, plant and animal health, Australia’s local industries, the environment and the economy.

 

A determination is also exempt from the sunsetting provisions of the LIA. Under the Quarantine Proclamation 1998 , the list of prohibited goods is frequently updated as a result of risk-based calculations of the level of biosecurity risk associated with the goods. A similar approach is likely to apply to a determination made under this clause as the department is likely to be reviewing the list of prohibited goods as part of its day-to-day risk management practices. Accordingly sunsetting is not necessary to maintain the currency of determinations made under this clause.



 

Chapter 1 - Preliminary

Chapter 1 of the Biosecurity Bill 2012 (the Bill) sets out a number of administrative matters necessary for the operation of the Act, the definitions used in the Bill, as well as sections of the Constitution and international laws on which the Bill relies.

 

This Chapter also defines Australia’s Appropriate Level of Protection (ALOP) which, pursuant to Chapter 3, the Director of Biosecurity must apply when conducting a Biosecurity Import Risk Analysis and which the Director of Biosecurity and Director of Human Biosecurity must apply when conducting a risk assessment for the purpose of determining whether particular goods, or a particular class of goods, should be prohibited or conditionally non-prohibited goods.

 

Part 4 of this Chapter outlines a number of principles that must be considered by a biosecurity official before making a decision to exercise a power under certain provisions of the Act. The principles provide an appropriate balance between individual rights and the management of biosecurity risks whilst still allowing a biosecurity official to exercise the necessary powers to manage biosecurity risks.

 

Chapter 2 - Managing biosecurity risks: human health

This chapter includes a range of powers to control the spread of communicable diseases that may cause serious harm to human health. These diseases will be specified as Listed Human Diseases by the Director of Human Biosecurity.



Any person who exercises a power or imposes a biosecurity measure under this chapter must first consider the principles of general protection. The principles ensure that a power is exercised, or a biosecurity measure imposed, only when the circumstances are sufficiently serious to justify it, and only if it would be effective, is proportionate, and is no more restrictive or intrusive than is required to manage the risk.



This chapter also seeks to further implement Australia’s obligations as a signatory to the International Health Regulations (2005). The purpose of the International Health Regulations is to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with, and restricted to, public health.

Chapter 3 - Managing biosecurity risks: goods

Chapter 3 provides the Commonwealth with powers to assess and manage biosecurity risks associated with bringing or importing goods into Australian territory. The goods that arrive from outside Australian territory provide a direct pathway for biosecurity risks to enter into Australian territory. The provisions of this chapter are largely consistent with those currently provided under the Quarantine Act.

 

Goods become subject to biosecurity control when the aircraft or vessel carrying the goods enters Australian territory, and continue to be subject to biosecurity control until they are released. Being subject to biosecurity control enlivens the powers in Part 1 of this Chapter, to assess or manage the biosecurity risks associated with these goods. A notice of intention to bring goods into Australia will be required for most goods that are intended to enter Australian territory.

 

To assist with the assessment of biosecurity risks and the movement of goods at first points of entry, goods are allowed to be unloaded from an aircraft or vessel unless a biosecurity officer directs otherwise. Biosecurity officers may direct the person in charge of an aircraft or vessel not to unload some or all of the goods if they suspect there is a biosecurity risk associated with the goods that requires management.

 

Biosecurity Import Risk Analyses

The Chapter provides that the Director of Biosecurity is responsible for undertaking Biosecurity Import Risk Analyses (BIRAs) to address biosecurity risks to achieve Australia’s Appropriate Level of Protection (ALOP). The core requirements for the conduct of a BIRA are included in the Part.

 

Regulations made for the purposes of this Part are intended to outline the process in which the Director of Biosecurity will announce the commencement of a BIRA process, release an issues paper (if required) and prepare a draft BIRA report, provisional BIRA report and final BIRA report. There will be multiple opportunities for the public and affected stakeholders to provide feedback via submissions throughout this process. The BIRA process will also be subject to independent scientific review, similar to the Eminent Scientists Group process outlined in the Quarantine Regulations, to ensure that the outcomes in the final BIRA have a solid scientific basis and independent review by the Inspector-General of Biosecurity to ensure that the BIRA process has been conducted correctly.

 

Prohibited goods and permits to bring in goods

The Chapter outlines the powers of the Director of Biosecurity and the Director of Human Biosecurity to manage risks associated with goods that are prohibited or conditionally non-prohibited from being brought into Australian territory. These powers give the Director of Biosecurity and the Director of Human Biosecurity flexibility to manage biosecurity risks associated with goods on a risk-return basis. In many cases, this means that biosecurity risks associated with goods can be assessed and managed before the goods are brought in or imported into Australian territory. As a result, the goods are less likely to pose a biosecurity risk on arrival and are less likely to require further intervention.

 

It is intended that existing import conditions under the Quarantine Act will continue to operate under the Bill.

 

The Director of Biosecurity may grant a permit to bring in or import conditionally non-prohibited goods into Australian territory. Permits are used administratively to place conditions on goods, as well as collect data and track the location of certain classes of goods that may pose a biosecurity risk.

 

The Chapter provides that the Act will cover the field in relation to prohibiting or restricting the bringing in or importing of goods into Australian territory. This means that the Bill will override any State or Territory laws relating to prohibiting or restricting the importing or bringing in of goods, to the extent that they are inconsistent. For example, if a State prohibits the importation of a good and the Commonwealth permits the importation, the goods will be able to be imported. Certainty about roles and responsibilities will be increased, as authority to import goods into Australia will also authorise the goods to be imported into a state on the same conditions (if any).

Chapter 4 - Managing biosecurity risks: conveyances

Chapter 4 of the Bill outlines the powers of biosecurity officers in relation to the management of biosecurity risks associated with conveyances entering into Australian territory from overseas. It also provides for the management of biosecurity risks associated with interactions between conveyances. Conveyances is a term used in the Bill to broadly refer to any aircraft, vessel, vehicle, or train (including railway rolling stock). Chapter 4 will also replace the first port provisions in the Quarantine Act with a first points of entry scheme. First points of entry are landing places or ports where aircraft, vessels, goods and people are required to arrive at when they first enter Australia from overseas.

 

An aircraft or vessel becomes subject to biosecurity control when the aircraft or vessel enters Australian territory and continue to be subject to biosecurity control until it is released from biosecurity control. When a conveyance is subject to biosecurity control it means that biosecurity officers can exercise powers in relation to those conveyances to assess and manage any biosecurity risks.

 

A conveyance may also become subject to biosecurity control through being exposed to an aircraft, vessel or prescribed goods that are subject to biosecurity control. This is intended to capture conveyances that have been exposed to other conveyances where there is potential for biosecurity risks to transfer between conveyances (for example, Asian Gypsy Moths can fly or be blown between vessels). A pre-arrival report will be required for most aircraft and vessels intending to enter Australian territory. These provisions are largely consistent with those currently provided under the Quarantine Act.

 

First points of entry

The Director of Biosecurity or Director of Human Biosecurity may determine that a specified landing place or port in Australian territory is a first point of entry for aircraft and vessels that are subject to biosecurity control. Aircraft and vessels that are subject to biosecurity control can only travel to a first point of entry approved to accept them, unless permission has been granted to travel to another landing place or port by the Director of Biosecurity or Director of Human Biosecurity or a direction is given by a biosecurity officer, human biosecurity officer or chief human biosecurity officer.

 

Ship Sanitation

Australia is a signatory to the International Health Regulations (2005) (IHR), which seeks to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade. The ship sanitation certification scheme is a requirement of the IHR, and seeks to control the international spread of disease through the surveillance and inspection of international shipping.

 

The scope of the ship sanitation certification scheme includes sanitation health risks posed by vessels arriving or intending to arrive in Australia; and sanitation health risks posed by outgoing vessels to other countries.

Chapter 5 - Ballast water and sediment

Chapter 5 of the Bill regulates the use of ballast water and management of sediment by Australian and foreign vessels in Australian seas. This will create a single, Australian-wide ballast water and sediment management regime.

 

The Bill will ensure that Australia has a regulatory framework in place to enforce its obligations under the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 (‘Ballast Water Convention’). The Ballast Water Convention will come into force (and become mandatory) 12 months after ratification by 30 countries representing 35 percent of the world merchant shipping tonnage.

 

Ballast water is sea water that is taken up by a vessel and then held in tanks on board to improve its stability. Ballast is an essential part of maintaining a vessel’s safe operation and is vital to most cargo loading and unloading activities. Ballast water and any sediment within the ballast water may contain live marine organisms that, if untreated, create a risk of exotic colonies becoming established when released into Australian seas. This has the potential to damage Australia’s marine environment and adversely affect related industries.

 

Chapter 5 will provide that ballast water that has not been managed in accordance with the requirements (as set out in the Chapter) represents an unacceptable biosecurity risk. The Chapter also provides a compliance framework to allow the enforcement of these requirements.

 

This approach requires the Commonwealth to take over responsibilities that are normally held by the states and territories, and where necessary will override their existing legislation. Chapter 5 will not override state and territory environment protection laws which impose requirements once the ballast water or sediment has been released or removed from the vessel.

 

The key difference between the Bill and the Ballast Water Convention is that the Ballast Water Convention requires ballast water management plans and certificates to be mandatory for all vessels. While the Bill will require the management of biosecurity risks relating to ballast water, ballast water management plans and certificates will only be mandatory for vessels that use a ballast water treatment system to treat their ballast water. This difference is due to the fact that when the Bill is implemented, the Ballast Water Convention is unlikely to be in force and many vessels (particularly foreign vessels) are not expected to be fully compliant with the Ballast Water Convention. The period of time between the Bill being implemented and the Ballast Water Convention being in force will give these vessels more time to become compliant.

 

The Department of Foreign Affairs and Trade, Department of Regional Australia, Local Government, Arts and Sport, Department of Sustainability, Environment, Water, Population and Communities and the Attorney-General’s Department have been consulted on the provisions of the Chapter.

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

Chapter 6 provides the Commonwealth with powers to manage biosecurity risks associated with a disease or pest incursion anywhere within Australian territory (including the marine environment). The powers will allow the Commonwealth to assess, manage and monitor biosecurity risks in relation to a single good or premises, or over a larger area.

 

These powers are intended to complement existing state controls allowing the Commonwealth to work in partnership with the states and territories to manage disease or pest incursions.

 

Biosecurity Control Orders

Once a disease or pest has been determined to be posing an unacceptable level of biosecurity risk, the Director of Biosecurity will have the ability to make a biosecurity control order to manage the risks in relation to a goods or premises (including a conveyance). The biosecurity control order must list powers and biosecurity measures available to manage the biosecurity risks posed by the disease or pest, including treatment and destruction of the goods or premises. In making a biosecurity control order, the Director of Biosecurity will have the flexibility to select the most appropriate powers. This means that the response can be tailored to the specific disease or pest. A biosecurity officer will not be able to exercise any powers in relation to good or premises to which a biosecurity control order is made, unless those powers are listed in the biosecurity control order.

 

Determination of biosecurity zones

The Chapter provides the Commonwealth with the power to determine biosecurity zones. The types of zones include:

·          biosecurity response zone: a zone to manage biosecurity risks

·          biosecurity monitoring zone (permanent or temporary): a zone to assess and monitor biosecurity risks, and

·          biosecurity activity zone: a zone to manage biosecurity risks associated with carrying out biosecurity activities.

 

Biosecurity response zones

Where a biosecurity officer suspects on reasonable grounds that a pest or disease is present in or on goods or premises in an area, and that the disease of pest poses an unacceptable biosecurity risk, the Director of Biosecurity will be able to determine biosecurity response zone over that area in order to manage the risks. For example, where there is a pest or disease outbreak over a number of farms, the Director may declare a biosecurity response zone over those farms. The biosecurity zone determination must list the powers and biosecurity measures available to manage the biosecurity risks posed by the disease or pest.

 

Biosecurity monitoring zones

There are two types of biosecurity monitoring zones, permanent and temporary.

 

Permanent biosecurity monitoring zones will automatically be placed within the permissible distance of the outer boundary of areas which have a high-level of biosecurity risk, such as first points of entry and international mail centres. The Chapter allows for additional high-biosecurity areas to be prescribed in the regulations.

 

The Director of Biosecurity will be able to determine a temporary biosecurity monitoring zone if he or she is satisfied that it is necessary to do so for the purposes of monitoring whether a disease or pest has entered, emerged, established itself or spread into an area. The temporary biosecurity response zone determination must list the powers that are available in the zone. These powers are limited to assessing the level of biosecurity risk, and include some identification and marking powers.

 

Biosecurity activity zones

The Director of Biosecurity will be able to determine a biosecurity activity zone for the purpose of managing biosecurity risks posed by a disease or pest associated with the exercise of powers or the performance of those functions or duties, performed by, or on behalf of the Commonwealth. This type of zone may be placed around premises under an approved arrangement, or a quarantine station (a location where animals or plants are quarantined on arrival into Australia).

Chapter 7 - Approved Arrangements

The Bill replaces the compliance agreement and quarantine approved premises schemes in the Quarantine Act (sections 46A and 66B) with a broader and more simple model. Under an agreement, referred to as an ‘approved arrangement’, relevant persons can enter into an arrangement with the Commonwealth to undertake approved biosecurity activities themselves, if the party can demonstrate its ability to be consistent with strict standards designed to maintain the integrity of Australia’s biosecurity system. 

 

Approved arrangements give parties (including individuals and corporations) the opportunity to voluntarily enter into an agreement intended to reduce their regulatory burden and increase their profitability by managing the biosecurity risks associated with their operations in the most efficient way. This Chapter allows a wider range of activities to be brought within the scope of an approved arrangement than is currently allowed under the Quarantine Act. If appropriate, approved arrangements may cover biosecurity activities at a single location, multiple locations, activities that are not tied to a location (for example, waste management activities) or an entire supply chain. This provides maximum flexibility in what may be included in an approved arrangement, as long as the biosecurity risks associated with them are being managed appropriately. All arrangements will be supported by an audit model to ensure that biosecurity activities are being carried out consistently with the person’s approved arrangement.

 

The approved arrangement model contributes toward the Nairn and Beale review recommendations of ‘shared responsibility’ with industry in the management of biosecurity risks (recommendation 28). It also supports the biosecurity risk-return concept by combining the resources of the Commonwealth with relevant members of the community to more effectively manage biosecurity risks.

Chapter 8 - Biosecurity emergencies and human biosecurity emergencies

Chapter 8 is divided into two parts: biosecurity emergencies and human biosecurity emergencies. Biosecurity emergencies relate to diseases and pests that pose a severe and immediate threat on a nationally significant scale to animal or plant health, the environment or related economic activities. Human biosecurity emergencies relate to a listed human disease that poses a severe and immediate threat on a nationally significant scale to human health. The two categories of emergencies have been created because the circumstances and the biosecurity risks that lead to the declaration of each type of emergency are different, as is the response required from the Australian Government to manage the threat or harm posed.

 

Commonwealth powers are intended to complement existing state controls, allowing the emergency response to make use of resources available in both state and territory, and Commonwealth jurisdictions. They are also intended to complement existing agreements such as the Emergency Animal Disease Response Agreement, the Emergency Plant Pest Response Deed and the National Environmental Biosecurity Response Agreement.

Chapter 9 - Compliance

Chapter 9 establishes the monitoring, investigation and audit provisions of the Bill to ensure that biosecurity enforcement officers have the powers necessary to monitor and investigate compliance with the Bill and provides penalties for non-compliance with the Bill. This Chapter allows entry into premises, to monitor and investigate instances of non-compliance, by consent, with a warrant or in certain circumstances without a warrant. The ability to enter premises by consent or under a warrant allows biosecurity enforcement officers to determine whether the Bill is being or has been complied with or that information supplied for the purposes of the Bill is correct. Undertaking investigation and monitoring powers on premises will allow non-compliance to be more easily detected and ultimately reduced, leading to greater compliance with the Bill and therefore a better management of biosecurity risks.

 

This Chapter provides the Director of Biosecurity and the Director of Human Biosecurity with the ability to apply the fit and proper person test and gather personal information from applicants. This is to ensure that persons covered by approved arrangements or who have been granted import permits are persons that are able to appropriately manage biosecurity risks. This chapter also provides for civil penalties for persons providing false or misleading information or documents for the purposes of the Bill. This will ensure that information provided for the purposes of the Bill is correct and therefore will ensure that the assessment and management of biosecurity risks will be able to be undertaken as effectively as possible.

Chapter 10 - Warrants

Chapter 10 contains general provisions relating to the various types of warrants that may be issued under the Bill. The Chapter allows for entry to premises and the taking of possession of conveyances or premises by consent, with a warrant, or in certain circumstances without a warrant or consent.

 

The Chapter outlines how warrants may be applied for and issued, and provides the tests that must be satisfied in the issuing of warrants. Protections for certain persons are also set out, including in relation to consent and the rights of occupiers of premises. The ability to enter premises with a warrant allows biosecurity officers and biosecurity enforcement officers to gather information and evidence of non-compliance with the Act and to effectively assess, manage and monitor biosecurity risks as set out in Chapter 6. The ability to take possession of a conveyance or premises with a warrant allows biosecurity officers and biosecurity enforcement officers to exercise powers where required under Chapters 4 and 6 to effectively manage any biosecurity risks associated with the conveyance or premises.

 

A biosecurity enforcement officer or a biosecurity officer may enter premises without a warrant or consent when exercising certain powers under Chapters 4, 8 and 9, where there is strong justification for doing so. A biosecurity officer or a biosecurity enforcement officer may enter any premises at a landing place or port, during a biosecurity emergency period, and premises related to an approved arrangement or first point of entry.

Chapter 11 - Enforcement

Chapter 11 provides a framework of penalties, offences and other mechanisms to ensure that biosecurity officials have the powers necessary to appropriately respond to non-compliance with the Act.

 

Civil penalty provisions are included in the Bill to provide an alternative to prosecution for an offence. The civil penalty provisions are considered to be appropriate and effective where contraventions are of sufficient size to justify the expense and time required to take the matter to court or where because the contravention is by a corporate entity the higher financial disincentive that civil penalties provide is most likely to be useful and effective. The infringement notice scheme set out in this Chapter provides a framework to deal with instances of non-compliance with the Bill that are less severe in nature. Enforceable undertakings allow the Director of Biosecurity to accept an undertaking from a person about compliance with a provision of this Bill. For example, a person may provide an undertaking to take steps to remedy an instance of non-compliance with this Bill, which the Director of Biosecurity may choose to accept instead of pursuing another penalty.

 

The Bill allows biosecurity enforcement officers to secure a good or conveyance. Chapter 11 provides that where the court is required to determine the validity of a direction to secure a good or conveyance, the direction remains in place while the court considers the validity of the decision. The intention of this provision is not to interfere with the court’s jurisdiction to make orders as it considers appropriate within its jurisdiction.

 

The Bill also provides for the use of injunctions to restrain a person from non-compliance with the Act or to compel compliance with the Act. The Director of Biosecurity and the Director of Human Biosecurity may apply for the following types of injunctions: a restraining injunction; a performance injunction; or an interim injunction.

Chapter 12 - Governance and officials

Chapter 12 provides for the establishment of and responsibilities of the Director of Biosecurity, the Director of Human Biosecurity, and specific officers defined under the Bill.

 

This Chapter provides that the Secretary of the Agriculture Department is the Director of Biosecurity. The Director of Biosecurity has the ability to exercise a number of powers across the Act considered appropriate to the seniority of his or her position. In addition to any other powers able to be exercised, Chapter 12 provides the Director of Biosecurity with a power of general administration of the Bill (excepting provisions administered by the Director of Human Biosecurity). The general administration power will allow the Director of Biosecurity to provide guidance for departmental staff and the general public in administering the Bill. Chapter 12 provides for the Director of Biosecurity to delegate his or her powers and SES employees may sub-delegate these powers to particular officials.

 

The Director of Biosecurity will have the power to authorise people to be biosecurity officers and biosecurity enforcement officers. These officers’ powers and functions under the Bill will be comparable to those of current quarantine officers.

 

Chapter 12 outlines that the Director of Human Biosecurity is the person who occupies the position of Commonwealth Chief Medical Officer. The Director of Human Biosecurity will have the powers and functions conferred on them by this Act. The Director of Human Biosecurity will have the power to appoint human biosecurity officers and chief human biosecurity officers.

Chapter 13 - Miscellaneous

Chapter 13 contains provisions on a range of concepts including reviewable decisions, confidentiality of information, recovery of costs, exemptions from and modifications to the Act, as well as a range of other miscellaneous clauses.

 

Reviewable decisions

Part 1 of Chapter 13 lists the different decisions across the Bill that are reviewable, and the relevant person for each reviewable decision. The relevant person for a reviewable decision may apply to the Director of Biosecurity for a review of that decision, unless it was made by the Director personally. The Bill also provides that applications can be made to the Administrative Appeals Tribunal for review of a decision made personally by the Director of Biosecurity or for review of a decision that has been reviewed by the Director of Biosecurity or other internal reviewer.

 

Confidentiality of information

Part 2 of Chapter 13 includes clauses relating to the disclosure and sharing of personal and commercial-in-confidence information (protected information). This Part also allows a person to share protected information with other Commonwealth agencies, state and territory agencies, organisations and individuals, as authorised by the Director of Biosecurity or Director of Human Biosecurity.

 

Recovery of costs

Part 3 of Chapter 13 allows the Agriculture Minister to recover costs of biosecurity activities undertaken by the department in line with government policies relating to cost recovery as administered by the Minister of Finance and Deregulation. The regulations will prescribe specified activities (chargeable activities) for which fees may be charged and the appropriate level of those fees. The regulations will not prescribe fees amounting to taxation. A number of compliance options are available in relation to fees prescribed in the regulations that are unpaid.

 

Part 3 allows for conveyances to be detained and goods to be withheld if they are subject to a charge due to unpaid fees. If a fee has not been paid within 30 days of the owner of the goods or conveyance being provided written notice (or a longer period as specified in the notice), the withheld goods or detained conveyance may be sold to recover the unpaid fees. This Part also sets out how the proceeds of the sale of goods or conveyances may be dealt with.

 

Part 3 also provides for recovering expenses relating to providing sustenance for animals and plants, and for the Minister to remit or refund fees in certain circumstances.

 

Exemptions and modifications to the Act

Part 4 allows exemptions from the Act to be made in the regulations. It allows exemptions to be made for conveyances, goods or people from any or all of the provisions in the Bill. Exemptions may apply for a specified time period, be subject to one or more conditions or apply to a particular geographical area. Part 4 also allows modification of any provision of the Act to be made in relation to conveyances, goods or people through the regulations. Modifications may apply for a specified time period, be subject to one or more conditions or apply to a particular geographical area. Modifications of the Act allow for the management of biosecurity risks in certain circumstances where the standard provisions of the Bill do not enable appropriate management of biosecurity risks.

 

Part 4 also allows regulations to be made to exempt vessels, people or goods from provisions of the Act to meet Australia’s obligations under the Treaty between Australia and the Independent State of Papua New Guinea (PNG) concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters (the Torres Strait Treaty).

 

This Chapter also deals with a number of miscellaneous clauses including, the management of abandoned and forfeited goods or conveyances, compensation arrangements for damage and destruction and removal of the right to the privilege against self-incrimination.



 

Date of effect and application

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

 

Once the Bill receives Royal Assent, the Director of Biosecurity or the Director of Human Biosecurity will be able to make legislative instruments, and authorise various officers as outlined under Chapter 12 (through the operation of the Acts Interpretation Act 1901 ). These instruments and authorisations will come into effect when the operational provisions of the Bill commence.

 

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

 

Allowing time for communication and education is important as a number of policies included in the Bill do not exist under the Quarantine Actsuch as the new post border powers in Chapter 6 and enforcement regime in Chapter 11. It is important that stakeholders are aware of the new requirements—including the introduction of civil penalty provisions and an expanded infringement notice scheme—in the Bill so that they are not inadvertently non-compliant with these requirements.

 

Proposed transitional arrangements will also allow time for stakeholders to adjust to the new legislative requirements, particularly where these requirements may lead to changes in business processes. For example, in relation to first points of entry, it is proposed that all ports and landing places declared under the Quarantine Act as a first port will automatically become a first point of entry under the Act. There will then be a period of time before these ports and landing places are required to comply with the requirements in the Act.

Financial impact

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



 

 

The Regulation Impact Statement, entitled Regulation Impact Statement Biosecurity Legislation been assessed as adequate by the Office of Best Practice Regulation.

Executive summary

Biosecurity involves ‘managing risks where there is a likelihood of a disease or pest entering Australia and establishing itself or spreading and potentially causing harm to human, animal, or plant health, the environment; or causing economic consequences’. [1]

 

Managing the entry, establishment and spread of pests and diseases is vital, not only for the wellbeing of Australia’s population and native environment but also for the viability of some of Australia’s most important sectors.

 

In Australia, the management of biosecurity is achieved through collaboration between the Australian, state and territory governments, industry participants and other stakeholders. The Department of Agriculture, Fisheries and Forestry (DAFF) is the primary biosecurity agency at the national level. The Quarantine Act 1908 (‘the Quarantine Act’) provides the legislative basis for human, plant and animal quarantine activities in Australia and provides a national approach to protecting Australia from pests and diseases.

 

Biosecurity risks have changed significantly since the core of the Quarantine Act was drafted over a century ago. In addition, the last significant review of the system in 2008, One Biosecurity: A Working Partnership found that, while Australia operates a good biosecurity system, there are a number of opportunities for improvement.

 

In this context, the Australian Government has committed to reform its biosecurity legislation, and to address issues with - and replace - the Quarantine Act and its associated instruments. The proposed biosecurity legislation aims to manage biosecurity risks but in a more flexible manner than the current legislation.

 

The proposed legislation provides an overarching legislative framework. Much of this framework is common, in practical terms, to the existing situation or provides heads of power for more detailed regulations, and in isolation does not represent substantive change from current policy or practice. This Regulatory Impact Statement (RIS) is focussed on only those parts of the proposed legislation that could be expected to generate substantive costs or benefits for stakeholders relative to the current situation.

 

Three specific issues have been identified for analysis in this RIS and relate to:

·          approved arrangements between government and industry participants

·          introduction of a new policy for the approval of first points of entry

·          use of biosecurity zones in prevention and control.

 

This RIS considers each of these issues in terms of the problem being addressed, potential alternatives to the proposed biosecurity legislation, and the associated costs and benefits. There is also a brief discussion of other changes with less significant impacts (such as those relating to human health).

 

In addition to the benefits associated with reforms in the three areas outlined above, there is also a broad, unquantified benefit of the proposed biosecurity legislation that relates to the value of improving the overall quality of the legislative framework by reducing the costs associated with interpreting complex, prescriptive, outdated legislation (a benefit to both government and business). The legislative reform will also assist the plans for broader reform in biosecurity primarily in the form of more flexible legislative mechanisms that will allow change.

 

Approved arrangements

The Quarantine Act states that quarantine related activities must be performed by DAFF officers or under their direct supervision. This has led to the department implementing partnership arrangements with industry participants that are formalised through various provisions of the Quarantine Act. In particular, section 46A of the Quarantine Act is used where arrangements apply to a physical premise whilst section 66B is used where the arrangement applies to a specific quarantine activity performed on behalf of DAFF. Under section 46A and 66B each premise or activity is subject to a separate approval or agreement.

 

As a result of the current legislative requirement, industry participants may be subject to multiple arrangements under one or both of the existing sections to ensure they are compliant. This leads to an increased regulatory burden on industry participants, and imposes a significant administrative burden on the department as well as creating inefficiency and duplication of process. More broadly, t he current arrangements are seen as unduly restrictive and rigid, with insufficient flexibility to allow for partnerships between industry participants and government in respect of certain activities or types of premises.

 

The proposed biosecurity legislation will transition those that are currently on a QAP or compliance agreement to an approved arrangement, and broaden the scope of operations that may be brought under an approved arrangement. The model of approved arrangements, within the context of the proposed biosecurity legislation, provides a mechanism whereby government and industry participants are able to work together to achieve biosecurity objectives. These arrangements are most beneficial when they are focused on areas where industry participants have an advantage over government in providing a particular service or facility (such as on the basis of efficiency or technical expertise). In these cases, having industry participants provide a service can allow a more flexible and expedient process to occur, which has benefits to both industry participants and government (for example, where industry participants are able to include particular biosecurity requirements within their usual business process, thereby avoiding the need to defer to biosecurity officials at that stage).

 

There are three areas identified in this analysis where the proposed changes to approved arrangements are likely to have an impact (in terms of both costs and benefits to both industry participants and government):

·          Broadening the scope and flexibility of approved arrangements between government and industry participants ─ Where the changes influence the number and type of approved arrangements sought by industry participants with government. It is expected that in time, there would be an increase in the number of arrangements agreed between industry participants and government, primarily on the basis of the improved flexibility under the proposal, and the inclusion of ‘end-to-end’ systems within the proposed scope of approved arrangements. The increased number of parties subject to approved arrangements will allow for increased flexibility for those parties, providing more effective and efficient outcomes

·          Reducing administrative complexity for government and industry participants ─ Where the changes allow approved arrangements to be established and managed at a lower administrative cost than previously. It is expected that government and industry participants will benefit from reduced administrative costs, where the new arrangements allow a much more flexible approach to management

·          Costs to transition to approved arrangements - most notably in relation to the fit and proper person test.

 

First points of entry

The Quarantine Act provides that overseas vessels must enter Australia at a first port of entry, as listed in the Quarantine Proclamation 1998 . While the Quarantine Proclamation 1998 lists the 59 ports that are currently proclaimed as first ports of entry:

·          there is no transparent process that sets out how ports come to be proclaimed, nor how ports may be removed from this list

·          there are no requirements setting out how to identify suitable first ports (and associated infrastructure requirements) to ensure that the port can be serviced by biosecurity officials or that biosecurity risks can be managed

·          there is little clarity around what area constitutes a port in terms of the geographical boundaries of a port (this is important when determining biosecurity risk).

 

A number of proclaimed first points of entry are no longer receiving a substantive volume of international vessels (for a variety of reasons). Some are not in use at all.

 

The current ambiguity surrounding the proclamation and management of first ports of entry has led to a number of vessels entering non-proclaimed ports (both with permission - which imposes a range of costs to process numerous ‘one off’ applications, and without permission - which raises concerns around the effective management of biosecurity risks).

 

The proposed biosecurity legislation will introduce clear requirements to provide certainty to port and landing place operators about the process to become a first point of entry, and the circumstances under which a first point of entry determination may be varied or revoked.

 

Port operators would be positively impacted by the greater transparency and certainty within the first point of entry process. In addition, the decision to apply for first point of entry status lies with port operators and enables operators to choose the option that best aligns with their business objectives. Costs include application costs as well as potential costs to upgrade facilities to meet specific requirements that would be set out in regulations. Some may choose to forego their first point of entry status, with potential impacts on profitability and port users.

 

DAFF would benefit from the proposed arrangements because the legislation will enable requirements for facilities for biosecurity officers to be set out in regulations. It would thereby help to ensure that officers have the necessary tools and facilities available to them at each port to carry out specific biosecurity duties relevant for that port.

 

Vessel masters would be able to work within a superior framework, resulting in greater transparency of port requirements, potentially fewer applications to land at non-proclaimed ports and greater flexibility to manage short term or seasonal use of ports. Vessel masters would also have greater certainty about the facilities available to them upon arriving at a first point of entry.

 

Declaration of biosecurity zones

The Australian Government currently assumes a relatively narrow biosecurity reach even though its constitutional powers allow for broader regulation. Specifically, the Australian Government has not yet exercised its absolute constitutional power but rather has focused on regulating border activities. Onshore activities have generally been the responsibility of state and territory governments, with assistance from the Australian Government in particular instances.

 

This relatively narrow focus has caused a range of issues, including:

·          additional, and sometimes overlapping, biosecurity measures imposed by individual states and territories

·          the non-traceability of animal and plant matter of greater biosecurity interest once it passes the border

·          inefficient strategies and actions due to the uncertain roles and responsibilities of both individual states and territories and the Australian Government

·          inadequate information sharing and coordination between governments.

 

The proposed biosecurity legislation provides additional powers to the Australian Government to manage biosecurity risks post-border . These powers include: biosecurity response zones, biosecurity zones, monitoring zones and biosecurity control orders. The potential impact of these changes on industry participants, and the community more broadly depend on:

·          the extent to which they impose costs on business or individuals by restricting their normal operations (i.e. restricting access to property, restricting movement of people, vehicles or goods, requiring monitoring activities)

·          the extent to which the new arrangements will improve the management of biosecurity risks, including reducing the potential spread of an introduced species or disease

·          the frequency with which the measures are used.

 

These powers complement rather than replace existing state powers. They may be used infrequently but provide a greater number of options for managing post border incursions in a timely and effective way, particularly if there are benefits in managing a response consistently across different jurisdictions.

 

The extent of costs and benefits from these powers will vary considerably from case to case, depending on how they are applied. The key benefit of these changes will be improved management of incidents post-border and the resulting reduction in costs to stakeholders who could be affected if the pest/disease spread further. The costs associated with these powers will primarily be incurred by those industry participants within a declared zone or affected by a notice which may include costs of restrictions to movement of persons, livestock or goods, costs of providing access to property for monitoring. Importantly, these costs would be similar to those incurred when existing powers are exercised by state and territories. The additional cost of sometimes using these powers is likely to be small and in some cases could result in cost savings relative to the alternative of managing a response using different powers in each state.

 

Conclusion

In most cases, the proposed biosecurity legislation provides the enabling powers for government, with additional details to be set in regulations. While key areas of costs and benefits can be identified, an estimate of the scale of costs and benefits cannot be provided in most cases without the detail that would be set in regulations. For instance, the potential compliance costs of meeting requirements for first points of entry would be determined based on the criteria and application process to be set in regulations. The impact analysis is, therefore, primarily qualitative. In that regard, the overall assessment is that the proposed biosecurity legislation is likely to generate a net benefit relative to the status quo, and is recommended for adoption.

Introduction and context

Biosecurity involves ‘managing risks where there is a likelihood of a disease or pest entering Australia and establishing itself or spreading and potentially causing harm to human, animal, or plant health, the environment; or causing economic consequences.’ [2]

 

A number of factors mean that Australia is increasingly vulnerable to pests and diseases which threaten its biosecurity status. These include the increasing numbers of vessels, passengers and goods from higher risk origins entering Australia and the changing nature of trade and movement with a higher percentage arriving from higher risk countries. The work related to managing the associated biosecurity risks is expected to double in the next 10 years. [3]

 

The number of incursions of pests and diseases is increasing and there are also increasing demand from international trading partners for greater levels of assurance in relation to exports.

 

If the existing approach to managing Australia’s biosecurity system does not change, funding of the biosecurity system will need to grow proportionately with the increases in movements of vessels, people and goods to achieve the same level of biosecurity activity. It is questionable whether such an ongoing cost increase is sustainable.

 

The existing approach to funding and targeting resources is unsustainable if Australia is to maintain its favourable biosecurity status. Australia, particularly its agriculture, fisheries, forestry and food industries, gains significant economic benefits from this status which would be adversely affected if it was not maintained. Breaches of the biosecurity system can also have significant implications for human health and biodiversity.

 

The following sections provide an overview of recent events that provide an important context to the problems identified with the current legislation.

 

 

 

 

The current situation

Australia remains relatively free from many of the pests and diseases that affect primary industries, the environment and human health in other countries. [4] However, in recent years Australia’s borders have become increasingly vulnerable to pests and diseases. Australia’s increased vulnerability is due to a number of factors including globalisation and the increased movement of goods and people across borders.

 

Australia’s favourable pest and disease status is important as it underpins Australia’s agricultural and food sector and its ability to export and it is integral to the unique status of Australia’s natural environment. One indicator of the economic benefit to Australia is the contribution of Australia’s agriculture, fisheries and forestry industries to gross domestic product (GDP). In 2010-11 these industries contributed $36.2 billion in exports (or 3 per cent of GDP). [5]

 

The Department of Agriculture, Fisheries and Forestry (the Department) has primary responsibility for managing Australia’s biosecurity system. In 2011-12, total funding for the Department’s biosecurity programs is estimated at $509.5 million; the majority of which is comprised of $186 million from government appropriation and $295 million from external revenues.

 

The need for new biosecurity legislation

There are various reasons that have been identified for a shift in the approach of managing biosecurity. These are:

·          the existing primary focus on interception at the border is a narrow and resource intensive response to the biosecurity continuum

·          resources are allocated inefficiently to address different risks

·          several key components of the biosecurity system at that time were identified as inadequate, inefficient or ineffective.

 

The nature of biosecurity risks in Australia

Biosecurity risks have the potential to impose significant costs on Australian firms, government and individuals if they are not managed effectively.

 

One example of this is the discovery of red imported fire ants (non native species) in Queensland. The Australian Bureau of Agricultural and Resource Economics estimated the potential costs of this pest to Australia over a 30 year period to be nearly $9 billion. [6] Currently, under emergency response arrangements (these include the Emergency Animal Disease Response Agreement, the Emergency Plant Pest Response Deed and the draft National Environmental Biosecurity Response Agreement.), the Australian Government is contributing to pest and disease eradication and other management programs at a cost of over $315 million; of which the Australian Government has or is committed to contribute half of all government costs.

 

In the case of Foot and Mouth Disease, the recent Matthew’s review [7] commissioned the Australian Bureau of Agricultural and Resource Economics and Sciences to revisit the Productivity Commission’s 2002 report on the economic impact of hypothetical foot and mouth disease outbreaks on Australia.

 

The Australian Bureau of Agricultural and Resource Economics and Sciences estimated that over a ten year period there would be severe direct economic losses to the livestock and meat processing sector from an outbreak of foot and mouth disease. These losses ranged from $7.1 billion for a small three month outbreak, to $16.0 billion for a large 12 month outbreak (expressed in current dollar terms). Control and compensation costs were estimated to range between $25 million for the small outbreak, and $600 million for the large outbreak. Reflecting international experience, the economic impact of trade restrictions (export market closures) would be far greater than the cost of controlling the disease.

 

The Beale Review and, prior to that, the Nairn Review were significant investigations into Australia’s current biosecurity management framework and the current level of biosecurity risk Australia faces. These reports illustrate the nature of biosecurity risks to Australia, the potentially severe consequences should an incursion occur, as well as the need for government intervention. Therefore, this Regulatory Impact State (RIS) does not ‘re-prosecute’ the need for quarantine activities at Australia’s border from first principles in extensive detail.

 

The role for government in mitigating biosecurity risks

Government intervention or action is typically justified in instances of market ‘failure’. In this case, to take one example, the presence of negative externalities (a form of market failure where one party imposes costs on others that are not compensated or benefits that are not paid for) in the context of biosecurity has been widely documented.

 

For example, the importer of a good containing a pest or disease does not usually bear the full costs of any resultant pest or disease outbreak. Rather, pests and diseases affect other producers through a loss of production and/or additional costs associated with the control of the pest and disease and consumers through the potential increase in price for affected goods or the unavailability of the affected good.

 

After completing research and assessing the impacts of invasions, Perrings, Dehnen, Touza, & Williamson (2005) state that “responsibility for environmental protection lies with national governments and takes the form of quarantine regulations.” Further “one of the most striking consequences of globalisation is the increase in the problem of invasive species” and subsequently invasion costs, indicating the growing need for government intervention. [8]

 

In Australia, the management of biosecurity is achieved through collaboration between the Australian, state and territory governments and other stakeholders. DAFF is the primary biosecurity agency; however there are a number of other Australian government agencies with responsibilities for border security and which participate in biosecurity decision making. Examples of these agencies include:

·          the Department of Health and Ageing (DoHA) collaborates with state and territory government health agencies and other relevant agencies to develop, maintain and provide direction for human health issues and strict human quarantine policies to protect Australia from the introduction of serious communicable diseases [9]

·          the Department of Sustainability, Environment, Water, Population and Communities (DSEWPC) is involved in respect of matters about pests that affect Australia’s unique environment and to ensure a strategic, effective and consistent approach is used to manage environmental threats

·          the Australian Customs and Border Protection Service (Customs) has shared responsibility with DAFF to regulate and control movement into and out of Australia of people, cargo and vessels at airports, sea ports and mail centres

·          the Department of Immigration and Citizenship (DIAC) manages the entry of travellers.

 

In addition, state and territory governments have an integral involvement in managing and implementing onshore biosecurity activities. [10]

 

The core priority for DAFF in managing biosecurity risks is to focus resources on those areas of greatest risk and where government intervention is most needed. [11]

Priorities also include:

·          the continued partnerships between Australian departments, state and territory governments, industry participants, clients and stakeholders

·          the delivery of biosecurity services to support access to overseas markets and protect the economy and the environment from the impacts of unwanted pests and diseases.

 

Australia focuses heavily on maintaining its biosecurity system across the continuum, applying measures to identify hazards and manage risks through preparedness, prevention, response and recovery strategies. [12] This focus on the continuum supports consistent service delivery, provides effective biosecurity risk management, improves the efficiency and responsiveness of operations, and strengthens client relationships.

 

Biosecurity risks have changed significantly since the core of the Quarantine Act was drafted over a century ago. Figure 1 below sets out some activities currently undertaken at the key points along the biosecurity continuum.

 

Figure 1 : Activities conducted across the biosecurity continuum

Source: Department of Agriculture, Fisheries and Forestry, ‘Biosecurity’, http://www.daff.gov.au/bsg.

 

Currently the Australian Government predominantly focuses its resources on ‘at the border’ activities. It also conducts some offshore activities, while the responsibility of onshore activities generally rests with state and territory agencies.

 

Industry participants are able to participate in the management of biosecurity risks through the implementation of a partnership arrangement between DAFF and the industry participant whereby industry participants agree to meet biosecurity standards and/or perform a range of biosecurity functions. These are formalised through provisions under the Quarantine Act.

 

Problems associated with current legislation

There are several problems associated with the current legislation. It is not aligned to modern business realities, has been amended approximately 50 times resulting in poorly integrated provisions and is marked by inconsistent use of language, poor structure, a range of drafting styles and duplication or overlap of powers.

 

Specific problems that have been identified and which are the focus of this RIS, are:

·          the need for greater shared responsibility between the Australian, state and territory governments, and between government, business and community

·          poorly specified obligations related to first points of entry

·          insufficient powers to achieve biosecurity objectives.

 

 

 

 

 

 

 

 

 

Objectives and options to achieve them

 

Government objectives

The objectives of government action to address the problems evident in existing biosecurity legislation are to:

·          manage Australian biosecurity risks to an acceptable level and subsequently manage the impact associated with biosecurity incidents (such as the introduction of pests and diseases into Australia)

·          maximise the economic efficiency of the management of biosecurity risks.

 

 

Options to achieve objectives

This chapter sets out, at a high level, a range of options for meeting the government’s objectives from no regulation through to the proposed biosecurity legislation. These are considered in more detail in the chapters that follow in relation to the specific areas that are the focus of this RIS. Components of the legislation that are not specifically considered in this RIS are also set out in Table 1 , setting out the extent of any change to the relevant legislative arrangements and any impacts on stakeholders (if any).

 

The current legislation

The status quo involves maintaining the current regulatory approach, which is the Quarantine Act and associated subordinate instruments. For the purposes of analysis for this RIS, the status quo is assumed to maintain:

·          the current approach to articulating the Acceptable Level of Protection

·          the current approach to Import Risk Assessments and associated risk determinations

·          industry participants partnership arrangements as administered under two separate sections in the Quarantine Act (sections 46A and 66B)

·          the current approach to designating first ports of entry, whereby overseas vessels must enter Australia at a first port of entry proclaimed under the Quarantine Act

·          the current governance arrangements

·          the current cost recovery arrangements

·          limited powers in post-border space

·          a rigid enforcement regime with only the ability to undertake criminal prosecution.

 

The proposed biosecurity legislation

The proposed biosecurity legislation will replace the century old Quarantine Act and aims to create a responsive and flexible operating environment. The reforms will allow for better management of the risks of animal and plant pests and diseases entering, establishing and spreading in Australia and potentially causing harm to people, the environment and the economy.

 

The proposed biosecurity legislation comprises two new bills; the Biosecurity Bill and the Inspector General of Biosecurity Bill. The Biosecurity bill consists of the following chapters:

Chapter 1 - Preliminary: This chapter sets out a number of administrative matters and includes commencement, the objects of the Act, Australia’s appropriate level of protection, binding of the Crown, geographical coverage, as well as how the Act will interact with state and territory laws.

 

Chapter 2 - Managing biosecurity risks: human health: This chapter covers the continued management of human health risks at Australia’s borders. It outlines the measures which may be used to respond to the threat of serious communicable diseases.

 

Chapter 3 - Managing biosecurity risks: goods: This chapter provides for the powers of biosecurity officers to evaluate the potential risks associated with the import or proposed import of goods, prohibit or conditionally allow goods to be imported into Australia and to manage risks associated with goods brought into Australia.

 

Chapter 4 - Managing biosecurity risks: conveyances: This chapter outlines the establishment and management of first points of entry and the management of biosecurity risks associated with conveyances (vessels, aircraft, etc) entering into Australia’s jurisdiction from overseas and with offshore installations.

 

Chapter 5 - Ballast water and sediment: This chapter implements the International Convention for the Control and Management of Ships’ Ballast Water and Sediments 2004 and creates a single, Australian-wide ballast water and sediment management regime.

 

Chapter 6 - Managing biosecurity risks: monitoring, control and response: This chapter outlines powers to monitor and, where necessary, manage biosecurity risks when they emerge on-shore.

 

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

 

Chapter 8 - Biosecurity emergencies and humans biosecurity emergencies: This chapter outlines the powers and provisions relating to the declaration of a state of biosecurity emergency and the management of associated biosecurity risks.

 

Chapter 9 - Compliance: This chapter establishes the monitoring, investigation and audit provisions under the Bill.

 

Chapter 10 - Warrants: This chapter contains general provisions relating to the various types of warrants that may be issued under the Bill.

 

Chapter 11 - Enforcement: This chapter provides a modern regime of enforcement tools to respond to non-compliance including civil penalties and criminal offences as well as a range of administrative options such as an infringement notice scheme, enforceable undertakings and identity provisions.

 

Chapter 12 - Governance and officials: This chapter makes clear the powers and responsibilities of the Director of Biosecurity, the Director of Human Biosecurity, and biosecurity officers, biosecurity enforcement officers, chief human biosecurity officers and human biosecurity officers.

 

Chapter 13 - Miscellaneous: This chapter contains provisions on recovery of costs and protection from civil proceeding while also covering other provisions that do not fit under any of the other chapters.

 

In comparison to the current situation, Table 1 below describes the differences of the proposed biosecurity legislation as well as comments on the extent of impacts on stakeholders. This Regulation Impact Statement focuses on those areas that represent the most significant changes (and therefore impacts) for stakeholders (as discussed below).

 

Table 1 : Comparison between Quarantine Act and the current situation

Chapter

Compared to current legislation 

Outcome and impact

1.  Preliminary

Outlines constitutional heads of power.

The Commonwealth will cover the field in relation to importation of goods into Australia.

Australia’s Appropriate Level of Protection will be enshrined in the new legislation.

These changes provide clarity around heads of power but this does not have tangible implications for stakeholders.

The risk of inconsistent import conditions imposed by States and Territories where they are inconsistent with Commonwealth laws will be reduced but in practice, inconsistent conditions can already be challenged because of Australia’s obligations under World Trade and Free Trade agreements.

Australia’s Appropriate Level of Protection is already Government policy and in operation it will not be any different if it is included in legislation.

In isolation, these changes are not expected to result in substantive impacts on stakeholders.

2.  Managing biosecurity risks: human health

More powers to manage human biosecurity risks.

Interventions tailored to accommodate an individual’s circumstances.

Consultation on the draft RIS revealed that the impact of these changes will be minor as there will be little practical change to current procedures despite greater clarity and flexibility in the legislation. Further, only a small number of people are likely to be affected. For example, the changes do not affect the list of human diseases for which interventions are applied.

3.  Managing biosecurity risks: goods

Goods can be unloaded unless directed not to unload.

Reversal of onus of proof for illegally imported goods.

Abandoned or forfeited goods will be able to be destroyed, sold, exported or otherwise disposed of.

DAFF operations staff have advised that in practice, the direction not to unload will not impact current loading/unloading practices.

The reversal of onus of proof will transfer the evidence burden from Government to importers - overall it is expected it will be easier and less resource intensive for an importer to prove goods were imported legally than for Government to prove the reverse. This change may affect the outcomes of individual prosecutions.

Flexibility to manage abandoned goods would provide benefits to government eg. in reduced storage and administrative costs but the quantum of benefits is expected to be minor.

These changes were not subject to more detailed analysis because of their relatively minor overall impact.

4.  Managing biosecurity risks: conveyances

Greater transparency around first points of entry.

Vessel sanitation certification scheme.

The changes to first points of entry represent a substantive change to existing policy and will impact existing first points of entry and potential new first points of entry. Although the extent of impacts will depend on the detail in the regulations, some analysis of the high level impacts on stakeholders has been undertaken.

Consultation revealed that the vessel sanitation certification scheme will not materially impact existing processes as these certificates are, in practice, already recognised.

5. Ballast water and sediment

Manage ballast water via exchange or treatment systems.

Ballast water record books required.

Ballast water management certificate and management

plan required.

The ballast water changes reflect an international convention that will come into force 12 months after ratification by 30 counties representing 35 percent of the world’s merchant shipping tonnage. As of October 2012, 36 countries have ratified the convention representing 29% of world tonnage. Extensive consultation occurred prior to Australia ratifying the convention which included the development of a regulatory impact statement in 2007. Analysis of these impacts is not repeated in this RIS.

6. Managing biosecurity risks: monitoring, control and response

New post border powers.

Information gathering powers.

Biosecurity control orders.

Biosecurity zones.

These measures give the Commonwealth additional powers for managing biosecurity risks post border. Most states and territories already have similar powers. In practice, use of Commonwealth state or territory powers will be coordinated under existing national agreements. Some analysis of possible impacts is included in the RIS.

7. Approved arrangements

Improve approved arrangements with industry to cover:

Broader range of operations.

Less administration costs for industry and government in managing Approved Arrangements.

Ability to vary, suspend or revoke an Approved Arrangements.

These measures will provide greater flexibility for industry to manage the biosecurity risks associated with their operations. In practice, this is likely to have the greatest benefits for large importers. Arrangements for smaller operators are unlikely to change significantly. The potential impacts are analysed in this RIS.

8. Biosecurity emergencies and humans biosecurity emergencies

Broadens the scope of the powers to cover:

Threats to human, plant and animal health.

The environment.

The economy.

These provisions are similar to existing powers in the Quarantine Act that have never been invoked but are broadened to include acting when there are potential impacts on the environment or economy. The powers are designed to manage serious situations and those that are not able to be anticipated. Given the similarities to existing powers and that they may never be invoked, it is not possible to predict substantive impacts on stakeholders and these have not been analysed.

9. Compliance

Establishes the monitoring, investigation and audit provisions under the Bill.

Allows the Director of Biosecurity or Director of Human Biosecurity to assess whether a person is fit and proper in relation to applications for things such as import permits or approved arrangements, and also allows the Director of Biosecurity to require personal information for applications.

These provisions outline the monitoring, investigation and audit powers for ensuring compliance with the Bill, and are similar to existing provisions in the Quarantine Act. The introduction of a fit and proper person test, in conjunction with the power to require personal information for applications, is envisaged to increase the efficiency of the process by allowing the review of a complete application without needing to seek additional information. These requirements are designed to protect the integrity of the application process for importers and other stakeholders. In addition, the requirements assist in the management of biosecurity risk by ensuring that privileges such as import permits or approved arrangements are given only to those able to responsibly and appropriately handle them.

10. Warrants

Contains general provisions relating to the various types of warrants that may be issued under the Bill.

Allows for entry to premises and the taking of possession of conveyances or premises by consent, with a warrant, or in certain circumstances without a warrant or consent.

 

The warrant provisions will allow for appropriate officials to enter premises or exercise other specific powers for ensuring compliance with the Bill, or managing biosecurity risk. These provisions provide for warrants to be issued and exercised in accordance with the Bill in circumstances that are consistent with the Australian Government Commonwealth Guide to Framing Offences, Infringement Notices and Enforcement Powers. It is not envisaged that in practice there will be a high number of warrants issued each year. 

11. Enforcement

 

More flexible, modern regime of penalties and offences  to include:

Infringement notices.

Enforceable undertakings.

Civil penalties.

Criminal sanctions.

 

The introduction of a civil penalty regime in addition to existing criminal offences provides the department with greater opportunity to take action where non-compliance has been identified. This will provide more flexibility than criminal sanctions alone to encourage behavioural change. The changes are consistent with normal practice in other sectors and are briefly outlined in this RIS.

12. Governance and Officials

General administration power for Director of Biosecurity to provide transparency, certainty and consistency on how the legislation will be applied.

This additional power will provide greater administrative transparency. It does not allow the Director to ‘reinterpret’ legislation but may provide some benefit for stakeholders where there is uncertainty. The impacts for stakeholders will depend on the aspect of legislation being interpreted and the outcome and analysis of possible impacts would be speculative.

13. Miscellaneous

Increased ability to deny/stop services where fees are outstanding.

Reporting timeframes.

Protection from civil proceedings for officers performing functions under the Act.

These provisions are administrative in nature and details, particularly in relation to cost recovery, will be provided in regulations. The department may benefit from the increased incentive for service users to pay fees. The reporting timeframes are not substantially different to existing timeframes. The protection of officers performing functions under the Act is consistent with current practice. Possible impacts of these provisions are not analysed in this RIS.

Inspector-General of Biosecurity Bill

Establishes the Inspector-General of Biosecurity as a separate statutory office:

Statutory office reports to the Minister.

Quality of Processes.

Report on reviews and findings (publically available).

An interim Inspector-General has already been appointed and the incremental cost of establishing the office in legislation is therefore expected to be minimal. However, this office is expected to avoid the need for future Beale and Nairn style reviews - avoiding the costs of conducting these reviews would to some extent offset the costs of this office. These impacts are minor in nature and not analysed in detail in this RIS.

 



 

No regulation

A ‘no regulation’ option would involve no biosecurity controls and no measures to mitigate biosecurity risks to Australia. This option was not considered feasible because it does not achieve the objective of seeking to manage biosecurity risks to an acceptable level. It also is not consistent with Australia’s international obligations.

 

Self regulation

A ‘self regulation’ option would involve industry participants leading risk mitigation measures and taking responsibility for managing these risks. As self regulation measures can have no legal basis, their success relies on there being sufficient incentive to business to act in a way that mitigates risk (such as potential loss of revenue). These approaches are not effective in cases, such as in managing biosecurity risks, where the potential costs of an incident are high and wide ranging and may not fall on the party primarily responsible for managing those risks, and where it is difficult to identify the party that has not properly managed risks.

 

Direct supervision by government

Under a direct supervision option government takes full responsibility for biosecurity measures and industry participants have no role in mitigation measures. This approach was not progressed as it is not feasible from a resourcing perspective for governments and is not cost effective. It was also not consistent with the government’s cost recovery policy or with the ‘shared responsibility’ approach as outlined and recommended in both the Nairn and Beale reviews.

 

Assessing impacts

In developing proposed biosecurity legislation, a number of problems with the existing arrangements are addressed, the most significant of which relate to:

1.       Approved arrangements

2.       Management of first points of entry

3.       Biosecurity zones that provide the Australian Government with additional powers to manage biosecurity risks post border.

 

These areas were considered to impose the most significant impact, in part because some are new provisions, but also because they have the most wide reaching impacts on stakeholders.

 

A fourth area, ballast water management also involves significant changes, however a RIS on ballast water proposals was prepared in 2007 and the proposals have already been subject to extensive consultation. [13] As the content in that RIS remains current, the changes to ballast water management are not considered in this RIS. The differences between the existing Quarantine Act or the current situation and the proposed legislation are summarised in Table 1 . This table provides brief commentary on whether or not these differences are expected to have substantive impacts on stakeholders and therefore whether substantive analysis of the impacts in this RIS was warranted.

 

Other areas within the new legislation either currently exist under the Quarantine Act or exist in state and territory legislation.

 

In most cases, the proposed biosecurity legislation provides the enabling powers for government, with specific details around implementation and compliance to be set in regulations. While key areas of costs and benefits can be identified, an estimate of the scale of costs and benefits cannot be provided in most cases. For instance, the potential compliance costs of meeting requirements for first points of entry would be determined based on the criteria and application process to be set in regulations. The impact analysis is, therefore, primarily qualitative.

 

The focus of the analysis is on those elements which represent the most significant change and are considered to have the greatest potential impact on business and consumers. Each of these elements or issues are considered in turn in a thematic manner, that is, the nature of the problem, options and assessment are considered for each issue, before moving onto the next. This approach has been taken to assist the reader in working through one issue before moving onto the complexities of the next. After consideration of the most significant elements, the other less significant aspects of the proposed biosecurity legislation are briefly considered, before the RIS talks about implementation and review.

Approved arrangements

 

Nature of the problem

Currently the responsibility for protecting Australia’s international borders primarily falls on government, which may increase the risk of ‘moral hazard’. Moral hazard occurs when an individual or organisation is insulated from a risk or does not bear the cost of a risk occurring. Consequently the individual or organisation behaves differently, with a tendency to act less carefully than they otherwise would to mitigate the risk (as they have less incentive to work to reduce the probability of the risk occurring). For example, a vessel’s captain may not adequately ensure the vessel harbours no pests or disease on board before entering Australian waters given the burden of checking the vessel falls on the Australian Government.

 

This issue with the Quarantine Act was noted in a submission from the Quarantine and Exports Advisory Council to the Beale review, stating:

“The responsibility of managing risk should not be a sole AQIS responsibility but be spread across corporate Australia. There should be a legislative mechanism to ensure corporate Australia and importers take responsibility for managing the risk by ensuring appropriate systems and procedures are in place.” [14]

 

The burden on government will continue to increase moving forward given the expected increase in the volume of goods, vessels and people coming into and out of Australia. Further, the focus on government can ignore private sector expertise in risk management.

The Quarantine Act requires that quarantine related activities are performed by DAFF officers or under their direct supervision. Sections 46A and 66B of the Quarantine Act create an exemption where DAFF can enter into arrangements (partnership arrangements) with industry participants to perform some of these functions themselves.

·          Section 46A: allows the Director of Quarantine to approve a premises for the purpose of receiving, storing and dealing with goods subject to quarantine, referred to as a Quarantine Approved Premises (QAP).

·          Section 66B: allows the Director to enter into a Compliance Agreement with an industry participant, which requires the industry participant to perform specific tasks in relation to goods that are subject to quarantine in an agreed manner.

 

Under section 46A and 66B, each premise or activity is subject to a separate approval or agreement. As a result, industry participants may be subject to multiple arrangements under one or both of the existing sections to ensure they are compliant. This leads to increased regulatory burden on industry participants, and imposes a significant administrative burden on DAFF as well as creating inefficiency and duplication of process. More broadly, t he current arrangements are seen as unduly restrictive and rigid, with insufficient flexibility to allow for partnerships between industry participants and government in respect of certain activities or types of premises.

 

Options to address the problem

 

No regulation

No government intervention is not considered to be a feasible option as there are strong public interest concerns and potentially high risk events in relation to approved arrangements. The risks should be managed to a specified level for the broad benefit of the community and industry.

 

Market forces are insufficient incentive for industry participants to appropriately manage biosecurity risks to Australia. They may limit their management activities to identifying and preventing harm to their own business rather than identifying and preventing harm to Australia. Some approved arrangement participants will also lack the expertise required to identify and manage biosecurity risks.

 

The current legislation

Under current legislation, QAP and compliance agreements are already in place that achieve, to some extent, the benefits of partnerships between industry participants and government. There are a number of aspects of current arrangements however which are not optimal, and therefore do not achieve all of the potential benefits of these types of arrangements.

 

For instance, under the current legislation, large importers with control of their end to end supply chain processes are not able to take advantage of partnership arrangements with DAFF. As a result, any expertise they might have in managing risks is not utilised, and there may be higher costs to those participants and to government as a result of quarantine related activities being performed by DAFF.

 

Continuing with the current legislation would lead to the continuation of the above mentioned problems and therefore this is not deemed to be a feasible option for the purposes of this RIS.

 

The proposed biosecurity legislation

The proposed approved arrangement provisions will allow for:

·          consolidation of existing QAPs and compliance agreements into single approved arrangements

·          a systems-based approach to managing biosecurity risks that will enable larger end to end importers to participate in an approved arrangement.

 

Under the proposed biosecurity legislation, the Director of Biosecurity and the Director of Human Biosecurity may, upon the application of a biosecurity industry participant, approve an arrangement for the performance of particular biosecurity functions, or the exercising of particular biosecurity powers to manage biosecurity risks. An arrangement must meet the requirements set out in the regulations. The legislation would be flexible enough to allow the Directors to consider any matter they determine to be relevant when approving an arrangement.

 

If a Director reasonably believes that due to a change in circumstances an arrangement no longer meets the requirements on which the arrangement was approved (such as a change in the acceptable level of biosecurity risk), the Director may vary the arrangement, or require the biosecurity industry participant to vary the arrangement. Similarly, a biosecurity industry participant can request a variation to the arrangement. If the Director refuses a biosecurity industry participant’s request for a variation, the Director will have to provide the reasons for the refusal.

 

The Director would also be able to suspend or revoke an approved arrangement. If the Director requires a suspension or revokes an agreement, a show cause notice would be issued first, giving the biosecurity industry participant 14 days to respond. The Director would not be required to issue a show cause notice if the grounds for suspension or revocation are serious or urgent. If a biosecurity industry participant requests a suspension or revocation, the Director would be required to approve the request.

 

If an approved arrangement has been suspended or revoked by a Director, the Director may require a biosecurity industry participant to take actions to ensure that biosecurity risks are still being adequately managed.

 

Direct supervision

A more prescriptive approach and greater government intervention is not feasible from a resourcing perspective for governments, not cost effective and not consistent with the ‘shared responsibility’ concept.

 

Assessment

Approved arrangements are most beneficial where industry participants have an advantage over government in providing a particular service or facility (for example, where industry participants are able to include particular biosecurity requirements within their usual business process, thereby avoiding the need to defer to biosecurity officials at that stage). That said, not all organisations will necessarily experience net benefits from moving to approved arrangements, and the voluntary nature of the arrangements will mean that generally only those that received net benefits will transition to this type of arrangement. One submission highlighted that it is likely that small operations may not expect significant benefits from such a shift due to the upfront training and support costs required. The proposed legislation is likely to have an impact (in terms of both costs and benefits to both businesses and government):

·          Broadening the scope and flexibility of approved arrangements between government and business ─ where the changes influence the number and type of approved arrangements sought by industry participants with government

·          Reducing administrative complexity for government and industry participants ─ where the changes allow approved arrangements to be established and managed at a lower administrative cost than previously

·          Impacts associated with transition to approved arrangements - transition of existing agreements to approved arrangements is expected to take place within 18 months of commencement.

 

Each of these factors is discussed in more detail in the following sections.

 

Potential costs and benefits for industry participants

 

Broadening scope and flexibility of approved arrangements between government and businesses

Industry stakeholders’ participation in partnership type agreements is currently voluntary, and would continue to be so under approved arrangements in the proposed biosecurity legislation. Costs associated with these arrangements, therefore, are incurred voluntarily by participants. It is reasonable to assume that industry participants not currently under a partnership type agreement will apply for an approved arrangement with government in cases where they believe that there is a net benefit for them of entering into the arrangement (over a reasonable timeframe for investment).

 

A key element in the potential change in up-take of approved arrangements is the broadening in scope and flexibility of arrangements that can be agreed under the proposed biosecurity legislation. There are two main implications:

1.       There is unlikely to be a significant impact on the scope or scale of businesses currently under QAPs or compliance agreements that have been agreed under the Quarantine Act. Those industry participants who have limited control over the supply chain of the commodity or product they are importing, would transition to an approved arrangement similar to the current model they are using, whether that be the procedural or premises based model.

2.       Larger industry participants that control the whole of supply process for their commodity or product may move to an agreement under the new model if it lowers their net costs and they can effectively manage biosecurity risks using their own systems. This would not occur if an industry participant thought that moving to a broader arrangement under the new model would be too costly or not deliver the benefits in the long term to justify the implementation costs.

 

The net change in the number of partnership type agreements in place would therefore be determined by the extent to which there is growth in the number of industry participants that seek new approved arrangements for their ‘end-to-end’ business process and additional functions. The following information, provided by DAFF, provides a guide on the potential uptake of these new types of approved arrangements for larger industry participants:

·          There are currently approximately 1000 industry participants that import what can be classified as ‘large’ quantities. [15] Of these large importers, it is expected that there would be approximately 100 that have the appropriate internal systems in place to satisfy the requirements of an approved arrangement, that is, there are 100 industry participants that would be able to complete an ‘end to end’ risk analysis of their goods.

·          It is anticipated that there would be 30-40 of these large industry participants that, already within their business model, satisfy the requirements and would need to simply put together their risk analysis and business model for DAFF to review. This results in 60-70 importers (that is, the 100 industry participants minus the 30-40 that already satisfy these requirements) who may benefit from implementing an agreement under the new arrangement and who would incur some initial costs to ensure their business model and risk analysis adequately satisfies DAFF’s requirements.

·          The importers who are successful would need to undergo audit checks to verify their risk analysis and ensure they are adequately managing their biosecurity risks. It is expected that the majority of these industry participants would have a high degree of exposure to these types of audit processes under current arrangements. Therefore the audit process would most likely not deter these participants and would not affect uptake.

 

Based on this analysis, it is reasonable to expect that there would be a small increase in the extent of approved arrangements agreed with industry participants under the proposed biosecurity legislation, though the additional agreements would be amongst larger importers and would have broader scope than current arrangements (that is, they would cover more business processes).

 

Example of potential benefits from approved arrangements

To demonstrate the potential benefits due to the proposed approved arrangement framework, the following example provides an illustration of potential benefits for an industry participant that chooses to be brought under the scope of an approved arrangement.

 

Company A is a major importer of commodity X and has been importing this commodity into Australia for many years without any biosecurity breaches. The company has controls in place across the total supply chain for all products it imports into Australia. The company’s owner is a diligent importer who understands the biosecurity risks associated with the products it  imports and its systems are able to provide evidence to support this. On average, the company imports 10,000 containers of this commodity each year. Under current processes, all of these containers must be inspected by biosecurity officers regardless of the company’s compliance history and biosecurity management controls in place.

 

Under the new approved arrangement framework, the systems that Company A has in place would be recognised by DAFF as appropriate for managing the biosecurity risks associated with the goods the company is importing. Further, the low risk of Commodity X would also be taken into account due to the risk return approach enabled by legislation. Consequently, Company A would experience less intervention from DAFF. Out of the 10 000 containers, a lower percentage would be selected for inspection to provide assurance, or verify, that the company’s arrangements effectively manage risks across the continuum. For this example, Company A’s inspection rate could be reduced to 50 per cent of containers. (Note: this is to illustrate the potential benefit and does not reflect the true reduction for intervention that may be applied by DAFF).

Table 2 : Impact on ‘Company A’ each year

 

Current

Future

Container Inspection

 

 

Containers inspected

10 000

5 000(a)

Time cost/container

60 minutes (b)

60 minutes (b)

Total time cost

10 000 hours

5 000 hours

Monetary cost/container

$180(c)

$180(c)

Total monetary cost

$1 800 000

$900 000

Potential time saving to Company A

 

5 000 hours

Potential cost saving to Company A

 

$900 000

Source: The numbers of containers for this example are fictional and represent no real industry participant. The new intervention rate and average time taken were assumed and the fee for service costs are using current (2011) fee for service rates DAFF currently enforces.

Notes: (a) Assumed a reduced intervention rate of 50 per cent under new arrangements. (b) Assumed an average time taken of 60 minutes per container under both scenarios. (c) As per DAFF’s fee for service rates, a rate of $90 per 30 minutes was used. Additional costs incurred outside quarantine fees are also incurred such as transport, container lifts and storage space at Quarantine Approved Premises (QAPs). However these have not been included as these would be charged by the QAP and not DAFF.

 

Reduced administrative complexity in establishing and managing approved arrangements

Most industry participants operate either as a QAP, or under compliance agreements, although:

·          universities can operate a large number of QAPs

·          some participants (such as waste providers) can operate as a QAP and also have a range of compliance agreements in place.

 

Administrative costs

The proposed biosecurity legislation could reduce the current administrative costs for both industry participants and government. Under the proposed biosecurity legislation, there could be one approved arrangement covering a range of activities of an industry participant rather than multiple arrangements as is the current process. Biosecurity officers would no longer be required to process multiple applications, assess multiple arrangements and complete multiple audits for those industry participants that apply under the new approved arrangement model.

 

Application costs

The Department intends to move away from the yearly renewals to a model that sees renewals required less frequently.

 

Industry participants may benefit from reduced application costs (both time and money costs) because of the need for fewer agreements. Further, depending on their arrangement, product, supply chain or other detail, they may experience less disruption to their business processes. This is because an audit and compliance program could be aligned with a single approved arrangement rather than multiple audits for multiple existing arrangements.

 

 

 

Impacts associated with transition to approved arrangements

Existing QAPs and compliance agreements will remain valid on commencement of the Act (one year after Royal Assent). The intent is to transition these existing agreements to approved arrangements within 18 months of commencement and/or as existing QAPs and agreements expire (two and a half years after the legislation receives Royal Assent).

 

In transitioning across, participants will need to pass a fit and proper person test and there may be some time spent understanding the transition process and completing paperwork. The provisions under the proposed Biosecurity Legislation provide the Director of Biosecurity and the Director of Human Biosecurity with the ability to apply the fit and proper person test and gather personal information from applicants. Information to make a determination will comprise publically available information, information gathered in the course of conducting business with other government agencies and information provided by the person. This is to ensure that persons covered by approved arrangements or who have been granted import permits are persons that are able to appropriately manage biosecurity risks. This is important because such a person might be involved in the importation of high risk goods or be approved to undertake activities to manage their own biosecurity risks with oversight by the Commonwealth. An import permit or an approved arrangement is a privilege rather than a right and means that the person is allowed to do certain things the general public are not allowed to do. It is important that such persons are considered fit and proper to be able to conduct these activities and there is no reason to believe that the person will not operate within the scope of their approval or adhere to any conditions or requirements that are placed upon it. As per the Acts Interpretation Act 1901 , person includes a corporation or an individual.

 

The operational detail of changes to application processes and required content and information are not available. However, it is unlikely substantive new costs would be incurred as existing agreements are rolled over to an approved arrangement if the applicant is seeking to continue a similar arrangement. That said, a number of submissions highlighted examples of costs that might be incurred such as the development of manuals and procedures. To provide some indication of the potential magnitude of costs, it is assumed that:

·          Time to deal with paper work related to the transition to an approved arrangement - assumed to be 30 minutes.

·          Fit and proper person test - processing fee: $42 [16] .

·          Time required to comply with ‘fit and proper person’ test requirements: 30 mins [17] .

·          Value of time: $71 per hour (including on-costs and overheads) [18] .

·          Reduction in number of parties subject to an approved arrangement (currently around 1433 compliance agreements and 2824 QAPs, assume for illustrative purposes a 40 per cent reduction from these figures in terms of likely number of approved arrangements although precise number may differ from this).

 

This equates to a total cost of around$289,000 assuming the costs of transition are all incurred at the beginning of the first year.

 

Potential costs and benefits for Government

There will be costs to government to transition those that currently operate as a QAP or under compliance agreements. This will involve assessing material that is provided by those seeking to transition across, and assessing whether applicants are fit and proper persons. As with other impacts in this chapter, the precise cost to government will depend on the nature and extent of the information that must be assessed. More broadly, there will be potential costs to government of administering a greater number of approved arrangements with industry participants than is currently the case.

 

Summary of impacts

Impact

Industry participants

Government

Broader scope and flexibility of approved arrangements

Increased number of arrangements facilitated under new legislative settings

Potential cost of administering a greater number of approved arrangements with industry participants

Reduced administrative complexity in establishing and managing approved arrangements

Current arrangements can be managed more efficiently at a lower cost to business

Benefit through reduced costs of managing approved arrangements (higher efficiency)

Impacts associated with transition to approved arrangements

Cost of transitioning to approved arrangement for each business currently under QAP or compliance agreement.

Cost of transitioning businesses to approved arrangements.

 

Public consultation

Several submissions received during the consultation period stated that, in theory, approved arrangements are a cost effective and resource friendly option, however more information would be required to know whether they will in fact lead to savings. It was also stated that the approved arrangement provisions provides opportunities for regulatory burden reduction, decreased overall costs to industry and government and streamlining of systems.

 

Submissions also highlighted the need for appropriate accreditation, auditing and performance monitoring systems using appropriately qualified auditors, exemptions from providing securities or mandatory securities and the need for more specific information on what arrangements can be approved, as the current legislation is quite specific.

 

While several of the issues raised in submissions and throughout the consultation were the result of misinterpretation of the proposed biosecurity legislation, many others will be addressed in the regulations and accompanying polices and documentation. 

 

Importantly approved arrangements do not intend to significantly alter the existing QAP and compliance arrangement schemes. Rather the intention is to replace them with a single combined model that is more flexible and expands, rather than restricts, the circumstances in which an arrangement can be entered into with the Commonwealth. If current QAP arrangements with DAFF meet the requirements in the legislation for an approved arrangement (i.e. operations adequately manage risk and applicant meets fit and proper person test), it is likely that they can continue unaltered as an approved arrangement under the new legislation. (Note: each arrangement will be considered on its individual merits, so approval cannot be guaranteed).

 

In terms of using appropriately qualified auditors for approved arrangements, the provisions allow for the appointment of third party auditors.  The auditor does not necessarily have to be a biosecurity officer but an expert in a relevant field.

 

Comments were considered about the impact of requiring some organisations to provide a ‘security’ as a condition of an approved arrangement.. Security is intended to be a compliance tool, so that if a Biosecurity Industry Participant does not manage biosecurity risks in accordance with its approved arrangement, the security may then be used by the Commonwealth to pay for managing that incident. This is not a mandatory provision within the legislation and is in fact a discretionary provision that may be used by the relevant Director. The financial capacity of an organisation to provide an amount of security and the level of biosecurity risk posed by the proposed arrangement will be considered by the Director.

 

Approved arrangement regulations will be released for public consultation.

First points of entry

The Quarantine Act 1908 currently requires overseas vessels and aircraft entering Australia to arrive at a first port of entry, currently listed in the Quarantine Proclamations 1998 . The Quarantine Act allows the Governor-General to proclaim a port or a landing place as a first port of entry, and may include conditions or restrictions, (eg a port may be limited to receiving a specific class of goods, vessels or aircraft). This is intended to ensure that a first port has the facilities to manage the quarantine risks associated with the people, goods, vessels and aircraft it receives. Vessels can be properly processed at these first ports and inspected (if required) by DAFF staff.

 

Nature of the problem

While the Quarantine Proclamation 1998 lists the 59 ports that are proclaimed as first ports of entry, there is currently no transparent process which sets out how ports qualify to be proclaimed or any requirements (including associated infrastructure requirements) that a first port must meet to ensure it can be serviced by biosecurity officials. Further, there is little clarity around what area constitutes a port in terms of geographical boundaries which is important for determining biosecurity risk.

 

Likewise, there is no clear mechanism to remove a port or landing place’s first port status, if the level of biosecurity risk is not being adequately managed, a condition of approval has been contravened or the first port of entry has been decommissioned. In fact there are a number of proclaimed first ports of entry listed in the Quarantine Proclamation 1998 that no longer receive a substantive volume of international vessels (for a variety of reasons) or are not in use at all (dormant first ports of entry). For example, the Port of Yamba is rarely used as a first port of entry and in the event it is used, can only be used for the landing of timber products arriving from New Zealand or Norfolk Island. There are around four to five dormant first points.

 

There are also instances where investment and business needs (eg a new mine that commences operation) have led to some areas being used intensively over a short period of time however the closest port may not be a proclaimed first port of entry. To use such a port, each vessel applies for permission under section 20AA of the Quarantine Act each time they enter the port. The approval is only valid for entry at that time and may be subject to conditions, and so some locations can be the subject of many one-off applications in a given year. This imposes administrative costs on vessel operators. Under s20D of the Quarantine Act, permission can also be sought to land a good at a port not proclaimed to receive that good (which may also be subject to conditions).

 

Further, there is the potential that vessels can enter and leave a port which is not proclaimed without the knowledge of regulators. This particularly occurs in areas where there is new traffic and the port has not been proclaimed (ie where the system has not kept up to date with the most probable ports for vessel traffic, such as in new areas of industrial activity). These entries increase the biosecurity risks in the region where no biosecurity compliance is being undertaken.

 

Options to address the problem

 

No regulation

A ‘no regulation’ alternative would allow for anything to be imported through any port in Australia, irrespective of the level of biosecurity risk. This option is not feasible as it would unacceptably increase the risk of animal and plant pests and diseases entering, establishing, spreading and potentially causing harm to people, the environment and the economy.

 

Self regulation

Under ‘self-regulation’, those arriving at a first point of entry would regulate their own activities according to industry participant’s-formulated rules and codes of conduct, with industry participants solely responsible for enforcement. This is not a feasible option for first points of entry as there are strong public interest concerns and potentially high risk events in relation to first points of entry, of which many of the costs are not internalised by those operating the vessel arriving in Australia.

 

In addition, market forces will not require industry participants to appropriately identify and manage biosecurity risks to Australia in relation to first points of entry. Those arriving at a first point of entry may limit their management activities to identifying and preventing harm to their own business rather than identifying and preventing harm to Australia. Some entering at a first point of entry will also lack the expertise required to identify and manage biosecurity risks. For example a commercial vessel arriving at a first port will not necessarily have a vested interest in any environmental impacts from any pests present on the vessel. As Biosecurity officers are experienced in regularly carrying out routine vessel inspections, they are more attuned to identifying obvious and (more importantly) potential biosecurity risks that aren’t necessarily associated with immediate commercial impacts, such as mosquito larvae found in any receptacles. In a world of ‘self regulation’, vessel masters may not have the skill/equipment/motivation to thoroughly inspect their vessel for pests, and send them to an entomologist for identification; which is routine (if necessary) for Biosecurity officers.

 

The current legislation

Continuing with the current legislation would lead to the continuation of the above problems, and therefore this is not considered to be a feasible option going forward.

 

Proposed biosecurity legislation

Under the proposed biosecurity legislation, the Director of Biosecurity may determine a first point of entry for overseas aircraft or vessels.

 

In deciding whether to make a first point of entry determination, the Director of Biosecurity must be satisfied that the requirements set out in the regulations are met and that the level of biosecurity risk associated with the operations of the port or landing place is acceptable. This is to ensure that biosecurity risks associated with the people, goods, vessels and aircraft it receives are being managed. The Director of Biosecurity can consider any matter that they deem relevant when determining whether they are satisfied. A first point of entry can be determined subject to conditions, for example a first point of entry may only be authorised to receive timber.

 

All overseas vessels and aircraft subject to biosecurity control are required to go to a first point of entry when entering Australia. On entering a first point a master must ensure that the vessel or aircraft enters a biosecurity entry zone.

 

Similarly a vessel or aircraft that is subject to biosecurity control may seek permission from the Director of Biosecurity to travel to a place that is not a first point of entry. A vessel or aircraft may seek permission from the Director of Biosecurity to unload goods at a port or landing place not determined to receive those goods.

 

A biosecurity officer will have the power to direct a master of an overseas vessel or aircraft to enter a specific port or landing place, or to not enter one or more specific ports or landing places (these may or may not be first point of entry). The proposed biosecurity legislation will also give a biosecurity officer the ability to enter any landing place or port in Australia, to perform functions or exercise powers without the consent of the operator.

 

The proposed biosecurity legislation will provide the Director of Biosecurity with the ability to suspend or revoke a first point of entry determination if the level of biosecurity risk is not being adequately managed, a condition of approval has been contravened or requirements for approval change.

 
Assessment

The proposed biosecurity legislation will provide flexibility for DAFF to negotiate with first point of entry operators regarding how they can manage their biosecurity risks to an acceptable level in the most efficient way. It will also establish the minimum level of regulation required to effectively manage biosecurity risks at a first point of entry while providing DAFF with the capacity to enforce any requirements or conditions.

The proposed legislative approach effectively equates to direct supervision, as only government will have the ability to declare a first point of entry. This will ensure comprehensive powers for biosecurity officers to manage biosecurity risks at ports and landing places.

 

The remainder of this section sets out the costs and benefits of the proposed biosecurity legislation specifically on:

·          businesses (port operators and vessel masters)

·          government

·          other stakeholders (consumers and the general public).

 

Potential costs and benefits for business (port operators)

 

Greater transparency and certainty

Setting out requirements for first points of entry in regulations would provide a more transparent framework and accountable decision making process than is currently in place. This would clarify the responsibilities for port operators to be designated as a first point of entry, providing greater certainty both in terms of the application process, and the requirements to maintain this status over time. It would also ensure port operators are aware of the circumstances under which a first point of entry status may be revoked.

 

While the benefits of improved transparency and certainty are difficult to quantify, they are important for business and strategic planning. The required investment in facilities for port operators to maintain first point of entry status is an important element in their forward investment planning - understanding what is required to maintain this status allows operators to determine the value of this status compared with the costs associated with maintaining the infrastructure over time. For some ports, this decision will make business sense, while for others it may not (as discussed in more detail below). For all of these decisions, certainty around government decision making helps to reduce risks associated with investment.

 

Compliance costs

Under the proposed biosecurity legislation, first point of entry port operators would be subject to a greater regulatory burden than is currently the case under the Quarantine Act. These compliance costs can be assessed across two broad categories:

·          Costs associated with applying to become a first point of entry (including costs associated with demonstrating compliance, such as providing documentation, externally provided evidence, etc)

·          Costs associated with upgrading current facilities to meet requirements (which may be achieved within a transition period).

 

Application costs

There would be a cost to industry participants associated with applying to become a first point of entry. There would be time costs associated with completing the application process and a possible monetary fee set by DAFF for submitting and assessing an application. In addition, this application process would involve a port operator demonstrating that it can manage the biosecurity risks associated with its operations in the application process before it can be determined as a first point of entry. This demonstration of adequacy or providing of evidence to meet biosecurity risks may be done through submitting detailed documentation and/or hosting site visits. It is expected that port operators would incur a cost to undertake these activities of compiling evidence to demonstrate their capabilities. Where possible the intention is to build on or use information already provided to other regulatory agencies such as the Australian Customs and Border Protection Service.

 

Costs of upgrading facilities

The second type of compliance cost relates to the potential need for some port operators to upgrade current facilities to meet requirements in the regulations. Some ports may not currently meet the requirements set in regulations, and would be required to undertake upgrades to meet standards (where they have committed to do so when applying for first point of entry status). These upgrade costs may result from tasks such as delineating boundaries, providing for waste management and providing facilities for biosecurity officers.

 

New requirements for providing particular facilities for biosecurity officers would most likely cause some current port operators to incur a cost. The extent of these costs will depend on the required outcomes set out in regulations and case by case assessment of how these outcomes can be met and will vary significantly across operators. Specifications for required facilities would reflect the size of the port, the port environs, the type of operations at the port and the type of goods, vessels, aircraft and people the port would receive. Some large operators may already have in place the required structures/facilities and will not incur any costs at all. Other operators may require significant upgrades or entirely new infrastructure. It is reasonable to assume that for some operators, implementation costs could be significant, and some may choose to not continue to be proclaimed under new requirements or have a different basis of proclamation. Additional maintenance costs relating to the upgrading facilities might also be incurred (above and beyond those maintenance costs already incurred), but this would depend on the nature of the upgrade requirements, and extent of current maintenance activity and size of operations.

 

The transition time provided to operators to meet obligations will have an impact on the scale of implementation costs. This is because the length of transition time influences the costs associated with retiring existing infrastructure prematurely before normal upgrading schedules. The longer the transition time, the lower the implementation costs for ports. Conversely, the longer transition time will have an influence on the effectiveness of the plans, as this extends the period during which facilities have not been upgraded or extended as required. Under the proposed biosecurity legislation there will be a three year transition period once the Act commences which will be one year after Royal Assent, a total period of four years. Stakeholders considered three years to be an adequate period of time to allow a port or landing space to comply with the conditions required for approval.

 

These expected compliance or regulatory costs are in addition to the current regulatory burden already imposed on industry participants by other Australian Government regulatory schemes. The list below highlights key schemes that are already in place and make up part of the regulatory environment surrounding industry participants that are involved in activities relating to first points of entry.

·          Customs Regulations 1926

·          Maritime Transport and Offshore Facilities Security Regulations 2003

·          Aviation Transport Security Regulations 2005

·          Migration Regulations 1994

·          Agricultural and Veterinary Chemicals Regulations 1995

·          Imported Food Control Regulations 1993

·          Hazardous Waste (Regulation of Exports and Imports) Regulations 1996

·          Environment Protection and Biodiversity Conservation Regulations 2000.

 

Costs of compliance will vary depending on how consistent the proposed changes to first points of entry build on these existing regulatory requirements.

One consultation participant (a practising Customs Broker) stated that:

“[Most first points of entry are already] established and should not need a lot of work/cost to meet the new conditions that could be applied. It is more likely to be ‘country’ ports that would require more cost to meet the guidelines and conditions to operate as a first point. Correcting the current approved list and adjusting resources to suit should see cost reductions and thereby allow resources to be better used. Often ports have surplus or under used infrastructure so there should not be a need for a lot of  new and expensive infrastructure to be built, rather upgrading what already existing - again a cost savings to port operators and DAFF.”

 

Impact on ports that are not maintained as first points of entry

Under the proposed biosecurity legislation, DAFF would be able to suspend or revoke port/landing places’ first point of entry status. Some currently proclaimed ports may not meet the new requirements unless they undertake significant facility upgrades. Consequently, some landing places may choose to not apply to become a first point of entry under the proposed biosecurity legislation and thus have their first point of entry status revoked. This would mean that port would no longer be able to receive international vessels (for their first entry to Australia).

 

There are currently 59 proclaimed First Sea Ports and 29 First Airports within Australia (a total of 92 first points of entry currently proclaimed). [19] To determine the potential impact on industry participants, an evaluation of the status of current first points of entry (ports only) was undertaken. Through consultation with industry participants [20] , it is believed a portion of these may not be able to meet the requirements of being deemed a first point of entry under the proposed biosecurity legislation unless significant upgrades were undertaken to their facilities.

 

Current first points of entry that may be unable to meet the requirements may be those ports which currently have restrictions in place as to whether or not animals, plants or goods can be landed there as the restrictions indicate that the port only undertakes a narrow or limited set of operations. This limitation in operations may in turn mean the port has a limited range of facilities available for biosecurity officers. Consequently, the port may decide that it would be inappropriate from a business perspective to maintain a first point of entry status given the potential significant cost of upgrading facilities and the benefit from maintaining first point status. Accordingly, a port under current restrictions may not apply under the new legislation resulting in the termination of their current first point of entry status.

 

Table 3 highlights the proportion of first points of entry (sea ports only) that have total, partial or no restrictions in place regarding animals, plants or goods. Restriction was defined to be where no animals, plants or goods could be landed at the port, partial restrictions was considered to be if one or two items could not be landed, and unrestricted is where all three components could be landed at the first point of entry. As Table 3 illustrates, approximately 25 per cent of ports currently have a restricted status. It is these ports that may decide to forgo applying under the proposed biosecurity legislation and have their first point of entry status terminated.

 

Table 3 : Restrictions in place on sea ports that are currently first points of entry

Type

Number

Percentage

Restricted

16

25.4%

Partially restricted

40

63.5%

Unrestricted

7

11.1%

Total

63

100%

 

The requirements for first point of entry status are to be set in regulations. The extent to which these requirements may dissuade current first ports of entry from applying under the proposed biosecurity legislation is unclear, as the requirements are still to be determined. However, the requirements would include some flexibility to reflect port scale, environs, type of operations and type of good, vessel and people the port receives (ie smaller ports would not have the same requirements as larger ports).

 

The costs for those ports that choose to not apply for first point of entry status under the proposed biosecurity legislation would be the loss of any profitable activities forgone. These costs will vary considerably across ports. The ports most likely to have their first point status not maintained are expected to be those ports that are currently under utilised and do not have the required facilities/ infrastructure in place to effectively manage biosecurity risks given their current limited use by international vessels.

 

Potential costs and benefits for business (vessel masters)

 

Increased transparency of port requirements and fewer applications to land at non-proclaimed ports

The proposed changes to the legislation regarding first point of entry would also have an impact on vessel masters and pilots. Vessel masters and pilots seeking entry to Australia would have greater certainty as to what facilities would be afforded to them upon arriving at a first point of entry.

 

It is expected that vessel masters would be more impacted by the change to legislation than pilots. This is because current use of first ports of entry by international vessels and aircraft differs. Most international aircraft arrive at a major airport that is a proclaimed first point of entry and most likely has adequate facilities for managing biosecurity risks (such as Sydney, Melbourne and Perth).

 

Alternatively, due to passenger requirements, trade flows or new investment projects, vessels are sometimes required to land at a non-proclaimed first point of entry. Under current arrangements (s20AA and s20D), this requires individual vessel masters to seek permission to land from either the Health Minister or Director of Quarantine and (if sought under s20AA) the permission is valid for the specified entry only. This has resulted in multiple vessel masters incurring the cost of seeking permission to enter the same non-declared port that for a period of time may be under heavy use (for example for the commencement of a new mine).

 

Under the proposed biosecurity legislation, an improved framework would be in place to manage short term port usage. The new framework would potentially allow for the declaration of a first point of entry for a period of time when heavily used which could then be revoked when the port usage by international vessels reduces. The framework would also mean that vessel masters have a more transparent view of those ports proclaimed as a first point of entry and thus could plan accordingly, avoiding the cost of seeking permission to land at a non-declared first point of entry. The approach under the proposed biosecurity legislation would also reduce the frequency of one-off applications from vessel masters to land at a non-proclaimed first point of entry.

 

 

Potential costs and benefits for Government

The requirement for vessels and aircraft to enter at a first point of entry provides the ability to manage the department’s resources appropriately and effectively. It would be inappropriate and costly for the department to service all Australian ports and it would be unsuitable to expect all port operators to provide the necessary facilities to manage biosecurity risks in case of a landing of a vessel or aircraft.

 

Adequate facilities

The requirements under the proposed biosecurity legislation would increase the efficiency and effectiveness of biosecurity officers by providing adequate facilities for officers to complete their biosecurity management objectives. It would mean that officers have the necessary tools and facilities available to them at each port to carry out specific biosecurity duties relevant for that port. That is, it would ensure that biosecurity risks are managed effectively as well as efficiently as the right facilities for each port would be available given each port has differing service needs and levels.

 

A result of the requirements is that all DAFF officers would have a better understanding of each port’s characteristics (for example boundaries, infrastructure) and be aware of the facilities to expect at each port. Thus officers would be able to better prepare and plan for managing biosecurity risks at each port, potentially reducing the time required to undertake activities at the port.

 

Non-proclaimed ports

The approach under the proposed biosecurity legislation would reduce the frequency of one-off applications from vessel masters to land at a non-proclaimed first point of entry (currently around one per day). It is estimated that this could reduce one-off applications by around 50 per cent.

 

In turn, this would also increase the efficiency of biosecurity officers as it would lessen the frequency, time and associated monetary cost of sending a team of biosecurity officers to a non-proclaimed port to undertake appropriate biosecurity management tasks on the vessel who sought permission to land at a non-proclaimed port.

 

Potential costs and benefits for other stakeholders (consumers and the general public)

 

Consumers who use ports that do not continue as first points of entry

Those businesses or individuals that may rely on the use of a particular port, which does not continue on as a first point of entry under the proposed biosecurity legislation may incur additional costs associated with using a different port to received goods. The extent to which this occurs will depend on which ports no longer continue as first points of entry, and which industry participants rely on these ports. As noted above, the ports which are most likely to not continue as a first point of entry are those which currently have limited use and provide a narrow range of services. It may be that some industry participants still rely on these ports due to their remoteness to other ports (that is, the next nearest port is a substantive distance away).

 

 

 

 

 

Summary of impacts

Stakeholder

Impact

Description

Effect

Port operators

Greater transparency and certainty.

Greater transparency and certainty for port operators relating to the first point of entry process due to requirements being set in regulations.

Positive

Compliance costs and regulatory burden.

Th ere would be two additional compliance costs applicable to those port operators who choose to apply for first point of entry status: 1) application and demonstration costs and 2) upgrade of facilities costs to meet the requirements set in the regulations.

Negative

Change in first point of entry status as decided by port operator.

If the cost associated with upgrading facilities to meet the requirements within regulations is greater than the expected revenue generated from undertaking first point of entry activities, ports may decide to forgo applying for first point of entry status under the proposed biosecurity legislation.

Negative

Vessel masters

Greater transparency of port requirements and potential reduced submissions to land at non-proclaimed ports.

Superior framework to work within resulting in greater transparency of port requirements and potential reduced submissions to land at non-proclaimed ports.

Positive

DAFF

Greater efficiency and effectiveness in completing required operational tasks.

Greater efficiency and effectiveness in completing required operational tasks due to the greater provision of facilities by port operators and reduced visits to non-proclaimed ports.

Positive

Other stakeholders

Impacts on consumers who use ports that do not continue as first points of entry.

 

Negative

 

Public consultation

There were few references to first points of entry within the submissions received and where mentioned were generally supportive of changes from the current approach of declaring first ports and landing places in the Quarantine Proclamation 1998 to a more streamlined and transparent process. It was stated that a key benefit would be more certainty for airport and port operators in the requirements to be a first point of entry operator.

 

It was noted that there may be additional costs for non-compliant first point of entry operators to become compliant under the new legislation and this may cause some port operators financial hardship to invest in the equipment and infrastructure required. It was suggested that assistance should be afforded so these operators can comply with the new arrangements.

 

Another submission supported the capacity for greater flexibility in defining first points of entry but made the point that the provision of infrastructure for quarantine purposes was now the responsibility of new owners/operators of ports seeking recognition as first points of entry.

 

A government submission supported the ability for the proposed process to determine what is an appropriate first point of entry based on level of risk and ability to manage risks, with ongoing requirements to maintain a specific biosecurity status. The submission also stated that there is clear benefit in being able to set an appropriate level of protection from biosecurity threats when determining first point of entry, and to then require this level of protection.

 

Compliance requirements for first points of entry will be provided in regulations and accompanying policies and guidelines to be released for public consultation. Assistance, monetary or otherwise,  is not an issue considered for the draft primary legislation and is a matter for government during implementation.

Biosecurity zones

The Australian Government currently assumes a relatively narrow biosecurity reach even though its Constitutional powers allow for broader regulation. Specifically, the Australian Government has not yet exercised its full Constitutional power but rather has focused on regulating border activities.

 

The Quarantine Act 1908 currently allows for the creation of a monitoring and control area within 400 meters of a point where goods and cargo are discharged (eg at a first port of entry). In this area quarantine officers can carry out vector monitoring and control activities, but these monitoring powers are currently limited to human health risks.

Onshore activities however have generally been the responsibility of state and territory governments, with the assistance from the Australian Government in particular instances.

 

Nature of the problem

This relatively narrow focus of the Australian Government has caused a range of issues, including:

·          lack of powers for the Australian Government to manage incursions in Australia

·          additional, and sometimes overlapping, biosecurity measures imposed by individual states and territories

·          the non-traceability of animal and plant matter of greater biosecurity interest once it passes the border

·          inefficient strategies and actions due to the uncertain roles and responsibilities of both individual states and territories and the Australian Government

·          inadequate information sharing and coordination between the states and territories.

 

There is disagreement over specific roles and responsibilities which is leading to gaps in the continuum and is therefore detrimental to Australia’s biosecurity. The capacity of the Australian Government, state and territory governments to respond in emergency situations also varies, which may impact on the ability to effectively prevent the incursion of pest and disease.

 

Options to address the problem

 

No regulation

A ‘no regulation’ option would have the Australian Government playing no part in the post-border management of pests and diseases. This would leave the states and territories to manage post-border incursions of pests and diseases. This is inconsistent with the Australian Government’s leadership role in the post-border biosecurity space as recognised by Australian Government/state agreements, decision making and consultative forums. The ‘shared responsibility’ approach was also outlined and recommended in both the Nairn review and the Beale review.

 

Self regulation

Due to the involvement of the state and territories, it is not open to the Australian Government to initiate ‘self-regulation’ arrangements under which businesses would regulate their own activities in relation to biosecurity zones according to industry participant’s formulated rules and codes of conduct, with industry participants taking sole responsibility for enforcement. ‘Self-regulation’ is also not feasible as there would be many industry participants and others (including members of the public) moving within, and in and out of, biosecurity zones. Coordinating the activity and movement of these people would be almost impossible and, even if it were possible, it would be prohibitively burdensome from an administration perspective. Further, there are strong public interest concerns and high risks associated with biosecurity zones and market forces will not require industry participants to appropriately identify and manage biosecurity risks to Australia.

 

Direct supervision

Direct supervision would involve the Australian Government overriding state and territory laws in relation to biosecurity zones. This option is not feasible as the states and territories have important roles to play in the post-border biosecurity space as recognised by the Australian Government/state agreements, decision making and consultative forums.  The ‘shared responsibility’ approach was also outlined and recommended in both the Nairn review and the Beale review.

 

The current legislation

Continuing with the current legislation would lead to the continuation of the above problems, and therefore this is not deemed to be a feasible option going forward.

 

The proposed biosecurity legislation

The proposed biosecurity legislation will provide the Australian Government with greater capacity to assist with responses to post-border incursion of pests and diseases. While the powers are currently available to the states and territories, the biosecurity legislation will allow a nationally consistent response to pests or diseases through the use of one set of powers when needed. The biosecurity legislation will also extend the scope of the Australian Government’s post border powers to include plant and animal biosecurity risks. The Australian Government will continue to work with states and territories through arrangements such as the Emergency Plant Pest Response Deed, the National Environmental Biosecurity Response Agreement and the Emergency Animal Disease Response Agreement to jointly manage biosecurity risks.

 

The proposed biosecurity legislation will provide biosecurity officers with the power to order biosecurity measures in relation to goods, conveyances and fixed property, by issuing a biosecurity control order to manage biosecurity risks onshore. A biosecurity control order can only be issued where the biosecurity officer suspects on reasonable grounds that it is necessary to prevent or control the establishment or spread of a pest or disease.

In addition, the Director of Biosecurity would have the ability to declare biosecurity zones (as well as sub zones within a zone) and to apply post border biosecurity measures within these zones. The powers that may be used in zones to manage risks onshore will be listed in the legislation.

 

There will be three types of zones that can be declared by the Director of Biosecurity:

·          Biosecurity zone (ongoing) - Biosecurity zones which are established on an ongoing basis will be used for those areas where there is a requirement for an area of biosecurity control on an ongoing basis. A good example of this is around a port or airport, where there is continual need for management of biosecurity risks, with the arrival of goods or persons. The powers available in biosecurity zones would:

-     direct that biosecurity measures specified in the determination be taken in respect of goods, a conveyance or fixed property in the zone

-     direct specified persons, goods or conveyances to enter or leave the zone at a specified place or places or to submit to screening before entering or leaving the zone

-     direct that goods and conveyances not be moved into or out of the zone without permission (which may be subject to conditions)

-     allow biosecurity officers to enter and remain on private property in the zone for the purposes of performing powers and exercising powers under the Act (with an obligation to produce an identity card to a person in charge of the property) without consent

-     direct that the zone be identified and marked

-     require persons in charge of goods, conveyances or fixed property in the zone to answer questions and provide documents

-     enter private property in the zone without consent to inspect goods

-     enter private property in the zone to conduct pest and disease monitoring activities without consent

-     stop a conveyance for the purposes of inspecting the conveyance or goods on the conveyance

-     direct a person in the zone to

◦                  leave the zone

◦                  subject himself or herself to biosecurity measures specified in the determination on entering or leaving the zone

◦                  inform another person, or other people, of matters specified in the direction

-     set up equipment or other structures in the zone, including on private property without consent

-     direct a person in charge of property to carry out pest and disease monitoring activities.

·          Monitoring zone (ongoing or temporary) - A monitoring zone would allow a biosecurity officer to perform monitoring activities, to ensure that a pest or disease is not present at a location. It may be ongoing (such as around a first point of entry) or temporary (if declared around a biosecurity response zone). It is possible that a monitoring zone may be upgraded to a biosecurity response zone if a pest or disease is found in a monitoring zone, and affects multiple properties.

·          Biosecurity response zone (temporary) - The Director of Human Biosecurity would have the power to declare a human health response zone and to apply post border measures to deal with listed human pest and diseases within the zone. The Act will not compel the Australian Government to act, but allows it to, complementing rather than replacing existing powers used by state and territory governments.

 

Assessment

A number of submissions stated that there is merit in the proposals regarding biosecurity zones to manage the risk and help prevent the negative impacts from pests and diseases.  The value of a national approach and the Commonwealth playing a role in the management of serious threats was also recognised.

Some state governments highlighted concerns around potential conflict between Commonwealth and state/territory regulation of zones. The intention is to consult closely with state and territory governments to ensure understanding and avoid any confusion.

It was emphasised during the consultation phase that the proposed powers provide another tool by which incursions could be managed and that they would operate within the exiting consensus arrangements.

 

The potential impact of the proposed biosecurity legislation on business, and other stakeholders more broadly, is dependent on the following factors.

·          The extent to which these measures may impose costs on business or other stakeholders by restricting their normal operations (i.e. restricting access to property, restricting movement of people, vehicles or goods, requiring monitoring activities).

·          The extent to which the proposed arrangements will improve the management of biosecurity risks, including reducing the potential spread of an introduced species or disease.

·          The frequency with which the measures may be used by government (ie the three types of zones noted above).

 

Each of these factors is discussed in the following section.

 

Potential costs and benefits for businesses

The potential costs of new Biosecurity zone powers vary across the three types of zones that may be declared.

 

Biosecurity zone (on-going)

There are expected to be some transition costs for business at the time of establishment, although they are likely to be minor given the nature of the areas. The establishment of these zones is expected to have a relatively low impact, given existing arrangements in these areas (where there are already areas around ports and airports which manage biosecurity risks).

 

Monitoring zone (on-going or temporary)

The extent of costs to businesses and other stakeholders associated with a monitoring zone will vary considerably depending on the size of the area captured, and the monitoring activities that would take place in the zone. That said, given the nature of monitoring activities, the degree of cost associated with disruption and inconvenience is likely to be small (in particular in comparison to a biosecurity response zone).

 

Biosecurity response zone (temporary)

The declaration of a biosecurity response zone would involve the greatest degree of disruption and inconvenience for businesses and other stakeholders, and the highest potential cost. The likely costs of this measure depend on the extent of potential measures conducted within the response zone (such as restricting movement of people and goods into and out of the area, requiring use of property by biosecurity officials, requiring destruction of goods etc). In addition, costs are more likely to be incurred by business given the potential short lead time provided for business to adjust the changes (ie the zone can be declared at short notice with no opportunity for business to be prepared ahead of time). Under the base case, there are existing state and territory powers that can be used to impose a majority of these provisions and requirements. The costs associated with these measures, therefore, are only those that would not have otherwise been incurred by the use of similar powers at a state or territory level.

 

The extent of these costs would vary depending on the size of the area declared, the number of businesses operating within the zone, the measures taken by biosecurity officials and the length of time that the zone is declared. It is likely, therefore, that the costs associated with this measure would have wide variance (ie some may impose relatively low costs if they are applied to a small area, or the area does not include a large number of industry participants, while others may impose significantly higher costs).

 

Potential costs and benefits for government

The more significant costs to government relate to monitoring zones and biosecurity response zones:

·          The extent of costs to government associated with a monitoring zone will vary depending on the size of the area captured, and the monitoring activities that would take place in the zone. That said, given that nature of monitoring activities, it is likely to be small (in particular in comparison to a biosecurity response zone). The declaration of a biosecurity response zone would involve costs for government to put in place the zone and undertake associated activities to address any risks. These measures however are only temporary and would be used on an as need basis, where an Australian Government response is required and is agreed with relevant jurisdictions.

 

Potential costs and benefits for businesses and society

The key benefit of the proposed changes will be improved management of biosecurity risks in:

·          on-going management of risks around key areas where there are high levels of goods and persons entering Australia

·          timely and consistent responses to particular incidents where pests or diseases are introduced to Australia.

 

The potential benefits of this enhanced approach to management of risks will be realised by those industries the measures are put in place to protect (or manage exposure to risks). The extent of these benefits will vary across particular cases that biosecurity zones are used. Better or consistent management of biosecurity incidents are likely to have a benefit in terms of reducing the costs incurred by affected business, governments and other stakeholders (for example by limiting the spread of the pest or diseases).

These costs include:

·          loss of revenue from sales of commodities or goods, which cannot go ahead due to the introduction of a pest or disease

·          losses associated with damage to industry participants reputation, which can be incurred over a much longer time period than the incident itself

·          flow-on costs for associated industries and communities (for example, industry participants providing services to affected industry participants).

 

The precise costs and benefits of the proposed biosecurity legislation depend on the manner and frequency with which the powers are used, which is uncertain.

 

Likely frequency of application of powers

The frequency of use of the proposed powers has significant impact on the overall costs and benefits of the proposed changes to powers. It is reasonable to assume that:

·          Biosecurity zones -will be established around key areas, and are unlikely to be changed significantly over time (ie zones around ports or airports).

·          Monitoring zones - will be used relatively infrequently, will most often be used in conjunction with biosecurity response zones or around first points of entry.

·          Biosecurity response zones - will be used infrequently, based on criteria set in regulations (which are still to be developed). The use of these zones will be focused on serious incidents which require post-border management (such as restricting movement of goods and persons).

 

Summary of impacts

Type of biosecurity zone

Costs to businesses and other stakeholders of declaration of zone

Benefits through improved response to risk

Likely frequency of use of powers

Biosecurity zone (on-going)

Establishment costs for industry participants within the biosecurity zone (expected to be small)

Benefits in improved efficiency in management of biosecurity risks in areas of high risk

In use continually in key areas (eg ports and airports)

Monitoring zone (on-going or temporary)

Costs associated with allowing monitoring activities on property

Benefits to regions which may be affected by the spread of an introduced pest or disease (adjoining to biosecurity response zone)

Moderate to low frequency - used in conjunction with biosecurity response zones

Also used around first points of entry to monitor potential risks associated with arriving vessels

Biosecurity response zone (temporary)

Costs associated with allowing biosecurity management activities on property, restrictions on movement of persons, livestock and goods

High benefits concentrated within regions or industries directly impacted by the incident (including adjacent areas at risk)

Will provide improved ways to manage incidents such as pest and disease outbreaks

Low frequency - used only in the case of the introduction or spread of pests or disease that requires monitoring and control

 

Public consultation

Environmental organisations suggested the establishment of  a biosecurity zone category for high value conservation areas with high biosecurity risks known as ‘conservation biosecurity zones’, as the basis for implementing biosecurity measures, plans and monitoring. The zones should be declared by the Secretary of the Department of Sustainability, Environment, Water, Population and Communities (SEWPaC) on advice by a scientific committee, and biosecurity arrangements negotiated in bilateral agreements with state and territory governments. While there is scope to apply a zone to address a disease or pest risk the legislation does not allow for a pre-emptive zone for conservation purposes. Whilst the draft legislation clearly covers environmental biosecurity, environmental conservation at the Commonwealth level remains the responsibility of SEWPaC.

 

Submissions from state governments considered the proposal to increase the Australian government’s post border powers in relation to biosecurity zones important. In particular, the provisions that allow the Australian government to monitor for and manage incursions and implement emergency response procedures.

The potential for conflict between the proposed biosecurity legislation and relevant state and territory legislation was also highlighted and clarity regarding roles and responsibilities, and a clear definition of when the Commonwealth may use these powers was deemed critical.

Administrative arrangements on how these powers will be used will be further developed with state and territory governments leading up to the implementation of the new legislation. Information will also be provided to stakeholders in the future as this content is developed.

Other aspects of the legislation

This section briefly considers other less significant aspects of the proposed biosecurity legislation.

 

Travel movement restrictions

There is a need for government to act to mitigate the risk of spreading communicable diseases to ensure that Australia complies with its international health obligations.

 

Human Quarantine Officers currently have limited powers to restrict the movement of people out of Australia in instances where there is an increased threat of communicable diseases. Under the proposed biosecurity legislation, the Director of Human Biosecurity would have the ability to restrict a person suspected of having a listed human disease from travelling on an overseas passenger aircraft or vessel.

 

Biosecurity interventions would be tailored to accommodate an individual’s circumstances (e.g. their health, travel history or future movements), with the ability to escalate to broader responses as information becomes available. For example, an ill passenger could be ordered into isolation, ordered to undergo treatment or vaccination, ordered to stay at home for a period, ordered to report their health status regularly, or simply required to provide accurate contact details. The new legislation also seeks to further implement the International Health Regulations (2005) and provide the Australian Government with powers to prevent, protect against, control and provide a public health response to the national and international spread of disease.

 

The proposed biosecurity legislation would allow the Director of Human Biosecurity to issue an alert to all border agencies and relevant operators, advising them of the travel restrictions in place. This alert would be used to ensure suspected individuals subject to a traveller movement restriction are not allowed to board an aircraft or vessel.

 

The cost of travel movement restrictions is expected to be minimal due to the low expected frequency with which the power is expected to be invoked and the associated impact. While it is difficult to estimate the exact number of times this is likely to be used each year, it might be in the range of around 2-3 times per year on average.

 

Should an individual be identified by Customs at the primary line as being subject to travel movement restrictions and being unable to travel, the impact would be the removal of their baggage from the aircraft or vessel and the voiding of the traveller’s boarding pass. Affected individuals would potentially forfeit some or all of any payments made to the airline or vessel and other associated travel costs (eg accommodation at destination).

 

Management of human remains

Under the Quarantine Proclamation 1998 , a permit is required for the importation of human remains that are not accompanied by a death certificate stating the cause of death, are not of a high risk nature or where the deaths occurred during transit. The current permit system requires the involvement of staff from Department of Health and Ageing, the Department of Agriculture, Fisheries and Forestry, and the Department of Foreign Affairs and Trade.

 

Human biosecurity risks associated with imported human remains are negligible due to the:

·          low number of imported human remains (approximately 500 human remains are repatriated to Australia each year with less than 250 of these currently requiring an import permit (potentially even less than 100 per year))

·          the low likelihood of death from communicable disease of an Australian travelling overseas

·          low global incidence or prevalence of the diseases which present a risk to human health in Australia

·          high standards of infection control in Australia, particularly for funeral industry participants, which are regulated under occupational, health and safety legislation and practices

·          high levels of vaccination, sanitation, hygiene and water safety in most areas of Australia

·          high standards of health care available in Australia, and the speed and effectiveness of public health action.

 

As a result of the negligible level of human biosecurity risk, an ongoing permit system (ie regulation) does not represent an efficient use of Australian Government resources. In the unlikely event that there is a communicable disease outbreak in Australia resulting from imported human remains, public health measures are likely to be successful in managing and preventing the spread of most diseases.

 

Under the proposed biosecurity legislation, a permit would no longer need to be obtained to transport human remains into Australia, as human remains will generally be permitted to enter Australia without restriction. Requirements will only be applied to specific classes of remains, as specified by the Director of Human Biosecurity. Biosecurity risks associated with individuals who have died in transit will continue to be managed by State Police and the Coroner.

 

Circumstances which alter the above factors may lead to changes in the human biosecurity risk associated with importing human remains. For example, the import volume and likelihood of death from communicable disease may be increased during wartime; or a large scale outbreak of a communicable disease may occur overseas. In those circumstances, the Australian Government can respond to changes in the human biosecurity risk level by placing import requirements on particular classes of human remains.

 

From information provided by Department of Health and Ageing, approximately 500 human remains are repatriated to Australia each year with less than 250 of these currently requiring an import permit (potentially less than 100 per year). It is expected that these cases will no longer require an import permit and this would result in two benefits to those needing to repatriate remains into Australia.

 

Firstly, there is the obvious benefit of avoiding both the associated fees and time cost associated with applying for a permit, estimated as follows:

·          lodgement of import permit application fee (permit application fee) $150

·          assessment of import permit application fee (standard good) $40

·          average time to fill out the required documentation online 30 minutes.

 

Based on the estimate of around 100 permits currently per year, this equates to a NPV over 10 years of around $158,500. [21]

 

Most importantly for impacted parties however, there would no longer be the emotional cost incurred by those who may have recently suffered the death of a family member and must spend the time and effort navigating government processes when quite often these processes are not related to biosecurity risk and are unnecessary.

 

Currently, 20 - 40 individuals die in transit to Australia. These would continue to be subject to current arrangements and would continue to fall under police jurisdiction.

 

Sanctions and offences

The proposed biosecurity legislation has been designed so that the most appropriate sanction for non-compliance can be applied. One major change from the Quarantine Act is the introduction of a civil penalty regime in addition to existing criminal offences, which provides the department with greater opportunity to take action where non-compliance has been identified. Submissions provided as part of the consultation process were generally in support of the civil penalty regime.

 

The maximum penalties have been developed to respond to acts of serious non-compliance where significant biosecurity harm is caused to animal, plant or human health. The maximum penalty may not be appropriate in all circumstances and it is a decision for the courts to determine the most appropriate penalty during sentencing.

 

Additionally, the proposed biosecurity legislation maintains the existence of an infringement notice scheme from the Quarantine Act for high volume, low complexity offences for example with airline passengers, and introduces an enforceable undertaking scheme as an alternative to a civil or criminal penalty.

 

Inspector General of Biosecurity

As part of its preliminary response to the Beale Review, the Australian Government agreed to establish a statutory office of the Inspector General of Biosecurity. In advance of the enabling legislation interim arrangements are in place. On 1 July 2009, the government appointed Dr Kevin Dunn as the Interim Inspector General of Biosecurity to provide independent assurance of the performance and appropriateness of biosecurity systems and risk management measures that are the responsibility of the biosecurity divisions within DAFF. The Interim Inspector General of Biosecurity is independent of the biosecurity divisions of DAFF and reports to the Australian Government Minister for Agriculture, Fisheries and Forestry. The incremental costs of a permanent Inspector General of Biosecurity therefore are expected to be minimal. However an Inspector General of Biosecurity is expected to avoid the need for future Beale and Nairn style reviews.

 

 

Regulations

The Governor-General has the power to make regulations if they are required or permitted in the proposed biosecurity legislation or they are necessary or convenient to give effect to it. This type of general regulation power is common across Commonwealth legislation.

 

The regulations will clarify and provide further detail on what is contained in the legislation and what will be included in policy. It is also anticipated that regulations may be similar to  existing regulations. The department will work with the Office of Best Practice Regulation to determine the need for future RIS’s.

 

An example of regulations that are required is in relation to approved arrangements, which requires the relevant Director to be satisfied of the requirements in the regulations before approving an industry arrangement. An example of regulations that may be required to give effect to the proposed biosecurity legislation that are not specifically mentioned in the legislation, are regulations dealing with the response to a biosecurity emergency situation.

 

Abandoned goods

The proposed biosecurity legislation will also create a trigger for being able to deem potentially hundreds or thousands of goods as abandoned or forfeited each year. The current requirement to hold goods takes considerable time and effort for departmental staff in storing goods for extended periods of time (sometimes up to three months). For each of the goods, it can take staff a total of a few days in sending letters, providing response periods, and following up.

 

Covering the field for imports

The proposed legislation means that Commonwealth legislation will “cover the field” in respect of the prohibition or restriction of bringing in or importing goods into Australia. This means that the Act will override state or territory laws that relate to bringing in or importing goods to the extent they are inconsistent with Commonwealth laws and that state and territories will not be able to impose measures that are more restrictive than those imposed by the Commonwealth.

 

The legislation provides considerable flexibility. For example, bringing in certain types of goods could be completely prohibited or could be allowed with conditions. Conditions imposed on the import of goods will be based on the outcomes of a national risk assessment process which takes into account regional differences in pest and disease status.

 

This clarity in the legislation will increase industry certainty by eliminating any risk of inconsistent requirements imposed by states and territories. States and territories are already restricted, to an extent, from imposing more restrictive conditions as these can place Australia in violation of its international obligations with subsequent risks to trade. However, clarity in the legislation removes any doubt and means any attempts by the states and territories to do so can be readily challenged. Overall, this is expected to provide a benefit to Australia’s trade relationships without losing the flexibility to accommodate regional differences.

 

Overall impact of legislation on biosecurity

The proposed legislation provides a legislative framework for Australia’s biosecurity system. It will enshrine Australia’s Appropriate Level of Protection (ALOP) in legislation. The World Trade Organization (WTO) ‘Agreement on the Application of Sanitary and Phytosanitary Measures’ allows WTO members to determine their own level of protection; however, it must be applied in a consistent manner. This is known as the Appropriate Level of Protection. That is, “providing a high level of sanitary and phytosanitary protection, aimed at reducing risk to a very low level, but not to zero.” This does not represent any change in Australia’s ALOP as it has been agreed administratively with the States and Territories for some time. However, it does provide importers and trading partners with additional certainty that the standard is being applied.

 

The benefits of the legislation largely relate to its enabling of improved administrative and operational practices that in turn enable more efficient use of available biosecurity resources to target risk to achieve biosecurity outcomes consistent with Australia’s ALOP. However, the legislation is not designed to introduce a new or stricter level of protection and, in that sense, it does not change the biosecurity outcomes that are being sought.

Preferred option, implementation and review

 

Preferred option

This RIS has identified and considered a range of problems with the Quarantine Act. The assessment illustrates the anticipated costs and benefits of the proposed biosecurity legislation compared to the current situation, and demonstrates the potential for improved business processes through approved arrangements, better targeting of resources and greater administrative efficiency.

Moreover there is a broad, unquantified benefit of the proposed biosecurity legislation from improving the overall quality of the legislative framework for biosecurity, including:

·          Reducing the costs associated with interpreting complex, prescriptive and outdated legislation (a benefit to both government and business).

·          Enabling the benefits of broader reform to be realised (a benefit which is unquantifiable but important to acknowledge in this analysis). Legislative reform will assist the plans for broader reform in biosecurity  primarily in the form of more flexible legislative mechanisms that will allow change.

 

Based on this analysis, proposed biosecurity legislation is assessed as representing an improvement over the base case and is the preferred option for Government consideration.

 

Implementation and review

The Act will comment one year after Royal Assent.  In some instances, transitional arrangements will apply, for example for approved arrangements. Existing QAPs and compliance agreements will remain valid on commencement of the Act. The intent is to transition these existing agreements to approved arrangements within 18 months of commencement and/or as existing QAPs and agreements expire (two and a half years after the legislation receives Royal Assent).

 

For first points of entry, under the proposed biosecurity legislation there will be a three year transition period once the Act commences which will be one year after Royal Assent, a total period of four years.

 

The regulations will clarify and provide further detail on what is contained in the legislation and what will be included in policy. It is anticipated that regulations may be similar to  existing regulations. The department will work with the Office of Best Practice Regulation to determine the need for future RIS’s.

Ongoing monitoring of any reforms will be undertaken by the department to ensure that the objectives are being achieved and whether any further reforms are necessary.



 

Appendix A - International Health Regulation requirements

 

Figure 2 : International Health Regulations core capacity requirements for surveillance and response

Source: World Health Organization. 2008. ‘The International Health Regulations (2005).’ Second edition. World Health Organization, Switzerland, pg 40-41.



Figure 3 : International Health Regulations core capacity requirements for airports, ports and ground crossings

Source: World Health Organization. 2008. ‘The International Health Regulations (2005).’ Second edition. World Health Organization, Switzerland, pg 41-42.



 

Appendix B - Consultation feedback

In preparing the RIS, the department and the consultant, PricewaterhouseCoopers (PwC), consulted with  the Department of Health and Ageing (DoHA).

 

Industry roundtable

The department and PwC also facilitated an industry roundtable on the RIS on 8 th July, 2011. The

Table 4 outlines the industry associations that participated in the industry roundtable. Each industry stakeholder was given the opportunity to provide additional information via email after the workshop.

 

Table 4 : Industry roundtable attendees

Group

Industry Association

Shipping and Aviation Group

Ports Australia

AQIS Industry Cargo Consultative Committee

Qantas Airways

Carnival Australia

Board of Airline Representatives Australia

Shipping Australia

Airports Association

Conference of Asia Pacific Express Carriers

Australian Petroleum Production and Exploration Association

Industry Legislation Group

AQIS Industry Cargo Consultative Committee

Invasive Species CRC

Invasive Species Council

Animal Health Australia

Plant Health Australia

Custom Brokers and Forwarders Council

National Farmers Federation

 

Distribution and comments on the draft RIS

In May 2012, a draft of the RIS was provided to members of the Industry Legislation Working Group for their consideration and comment. This working group comprises:

·          Invasive Animals CRC

·          Board of Airline Representatives of Australia

·          DHL

·          Qantas

·          Conference of Asia Pacific Express Carriers

·          Carnival Australia

·          Plant Health Australia

·          AQIS - Industry Cargo Consultative Committee

·          Animal Health Australia

·          Invasive Species Council

·          National Farmers Federation

·          Shipping Australia

·          Australian Petroleum Production and Exploration Association Limited

·          Brisbane Airport Corporation

·          Customs Brokers and Forwarders Council of Australia Inc

·          Ports Australia.

 

Following the public release of the RIS, PwC participated in 17 consultation meetings organised by the department on the proposed biosecurity legislation. The meetings were with State Government agencies and representatives of industry with some open to the general public (all capital cities and Newcastle). At the meetings, the department presented an outline of the proposed provisions in the draft Biosecurity and Inspector- General of Biosecurity Bills and PwC outlined possible impacts of the provisions in these bills on stakeholders, based on the analysis included in the draft RIS that was publicly released on 4 July 2012.

 

The meetings could be characterised as mostly information sessions. Although many stakeholders asked questions and sought clarification of the provisions of the bills, only a few were in a position to identify specific impacts of the proposed biosecurity legislation on them and/or provide information that would help to improve the analysis in the RIS (eg data or concrete examples that demonstrated a relative change in impact due to the proposed biosecurity legislation compared to the existing legislation). Some stakeholders did identify impacts that were not directly related to the legislation.

 

This is not surprising as there was a large amount of information for attendees to absorb and in many cases stakeholders did not seem to have extensively reviewed information about the legislation prior to the meetings. Further, much of the proposed biosecurity legislation updates existing legislative provisions and apart from improving clarity, may not result in day to day changes relative to the current situation for many stakeholders. In addition, the Act provides an overarching framework for biosecurity legislation. Much of the detail will be in subordinate legislation. It is expected that it will be easier for stakeholders to understand possible impacts on them when more of the detail in the subordinate legislation and in operational policies is released and/or developed.

 

Stakeholders were also provided with the opportunity to provide additional information in written submissions.

 

Approved arrangements

Specific comments/questions:

·          Have we considered how the arrangements affect small businesses (RIS presentation emphasises large businesses)?

·          The RIS should not imply these arrangements are voluntary eg all quarantine approved premises will need one.

·          What are the implications for moving goods under a biosecurity control order between first points of entry/biosecurity zones/a location with an approved arrangement and what are the cost/benefit implications of this?

·          How will my existing quarantine approved premises /compliance agreement change - will it have to be reworked? Can I keep things the way they are? How can I know the implications for me until I know how audit and compliance arrangements might change? What will be the change in charges?

·          The examples of possible savings for business in the RIS do not reflect the proposed changes - they could occur under the existing legislation.

·          While there are benefits from industry playing an increased role in relation to risk management, approved arrangements could lead to poorer risk management outcomes if not managed properly.

·          Universities may have multiple quarantine approved premises each with specific requirements, so any benefits from moving to an approved arrangement will depend on the details and requirements of that approved arrangement.

 

 

Issues and proposals for addressing them:

·          The presentation and analysis in the RIS emphasised potential benefits for large importers with control of end to end processes of having the option of a single and less prescriptive arrangement. It has been assumed that benefits will mostly accrue to those businesses that do not already have a quarantine approved premises or compliance agreement but would enter into an approved arrangement under the new legislation.

·          In most cases, stakeholders were more concerned to understand the transition arrangements for their existing QAPs or compliance agreements. Some of these represented smaller businesses and wanted to understand how the content of their existing arrangements could change and what new costs might be incurred and when they might need to change.

·          It is understood that the incremental change for those with existing quarantine approved premises or compliance agreements would be relatively small but with potential to take advantage of additional flexibility that will be available in approved arrangements. The RIS sets out illustrative estimates of transitional costs.

·          Some stakeholders commented that most businesses do not have a mix of quarantine approved premises and compliance agreements. This has been clarified in the RIS.

·          One stakeholder attended several meetings and several times raised the issue of how the new provisions for biosecurity zones and approved arrangements provide for moving goods under biosecurity control between these areas. The department held scenario testing sessions with this stakeholder to clarify this.

 

First points of entry

Specific comments/questions:

·          How many existing first ports might not apply for ‘first point of entry status’? What is likely to be the net change in number as these are transitioned to first points of entry?

·          Comment made that about 40 per cent of existing first ports would not meet the new requirements. Does DAFF have a sense of this?

·          Could an inland site be considered a first point of entry, eg an intermodal terminal and does this need to be considered in the analysis. If not, what status would it have and what arrangements would cover it?

·          Are owners or operators of ports likely to incur the costs - one stakeholder’s view was that it was the operators/stevedores most likely to be impacted but this needed to be clarified, i.e. who would apply for first point of entry status, the owner or operator?

·          There may be costs associated with having the ability to accept quarantinable waste for some facilities, but it depends on the specific criteria that are developed.

 

Issues and proposals for addressing them:

·          Although the likely change in number of first ports as they are transitioned to first points of entry cannot be predicted with certainty, it may be possible to provide more information about the number of first ports not actively used as first ports or only used in a very limited way.

·          It is difficult to assess in aggregate what proportion of first ports may not meet requirements and may need to invest in additional facilities if first point of entry status is sought. Ultimately, although the regulations may provide some guidance, this will depend on case by case negotiations with DAFF on the nature and requirements of each first point of entry.

 

Biosecurity zones

Specific comments/questions:

·          Stakeholders broadly, and state government representatives particularly, wanted to better understand how the Australian Government would use the proposed powers for declaring biosecurity zones, ie in what circumstances would they use them? How do these powers affect existing state powers and practices? What are specific examples of when they would be used?

·          Stakeholders sought clarification about who would be obliged to act (state and territory government or the Australian Government) and how quickly and who would be responsible if there was a failure to act?

·          Who would incur the costs of having the zones in place? (Australian or state governments or industry?)

·          Some stakeholders sought clarification about whether these zones might be used to manage existing pests rather than new ones.

·          Some stakeholders thought that the proposed arrangements could have helped to avoid previous inter-jurisdictional issues (for example in relation to fruit flies).

·          Some stakeholders queried who currently pays monitoring costs, e.g. around airports. Is it industry or Government and who would pay these costs if a monitoring zone was declared? Could this be a cost for Government that isn’t recognised in the RIS?

·          One stakeholder advised that - since most incursions occur in one jurisdiction - it is reasonable to assume that the powers would be used infrequently.

·          There were different views on whether the powers will lead to a more timely response. Ultimately it depends on how the arrangements will work in practice. Also need to carefully implement the changes to minimise the risk of confusion.

·          There will be costs to the Australian Government associated with having and using the new powers.

 

Issues and proposals for addressing them:

·          Explain more clearly in the RIS the interplay between state based and Australian Government powers and how these could be used to implement agreements such as Emergency Animal Disease Response Agreement, Emergency Plant Pest Response Deed and National Environmental Biosecurity Response Agreement.

·          Clarify that the provisions do not compel the Australian Government to act but give it the power to.

 

Human health provisions

·          No substantive comments on the impacts of these provisions outlined in the RIS were recorded.

 

Other issues raised

Specific comment/questions:

·          What is the relationship between the national Appropriate Level of Protection and regional interests given the Australian Government will cover the field? Do they align in, for example, Tasmania (e.g. in relation to salmon, apples etc?) or will regional interests be negatively affected?

·          Inspector General - do aspects of the provisions in this Bill limit scope and impact of role? e.g. consultation with Director of Biosecurity on work program. What might be the costs associated with the secretariat?

·          The provisions for Risk Import Analyses suggest information will be published - some stakeholders raised issues related to privacy etc. Is this likely to be any different to current provisions and what would the impacts be?

·          New information gathering powers in the proposed biosecurity legislation could increase costs for government and/or industry depending on extent to which used and requirements on business. Can  possible costs be acknowledged?

·          Members of the National Farmers Federation sought clarification of whether the Australian Government’s powers for ‘covering the field’ in terms of import conditions might apply retrospectively, eg in the case of importing apples to Tasmania.

·          One stakeholder asked for the consideration of the impact of transferring some decision making powers from the Minister to the Director of Biosecurity.

·          Some stakeholders queried how a situation in which a container or containers could be not be unloaded would affect other cargo/containers if they could not be moved until the other containers were. Would it be managed differently to today and could that result in additional costs for some importers waiting for their goods to be unloaded? What documentation/information gathering is required to facilitate this and what costs would that impose?

·          One stakeholder suggested that the RIS should consider an option involving increased harmonisation with food safety importation requirements.

·          The RIS should consider the overall impact of the Bill on biosecurity in Australia, and results should acknowledge impacts on the community, government, and industry.

 

Consultation with states and territories

Consultation with states and territories has taken place as part of the legislation drafting process and through the consultation period following release of the draft Bills.

 

Preliminary provisions in the Act include commencement, the objects of the Act, extension of the Act to external territories and concurrent operation with state and territory laws. The Act does not limit concurrent operation of state and territory laws except in relation to the regulation of the importation of goods and ballast water.

 

The Australian Government will cover the field with respect to importation into Australia and Australian import conditions will be based on the outcomes of a national risk assessment process, taking into account regional differences in pest and disease status. The Australian Government may also choose to prohibit the importation of goods into part of Australia (e.g. particular states or territories), where scientifically justified.

 

Additional biosecurity measures can be taken at a state level to respond to regional differences in pest and disease status. States and territories will continue to be consulted through a series of workshops to define this policy and through the Intergovernmental Agreement on Biosecurity.

 

Submissions on the RIS

A number of written submissions touched on the impact of the proposed legislation and the associated cost benefit analysis. Where relevant, these have been acknowledged and discussed in the body of this RIS. In general, the majority of submissions sought additional detail which the subordinate legislation and supporting administrative guidance material is likely to address. Many stakeholder groups representing diverse perspectives recommended a wide range of proposals they felt would better address the government’s aims for biosecurity reforms. The department has considered all submissions and notes that — as can be expected with most regulatory systems—there are some stakeholders calling for more stringent regulation such as in environmental biosecurity and other stakeholders calling for less stringent regulations such as industry groups from the trading sector. 



 

Appendix C - Reference list

ABCRC. (n.d.). What is biosecurity? Retrieved 2011 14-August from Australian Biosecurity CRC for emerging infectious disease: http://www.abcrc.org.au/pages/about

 

Affairs, S. F. (2010 November). The Torres Strait: Bridge and Border . From Defence and Trade References Committee: http://www.aph.gov.au/senate/committee/fadt_ctte/torresstrait/report/index.htm

 

AQIS. Industry Partnerships: Discussion Paper.

 

Australian Government. (2009 1-July). Vessel Clearance Fees and Charges . Retrieved 2011 15-September from Australian Quarantine and Inspection Service: http://www.daff.gov.au/aqis/avm/vessels/fees-charges

 

Beale, R., Fairbrother, J., Inglis, A., & Trebeck, D. (2008). One Biosecurity: A Working Partnership. Commonwealth of Australia.

 

Biosecurity New Zealand. (n.d.). The Biosecurity System . Retrieved 2011 3-August from Biosecurity New Zealand: http://www.biosecurity.govt.nz/biosec/sys

 

CDC. (2010 11-August). 2009 H1N1 Flu . Retrieved 2011 10-November from Centers for Disease Control and Prevention: http://www.cdc.gov/h1n1flu/

 

Department of Agriculture, Fisheries and Forestry. (n.d.). About our Biosecurity System . Retrieved 2011 8-September from DAFF: www.daff.gov.au/bsg

 

Department of Agriculture, Fisheries and Forestry. (n.d.). Biosecurity Strategic Policy Framework . Retrieved 2011 24-August from Department of Agriculture, Fisheries and Forestry: www.daff.gov.au/bio

 

Department of Agriculture, Fisheries and Forestry. (2011). First Points of Entry Policy Paper.

 

Department of Agriculture, Fisheries and Forestry. (2008 1-April). Terms of Reference . Retrieved 2011 8-September from Quarantine and Biosecurity Review: http://www.quarantinebiosecurityreview.gov.au/tor

 

Department of Health and Ageing. Ship Sanitation Scheme Overview, Policy Paper.

 

Gooday, P; Timcke, D; Lawson, K; Cox, A. (1999). Managing ocean resources. ABARE.

Lizzio, J. a. (March 2010). Biosecurity and Australia’s primary industries - the role of biotechnology. Bureau of Rural Sciences.

 

Mesnard, A., & Seabright, P. (December, 2003). Migration and Quarantine in the Presence of Asymmetric Information about Risk of Infectious Disease. University of Toulouse.

 

Perrings, C., Dehnen, K., Touza, J., & Williamson, M. (2005). How to manage biological invasions under globalisation. Ecology and Evolution , Vol.20.

 

Racaniello, V. (2009 8-April). Reverse zoonoses: Human viruses that infect other animals . Retrieved 2011 10-November from Virology blog: http://www.virology.ws/2009/04/08/reverse-zoonoses-human-viruses-that-infect-other-animals/



 

 

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

Biosecurity Bill 2012

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

 

The Bill is intended to replace the century-old Quarantine Act 1908 to provide a modern regulatory tool aimed at better managing biosecurity risks in the current and future trading environments. The Quarantine Act is currently very restrictive in its ability to manage ill individuals and only allows for ill or potentially ill individuals to be ordered into quarantine, vaccinated or directed to take medication. The Bill will provide a range of measures which can be tailored to accommodate an individual’s circumstances and aims to ensure individual liberties and freedoms are considered in conjunction with the disease risk. It will provide for consideration of personal freedoms and rights to review in decision-making. The Bill is consistent with Australia’s international obligations under the World Health Organization’s International Health Regulations .

 

The Bill is part of a broader biosecurity reform agenda, which is seeing a move towards a risk-based approach — through rigorous science, evidence and intelligence — allowing resources to be managed according to the level of risk. The Bill aims to reflect the shared responsibility for biosecurity between governments at all levels, business, industries, trading partners and the community. It is designed to highlight transparency and accountability and promote good governance and procedural fairness.

 

The Bill is based on a broader set of constitutional powers than the Quarantine Act - including from the quarantine power, international and interstate trade and commerce powers, the external affairs power and the corporations power. This will enable the Commonwealth to regulate biosecurity risks at the border as well as post-border, when necessary. As a result, there will be additional powers to monitor and manage biosecurity risks when they are detected anywhere in Australian territory to help prevent pests and diseases from impacting upon human, animal or plant health, the environment and the economy.

 

The Bill is also designed to draw upon and give effect to various international and domestic agreements and obligations. Internationally, these include the: World Trade Organization’s Agreement on the Application of Sanitary and Phytosanitary Measures (known as the SPS Agreement); International Convention for the Control and Management of Ships’ Ballast Water and Sediments; International Health Regulations (2005); Convention on Biological Diversity; United Nations Convention on the Law of the Sea; and the Torres Strait Treaty.

Domestically, these include the Intergovernmental Agreement on Biosecurity and various emergency response deeds, including the Emergency Animal Disease Response Agreement, Emergency Plant Pest Response Deed and the National Environmental Biosecurity Response Agreement. It is not the Commonwealth’s intention to take over state or territory powers, but rather to complement and work collaboratively with states and territories in the management of biosecurity risks.

Human rights implications

List of rights engaged:

·          Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) - right to life

·          Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) - right to an adequate standard of living, including food, water and housing

·          Article 12 of the ICESCR - right to health

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

·          Article 17 of the ICCPR - right to protection from arbitrary interferences with privacy

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

·          Article 14(2) of the ICCPR - right to the presumption of innocence,

·          Article 12 of the ICCPR - right to freedom of movement,

·          Article 24 of the ICCPR - right to protection of children

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

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

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

·          Article 9 of the ICCPR - right to seek review

·          Articles 3 and 5 of the Convention on the Rights of Persons with Disabilities , and

·          Article 3 of the Convention on the Rights of the Child .

 

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 Bill represents a positive measure aimed at protecting the right to life, as an underlying objective is to prevent harm to human, animal and plant health through managing the risk of pests and diseases entering, establishing or spreading in Australian territory. For example, Chapter 5 promotes the right to life by containing clauses which may prevent ballast water from being released in Australian seas that contains human diseases, such as cholera.

 

 

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

Article 11(1) of the ICESCR protects the right to an adequate standard of living, including food, water and housing. To protect this right, governments have an obligation to ensure the availability and accessibility of the resources necessary for the realisation of the right.

 

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

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

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

 

In managing the risk of pests and diseases entering, establishing or spreading in Australian territory, the Bill protects the right to food by minimising or preventing harm caused to plants and animals that could severely impact upon Australia’s food production systems. The Bill can also been seen to protect the right to water, for instance through the management of ballast water under Chapter 5 designed to manage the risks of pest and diseases causing harm to Australia’s marine environment.

 

In addition to protecting these rights, the Bill may also operate to limit the right to an adequate standard of living, including food, water and housing.

 

Clauses 363 and 365 of Chapter 6 enable the Director of Biosecurity to declare a biosecurity response zone and enables biosecurity enforcement officers to exercise a range of powers. Under clause 363 the Director of Biosecurity may declare a biosecurity response if a biosecurity officer suspects, on reasonable grounds, that a disease or pest that poses an unacceptable biosecurity risk is on the premises and the Director is satisfied that it is necessary to declare a zone for the purpose of managing the biosecurity risk posed by the pest or disease. Clause 365 enables a biosecurity enforcement officer to direct a person to leave the zone, which may include their residence, for a specified period (which may not exceed 24 hours).

 

These clauses may potentially impact on the right to housing as it relates to accessing their own housing within a biosecurity response zone if they have been directed to leave the zone.

 

These clauses are reasonable, necessary and proportion to the legitimate aim of managing biosecurity risks posed by diseases and pests, particularly because any direction to leave a biosecurity response zone may only be for a maximum of 24 hours.

 

Clause 342 enables the Director of Biosecurity to give written approval to a biosecurity officer to require premises be destroyed if the officer believes on reasonable grounds that the premises cannot be treated to manage the biosecurity risk associated with it. This clause may potentially impact on the right to housing.

 

This clause is reasonable to the legitimate aim of managing biosecurity risks associated with a premises that cannot be treated. This clause is necessary and proportionate to the legitimate aim, particularly as clause 343 does not allow premises of high value to be destroyed in a review period which is granted under Part 1 of Chapter 13 and compensation is available to the owner of the premises under clauses 659 and 660.

 

Right to health

Article 12 of the ICESCR recognises 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, occupation and other diseases (Article 12(2)).

 

In addition, 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.

 

The objects of this Bill include:

·          managing the risk of contagion of a Listed Human Disease (as defined by clause 9)

·          managing the entry, emergence, establishment or spread of a Listed Human Disease, and

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

 

Therefore, this Bill engages strongly with this right. In particular, Chapter 2 advances the protection of public health by ensuring the Commonwealth has the power to control the spread of serious communicable diseases, and also ensures any person developing signs or symptoms of these diseases are provided with prompt medical assessment and treatment.

 

Chapter 2 includes a number of measures to manage the risk of contagion posed to people by a Listed Human Disease. A human disease may only be specified as a Listed Human Disease if the Director of Human Biosecurity is satisfied that the disease is communicable, and may cause significant harm to human health.

 

The broad range of measures available in the Bill allows officers to consider the disease risk together with the individuals’ circumstances, including medical history, and apply the most appropriate and least restrictive measure in the circumstances.

 

Any person who exercises a power or imposes a biosecurity measure under Chapter 2 must first consider the principles of general protection under clause 33. The principles ensure that a power is exercised, or a biosecurity measure imposed, only when the circumstances are sufficiently serious to justify it, and only if it would be effective, is proportionate, and is no more restrictive or intrusive than is required to manage the risk.

 

To ensure that officials consider the principles of general protection when exercising powers under the Bill, biosecurity measures may only be applied to individuals by issuing a Human Biosecurity Control Order (HBCO) under clause 58. This requires that officials specify details of the Listed Human Disease(s) that is (are) suspected and the biosecurity measure required to manage that disease.

 

A HBCO must only be applied for as long as is necessary, and no longer than 28 days. A HBCO cannot be extended. If the officer believes a HBCO is still necessary to prevent the entry, emergence, establishment or spread of a Listed Human Disease, the officer must reapply the HBCO and consider the principles of general protection.

 

In applying a HBCO, the officer must explain to the individual their rights and obligations, including their rights to review. The officer must also explain why the HBCO is being applied and the risks to the individual of the Listed Human Disease and the contagion risk the individual may pose to the community.

 

To further advance the protection of an individuals’ health, clause 80 specifies biosecurity measures (such as medication, treatment, or medical examination), may only be applied by officers who have appropriate medical training or clinical expertise. In addition, clause 92 requires that these measures must be conducted using appropriate medical and professional standards.

 

Further advancing the protection of this right, clause 34 specifies that there should be no interference with life threatening medical needs when exercising any power or imposing any measure in relation to an individual under Chapter 2.

 

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, clause 106 requires that all reasonable expenses associated with an individual complying with biosecurity measures applied in a HBCO must be met by Commonwealth. This ensures that all ill individuals who are subject to public health measures do not incur undue personal cost.

 

In addition to protecting an individual’s right to health, the Bill may also operate to limit the right to health.

 

Article 4 of the ICESCR provides that countries may subject economic, social and cultural rights 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.

 

Clauses 201, 205 and 206 of Chapter 4 enable the Director of Biosecurity to exercise a range of powers with respect to the movement of conveyances subject to biosecurity control (including to remain in a specified place or moving the conveyance to a specified place, which with respect to clause 205 may include a place outside Australian territory) for the purpose of managing biosecurity risks relating to conveyances. Clause 243 enables the Director of Biosecurity to direct the person in charge of an aircraft not to land at any landing place in Australian territory. Similarly, clause 251 enables the Director of Biosecurity to direct the person in charge of a vessel not to moor the vessel at any port in Australian territory. These clauses may potentially impact upon the right to health, as it relates to access to health facilities and goods, including essential medications and services.

 

These clauses are reasonable, necessary and proportionate to the legitimate aim of assessing and managing biosecurity risks related to conveyances. The right to health under Article 12(1) of the ICESCR may be permissibly limited in this instance because it may be necessary to prevent harm to human, animal or plant health. The clauses are reasonable and proportionate to the legitimate aim, particularly because the clauses do not require individuals to remain on board a vessel subject to a direction. Part 4 of Chapter 1 contains protections that apply where the Director of Biosecurity makes a decision under this clause (for example, a direction must be no more intrusive or restrictive than is required in the circumstances), and these protections apply to clauses 205, 243 and 251. Subclause 31(4) in Chapter 1 contains the additional protection that, in exercising powers in relation to a conveyance, a biosecurity official must consider the impact of the exercise of the power on the health and safety of any persons on board the conveyance.

 

Clause 303 of Chapter 5 enables the Director of Biosecurity to exercise a range of powers with respect to the movement of a vessel (including keeping a vessel out of a port or requiring the vessel to remain at a specified place) where there are clear grounds for believing that an offence under the Chapter has been committed. There is no requirement that individuals remain on board a vessel subject to a direction. However, directions under this clause may result in individuals being prevented from disembarking from a vessel subject to a direction (for example, to stay out of a port). This may potentially impact upon the right to health, as it relates to access to health facilities and goods, including essential medications and services.

 

This clause is reasonable, necessary and proportionate to the legitimate aim of preventing potentially significant harm to the marine environment and related industries, and giving effect to Australia’s international rights and obligations relating to ballast water management, for the reasons outlined below in relation to Article 12 of the ICCPR. The right to health under Article 12(1) of the ICESCR may be permissibly limited in this instance because, as outlined above, the clause is necessary on public health grounds (for instance, by preventing the spread of human diseases contained within ballast water under Chapter 5). The clause is reasonable and proportionate to the legitimate aim, for the reasons outlined above in relation to Chapter 4.

 

Right to enjoy and benefit from culture

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

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

 

The Committee has stated that cultural rights may be exercised by a person as an individual, in association with others, or within a community or group.

 

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

 

Division 2 of Chapter 1 promotes the right to enjoy culture under Article 15 of the ICESCR, by allowing for exemptions to be made to enable free movement of traditional inhabitants and the performance of lawful traditional activities within the Torres Strait protected zone, in line with Articles 10 and 11 of the Torres Strait Treaty. The protected zone is a geographical zone in the Torres Strait region which was established under Article 10 of the Torres Strait Treaty in order to acknowledge and protect the traditional way of life and livelihood of traditional inhabitants, including their free movement. Traditional inhabitants are Torres Strait Islanders who are Australian citizens that live in the protected zone or the adjacent coastal area of Australia, or citizens of Papua New Guinea that live in the protected zone or the adjacent coastal area of Papua New Guinea, and who maintain traditional customary associations with areas or features in or in the vicinity of the protected zone in relation to their subsistence or livelihood or social, cultural or religious activities.

 

Right to protection from arbitrary interference with privacy

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

 

Chapter 2 contains a number of powers which engage with this right. These powers involve the collection and use of personal information, sharing of information between agencies, providing for collection of body samples, and providing for mandatory disclosure of information.

 

Entry and exit requirements under clauses 43 and 44 may include requirements to provide declarations or evidence relating to their health status or medical treatments, or information on where they have travelled prior to entering Australia. For example, individuals may be required to produce evidence that they have received a vaccination for yellow fever if they have travelled through an area where there is a risk of yellow fever transmission. To ensure that these requirements are a proportionate and legitimate restriction of an individual’s privacy, these requirements are limited to the provision of information that directly relates to preventing the entry, establishment and spread of Listed Human Diseases.

 

Chapter 2 also provides for sharing of personal information between agencies in specific circumstances. If an individual is subject to a traveller movement measure in a HBCO, clause 96 includes a requirement that the following Commonwealth bodies are notified using a travel movement measure alert:

·          the Agriculture Department

·          the Immigration Department

·          the Foreign Affairs Department

·          The Australian Customs and Border Protection Service, and

·          the National Focal point.

 

To protect an individual’s privacy, the alert is restricted to the specified Commonwealth bodies, all of whom have responsibility relating to the movement of conveyances, goods and passengers into and from Australia. In addition, clause 96 restricts the information which can be shared to ensure that only the information necessary to clearly identify the individual subject to the measure, and any known travel details of that individual.

 

A travel movement measure alert informs the responsible Commonwealth bodies to ensure ill passengers are prevented from boarding a passenger airline or vessel. This manages the risk of contagion to other passengers in the confines of a passenger aircraft or vessel, and the risk of spread of a Listed Human Disease to another country. To protect an individual’s privacy and reputation, clause 98 specifies that Traveller movement measure alerts must be destroyed within 6 months of no longer being in force.

 

If an individual has signs or symptoms, or has been exposed to a Listed Human Disease, it may be necessary for that individual to undergo an examination or provide body samples for diagnosis. The test for application of a HBCO, and the principles of general protection ensure that these measures are only used if it is the least intrusive or restrictive measure which may be applied in the circumstances. In addition, clause 89 specifies that samples may only be required for the purpose of diagnosing a Listed Human Disease.

 

In specified situations, it may be vital that officers can quickly obtain information from individuals in order to prevent the entry, emergence, establishment or spread of Listed Human Diseases. Wherever possible, the Commonwealth will rely on voluntary disclosure of this information, however, in some circumstances, an individual may be unwilling to disclose information about their health status, potential exposure and travel history. In such cases, the need to address public risk will justifies the requirement for individuals to answer questions or provide documents under clauses 53 and 54.

 

To ensure that there is no arbitrary interference with an individual’s privacy, these provision specify that biosecurity officials may only ask questions and require documents if they are satisfied that an individual has been exposed to a Listed Human Disease; or exposed to another individual who has signs or symptoms of a Listed Human Disease; or the questions relate to human remains or an individual who has died in transit or on arrival in Australia.

 

Chapters 3 and 4 contain clauses allowing a biosecurity officer to ask questions or to require persons to provide documents for the legitimate purpose of assessing the level of biosecurity risk associated with goods or conveyances (see clauses 123, 124, 199 and 200). Collecting, using, storing and sharing personal information may operate to interference with the right to privacy. In asking questions or requiring persons to provide documents, these clauses may require the provision of personal information incidentally in the exercise of these powers. These clauses are necessary to achieving a legitimate aim, because biosecurity officers need access to this information in order to properly assess the level of biosecurity risk and then to be able to manage any biosecurity risks appropriately. They are reasonable and proportionate to this aim because their application is limited to circumstances where the biosecurity officer suspects on reasonable grounds that a person or persons have relevant information or documents, and it must be for the purpose of assessing biosecurity risk.

 

Chapters 3 and 4 contain clauses requiring persons to provide information prior to their arrival in Australian territory, such as a notice of intention to unload goods in Australian territory under clauses 118 and 119, and pre-arrival reporting for conveyances entering Australian territory under clause 193 and 194. Collecting, using, storing and sharing personal information may operate to interference with the right to privacy. In requiring the provision of particular information, these clauses may require the provision of personal information incidentally in the exercise of these powers. These pre-arrival reporting clauses are for the legitimate purpose of effectively managing biosecurity risks upon arrival of the conveyance into Australian territory. It is necessary to have accurate and up to date information upon entry of goods or a conveyance into Australian territory, in order to be able to effectively manage any associated biosecurity risks. These clauses are reasonable and proportionate as they only apply in particular circumstances, as stated above, and the persons required to provide the information or documents can be expected to be aware of these obligations, such as the owner or operator of the aircraft or vessel.

 

Chapter 6 provides for powers to enter premises, and for powers to be exercised on those premises, including the ability to search the premises, inspect, take extracts or copies of documents and sample anything on the premises. These clauses may operate to limit the right to protection from arbitrary interference with privacy by enabling the entry of premises, including residential premises, the searching of premises and the taking of documents which may include personal information. The purpose of these powers is to determine whether there is a disease or pest that may pose an unacceptable level of biosecurity risk on the premises, or to determine whether a disease or pest that may pose an unacceptable level of biosecurity risk has entered, established or spread in a zone established under Chapter 6.

 

These Chapter 6 clauses are necessary to achieve the legitimate purpose of monitoring and managing biosecurity risks when they emerge post-border, because without these powers biosecurity officers would not have sufficient information to be able to effectively assess or manage post-border biosecurity risks. These clauses are reasonable and proportionate to achieve the legitimate aim, as the powers in these clauses can only be exercised in particular circumstances and reflect the serious potential harm that may be caused by biosecurity risks arising post-border. For instance, entry to premises under Chapter 6 is only allowed under consent or a warrant. A warrant to enter premises may only be granted if there are reasonable grounds for suspecting that a pest or disease - that poses an unacceptable level of biosecurity risk - may be present on the premises, or it is reasonably necessary to monitor whether such a pest or disease has entered, established itself or spread in the premises. The protection in clause 518 of Chapter 10 also applies, to provide a requirement for officers entering premises under an entry warrant to provide identification to the appropriate person.

 

Chapter 8 provides for powers to control the establishment or spread of a declared disease or pest in Australian territory during a biosecurity emergency period (such as a severe and widespread outbreak of foot and mouth disease that affects multiple Australian states). Such powers include the power to: secure goods and conveyances; ask questions or require documents to be produced; set up traps in order to monitor diseases or pests; destroy goods; and enter premises without a warrant or consent. These clauses may also operate to limit the right to privacy for reasons set out above.

 

These Chapter 8 clauses are necessary to achieve the legitimate purpose of controlling the establishment or spread of a declared disease or pest in Australian territory. If these powers were not provided for, biosecurity officers would be unable to gather sufficient information to effectively assess and manage biosecurity risks during an emergency period. The clauses are both reasonable and proportionate to this purpose because they can only be exercised during a declared biosecurity emergency period in certain circumstances. For instance, entry to premises under Chapter 8 of this Bill is only allowed during a biosecurity emergency period for the purpose of controlling the establishment or spread of a declared disease or pest in Australian Territory. These powers may only be exercised during a biosecurity emergency period, which can be declared if the Minister is satisfied that: a disease or pest poses a severe and immediate threat, or is causing harm, on a nationally significant scale to animal or plant health, the environment or economic activities relating to animals, plants or the environment; and the declaration is necessary to prevent or control the establishment or spread of the disease or pest. Additional protections include that under clause 527 of Chapter 10, a person entering premises without a warrant under Chapter 8 must announce that he or she is authorised and provide identification.

 

Chapters 9 and 10, provide for powers to enter premises, and a number of monitoring and investigation powers to be exercised on those premises. These powers include the ability to search the premises, inspect, take extracts or copies of documents and sample anything on the premises. The purpose of these powers is to ensure that relevant information required under the Bill, and information required to assess compliance with the Bill, is accessible and available to biosecurity officials when required. The powers referred to above engage Article 17 by providing for entry to premises and the power to collect information, which may incidentally require the collection of personal information.

Entry to premises under Chapters 9 and 10 is only allowed under consent or a warrant, and a warrant to enter premises may only be granted for the purposes of:

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

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

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

 

The threshold tests that are laid out above are designed to ensure that any interference with the right to privacy is lawful and is only to ensure compliance with the Bill or to manage biosecurity risk. There are clauses included in the Bill designed to ensure that any interference with the right to privacy is lawful and protect individual’s rights. They include:

·          obligations on biosecurity enforcement officers when entering with consent or under warrant (clauses 517-520), which include the requirement that consent of the occupier is only to be given voluntarily; and where entry is with a warrant, announcement must be made before entry and details of the warrant given to the occupier

·          the limitations on use of force against things as outlined in clause 521

·          the particular premises able to be accessed without a warrant have been specified in the Bill (see clauses 185 and 195A). Entry for the purposes of this clause may be done without a warrant or consent as the relevant premises relate to approved arrangement where consent to entry is implied by the voluntary nature of the arrangement (and will be a condition of the approved arrangement), and

·          in the case of first point of entry premises, stakeholders affected will be informed of this power through the public release of a determination by the Director of Biosecurity or the Director of Human Biosecurity establishing a place to be a first point of entry. The power to enter premises without a warrant is limited to these places to ensure that persons who have not been previously aware of these powers will not be affected.

 

Chapter 9 also provides the Director of Biosecurity and the Director of Human Biosecurity with the ability to apply a fit and proper person test and gather personal information from applicants (see Divisions 2 and 3 of Part 6 of Chapter 9). These particular clauses engage Article 17 by expressly requiring the release of personal information. The fit and proper person test is for the legitimate objective of ensuring that persons covered by approved arrangements or who have been granted import permits (including high risk goods) are persons that are able to appropriately and responsibly manage biosecurity risks. The personal information that is to be supplied under clause 506 is designed to work in conjunction with the fit and proper persons test and will allow confirmation of a person’s identity.

 

To ensure that the above clauses are reasonable, proportionate and necessary, clauses 505 and 506 specify that the fit and proper person test and collection of personal information for applications can be only be applied to approved arrangements and import permits. That is, they only extend to circumstances which provide for a privilege rather than a right—they are not requirements placed on the general public. Any additional provision linking to either the fit and proper persons test or collection of personal information is required to be specified in the regulations. Clause 505 further provides an exhaustive list of the matters that the Director of Biosecurity and Director of Human Biosecurity must have regard to in determining whether a person is fit and proper, for example, whether a person has been convicted of an offence against the Quarantine Act. Additionally, Part VIIC of the Crimes Act 1914 applies to the fit and proper person test. This allows, in certain circumstances, that the person does not need to disclose spent convictions and requires persons who are aware of the spent convictions to disregard the convictions.

 

The powers contained in the clauses above are required to be exercised in compliance with the Privacy Act 1988, which means that there are additional protections on the use and storage of personal information collected under these clauses.

 

The clauses listed above involving the collection, use and storage of personal information are also subject to the confidential information clauses contained in Part 2 of Chapter 13. These apply to limit the circumstances and purposes for which personal information obtained in accordance with the Act can be recorded, disclosed or used (for example, contacting the importer regarding the application).

 

The protections described above are necessary, reasonable and proportionate to the legitimate purpose of investigating and ensuring deterrence for non-compliance with the Bill that may adversely affect animal, plant or human health, the environment or the economy.

 

Right to be free from self-incrimination

Article 14(3)(g) of the ICCPR protects the right 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 operates to limit the right in Article 14(3)(g) of the ICCPR by expressly removing the privilege against self-incrimination in relation to the following information-gathering clauses of the Bill (as listed in 661):

·          clauses 43, 44, 67, 68, 83 (information gathering for human biosecurity)

·          clauses 118, 119, 123 and 124 (requiring a person to answer questions or produce documents to assess the level of biosecurity risk of goods brought into Australian territory)

·          clauses 193, 194, 199 and 200 (requiring a person to answer questions or produce documents to assess level of biosecurity risk of conveyances entering Australian territory)

·          clauses 318 and 319 (requiring a person to answer questions or produce documents relating to goods or premises for the purpose of assessing biosecurity risk under Chapter 6)

·          subclause 435(1) (audit powers in relation to approved arrangements)

·          clauses 448 and 449 (requiring a person to answer questions or produce documents relating to biosecurity emergencies)

·          subclause 495(3) (requiring information for monitoring and investigation purposes)

 

Removing the privilege in the circumstances outlined above is necessary to meet the pressing and substantial concern that biosecurity risks are assessed and managed effectively. These limitations are aimed at achieving the legitimate objective of the effective assessment and management of biosecurity risks posed by pests and diseases to plant and animal health, the environment, and the economy of Australia.

 

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

 

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

 

These limitations are reasonable and proportionate to achieving the objective, as the Bill provides for both use and derivative use immunities. Clause 661 provides the limitation that self-incriminatory disclosures made under these clauses cannot be used against the person making the disclosure in any proceedings. The only exception to the use and derivative use immunity are in relation to proceedings arising out of sections 137.1 and 137.2 of the Criminal Code 1995 (Cth) (in relation to false and misleading information and documents), and proceedings for the contravention of subclauses 13(1), (2) or (4) of this Bill (civil penalties for failing to comply with a direction).

 

Accordingly, the abrogation of the privilege against self-incrimination in relation to the above-listed matters is aimed at achieving the legitimate objective of protecting Australia’s human, plant and animal health, and the environment and economy, and is reasonable, necessary and proportionate.

 

Right to the presumption of innocence

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

 

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

 

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. Relevant factors to consider when determining if a reverse burden provision is justified include whether:

·          the penalties are at the lower end of the scale

·          the offences arise in a regulatory context where participants may be expected to know the duties and obligations

·          the offences only impose an evidential burden (as the prosecution must still disprove the matters beyond reasonable doubt if the defendant discharges the evidential burden), and

·          the burden relates to facts which are readily provable by the defendant as matters within their own knowledge or to which they have ready access.

 

The Bill may operate to limit the right to be presumed innocent through imposing an evidential burden on the defendant in relation to a range of matters and through the application of strict liability to a range of offences in the Bill.

 

Evidential burdens

When a defendant bears an evidential burden in relation to an exception, it means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception is made out. If this is done, the prosecution must refute the exception beyond reasonable doubt.

 

Clauses 140 and 188 of Chapter 3 create offences relating to bringing in or importing goods into Australian territory. These offences contain exceptions (for instance under subclause 140(7) a defendant may rely upon the exception that they contravened the direction because they issued the same direction to another person who failed to comply with it) where the defendant bears the evidential burden of proving the exception. It is necessary that the defendant bears the evidential burden in these clauses in order to achieve the legitimate purpose of ensuring goods in Australian territory that potentially pose a biosecurity risk may be located by biosecurity officials. These clauses are reasonable and proportionate to the legitimate objective because the information or facts are uniquely within the defendant’s knowledge. For example, under clause 188 if the defendant did not bring or import the goods into Australian territory, they will have peculiar knowledge of how they obtained the goods such as information about where they purchased them.

 

Clauses 207 and 218 of Chapter 4 create offences for unauthorised persons boarding conveyances, or for persons in charge of conveyances who allow the boarding of unauthorised persons in certain circumstances. The defendant bears an evidential burden in relation to proving the exceptions that are available for these offences (for example, the exception in subclause 217(2) that the person did not know, and could not reasonably be expected to have known, that the conveyance was subject to biosecurity control when the person boarded the conveyance, or that the person had appropriate permission to board the conveyance). It is necessary that the defendant bears the evidential burden in these clauses in order to achieve the legitimate purpose of ensuring unauthorised persons do not board conveyances that are subject to biosecurity control. These clauses are reasonable and proportionate to the legitimate objective because the information or facts are uniquely within the defendant’s knowledge.

 

Clauses 270, 276, 277, 279, 282, 283 and 284 of Chapter 5 provide exceptions to the offence of discharging ballast water in Australian seas under clause 269 (for instance, it is an exception that ballast water has been managed for discharge, that discharge is part of an acceptable ballast water exchange, or that ballast water was taken up and discharged at the same place). The defendant bears the evidential burden with respect to these exceptions. It is necessary that the defendant bears the evidential burden in these clauses in order to achieve the legitimate purpose of ensuring ballast water is appropriately managed in Australian territory. These clauses are reasonable and proportionate to the legitimate objective because the defendant will have the requisite knowledge to adduce evidence of the exception (that is, they have the appropriate records, such as the ships log book or ballast water records, to show they did not commit the offence).

 

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

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

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

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

 

Similar justification applies in that the defendant will have the requisite knowledge to establish the exceptions available (that is, that they have the appropriate records, such as the ships log, to show they did not commit the offence).

 

Clauses 328, 349 and 374 of Chapter 6 create offences relating to unauthorised persons, who move, deal with or interfere with notices affixed to goods or conveyances, or equipment and structures in a biosecurity response zone, in certain circumstances. These clauses provide exceptions where the defendant is authorised to engage in the conduct under the Act or another Australian law, and the defendant bears the evidential burden of proving these exceptions. It is necessary that the defendant bears the evidential burden in these clauses in order to achieve the legitimate purpose of ensuring only authorised persons deal with goods, conveyances, equipment or structures in a biosecurity response zone. These clauses are reasonable and proportionate because the defendant will have the requisite knowledge to adduce evidence of the exception (that is, that they were authorised under Australian law).

 

Clauses 454 and 455 of Chapter 8 create offences relating to interfering with, removing or defacing a notice affixed to goods or a conveyance, or to moving, dealing or interfering with goods or a conveyance, during a biosecurity emergency period. The defendant bears the evidential burden with respect to exceptions to these offences (contained in subclauses 454(5) and 455(5) respectively). It is necessary that the defendant bears the evidential burden in these clauses in order to achieve the legitimate purpose of ensuring unauthorised persons do not move, deal, or interfere with goods or conveyances to which a notice has been affixed during an emergency period. These clauses are reasonable and proportionate to the legitimate objective because the defendant will have the requisite knowledge to adduce evidence of the exception (that is, that they were authorised under this Act or another Australian law to engage in the conduct).

 

Clause 607 of Chapter 12 creates an offence of strict liability where a person fails to return an identity card in the prescribed circumstances. The defendant bears the evidential burden of proving the exception that the identity card was lost or stolen. It is necessary that the defendant bears the evidential burden in this clause in order to achieve the legitimate purpose of preventing identity cards from being obtained and used by unauthorised persons. This clause is reasonable and proportionate to the legitimate objective because the defendant will have the requisite knowledge to adduce evidence of this exception, and also because the penalty for this offence is low (1 penalty unit).

 

Chapter 4 of the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers was considered in the development of these clauses and is considered consistent with the proposed reverse burden of proof. Agreement of the Attorney-General was sought and received in relation to these clauses.

 

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

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

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

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

 

 

Strict liability offences

The application of strict liability negates the requirement to prove fault and allows a defence of honest and reasonable mistake of fact to be raised (see section 6.1 of the Criminal Code). The application of strict liability and the offences to which it relates have been developed with regard to the Senate Standing Committee for Scrutiny of Acts Sixth Report of 2002 on Application of Absolute and Strict Liability Offences in Commonwealth Legislation and to the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.

 

In relation to bringing or importing goods into Australian territory, Chapter 3 provides for the following strict liability offences: a person who engages in conduct that results in interference with, removal of or a defacement of a biosecurity control notice affixed to goods (clause 126); and a person who receives or has in their possession prohibited or conditionally non-prohibited goods (clause 188). These offences are necessary to achieve the legitimate objective of deterring conduct which involves goods posing an unacceptable biosecurity risk. They are reasonable and proportionate as they are not punishable by imprisonment, and 60 penalty units is the highest maximum penalty that may be imposed. These clauses provide exceptions that are additional to the defence of honest and reasonable mistake of fact that is available under section 9.2 of the Criminal Code.

 

In relation to conveyances entering Australian territory, Chapter 4 provides the following strict liability offences: a person who engages conduct that results in interference with, removal of or a defacement of a biosecurity control notice affixed to a conveyance (clause 202); and a person in charge of a conveyance who fails to comply with requirements for a prescribed quarantine signal (clause 223). These offences are necessary to achieve the legitimate aim of deterrence of offences involving conveyances posing an unacceptable biosecurity risk. They are reasonable and proportionate as they are not punishable by imprisonment, and they impose a maximum penalty of 50 penalty units, which is at the lower end of the scale. Clause 202 provides offence-specific exceptions, and the defence of honest and reasonable mistake of fact under section 9.2 of the Criminal Code apply to both clauses.

 

Chapter 5, regulating the management of ballast water by vessels in Australian seas, contains strict liability offences in relation to: a person in charge or operator of a vessel in Australian seas that discharges ballast water (subclause 269(3)); a person in charge or operator of a vessel in Australian seas that discharges ballast water for the purpose of safety, accident or pollution minimisation and fails to comply with reporting requirements under subclause 284(4); a person in charge of a vessel that does not have a ballast water management system as required by subclause 292(2); a person in charge of a vessel who fails to make a record of ballast water operations and the disposal of sediment in accordance with subclause 293(3); a person in charge of a vessel who fails to retain records in accordance with subclause 294(4); a person in charge or operator of a vessel in Australian seas that disposes sediment, other than to a sediment reception facility (subclause 298(3)); the owner of an Australian vessel that fails to produce a ballast water record, or a copy of the record, in accordance with subclause 301(4); and a person in charge of a vessel who fails to comply with a direction under Division 3, Part 6 of Chapter 5 (subclause 305(1)).

 

The offences depart from the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers by imposing higher maximum penalties than those recommended in the guide. Agreement of the Attorney-General was sought and received in relation to these clauses. The maximum penalty that may be imposed for these offences range from 80 penalty units (subclause 301(4)) to 2000 penalty units (subclause 305(1)). Subclauses 292(2), 293(3) and 294(4) impose a maximum penalty of 200 penalty units, and subclauses 269(3), 284(4), and 298(3) attract maximum penalties of 500 penalty units.

 

The defence of honest and reasonable mistake of fact under section 9.2 of the Criminal Code is available for the above ballast water offences. Some of these offences contain additional exceptions: exceptions to the offence under subclause 269(3) are contained in Divisions 3 to 8 of Part 2 of Chapter 5; exceptions to the offence under subclause 284(4) are contained in clauses 270, 276, 277, 279 and 282; clause 299 sets out specific exceptions in relation to the offence under subclause 298(3); and subclauses 305(2), 305(3) and 305(4) set out exceptions available to the offence under clause 305.

 

Management of ballast water is for the legitimate aim of preventing potentially significant damage to Australia’s marine environment and adverse affects to related industries . This will help 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. The strict liability offences outlined above are necessary to achieve this legitimate aim because they are needed for effective deterrence to contraventions of the relevant obligations under the Bill.

 

The application of strict liability in these ballast water clauses is reasonable and proportionate to achieve the legitimate aim. The clauses are only directed at persons in charge, operators or owners of vessels, who can be expected to be responsible and aware of the requirements of the legislation. The application of strict liability in the above clauses are drafted to be consistent the International Convention for the Control and Management of Ships’ Ballast Water and Sediments 2004 , a treaty signed by Australia but not yet ratified. Where relevant, t he penalties for these clauses ensure consistency with equivalent offences and penalties of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (see in particular sections 21, 22(1B)(1), 22(1B(3), 23(5), 25(3), 27(1)(m), 27(2) and 27A(5)). These higher maximum penalties are proportionate given the potentially significant harm to the marine environment that can be cause by the commission of the offences.

 

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

 

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 restricted in certain circumstances, including where the restriction is justified on any of the following grounds: to protect national security, public order, public health or morals or the rights and freedoms of others. The restriction 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.

 

A number of provisions in the Bill may operate to restrict the movement of individuals, through the application of biosecurity measures in a HBCO, establishing conditions for individuals entering or leaving the country, and regulating or excluding individual’s entry onto public lands which have been declared a human biosecurity response zone.

 

Many of the biosecurity measures applied using a HBCO will restrict an individual’s movement. A HBCO may only be applied by specified officers (clause 80), and if the individual has signs or symptoms of, or has been exposed to a Listed Human Disease; or if the individual has not complied with an entry requirement under clause 43. These strict limitations in the application of a HBCO ensure that measures applied relate only to the management of a Listed Human Disease, and are a proportionate and legitimate limitation to an individual’s freedom of movement.

 

Broadly, biosecurity measures can be categorised as information gathering measures, restricting behaviour measures and treatment measures.

 

Individuals under a HBCO may be required to contact a human biosecurity officer or chief human biosecurity officer if they develop signs or symptoms of a Listed Human Disease (clause 84). This measure is applicable, for example, where an individual has been exposed to a Listed Human Disease but is not exhibiting signs or symptoms and aims to ensure that individuals potentially suffering from serious communicable disease are monitored in the event they develop the Listed Human Disease.

 

Individuals under a HBCO may also be required to comply with a restrict behaviour measure (clause 85). This may require a person to remain in their homes, or not visit specific places for a specified period of time. This may consequentially prevent individuals from attending work or education for the specified time. Certain members of the community are particularly vulnerable to some communicable diseases, such as children and the elderly. This restriction seeks to reduce the risk of spread to these members of the community.

 

An ill individual may be required by a HBCO to attend a specified medical facility to facilitate assessment and treatment of ill individuals, including undergoing an examination, providing body samples for diagnosis, treatment or undergoing a vaccination (clauses 88, 89 and 90). It is essential, where an individual is suspected of suffering from a Listed Human Disease, that the individual be moved to an appropriate place where medical treatment and privacy can be assured.

 

Individuals under a HBCO may also be temporarily restricted from travelling on international passenger aircraft and vessels, for up to 28 days (clause 94). These aircraft and vessels often carry large numbers of passengers in close proximity for long periods of time, and temporary restrictions may be necessary to prevent ill individuals from travelling while they present a risk of contagion to other passengers. This power also prevents the spread of Listed Human Diseases to other countries in line with Australia’s obligations as a signatory to the IHR.

 

As a measure of last resort, an ill individual may be isolated at a specified medical facility under a HBCO (clause 95). Isolation would be applied in situations where an individual presents a significant risk of contagion and does not consent to a less restrictive measure, or isolation is the most or only effective measure in managing the Listed Human Disease.

 

Individuals may be required by a HBCO to wear specified clothing or equipment designed to prevent the spread of disease (clause 86). This may include requiring an individual to wear a face mask to prevent the potential spread of a respiratory disease such as Severe Acute Respiratory Syndrome (SARS).

 

Some communicable diseases may be spread by particles on a person, or on their personal effects or clothing. If such a disease is suspected, a HBCO may require an individual to undergo decontamination (clause 87). This may include undertaking a decontamination shower.

 

Management of some communicable diseases may require long term medication but not hospitalisation (clause 91). Individuals who do not, or no longer, pose a serious risk of contagion may be permitted under a HBCO to continue their medication and complete their treatment outside of a medical facility.

 

Chapter 2 provides for the Health Minister to determine requirements for people arriving in or leaving Australia (clauses 43 and 44). This is consistent with the requirements of Annexe 1B of the IHR, for member states to have the ability to apply entry and exit requirements in response to public health risks and emergencies of international concern. The requirements also seek to place an obligation on individuals to take public health precautions prior to travel to ensure they do not enter or leave Australia with a Listed Human Disease.

 

Entry requirements allow the Commonwealth to prevent the risk of the entry, emergence, establishment and spread of a Listed Human Disease at Australia’s borders. Exit requirements seek to prevent the spread of Listed Human Diseases to passengers on aircraft or vessels, or to other countries in line with Australia’s obligations as a signatory to the IHR. Entry requirements may include the requirement for individuals to provide evidence of specified vaccination or treatment, or provide a declaration on their health status if they have travelled from a country where there is a disease outbreak. Exit requirements may include individuals undergoing screening, such as completing a health declaration, prior to leaving Australia.

 

Typically these requirements are consistent with recommendations of the World Health Organization under Part III of the IHR, to prevent the global spread of communicable disease. Part III of the IHR allows the WHO to make temporary recommendations in response to Public Health Events of International Concern. These recommendations may include health measures to prevent or reduce the international spread of disease. Health Measures are defined in the IHR to be measures to prevent the spread of disease or contamination, but do not include security or law enforcement measures.

 

Individuals that have not complied with an entry requirement may present a risk of contagion, and therefore measures may be required to manage potential risk to human health. To ensure that entry and exit requirements are a proportionate and legitimate limitation to an individual’s freedom of movement, these requirements must be for the purposes of preventing the entry, emergence, establishment or spread of a Listed Human Disease (clause 58). While entry and exit requirements do impose conditions on the right of individuals to enter or leave Australia, these limitations are not applied on the basis of nationality, but are applied on the basis of where an individual has travelled or is travelling to, consistent with Article 2 of the ICCPR.

 

The Director of Human Biosecurity has the power to establish a human health response zone to manage small incidents such as a localised disease outbreak or a laboratory hazard (Division 3). In declaring the response zone, the Director of Human Biosecurity may determine requirements for people entering or leaving the zone, or require individuals to evacuate the zone. The Director must consult with the Chief Health Officer in the relevant state or territory prior to declaring the zone. The determination may only be in place for 3 months.

 

In order to ensure that response zones are a proportionate and legitimate restriction of an individual’s freedom of movement, the zone must only be for preventing or controlling the spread of a Listed Human Disease, and the Director must be satisfied that the requirements are appropriate and adapted to prevent, or reduce the possibility of, the emergence, establishment or spread of the specified Listed Human Disease.

 

Subclause 111(5) specifies that the Director of Human Biosecurity must not set requirements that subject individuals to biosecurity measures imposed under a HBCO. These measures must still be imposed using a HBCO and the associated protections of human rights and rights to review would continue to apply.

 

In order to deal with nationally significant risks to human health, clauses 475 and 476 provides the Minister with the power to determine requirements or give directions during a human biosecurity emergency. A human biosecurity emergency may only be declared if the Health Minister is satisfied that a Listed Human Disease is causing a severe and immediate threat to human health, and the declaration is necessary to prevent the entry, establishment, emergence or spread of that Listed Human Disease (clause 473).

 

Human biosecurity emergency requirements or directions include restrictions to the free movement of individuals such as preventing public access to specified areas. To ensure that these restrictions are reasonable and proportionate to the protection of public health, these powers are limited to responding to a Listed Human Disease. Prior to determining requirements or giving directions, clauses 475 and 476 require the Minister must be satisfied that:

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

·          the requirements or directions are appropriate and adapted to prevent or control the spread of the Listed Human Disease

·          the requirement or direction is not more restrictive or intrusive than is required in the circumstances

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

·          the requirements or directions are only applied for as long as is necessary.

 

Clause 303 of Chapter 5, relating to the management of ballast water in Australian seas, enables the Director of Biosecurity to exercise a range of powers with respect to the movement of a vessel (including keeping a vessel out of a port or requiring the vessel to remain at a specified place) where there are clear grounds for believing that an offence under the Chapter has been committed. There is no requirement that individuals must remain on board a vessel subject to a direction. However, directions under this clause may affect the movement of individuals on a vessel, for example, where a direction requiring a vessel to stay out of a port results in individuals being hindered from immediately disembarking the vessel at port.

 

Management of ballast water is for the legitimate aim of preventing significant damage to Australia’s marine environment and adverse affects to related industries . This will help to ensure that the objects of the Bill in relation to ballast water — to provide for managing the biosecurity risks related to ballast water and to give effect to Australia’s international rights and obligations — are met and maintained. Clause 303 is necessary to achieve this aim because the ability to regulate the movement of vessels is required to prevent potential threats to the marine environment, and to ensure the overall effectiveness of the ballast water management regime. For example, a vessel may be ordered to remain at a specified place to investigate whether an offence has been committed, or, if an offence has been committed, to prevent any further risk of the spread of exotic colonies from the release of ballast water held on the vessel. The right to freedom of movement under Article 12 of the ICCPR may be permissibly limited in this instance because the clause is necessary on public health grounds. For example, this clause may be used to prevent a vessel holding ballast water potentially containing human diseases (such as cholera) from releasing the ballast water in Australian seas.

 

Clause 303 is reasonable and proportionate to the legitimate aim of preventing significant harm to the marine environment and related industries. The clause is proportionate to the potentially significant harm that could be caused by the threat to the marine environment if the direction relating to the movement of the vessel is not made. As stated above, there is no requirement in the clause for an individual to remain on the vessel and alternative arrangements may be made for people to leave a vessel subject to a direction under this clause. Part 4 of Chapter 1 contains the additional safeguard that prior to the direction being made, the Director of Biosecurity must take into account the impact of issuing the direction on any persons on board the vessel, must ensure that exercising the power is appropriate and adapted to achieving its purpose, and must ensure that the direction is no more intrusive or restrictive than is required in the circumstances. These additional safeguards mean that a direction under this clause will only be given where it is deemed necessary for a legitimate aim. Further, if a vessel is unduly detained or delayed, the Commonwealth is required to pay reasonable compensation for any losses or damage incurred by the owner of the vessel as a result of the undue detention or delay.

 

Clauses 201, 205 and 206 of Chapter 4 enable the Director of Biosecurity to exercise a range of powers with respect to the movement of conveyances subject to biosecurity control (including to remain in a specified place or moving the conveyance to a specified place, which with respect to clause 205 may include a place outside Australian territory) for the purpose of managing unacceptable biosecurity risk. These clauses are necessary, proportionate and reasonable to achieve the aim of effective management of unacceptable biosecurity risk, for reasons as outlined above in relation to Article 12 of the ICCPR.

 

Clause 243 of Chapter 4 enables the Director of Biosecurity to direct the person in charge of an aircraft not to land at any landing place in Australian territory. Similarly, clause 251 enables the Director of Biosecurity to direct the person in charge of a vessel not to moor the vessel at any port in Australian territory. Both of these clauses are necessary to achieve the legitimate aim of managing biosecurity risk, as in both instances the Director of Biosecurity must be satisfied on reasonable grounds that the direction is necessary to achieve this purpose, and that biosecurity measures cannot be taken to manage the risk. The clauses are reasonable and proportionate to achieving the legitimate aim, as the direction must be revoked if there is no longer an unacceptable level of biosecurity risk.

 

Under Part 4 of Chapter 1, prior to making a direction, the Director of Biosecurity must take into account the impact of issuing the direction on any persons on board the conveyance, must ensure that exercising the power is appropriate and adapted to achieving its purpose, and must ensure that the direction is no more intrusive or restrictive than is required in the circumstances.

 

Clauses 363 and 365 of Chapter 6 enable the Director of Biosecurity to declare a biosecurity response zone and enables biosecurity enforcement officers to exercise a range of powers. Under clause 363 the Director of Biosecurity may declare a biosecurity response zone if a biosecurity officer suspects, on reasonable grounds, that a disease or pest that poses an unacceptable biosecurity risk is on the premises and the Director is satisfied that it is necessary to declare a zone for the purpose of managing the biosecurity risk posed by the pest or disease. Clause 365 enables a biosecurity enforcement officer to direct a person to leave the zone for a specified period (which may not exceed 24 hours). These clauses may operate to impact the right to freedom of movement as it relates to individuals being able to move within a zone declared to be a biosecurity response zone. These clauses are reasonable, necessary and proportion to the legitimate aim of managing biosecurity risks posed by diseases and pests, particularly because any direction to leave a biosecurity response zone may only be for a maximum of 24 hours. In addition, the protections under Part 4 of Chapter 1 as discussed above apply in relation to decisions made under these clauses.

 

Clauses 443 and 444 of Chapter 8 enable the Agriculture Minister, during a biosecurity emergency period, to make determinations including in relation to restricting or preventing the movement of persons, goods or conveyances or causing goods or conveyances to be removed from specified places. These clauses are reasonable and proportionate because in giving such a direction, the Minister (including delegated officers such as the Director of Biosecurity, biosecurity officers, biosecurity enforcement officers, or a national response agency executive) must be satisfied that the direction is appropriate and adapted to preventing or controlling the establishment or spread of the declaration disease or pest in Australian territory, or part thereof. ‘Appropriate and adapted’ also incorporates the international law principle of proportionality. The use of these words is further intended to ensure that the exercise of the Agriculture Minister’s power to give directions or take actions is consistent with Australia’s international human rights obligations, such as the right to freedom of movement under Article 12 of the ICCPR and the right to be free from arbitrary or unlawful interferences with a person’s privacy under Article 17 of the ICCPR.

 

Protection of the rights of the child

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

 

Consistent with these protections, clause 36 provides that children must not be subject to biosecurity measures under Chapter 2 unless reasonable steps have been taken to contact a parent or guardian. After first taking care of any urgent or life threatening medical needs of an ill child, the Commonwealth must then take reasonable steps to contact a parent or guardian before any measures are applied in a HBCO.

 

 

 

Protection of the rights of persons with disabilities

Consistent with the Convention on the Rights of Persons with Disabilities (Article 3) the Bill advances this right by providing for special protections for the rights of individuals who may be incapable of understanding the nature and effect of requirements under the Bill, or may be incapable of consenting to biosecurity measures. Individuals may be incapable due to disability, or temporarily as a result of illness.

 

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

 

Right to freedom of association

Article 22 of the ICCPR recognised the right of individuals to free association with others.

A number of powers in Chapter 2 of this Bill may restrict this right, in that individuals subject to a HBCO may also be consequentially restricted from attending places where a large number of people may gather, such as a shopping centres, school, work or sporting event.

 

There is an increased risk of spread of communicable diseases in venues where large numbers of people may be gathered in close proximity. Restrictions to the movement of ill individuals to these venues protects the rights of the community to be free from contagion risk, In addition, the limitations on imposing a HBCO ensure that such restrictions are proportionate and legitimate restrictions to individual’s rights.

 

Right to liberty and freedom from arbitrary detention

The ICCPR recognises the right of all individuals to liberty and freedom from arbitrary detention.

 

In all decisions relating to the management of human biosecurity risk, the conflicting interests of the individual and. the community must be considered. In some circumstances, the community risk is such that an individual’s liberty must be restricted to ensure they do not endanger the health of others. As a consequence, this Bill contains a number of powers permitting the Commonwealth to require individuals to remain at a place or to detain individuals for the purpose of public health, thus restricting this right.

 

Prior to imposing a HBCO, officers may require an individual to remain at a place in order to assess potential risk of contagion (clause 66). To ensure that this is a proportionate and legitimate restriction of an individual’s liberty, this only applies if the officer believes that the individual has signs or symptoms of a Listed Human Disease, or has been exposed to a Listed Human Disease. This power only applies for up to 6 hours and may not be extended. After that time the officer must apply measures in a HBCO or release the individual.

 

Clause 101 specifies that individuals may be detained under this Bill if they fail to comply with a requirement to remain at a place, or if they fail to comply with an isolation measure that has been affirmed after review by the Director of Human Biosecurity. Before an individual is detained, consideration must be given to the principles of general protection. In addition, an individual may only be detained if they pose a significant risk of contagion.

 

The power to detain individuals has been vested only in law enforcement officers under subclause 101(3) as they have sufficient training and skills to ensure the power is exercised in line with Commonwealth guidelines.

 

To ensure that the above powers do not amount to arbitrary restriction of an individual’s liberty, the Bill includes the following protections if an individual is:

·          required to remain at a place or is detained, and that individual is not an Australian Citizen, then the Commonwealth must inform the individual of their right to seek consular assistance, and facilitate contact with a consulate if it is requested.

·          detained, then they must be advised of their right to contact anyone, including a legal representative; and

·          detained for failing to comply with an isolation measure, the detention must only be for the purpose of moving the ill individual to a specified medical facility so that they may be assessed and treated.

 

If an individual does not consent to a biosecurity measure, then they may seek internal review by the Director of Human Biosecurity. In conducting a review, the Director of Human Biosecurity must give consideration to factors affecting the health of the individual, and the reasons why they do not consent to the measure. The Bill prescribes timeframes for the Director to complete the review to limit the time that an individual’s liberty may be restricted.

Individuals may seek external merits review under Administrative Appeals Tribunal Act 1975 (if applicable) or the Administrative Decisions (Judicial Review) Act 1977.

 

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

The right of individuals not to be subjected to cruel, inhumane or degrading treatment is protected in Article 7 of the ICCPR. To advance the protection of this right, the Bill specifies that force must not be used against an individual to require them to comply with a biosecurity measure specified in a HBCO.

 

Clause 99 provides that individuals may be prevented from leaving Australian Territory if a traveller movement measure is in force. However, officers must not use more force or subject the person to greater indignity than is necessary to detain the individual or prevent them from escaping.

 

Article 10 of the ICCPR further protects the right of an individual to be treated with humanity and dignity if detained. Consistent with this protection, if an individual is required to remain at a place or placed under an isolation order, and they are not an Australian citizen; then the individual must be informed of their right to seek consular assistance. In addition, officers must provide a reasonable time to allow the individual to seek consular assistance, and facilitate communication with a consular office if requested (clause 100). This aims to ensure that all individuals are able to understand the nature and effect of requirements under the Bill, and are able to provide informed consent to biosecurity measures which may be imposed, regardless of language or nationality.

 

If an individual is detained, clause 102 specifies that officers must use no more force or subject the individual to greater indignity than is necessary and reasonable, and that detention must be in a place that affords adequate personal privacy. In addition, Clause 102 also requires the Commonwealth to advise the individual of their right to contact anyone, including a legal representative, and to provide facilities for the ill individual to contact that person.

 

Review of administrative decisions

Article 9 of the ICCPR provides individuals with the right to seek review of administrative decisions to which they are subject.

 

The Bill provides protection of this right by providing that individuals subject to health measures applied in a HBCO may seek review if they do not consent to that measure. All individuals may seek an internal review by the Director of Human Biosecurity (clause 70). Individuals may also seek review of isolation and travel movement measures by the Administrative Appeals Tribunal (AAT) (clause 73). This is in addition to the general right of all individuals to seek review of administrative decisions under the Administrative Decisions (Judicial Review) Act 1977.

 

Chapter 2 contains provisions obliging officials to inform individuals of their right to seek review (clause 59). In addition, there is an obligation on the Director of Human Biosecurity to ensure that individuals have access to facilities to enable them to apply for review (clause 73). The Bill also specifies timeframes for the making of applications and the handing down of decisions by the ATT (clauses 74, 75 and 76). This ensures that individuals are provided with a timely and meaningful review.

Conclusion

The Bill is compatible with the human rights outlined above because in some instances it supports their aims and to the extent that it may limit these rights, these limitations are reasonable, necessary and proportionate to achieve legitimate objectives.



 

 

Chapter 1—Preliminary

 

Part 1—Preliminary

 

Clause 1                      Short title

This clause provides that the Bill, when enacted, may be cited as the Biosecurity Act 2012.

 

Clause 2                      Commencement

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

 

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

 

Item 2 of the table provides that clauses 3 to 671 of the Bill will commence on a day fixed by proclamation, or if no day is fixed for commencement within 12 months of Royal Assent these clauses will commence on the day after the end of the 12 months.

 

Once the Bill receives Royal Assent, the Director of Biosecurity or the Director of Human Biosecurity will be able to make legislative instruments, and authorise various officers as outlined under Chapter 12 (through the operation of the Acts Interpretation Act 1901 ). These instruments and authorisations will come into effect when the remaining Chapters of the Bill commence.

 

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

 

Allowing time for communication and education is important as a number of policies included in the Bill do not exist under the Quarantine Act 1908 such as the new post border powers in Chapter 6 and enforcement regime in Chapter 11. It is important that stakeholders are aware of the new requirements—including the introduction of civil penalty provisions and an expanded infringement notice scheme—in the Bill so that they are not inadvertently non-compliant with these requirements.

 

Clause 3                      Guide to this Act

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

 

 

Clause 4                      Objects of this Act

This clause provides that the objects of the Act are to provide for managing:

·          biosecurity risks

·          the risk of contagion of a listed human disease

·          the risk of listed human diseases entering Australian territory or a part of Australian territory, or emerging, establishing themselves or spreading in Australian territory or a part of Australian territory

·          risks related to ballast water, and

·          biosecurity emergencies and human biosecurity emergencies.

 

Additionally, the Bill will give effect to Australia’s international rights and obligations, including under the International Health Regulations, the SPS Agreement and the Biodiversity Convention (see clause 9 for further details of these international agreements).

 

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

 

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

This clause defines the Appropriate Level of Protection (ALOP) for Australia. The World Trade Organization (WTO) Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) contains the basic rules on animal and plant health and food safety standards for trade between WTO member countries. The SPS Agreement requires that sanitary (relating to human and animal) and phytosanitary (relating to plant) measures are based on science and applied only to the extent necessary to protect human, animal or plant life or health. The SPS Agreement allows WTO members to determine their own appropriate level of sanitary and phytosanitary protection; however it must be applied in a consistent manner—this is known as the ALOP.

 

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

 

The Australian Government, with the agreement of the state and territory governments has expressed Australia’s ALOP as ‘providing a high level of sanitary and phytosanitary protection, aimed at reducing biosecurity risks to a very low level, but not to zero’. Australia’s ALOP is included in the Bill to provide additional certainty for importers and trading partners that the ALOP is applied when undertaking risk assessments to determine if, and under what conditions, goods may be brought into Australia.

 

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

 

Clause 6                      Act binds the Crown

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

 

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

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

 

This clause supports the policy approach not to extend the Act to other external territories unless a formal, scientifically based, risk assessment such as a pest and disease survey has been undertaken (e.g. as has been done in the case of Christmas Island and Cocos (Keeling) Islands). This approach has been taken because the biosecurity risks associated with external territories where a risk assessment has not been undertaken are unknown, and free movement of people, conveyances and goods between such territories and mainland Australia could pose a significant biosecurity risk. When a pest and disease survey has been completed with respect to a specific external territory it is appropriate that the Biosecurity Bill apply to that territory to ensure that any identified biosecurity risks are able to be managed. This is consistent with the objects of the Bill (see clause 4) and the extension of the Bill to Christmas Island and Cocos (Keeling) Islands. Parliament will have the opportunity to scrutinise the extension of the Bill to an external territory when the enabling regulations are tabled in each House of the Parliament.

 

Clause 8                      Concurrent operation of State and Territory laws

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

 

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

 

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

 

Without limiting the effect of subclause 8(1), subclause 8(2) clarifies that the Act is not intended to exclude the concurrent operation of state laws imposing offences or civil penalties, where the same or similar conduct is also an offence or subject to a civil penalty under the Act. Under subclause 8(3), subclause 8(2) applies even if the penalty, fault elements, defences or exceptions that apply to the offence or civil penalty provisions under the state law differ to those set out in the Act.

 

There are exceptions to the application of this clause in relation to Chapter 5 and the provisions relating to the prohibition or restriction of bringing in or importing goods into Australia (Part 3 of Chapter 3). Clauses 267 and 169, respectively, set out the intended effect of those parts of the Act on state and territory laws.

 

Despite the inclusion of this clause in the Act, there may be state laws that are not able to operate concurrently with the Act in particular cases. Some examples of the state laws that may not operate concurrently with a Commonwealth law in the biosecurity context would be where a state law which seeks to require animals to be held in one place and a biosecurity measure under Commonwealth law requires particular animals to go to a premises controlled by the Commonwealth, or where a state law purports to ban the use of a particular vaccine and the Commonwealth law requires its use. In these instances the state laws may be inconsistent with the Commonwealth law and so the Commonwealth law would prevail.

 

This clause applies to territory laws in the same way as it applied to state laws. While s109 of the Constitution does not does not apply to territory laws, similar principles apply in relation to the inconsistency or repugnancy of territory laws with Commonwealth laws.

 

Part 2—Definitions

 

Clause 9                      Definitions

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

 

acceptable ballast water exchange

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

 

accompanying person for a child or incapable person

This definition provides that the term ‘accompanying person’ for a child or incapable person refers to a parent, guardian or next of kin of the child or incapable person, or a person authorised by a parent, guardian or next of kin of a child or incapable person under clause 38 to accompany the child or incapable person.

 

acquisition of property

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

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

 

adjacent premises warrant

This definition provides that an ‘adjacent premises warrant’ means a warrant issued as a result of the test in table item 7 in clause 511 being met. That is, an adjacent premises warrant can be issued where it is reasonably necessary that one or more biosecurity enforcement officers should have access to the premises for the purpose of:

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

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

 

Administration of a vessel

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

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

 

Agriculture Department

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

 

Agriculture Minister

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

 

Agriculture Secretary

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

 

aircraft

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

 

Under this Bill, an aircraft which is transported on another conveyance (for example, on an aircraft carrier or as cargo) is considered to be a good and not a conveyance . This is intended to exclude such aircraft from provisions of the Bill that deal with biosecurity risks associated with aircraft that convey people or goods into Australian territory (for example, clause 193 - pre-arrival reporting). Biosecurity risks associated with such aircraft will be managed under Chapter 3. However, in relation to Chapter 5 and Part 3 of Chapter 13 (and any provision of the Bill that relates to Chapter 5 and Part 3 of Chapter 13) an aircraft which is transported on another conveyance will not be considered a good so that ballast water on such a conveyance can be managed under Chapter 5, and the cost recovery provisions in Chapter 13 apply to the conveyance .

 

ALOP (short for Appropriate Level of Protection)

This definition provides that ALOP has the meaning given by clause 5. See the note to clause 5 above for the meaning of ALOP.

 

animal

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

 

appropriate ballast water records

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

 

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

 

appropriate person

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

·          for premises to which an entry warrant or a premises possession warrant relates, or premises entered under a provision referred to in clause 526, the appropriate person is the occupier of the premises, or another person who apparently represents the occupier, or

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

 

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

 

approved arrangement

See the note to clause 10 below for the meaning of approved arrangement.

 

Australian law

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

 

Australian seas

This definition provides that ‘Australian seas’ means the waters of Australia (including the internal waters of Australia) within the outer limits of the territorial sea of Australia, including every external Territory to which the Bill extends (see clause 7 for the extension of the Bill to external territories). This term is used in Chapter 5 in relation to ballast water management and is affected by the operation of clause 262 (vessels in dry dock) and 263 (foreign vessels near the Australian Antarctic Territory) .

 

Australian territory

See the note to clause 11 below for the meaning of Australian territory.

 

Australian vessel

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

·          registered ships

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

­    Australian-owned ships referred to in section 13 of the Shipping Registration Act 1981

­    ships wholly owned by residents of Australia or by residents of Australia and Australian nationals or

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

 

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

 

baggage

This definition provides that ‘baggage’ refers to goods that are carried on a conveyance by or for a person who is on board the conveyance (including the person in charge and members of the crew of the conveyance). This term is used in the decontamination provisions of the Bill (clauses 87 and 598) to specify what things may be decontaminated in addition to a person and his or her immediate personal effects.

 

Goods are only considered baggage if a person intended them to be carried in such a way. For example, if a person is travelling on a conveyance and an article which they had sent by post was consigned on the same conveyance , the article would not be considered his or her baggage and could not be decontaminated under clause 87 or 598. Powers in Chapter 3 relating to assessment and management of biosecurity risks associated with goods would apply in relation to the article.

 

ballast water

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

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

 

Ballast is an essential part of maintaining a vessel ’s safe operation and is vital to most cargo loading and unloading activities. Ballast water contains live marine organisms that, if untreated, may create a risk of exotic colonies becoming established when released into Australian seas . This has the potential to damage Australia’s marine environment and adversely affect related industries. This term is used in Chapter 5 which specifies ballast water management requirements in order to implement the majority of the Ballast Water Convention and manage biosecurity risks associated with ballast water. Chapter 5, however, does not generally apply to permanent ballast water in sealed tanks (see clause 265).

 

Ballast Water Convention

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

 

ballast water exchange

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

 

ballast water management

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

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

 

Chapter 5 is intended to ensure that Australia has a regulatory framework for ballast water management in place to enforce its obligations under the Ballast Water Convention , including the requirement for vessels to keep appropriate ballast water records. Ballast water that has not been managed in accordance with the requirements set out in Chapter 5 will be considered an unacceptable biosecurity risk and it will be an offence to discharge such ballast water .

 

ballast water management certificate

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

 

 

 

ballast water management plan

This definition provides that a ‘ballast water management plan’ is a document that outlines the ballast water management methods used by a vessel as well as the disposal of sediments . A ballast water management plan must be in place in order for a vessel to have appropriate ballast water records . See clause 286 for further information.

 

ballast water operation

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

 

ballast water reception facility

This definition provides that ‘ballast water reception facility’ refers to a facility in Australian territory that has been approved by the Director of Biosecurity under clause 278 to receive ballast water for treatment or disposal. This term is used in Chapter 5 in relation to ballast water management.

 

ballast water record system

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

 

Biodiversity Convention

This definition provides that ‘Biodiversity Convention’ refers to the Convention on Biological Diversity 1992 , done at Rio de Janeiro on 5 June 1992, as amended and in force for Australia from time to time. This term is used in relation to the application of this Bill in relation to invasive pests (clause 25).

 

biosecurity activities

This definition provides that ‘biosecurity activities’ has the meaning given by clause 403 which refers to activities carried out under an approved arrangement to manage biosecurity risks associated with goods , premises or other things. For example, the treatment of goods under an approved arrangement to manage biosecurity risk associated with those goods would be considered a biosecurity activity. See also Chapter 7 for further details.

 

biosecurity activity zone

This definition provides that a ‘biosecurity activity zone’ has the meaning given by subclause 393(1) and is a zone that may be determined by the Director of Biosecurity to manage biosecurity risks in relation to an area in Australian territory where powers are exercised or functions or duties are performed by, or on behalf of, the Commonwealth under this Bill. It is intended that this zone will be used in relation to premises where an approved arrangement is in place or where a Commonwealth facility manages biosecurity risks. The Director may only make a biosecurity activity zone determination if satisfied it is necessary to manage biosecurity risks posed by the exercise of powers or performance of functions under the Bill in the area. A biosecurity activity zone is ongoing and will remain in force until the determination is revoked. See Part 7 of Chapter 6 for further details.

 

biosecurity activity zone determination

This definition provides that a ‘biosecurity activity zone determination’ means a determination made under subclause 393(1) by the Director of Biosecurity . A zone determination will set out the powers available in a biosecurity activity zone , which may include:

·          the power to cause the biosecurity activity zone to be identified by affixing notices or by markings or otherwise

·          the power to cause goods or premises in the biosecurity activity zone to be identified by affixing notices or by markings or otherwise

·          the power to direct a person in the biosecurity activity zone to leave the biosecurity activity zone for a specified period (which must not be longer than 24 hours)

·          powers in relation to entry and exit requirement (clause 331), and

·          any other power prescribed by the regulations.

 

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

 

biosecurity control notice

This definition provides that a ‘biosecurity control notice’ is a notice (in the form approved by the Director of Biosecurity ) which may be affixed to goods or conveyances that are subject to biosecurity control and states that goods or conveyances are subject to biosecurity control . See clauses 126 and 202 for further details.

 

biosecurity control order

This definition provides that a ‘biosecurity control order’ (BCO) is an order that may be made by the Director of Biosecurity under clause 351 to manage an unacceptable level of biosecurity risk in relation to goods or premises.

 

For a BCO to be made by the Director of Biosecurity under clause 351, a biosecurity officer must suspect on reasonable grounds that a disease or pest may be present in or on goods or premises , that the disease or pest poses an unacceptable level of biosecurity risk, and that biosecurity measures are needed to reduce the biosecurity risk posed by the disease or pest to an acceptable level. The BCO will specify the biosecurity measures that a biosecurity officer may take to manage the identified biosecurity risk, such as treatment of goods or premises, or specifying entry and exit requirements in relation to premises.

 

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

 

biosecurity control order warrant

This definition provides that a ‘biosecurity control order warrant’ refers to a warrant issued as a result of the test in table item 2 of the table in clause 511 being met. Biosecurity control order warrants may be issued by an issuing officer if the officer is reasonably satisfied that the test in clause 511 is met. it is reasonably necessary for one or more biosecurity officers or a biosecurity enforcement officers to enter the premises (without consent of the owner or occupier) in relation to which a biosecurity control order made under 351 is in force to exercise powers for the purpose of managing the biosecurity risk posed by the pest or disease. A biosecurity officer must have reasonable grounds to suspect a disease or pest is present on or in the premises that poses an unacceptable level of biosecurity risk for a warrant to be issued. A biosecurity control order warrant may only be applied for by a biosecurity enforcement officer , however the warrant may authorise one or more biosecurity officers along with one or more biosecurity enforcement officers to access the premises .

 

biosecurity emergency

This definition provides that a ‘biosecurity emergency’ refers to an emergency that is declared to exist under clause 441(1). The biosecurity emergency provisions in Chapter 8 outline the powers and provisions relating to biosecurity emergency declarations and the management of associated biosecurity risks . The emergency powers in the Bill are intended to be used in circumstances where the scale and significance of an emergency requires management at a national level, such as a severe and widespread outbreak of foot and mouth disease that affects multiple Australian states. See Chapter 8 for further details.

 

biosecurity emergency declaration

This definition provides that ‘biosecurity emergency declaration’ refers to a declaration of a biosecurity emergency made by the Governor-General under subclause 441(1). A biosecurity emergency declaration will specify the disease or pest that the declaration relates to, the nature of the biosecurity emergency and the conditions that gave rise to it and the period during which the declaration is in force (see subclause 441(3)).

 

biosecurity emergency period

This definition provides that a ‘biosecurity emergency period’ refers to the period of time during which a biosecurity emergency declaration is in force under subclause 441(3).

 

biosecurity enforcement officer

This definition provides that ‘biosecurity enforcement officer’ (BEO) refers to an officer authorised by the Director of Biosecurity under clause 584. A BEO will have specific powers additional to those of a biosecurity officer. For example a BEO may apply to an issuing officer for a warrant to enter premises under the Bill under Chapter 10. BEOs will be trained in entering premises as well as how to appropriately use force against things.

 

biosecurity entry point

See the note to clause 12 below for the meaning of biosecurity entry point.

 

biosecurity industry participant

See the note to clause 13 below for the meaning of biosecurity industry participant.

 

biosecurity measures

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

·          biosecurity risks

·          the risk of contagion of a listed human disease

·          the risk of listed human diseases :

­    entering Australian territory or a part of Australian territory or

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

·          biosecurity emergencies and human biosecurity emergencies .

 

Biosecurity measures may be required under a number of provisions of the Bill (e.g. clauses 58, 128, 204, and 333) in order to manage biosecurity risks associated with people , goods , conveyances or premises . Biosecurity measures available in relation to people include, but are not limited to, decontamination, examination, vaccination, treatment, medication or isolation. Biosecurity measures available under the Bill in relation to goods , conveyances and premises include, but are not limited to, movement, requiring samples, treatment, exportation or destruction. Applying biosecurity measures is a key concept in relation to managing biosecurity risks (to meet the objects of the Act) and in relation to reducing biosecurity risk to an acceptable level in order to meet Australia’s ALOP.

 

biosecurity monitoring zone

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

 

biosecurity monitoring zone warrant

This definition provides that ‘biosecurity monitoring zone warrant’ refers to a warrant issued as a result of the test in table item 4 of the table in clause 511 being met. A biosecurity monitoring zone warrant may be issued if entry to premises (without consent of the owner or occupier) is necessary in a biosecurity monitoring zone (see clause 511 for further details). A biosecurity monitoring zone warrant may only be applied for by a biosecurity enforcement officer .

 

biosecurity officer

This definition provides that ‘biosecurity officer’ means a person authorised under clause 583 of this Bill. Biosecurity officers will be the main personnel performing functions and exercising powers under this Bill. Biosecurity enforcement officers will also be authorised under this Bill and will have additional powers in relation to enforcement and compliance.

 

biosecurity official

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

 

biosecurity response zone

Subclause 363(1) sets out the criteria that must be satisfied for a biosecurity response zone to be determined. A ‘biosecurity response zone’ is a zone that may be determined by the Director of Biosecurity in order to manage biosecurity risks where risks have been identified over a specified area. The Director may make a biosecurity response zone determination if the Director is satisfied that a disease or pest is present and it is necessary for the purpose of managing the biosecurity risk posed by a disease or pest . A biosecurity response zone may be declared, for example, where a biosecurity risk may have a major impact on an industry or community or has a high potential of spreading to other areas. If the biosecurity risk is not present over a large area, the risk may instead be dealt with by making a biosecurity control order in relation to goods or premises .

 

An area may also be determined to be a biosecurity response zone under Part 5 of Chapter 6 during a biosecurity emergency period (see clause 463).

 

biosecurity response zone determination

This definition provides that a ‘biosecurity response zone determination’ is a determination made by the Director of Biosecurity under clause 363(1) that a specified area is a biosecurity response zone. Clause 364(1) specifies the content required to be included in a biosecurity response zone determination, including the powers that may be exercised in a response zone. These powers may include treatment or destruction of goods or premises which pose a biosecurity risk , and setting entry or exit requirements to the affected properties (for example, requiring people to undertake decontamination before exiting the zone).

 

biosecurity response zone warrant

This definition provides that ‘biosecurity response zone warrant’ refers to a warrant issued as a result of the test in table item 3 of the table in clause 511 being met. Biosecurity response zone warrants may be issued if entry to premises (without consent of the owner or occupier) is necessary in a biosecurity response zone (see clause 511 for further details). A response zone warrant may only be applied for by a biosecurity enforcement officer .

 

biosecurity risk

This definition provides that ‘biosecurity risk’ (except as provided by clause 309) means:

·          the likelihood of a disease or pest:

­    entering Australian territory or a part of Australian territory or

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

·          the potential for any of the following:

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

­    the disease or pest to cause harm to the environment

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

 

Biosecurity risk is a core concept in the Bill and draws on and is consistent with Australia’s obligations under the SPS Agreement . See also clause 309 for the modified definition of ‘biosecurity risk’ in relation to the Chapter 6.

 

biosecurity risk assessment warrant

This definition provides that ‘biosecurity risk assessment warrant’ refers to a warrant issued as a result of the test in table item 1 of the table in clause 511 being met. Biosecurity risk assessment warrants may be issued if entry to premises (without consent of the owner or occupier) is necessary in order to assess biosecurity risks associated with goods or premises . Biosecurity risk assessment warrants may not be issued in relation to goods or conveyances which are subject to biosecurity control or goods in relation to which an exposed goods order is in force (see clause 311 for the application of Chapter 6). A biosecurity risk assessment warrant may only be exercised by a biosecurity enforcement officer .

 

BIRA (short for Biosecurity Import Risk Analysis)

This definition provides that ‘Biosecurity Import Risk Analysis’ (BIRA) has the meaning given by clause 163, which outlines that it is a risk analysis that may be conducted in order to evaluate the level of biosecurity risks associated with the import or proposed import of goods into Australian territory . BIRAs may identify conditions that must be met to manage the level of biosecurity risks associated with the goods to a level that achieves Australia’s Appropriate Level of Protection ( ALOP ). Clause 164 provides that a BIRA is conducted by the Director of Biosecurity . See Part 2 of Chapter 3 for further details on the BIRA process.

 

chargeable activity

This definition provides that ‘chargeable activity’ has the meaning given by subclause 628(1), The regulations may prescribe fees that may be charged in relation to chargeable activities carried out by, or on behalf of, the Commonwealth in performing functions and exercising powers under the Bill.

 

chief human biosecurity officer

This definition provides that a ‘chief human biosecurity officer’ is a medical practitioner employed by a state or territory body that has been appointed by the Director of Human Biosecurity to exercise powers and perform functions under this Bill.

 

child

This definition provides that a ‘child’ is a person less than 18 years old.

 

Christmas Island

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

 

civil penalty order

This definition provides that a ‘civil penalty order’ is an order for a person to pay the Commonwealth a pecuniary penalty for contravention of a civil penalty provision of the Bill. Clause 535 provides that the Director of Biosecurity or the Director of Human Biosecurity may apply to a relevant court for an order in relation to a person who is alleged to have contravened a civil penalty provision of this Bill. The penalty for a body corporate is five times the penalty of a person.

 

civil penalty provision

This definition provides that a ‘civil penalty provision’ is a provision of this Bill (where the provision is a subsection or a section that is not divided into subsections or a subregulation or a regulation that is not divided into subregulations) made under the Bill) that sets out at its foot a pecuniary penalty, or penalties, indicated by the words ‘civil penalty’. Civil penalties can be applied to a variety of contraventions of the Act, and have been included in addition to criminal offences with the intention of providing flexibility to take action where non-compliance has been identified. The Director of Biosecurity or the Director of Human Biosecurity may apply to a relevant court for a civil penalty order where a person contravenes a civil penalty provision.

 

coastal sea of Australia or an external Territory

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

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

 

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

“the territorial sea adjacent to the Territory, and the sea on the landward side of the territorial sea adjacent to the Territory and not within the limits of the Territory, and includes the airspace over, and the sea-bed and subsoil beneath, any such sea.”

 

This term is used in the definition of Australian territory (clause 11).

 

Cocos (Keeling) Islands

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

 

commercial-in-confidence

This definition provides that the term ‘commercial-in-confidence’ has the meaning given in clause 14. This clause outlines the criteria that must be demonstrated to the Director of Biosecurity for information to be classified as ‘commercial-in-confidence’. See 14 for further details.

 

Commonwealth body

This definition provides that the term ‘Commonwealth body’ includes a Department of State, or an authority, of the Commonwealth. This term is used in Chapter 13 in relation to disclosure of protected information (see clause 616).

 

competent authority

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

 

conditionally non-prohibited goods

This definition provides that ‘conditionally non-prohibited goods’ has the meaning given by subclause 171(2), which provides that conditionally non-prohibited goods are goods , or classes of goods , specified in a determination in force under subclause 171(1). The Director of Biosecurity and the Director of Human Biosecurity may jointly determine that that specified goods, or a specified class of goods, must not be brought or imported into Australian territory unless specified conditions (including conditions for administrative purposes) are complied with.

 

For example, the Director may prohibit certain wood products from being brought in or imported unless the products undergo treatment such as fumigation. See clause 171 for further details.

 

constitutional trade and commerce

This definition provides that ‘constitutional trade and commerce’ means trade or commerce between Australia and places outside Australia, trade or commerce among states, or trade or commerce within a territory, between a state and territory or between two territories. The definition reflects the extent of the Commonwealth's legislative power to regulate trade and commerce in reliance on section 51(i) and section 122 of the Constitution. The term is used in Division 2 of this Chapter in relation to clause 23 (severability).

 

conveyance

This definition provides that ‘conveyance’ has the meaning given by clause 15. Clause 15 provides that conveyance means any vessel , aircraft , vehicle, or train (including railway rolling stock). The regulations may prescribe additional means of transport for the purpose of this definition, which is intended to allow for new developments in transport methods into the future. Chapter 4 provides for the management of biosecurity risks associated with conveyances in Australian territory .

 

conveyance possession warrant

This definition provides that a ‘conveyance possession warrant’ means a warrant issued as a result of the test in item 8 of the table in clause 511 being met. That is, a conveyance possession warrant can only be issued where:

·          a person has not complied with a request of a biosecurity officer under subclause 208(4) within a specified time period

·          a person has not complied with a request of a biosecurity officer under subclause 336(4) within a specified time period

·          a notice has been provided to the owner or the operator of the conveyance under subclauses 209(3) or 341(3), or

·          a certificate in relation to the conveyance has been issued under clauses 209(4)(b) or 341(4)(b).

 

covered by , in relation to an approved arrangement

See clause 13 for the meaning of ‘covered by’, in relation to an approved arrangement.

 

damage , in relation to data

This definition provides that ‘damage’ in relation to data includes damage by erasure of data or addition of other data. Clause 533 provides that the Commonwealth is liable to pay compensation for damage to electronic equipment, including damage to data recorded on the equipment, where the damage occurred because insufficient care was exercised in selecting the person who was to operate the equipment or insufficient care was exercised by the person operating the equipment (see clause 533 for further information).

 

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

This definition provides that ‘declaration disease or pest’ means the disease or pest specified under paragraph 441(3)(a) (the disease or pest to which the declaration relates) in the biosecurity emergency declaration that specifies the biosecurity emergency period . See Chapter 8 for further details.

 

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

This definition provides that ‘declaration listed human disease’ means the listed human disease specified under paragraph 473(3)(a) (the listed human disease to which the declaration relates) in the human biosecurity emergency declaration that specifies the human biosecurity emergency period . See Chapter 8 for further details.

 

Director of Biosecurity

This definition provides that ‘Director of Biosecurity’ refers to the person who is, or is acting as, the Agriculture Secretary , as specified in subclause 578(1). The Director has specified powers and functions under the Bill, including a power of general administration. Chapter 12 outlines who the Director of Biosecurity may delegate his or her powers to.

 

Director of Human Biosecurity

This definition provides that the ‘Director of Human Biosecurity’ refers to the person appointed by the Health Minister as the Commonwealth Chief Medical Officer, as specified in subclause 582(1).

 

disease

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

 

disease agent

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

 

enactment

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

 

engag e in conduct

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

 

entry warrant

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

·          a biosecurity risk assessment warrant

·          a biosecurity control order warrant

·          a biosecurity response zone warrant

·          a biosecurity monitoring warrant

·          a monitoring warrant

·          an investigation warrant, and

·          an adjacent premises warrant.

 

environment

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

 

evidential burden

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

 

evidential material

This definition provides that ‘evidential material’ refers to material which is, is suspected to be, or may be in the future, evidence of an offence committed in relation to the Act (or an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act), or material that is evidence that a civil penalty provision of the Act that has been contravened. This term is used in Chapters 9, 10 and 11.

 

exposed conveyance

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

 

exposed goods

This definition provides that ‘exposed goods’ has the meaning given by clause 156(3), which refers to goods (other than goods that are subject to biosecurity control) that are suspected by a biosecurity officer, on reasonable grounds, to have been exposed to goods or a conveyance that is or are subject to biosecurity control.

 

exposed goods order

This definition provides that an ‘exposed goods order’ means an order made under subclause 157(3). For an exposed goods order to be made under subclause 157(3), a biosecurity officer must suspect, on reasonable grounds, that there is an unacceptable level of biosecurity risk associated goods that have been exposed to goods or a conveyance that is subject to biosecurity control. An exposed goods order allows a biosecurity officer to exercise the powers in Divisions 4, 5, 6, 7, 8 and 10 of Chapter 3 in relation to the exposed goods in the same way the officer would exercise those powers in relation to goods that are subject to biosecurity control . Clause 157 sets out where goods must be to enable a biosecurity officer to make an exposed goods order in relation to them. The goods must be:

·          within the precincts of a landing place or port, on board a conveyance that is subject to biosecurity control

·          on premises owned or controlled by the Commonwealth where biosecurity measures can be taken for the purposes of managing biosecurity risks, or

·          on premises where biosecurity activities are carried out by a biosecurity industry participant (BIP) in accordance with an approved arrangement covering the BIP.

 

An exposed goods order ceases to be in force if when the order expires or is revoked, or if the goods are released from biosecurity control under Division 9 of Chapter 3.

 

exposed to

See clause 16 for the meaning of ‘exposed to’.

 

Federal Circuit Court

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

 

Federal Court

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

 

Finance Minister

This definition provides that ‘Finance Minister’ means the Minister administering the Financial Management and Accountability Act 1997 . This term is used in clause 629.

 

first point of entry

See clause 17 for the meaning of ‘first point of entry’.

 

Foreign Affairs Department

This definition provides that ‘Foreign Affairs Department’ refers to the Department administered by the Minister administering the Diplomatic Privileges and Immunities Act 1967 . The Foreign Affairs Department is specified in clause 96 as one of the departments that the Director of Human Biosecurity must notify if a traveller movement measure is included in a human biosecurity control order.

 

foreign vessel

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

 

goods

See clause 18 for the meaning of ‘goods’.

 

harbour

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

·          a navigable estuary, river, creek or channel

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

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

 

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

 

Health Department

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

 

Health Minister

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

 

Health Secretary

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

 

high-value conveyance

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

 

Certain powers in Chapter 4 and Chapter 6 that relate to high-value conveyances are only available to biosecurity officers with the written approval of the Director of Biosecurity . For example, clause 207 provides that a biosecurity officer may require a conveyance which poses an unacceptable biosecurity risk to be treated, however an officer must receive written approval from the Director of Biosecurity in order to require treatment that may damage a high-value conveyance. This differentiation is intended to ensure that the Director of Biosecurity (or a delegate) makes decisions that relate to high-value conveyances while still providing operational practicality for biosecurity officers to require the treatment of a conveyance (other than high-value conveyances) where necessary.

 

high-value goods

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

 

Certain powers in Chapter 3 and Chapter 6 that relate to high-value goods are only available to biosecurity officers with the written approval of the Director of Biosecurity . For example, clause 133 provides that a biosecurity officer may require goods (other than high-value goods) which pose a biosecurity risk to be destroyed, however an officer must receive written approval from the Director of Biosecurity in order to destroy high-value goods. This differentiation is intended to ensure that the Director of Biosecurity (or his or her delegate) makes decisions that relate to high-value goods while still providing operational practicality for biosecurity officers to require treatment or destruction of goods (other than high-value goods) where necessary.

 

human biosecurity control order

This definition provides that a ‘human biosecurity control order’ is an order that is imposed on an individual under clause 58 that may have a listed human disease. This order applies measures to be used to control the risks posed by serious communicable diseases.

 

human biosecurity emergency

This definition provides that a ‘human biosecurity emergency’ refers to an emergency that is declared to exist under subclause 473(1) or (2). The human biosecurity emergency provisions in Chapter 8 outline the powers and provisions relating to human biosecurity emergency declarations and the management of associated human biosecurity risks. The emergency powers in the Bill are intended to be used in circumstances where the scale and significance of an emergency requires management at a national level. See Chapter 8 for further details.

 

human biosecurity emergency declaration

This definition that ‘human biosecurity emergency declaration’ refers to a declaration of a human biosecurity emergency made by the Governor-General under subclause 473(1) or (2). A human biosecurity emergency declaration will specify the listed disease the declaration relates to, the nature of the human biosecurity emergency and the conditions that gave rise to it and the period during which the declaration is in force.

 

human biosecurity emergency period

This definition provides that a ‘human biosecurity emergency period’ refers to the period of time during which a human biosecurity emergency declaration is in force.

 

human biosecurity officer

This definition provides that a ‘human biosecurity officer’ is an employee of a state or territory body with clinical expertise that has been appointed by the Director of Human Biosecurity to exercise powers and perform functions under this Bill.

 

human disease

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

 

human health response zone

This definition provides that a ‘human health response zone’ is a specified area that has been established to prevent or reduce the risk of a disease from entering, emerging, establishing itself or spreading in Australia and causing harm to human health.

 

human health risk

This definition provides that a ‘human health risk’ is the potential risk of a pest or disease entering, emerging, establishing itself or spreading in Australia and causing harm to human health.

 

human remains

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

 

Immigration Department

This definition provides that ‘Immigration Department’ refers to the department administered by the minister administering the Migration Act 1958 . The Immigration Department is specified in clause 96 as one of the departments that the Director of Human Biosecurity must notify if a traveller movement measure is included in a human biosecurity control order.

 

import , in relation to goods

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

 

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

 

 

incapable person

This definition provides that an ‘incapable person’ is a person aged 18 or older, that is not capable of understanding requirements imposed under a human biosecurity control order, or is not able to indicate their consent to a measure imposed under a human biosecurity control order. This includes individuals that are incapable due to permanent disability or temporary illness.

 

incoming aircraft or vessel

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

 

incoming passenger aircraft or vessel

This definition provides that an ‘incoming passenger aircraft or vessel’ is an aircraft carrying six or more passengers, or a vessel carrying twelve or more passengers, that is entering Australia.

 

infringement notice provision

This definition provides that ‘infringement notice provision’ has the meaning given by clause 556, which provides that the regulations may specify a provision to be an infringement notice provision. The infringement notice scheme may be used to encourage compliance in situations where there is a high volume of low risk non-compliance with the Act. The infringement notice scheme may apply to civil penalty provisions or strict liability criminal sanctions in the Act and can be used where the non-compliance does not require an assessment of fault. For example, an infringement notice could be issued for failing to:

·          comply with reporting obligations

·          respond to a notice, or

·          provide requested information.

 

A person issued with an infringement notice will have the option of paying the amount specified in the notice as an alternative to court proceedings being brought against them.

 

installation

This definition provides that ‘installation’ has the meaning provided by clause 19. That is, an installation is a structure that can float and be moved, is used in exploring or exploiting natural resources (or related operations or activities) with equipment that is on or a part of the structure, and is either attached to or resting on the seabed, or attached to a structure attached to or resting on the seabed. The definition of a vessel includes an installation for the purposes of the Bill. See the note to clause 19 for further details.

 

internal waters of Australia

This definition provides that ‘internal waters of Australia’ has the same meaning as in section 10 of the Seas and Submerged Lands Act 1973, where it is defined as ‘any waters of the sea on the landward side of the baseline of the territorial sea’, and to avoid doubt, includes waters within the limits of a state. This term is used in the definition of Australian seas.

 

International Health Regulations

This definition provides that ‘International Health Regulations’ are the regulations prepared by the World Health Organization to prevent and respond to the international spread of communicable disease.

 

international mail centre

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

 

invasive pest

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

 

This definition is intended to capture invasive pests such as lantana or bitou bush that may cause harm to human, animal or plant health or the environment (by, for example, affecting plant communities or water catchments) although they do not cause harm through infesting humans, animals or plants , or acting as a vector for or cause of disease . See clauses 24 and 25 for the application of this Bill in relation to invasive pests.

 

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

 

investigation powers

This definition provides that ‘investigation powers’ has the meaning given by clauses 486, 487 and 489 which allow biosecurity enforcement officers to gather evidential material that relates to the contravention of offences and civil penalty provisions in the Bill. A biosecurity enforcement officer may enter premises (with consent of the owner or under an investigation warrant ), and exercise investigation powers if the officer has reasonable grounds for suspecting that there may be evidential material on any. Investigation powers include:

·          the power to search premises and any thing on the premises for the evidential material

·          the power to inspect, examine, take measurements of or conduct tests on e vidential material

·          the power to make any still or moving image or any recording of the premises or evidential material

·          the power to take onto the premises equipment and materials required for the purpose of exercising powers in relation to the premises

·          the power to sample any thing on the premises ;

·          the power to operate electronic equipment on premises

·          if entry to the premises is under an investigation warrant:

­    the power to search the premises and any thing on the premises for the kind of evidential material specified in the warrant; and

­    the power to seize evidential material of that kind if the biosecurity enforcement officer finds it on the premises.

 

investigation warrant

This definition provides that ‘investigation warrant’ means a warrant issued as a result of the test in table item 6 of the table in clause 511 being met. An investigation warrant may be issued if entry to premises (without consent of the owner or occupier of the premises) is necessary in order to obtain evidential material in relation to contravention of a provision of the Bill. An investigation warrant may only be exercised by a biosecurity enforcement officer .

 

isolation measure

This definition provides that ‘isolation measure’ refers to a measure applied in a human biosecurity control order. This measure requires an individual to remain isolated in a specified medical facility to prevent other members of the community from being exposed to a listed human disease.

 

issuing officer

This definition provides that ‘issuing officer’ refers to a magistrate, or Judge of the Federal Court or the Federal Circuit Court who has the power to issue a warrant under this Bill. It is intended that warrants provided for in Chapter 10 will be issued to allow entry to premises (including conveyances ) under this Bill for the purposes of assessing or managing biosecurity risks , or monitoring or investigating compliance with the Act. See clause 532 for conferral of powers on an issuing officer.

 

just terms

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

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

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

 

landing place , in relation to aircraft

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

 

late payment fee

This definition provides that a ‘late payment fee’ has the meaning given by clause 630, which is an additional fee that is payable if a basic fee that is due and payable under the regulations is not paid at or before the time specified in the regulations.

 

life-threatening situation

This definition provides that, in relation to the execution of an investigation warrant in relation to premises , ‘life-threatening situation’ means a situation that a biosecurity officer or a biosecurity enforcement officer believes, on reasonable grounds, involves a serious and imminent threat to a person’s life, health or safety that requires the officer to leave the premises . This definition is important in determining when an officer, or person assisting the officer, may complete the execution of an investigation warrant after temporary cessation, under clause 522.

 

listed human disease

This definition provides that ‘listed human disease’ refers to a human disease that is communicable and may cause serious harm to human health.

 

managed for discharge

This definition provides that ‘managed for discharge’ refers to ballast water that has met the ballast water management requirements set out in Chapter 5. See clauses 271 and 275 for further details.

 

medical facility

This definition provides that ‘medical facility’ refers to a place where ill individuals are assessed and provided with health care. This includes permanent facilities such as hospitals and clinics, and may also include facilities that are temporarily designated for this purpose.

 

monitoring powers

This definition provides that ‘monitoring powers’ has the meaning given by clauses 480, 481 and 483, which allow biosecurity enforcement officers to monitor whether the Act is, or has been, complied with and whether information provided for the purposes of this Act is correct.

 

Chapter 9 provides that where a biosecurity enforcement officer has entered premises (with consent of the owner or under a monitoring warrant ), he or she may exercise monitoring powers to monitor compliance with the Act and to determine whether information provided for the purposes of the Act is correct. Monitoring powers include:

·          the power to search premises and any thing on the premises

·          the power to observe any activity conducted on the premises

·          the power to inspect, examine, take measurements of or conduct tests on any thing on the premises

·          the power to make any still or moving image or any recording of the premises or any thing on the premises

·          the power to inspect any document on the premises and take extracts from, or make copies of such document

·          the power to take onto the premises equipment and materials require for the purpose of exercising powers in relation to the premises

·          the power to sample any thing on the premises , and

·          the power to operate electronic equipment on premises .

 

monitoring warrant

This definition provides that ‘monitoring warrant’ means a warrant issued as a result of the test in table item 5 of the table in clause 511 being met. A monitoring warrant may be issued if entry to premises (without consent of the owner or occupier of the premises ) is necessary in order to monitor whether the Act is, or has been, complied with or whether information provided for the purposes of the Act is correct. A monitoring warrant may only be exercised by a biosecurity enforcement officer .

 

National Focal Point

This definition provides that ‘National Focal Point’ refers to the designated point of contact for the sharing of information with other States party to the International Health Regulations, as specified in the National Health Security Act 2007.

 

national response agency

This definition provides that ‘national response agency’ refers to the Agriculture Department and all biosecurity officers and biosecurity enforcement officers, or a body that is declared to be a national response agency by the Agriculture Minister under clause 450. A national response agency may be declared to assist with the Commonwealth’s response to a biosecurity emergency. It is intended that national response agencies will be used to direct people, staff biosecurity zones, close roads and assist with the application of biosecurity measures during a biosecurity emergency .

 

During a biosecurity emergency period , the Agriculture Minister may delegate specified powers of the Agriculture Minister to the executive head of a national response agency including powers relating to determining requirements, giving directions and taking actions, asking questions and requiring documents. The executive heads of these agencies may further delegate specified powers to employees of that agency, including powers relating to giving directions and taking actions, asking questions and requiring documents.

 

officer of Customs

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

 

operator of a conveyance

See clause 20 for the meaning of ‘operator’ of a conveyance.

 

outgoing aircraft or vessel

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

 

outgoing passenger aircraft or vessel

This definition provides that ‘outgoing passenger aircraft or vessel’ refers to an aircraft carrying six or more passengers, or a vessel carrying twelve or more passengers, that is departing from Australia.

 

passenger

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

 

passenger aircraft

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

 

passenger vessel

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

 

permanent biosecurity monitoring zone

This definition provides that ‘permanent biosecurity monitoring zone’ has the meaning given by clause 376 and refers to a biosecurity monitoring zone that is permanently in place within the permissible distance of the outer boundary of a first point of entry , an international mail centre , a biosecurity activity zone or any other place in Australian territory prescribed by the regulations.

 

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

·          powers available to assess biosecurity risk in Chapter 3

·          the power to cause the biosecurity monitoring zone to be identified

·          the power to cause goods or premises in the biosecurity monitoring zone to be identified

·          the power to set traps or set up equipment or other structures in the zone, and

·          any other power prescribed by the regulations in relation to permanent biosecurity monitoring zones.

 

permissible distance

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

 

permissible purpose

This definition provides that ‘permissible purpose’ means a purpose that promotes the objects of the Act (see clause 5). This term is used in provisions relating to confidentiality of information in Chapter 13. Personal and commercial-in-confidence information may be collected for a permissible purpose (e.g. through processing a permit application). Records may be made of that information and it may be disclosed or used for a permissible purpose in the exercise of powers or performance of functions under the Bill (e.g. to contacting the person who made the application about the application).

 

personal information

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

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

This term is used in provisions relating to confidentiality of information in Chapter 13.

 

person assisting

This definition provides that ‘person assisting’ has the meaning given by clause 531. A biosecurity officer may be assisted by other persons in exercising powers and performing functions referred to in subclause 531(1) if that assistance is necessary and reasonable. Similarly, a biosecurity enforcement officer may be assisted by other persons in entering premises, and exercising powers and performing functions referred to in subclause 531(1), if that assistance is necessary and reasonable. A person giving such assistance to a biosecurity officer or a biosecurity enforcement officer is a person assisting the officer. See 531 for further details.

 

person in charge

See clause 21 for the meaning of ‘person in charge’.

 

person responsible for a conveyance

This definition provides that a ‘person responsible for a conveyance ’means the owner of the conveyance, the person in charge of the conveyance or the operator of the conveyance. See clauses 20 and 21 for further details in relation to the meaning of the terms ‘person in charge of a conveyance’ and ‘operator of a conveyance’.

 

pest

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

 

This broad definition is intended to ensure that the widest range of biosecurity risks and human health risks may be assessed and managed under this Bill. See clauses 24 and 25 for the application of this Act in relation to pests, and also the definition of invasive pests .

 

plant

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

 

port

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

 

possession warrant

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

 

PPSA security interest

This definition provides that a ‘PPSA security interest’ means a security interest within the meaning of the Personal Property Securities Act 2009 and to which that Act applies (other than a transitional security interest within the meaning of that Act). This term is used in Chapter 13 in relation to the cost recovery provisions.

 

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

 

premises

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

 

Conveyances are included in the definition of premises in most of the Bill as the same policy that applies to premises generally applies to conveyances (see clauses 470 and 501 for examples of clauses where ‘premises’ does not include a conveyance ).

 

premises possession warrant

This definition provides that ‘premises possession warrant’ refers to a warrant issued as a result of the test in item 9 of the table in clause 511 being met. A biosecurity enforcement officer may apply for a premises possession warrant where a biosecurity officer has requested under subclause 339(1) for the owner of premises to arrange for the premises to be dealt with or destroyed, and the request has not been complied with. Premises possession warrants will allow biosecurity officers to access to premises in order to manage biosecurity risks associated with the premises .

 

prescribed contact information

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

 

prescribed quarantine signal

This definition provides that ‘prescribed quarantine signal’ means the signal prescribed under subclause 223(2).

 

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

 

prohibited goods

This definition provides that ‘prohibited goods’ has the meaning given by subclause 170(2) and refers to goods (or classes of goods ) that the Director of Biosecurity and Director of Human Biosecurity have jointly determined are prohibited from being imported or brought into Australian territory . The Directors may only determine that goods are prohibited goods if satisfied that the level of biosecurity risk associated with the goods (or class of goods) is unacceptable and that biosecurity measures would not be able to be taken to reduce that level of biosecurity risk to an acceptable level. The Directors must apply the ALOP for Australia in conducting a risk assessment for the purpose of determining whether particular goods (or classes of goods) should be prohibited goods (see subclause 170(4)).

 

protected information

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

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

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

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

 

This term is used in provisions relating to confidentiality of information in Chapter 13 which outlines the circumstances that a person can record, disclose or otherwise use protected information for the purposes of the Bill (i.e. a permissible purpose ) (see clauses 615 to 626). Also, see clause 14 for the meaning of commercial-in-confidence .

 

protected person

This definition provides that ‘protected person’ has the meaning given by subclause 670(6) and refers to a person protected from civil proceedings under clause 670. Civil proceedings involve legal disputes between individuals based on one person claiming that the other has failed in his or her legal duty.

 

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

·          the Agriculture Minister

·          the Health Minister

·          the Director of Biosecurity

·          the Director of Human Biosecurity

·          a biosecurity officer

·          a biosecurity enforcement officer

·          a chief human biosecurity officer

·          a human biosecurity officer

·          an officer or employee of the Agriculture Department or the Health Department;

·          a person who is authorised to perform functions and exercise powers under Chapter 8, and

·          a person who is appointed as an analyst under clause 663.

 

protected zone

This definition provides that ‘protected zone’ has the meaning given by clause 651 which is the zone established under Article 10 of the Torres Strait Treaty , being the area bounded by the line described in Annex 9 to the Treaty.

 

protected zone area

This definition provides that ‘protected zone area’ has the meaning given by clause 651 which is the protected zone established under the Torres Strait Treaty, or an area in the vicinity of the protected zone prescribed in regulations made under clause 651 . The area in the vicinity of the protected zone is included in the definition of this term to ensure that traditional inhabitants navigating protected zone vessels (which may not have access to accurate navigation equipment) are provided with a buffer zone in which they may travel while still being considered protected zone vessels.

 

protected zone vessel

This definition provides that ‘protected zone vessel’ has the meaning given by clause 651, which refers to a vessel that meets the conditions set out in that clause. Protected zone vessels are vessels that are used to transport traditional inhabitants in the protected zone . See clause 651 for further details of how Australia will meet its obligations under the Torres Strait Treaty in this Bill.

 

related provision

This definition provides that ‘related provision’ refers to an offence against the Act, a civil penalty provision under the Act, or an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act. The term is used in Chapter 9 in relation to securing evidential material .

 

release from biosecurity control

This definition provides that ‘release from biosecurity control’ refers to when goods and conveyances are no longer subject to biosecurity control . Clauses 160 and 221 provide that goods and conveyances are released from biosecurity control when:

·          a biosecurity officer notifies the person in charge (or owner or operator in the case of a conveyance ) that the goods or conveyance is released from biosecurity control

·          a biosecurity industry participant who is authorised to release the goods or conveyance under an approved arrangement notifies the person in charge (or owner or operator in the case of a conveyance ) that the goods or conveyance is released from biosecurity control

·          the goods or conveyance are destroyed

·          the goods or conveyance leave Australian territory.

 

relevant court

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

 

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

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

 

relevant person

This definition provides that ‘relevant person’ for a reviewable decision refers to a person listed in column 3 of the table in subclause 610(1), or for a reviewable decision prescribed in the regulations made for the purposes of subclause 610(2), the person prescribed in the regulations to clause 610. A relevant person, in relation to a reviewable decision, is the person that may apply for the decision to be reviewed. See clause 610 for further information.

 

relevant premises

This definition provides that ‘relevant premises’ has the meaning given by clause 498 and refers to any premises at which biosecurity activities are carried out by a biosecurity industry participant that is covered by an approved arrangement and any landing place or port that is determined to be a first point of entry . Chapter 9 provides for monitoring powers and investigation powers in relation to relevant premises in order to monitor and investigate compliance with the Bill.

 

reportable biosecurity incident

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

 

Division 8 of Part 1 of Chapter 3 provides that in relation to goods that are subject to biosecurity control, the Director of Biosecurity may determine that an act, or omission or event is a reportable biosecurity incident—for example, the escape of a live animal from a vessel in Australian territory . Reportable biosecurity incidents will be listed in a legislative instrument made by the Director of Biosecurity . If a person in charge of goods , or a person in charge of the vessel or aircraft that brought the goods into Australian territory , becomes aware of a reportable biosecurity incident in relation to goods , the person must report the incident to a biosecurity officer or the Director of Biosecurity as soon as practicable after becoming aware of the incident. A person commits an offence and is liable to a civil penalty for contravention of this reporting requirement. See clause 153 and clause 154 for further details.

 

In Chapter 7, clause 429 provides that a report must be made to the relevant Director if an act, omission or event specified in an approved arrangement occurs, or if a condition of the approved arrangement requires a report to be made to the relevant Director if an act, omission or event specified in the condition occurs.

 

If a biosecurity industry participant covered by an approved arrangement fails to carry out biosecurity activities in accordance with the arrangement or contravenes a condition or other requirement of the arrangement and a reportable biosecurity incident occurs, the court may make an order requiring the person to pay the Commonwealth all or part of the costs incurred by the Commonwealth in dealing with the incident. See clauses 429 to 430 for further details.

 

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

 

reviewable decision

This definition provides that a ‘reviewable decision’ has the meaning given by subclauses 610(1) and (2). Subclause 610(1) lists decisions that are reviewable and subclause 610(2) provides that regulations may prescribe further decisions that are reviewable decisions. Clause 610 also lists the relevant person for each reviewable decision (the person who may apply for the decision to be reviewed). Different decisions across the Bill will be reviewable—the relevant person for a decision may apply to the Director of Biosecurity or the Director of Human Biosecurity (for decisions that relate to human health only) for a review of that decision, unless it was made personally by either Director.

 

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

 

sanitation health risk

The definition provides that ‘sanitation health risk’ for the purposes of the Vessel Sanitation Scheme is a risk to human health which may spread internationally and cause serious harm to human health.

 

sediment

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

 

sediment reception facility

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

 

ship’s pilot

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

 

SPS Agreement

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

 

State or Territory body

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

 

subject to biosecurity control

This definition provides that ‘subject to biosecurity control’ has the meaning given by clause 117 in relation to goods , and clause 191 or clause 192 in relation to conveyances . Goods and conveyances that arrive from outside Australian territory —or in some circumstances, interact with goods or conveyances that have arrived from outside Australian territory—provide a direct pathway for biosecurity risks to enter into Australian territory . This Bill makes those goods and conveyances subject to biosecurity control. When goods or conveyances are subject to biosecurity control, biosecurity officers can exercise powers in relation to them to manage any associated biosecurity risks .

 

Subject to biosecurity control operates to manage biosecurity risks, but also as a limit on the exercise of powers by biosecurity officers . Where goods or conveyances are subject to biosecurity control, a number of powers of biosecurity officers can be exercised in relation to those goods or conveyances . Chapter 3 provides powers in relation to goods, and Chapter 4 provides powers in relation to conveyances . These powers cease to be available once the goods or conveyances are released from biosecurity control .

 

Once goods and conveyances are released from biosecurity control , any further assessment or management of biosecurity risk must occur through the exercise of assessment and management powers in Chapter 6. For example, if a shipment of goods was released from biosecurity control after being inspected at the border, and a biosecurity risk was later identified, a biosecurity control order may be made in relation to the goods to manage the biosecurity risk associated with the goods .

 

survey authority

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

 

suspended goods

This definition provides that ‘suspended goods’ has the meaning given by subclause 179(2), which provides that suspended goods are goods that the Director of Biosecurity has determined must not be brought, or imported , into Australian territory for a specified period.

 

tank

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

 

temporary biosecurity monitoring zone

This definition provides that ‘temporary biosecurity monitoring zone’ has the meaning given by subclause 382(1) and refers to a biosecurity monitoring zone in relation to which the Director of Biosecurity has made a temporary biosecurity monitoring zone declaration . It is intended that temporary biosecurity monitoring zones will be used to monitor whether pests or diseases that may pose an unacceptable level of biosecurity risk have, or are likely to, enter, emerge, establish or spread from a specified area. For example, a temporary monitoring zone may be determined around a biosecurity response zone to allow biosecurity officers to monitor the area surrounding the response zone and determine whether the pest or disease in relation to which the response zone was determined has spread beyond the zone.

 

temporary biosecurity monitoring zone determination

This definition provides that a ‘temporary biosecurity monitoring zone determination’ is a determination made under clause 382(1) that specifies the particular biosecurity measures or powers that a biosecurity officer may use to manage an identified biosecurity risk in a temporary biosecurity monitoring zone . Clause 383 specifies the required contents of a temporary biosecurity monitoring zone determination, including the powers that may be exercised in a temporary biosecurity monitoring zone .

 

this Act

This definition provides that any reference to ‘this Act’ includes instruments made under this Act.

 

Torres Strait Treaty

This definition provides that ‘Torres Strait Treaty’ has the meaning given by clause 651 and refers to the Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters 1978.

 

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

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

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

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

 

See clause 651 for further details of how Australia will meet its obligations under the Torres Strait Treaty in this Bill.

 

traditional activities

This definition provides that ‘traditional activities’ has the meaning given by clause 651, which refers to the meaning given in the Torres Strait Treaty .

 

traditional inhabitant

This definition provides that ‘traditional inhabitants’ has the meaning given by clause 651, which refers to the meaning given in the Torres Strait Treaty.

 

traveller movement measure

This definition provides that ‘traveller movement measure’ refers to a measure applied in a human biosecurity control order. This measure prevents an individual from travelling on an overseas passenger airline or vessel for up to 28 days. This measure seeks to prevent the spread of serious communicable diseases to other passengers, and to prevent the international spread of disease.

 

United Nations Convention on the Law of the Sea

This definition provides that ‘United Nations Convention on the Law of the Sea’ refers to the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982 . This term is used in clause 29 in relation to foreign vessels .

 

unduly detained or delayed

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

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

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

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

·          detaining a vessel that has violated the Convention.

 

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

 

vessel

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

 

warrant

This definition provides that ‘warrant’ refers to any warrant issued under clause 510 or clause 514. Warrants may be issued to biosecurity enforcement officers where entry to premises (including conveyances ) without consent is required in order to manage biosecurity risks associated with the premises or a conveyance . See also:

·          biosecurity risk assessment warrant

·          biosecurity control order warrant

·          biosecurity response zone warrant

·          biosecurity monitoring zone warrant

·          monitoring warrant

·          investigation warrant

·          adjacent premises warrant

·          conveyance possession warrant

·          premises possession warrant

·          possession warrant

 

World Trade Organization Agreement

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

 

 

 

Clause 10                    Meaning of approved arrangement

This clause provides that an approved arrangement is an arrangement for which an approval is in force under paragraph 404(1)(a), including a varied arrangement for which an approval is in force under paragraph 404(1)(a) as it applies because of subclause 410(3).

 

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

 

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

 

Clause 11                    Meaning of Australian territory

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

 

Clause 12                   Meaning of biosecurity entry point

This clause defines the term ‘biosecurity entry point’ for aircraft , vessels and goods in relation first points of entry . Clauses 226 and 232 allow the Director of Biosecurity to designate a specified area of a port or landing place as a ‘biosecurity entry point’ in a first point of entry determination. These designated entry points are flexible non-mandatory enforcement tools intended to ensure that aircraft , vessels and goods with a specific type of biosecurity risk (i.e. timber) are being taken to the appropriate place within a first point of entry where they can be managed effectively.

 

Clause 13                     Meaning of biosecurity industry participant and covered by

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

 

Clause 14                   Meaning of commercial-in-confidence

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

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

·          the information is not in the public domain

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

·          the information is not readily discoverable.

This term is used in the definition of protected information .

 

Clause 15                    Meaning of conveyance

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

 

This clause also provides that:

·          a reference to a conveyance does not include a reference to a conveyance that is being carried on board another conveyance (except in Part 3 of Chapter 13 and any clause of this Bill to the extent that it relates to that Part)

·          a reference to an aircraft does not include a reference to an aircraft that is being carried on board another conveyance, and

·          a reference to a vessel does not include a reference to a vessel that is being carried on board another conveyance (except in Chapter 5 and any clause of this Bill to the extent that it relates to that Chapter).

 

These exceptions are provided for so that ballast water can be managed under Chapter 5 in relation to a vessel carried on board another conveyance, and the cost recovery provisions in Chapter 13 will continue to apply to a conveyance carried on board another conveyance.

 

Clause 16                    Meaning of exposed to

This clause provides the meaning of the term ‘exposed to’. This term is used in Chapters 2, 3 and 4 to describe persons and things that have been in physical contact with, in close proximity to, or exposed to, contamination, infestation or infection from other people or things. In this clause, ‘thing’ includes goods , conveyances and premises . Powers are available in Chapters 2, 3 and 4 in relation to goods , conveyances or premises and people that are exposed to other people or things in order to manage biosecurity risks associated with exposure.

 

Clause 17                    Meaning of first point of entry

This clause defines the term ‘first point of entry’ in relation to aircraft , vessels and goods that are subject to biosecurity control . In relation to aircraft and vessels that are subject to biosecurity control , a first point of entry describes the landing place or port where aircraft and vessels must arrive after entering Australian territory, as determined under paragraph 225(1)(a) or paragraph 231(1)(a).

 

In relation to goods that are subject to biosecurity control , or exposed goods in relation to which a exposed goods order is in force, a first point of entry describes a landing place or port determined under clause 225(1)(b) or clause 231(1)(b) to be a first point of entry for those goods (or a class of goods that includes those goods ).

 

See Part 2 of Chapter 4 for further details.

 

 

 

 

Clause 18                    Meaning of goods

This clause provides that the term ‘goods’ includes the following:

·          an animal

·          a plant (whether moveable or not)

·          a sample or specimen of a disease agent

·          a pest

·          mail, and

·          any other article, substance or thing (including, but not limited to, any kind of moveable property).

 

It also provides that the term does not include ballast water or human remains , which are separately defined terms under clause 9. Cremated remains are excluded from the definition of human remains so will be treated as goods for the purpose of the Bill. In most cases goods also includes a conveyance that is being carried on board another conveyance (see clause 15).

 

Clause 19                   Meaning of installation

This clause provides that the term ‘installation’ refers to a structure that is either attached to or resting on—or attached semi-permanently or permanently to a structure that is attached to or resting on—the seabed, and:

 

·          is able to float or be floated, and

·          is able to move or be moved, as an entity from one place to another, and

·          is, or is to be, wholly or principally used in:

­    exploring or exploiting natural resources (such as fish or minerals) with equipment that is on or forms part of the structure, or

­    operations or activities associated with, or incidental to, activities in relation to exploring or exploiting natural resources.

This term is used in the definition of vessel.

Clause 20                    Meaning of operator of a conveyance

This clause provides that ‘operator’ in relation to a conveyance, means:

·          if there is a body corporate or an unincorporated body responsible for the operation of the conveyance—that body, and

·          in any other case—the person in charge of the conveyance.

 

This term has an alternative meaning when it is used in Chapter 5. In Chapter 5, operator of a conveyance has the same meaning as ‘company’ in the Annex to the Ballast Water Convention which currently provides that company means:

“the owner of the ship or any other organisation or person such as the manager, or bareboat charterer, who has assumed the responsibility for operation of the ship from the owner of the ship and who on assuming such responsibility has agreed to take over all the duties and responsibilities imposed by the International Safety Management Code.”

 

Clause 21                    Meaning of person in charge

This clause defines the term ‘person in charge’. The term may refer to the owner of a thing or a person in possession or control of a thing depending on whether it is used in relation to goods or conveyances.

 

In relation to goods , ‘person in charge’ refers to the owner of the goods or a person (other than a biosecurity officer or biosecurity enforcement officer ) who is in possession or control of the goods . Person in charge of goods also includes a biosecurity industry participant who is in possession or control of the goods as authorised by an approved arrangement covering the biosecurity industry participant .

 

In relation to conveyances , ‘person in charge’ refers to the person in charge or command of the conveyance , but does not include a ship’s pilot . Ship’s pilots are excluded from this definition as although they may be in charge of a conveyance , they are not legally responsible for the conveyance in the same way as an owner, operator or captain of the conveyance would be.

 

The concept of person in charge is used in the Bill instead of owner (the term generally used in the Quarantine Act 1908 ), as it reflects the broad range of people who are responsible for goods and conveyances . The inclusion of a broad range of people in the definition is intended to increase the operational practicality of the Bill, for example where the owner of a conveyance is not in Australian territory and a biosecurity officer needs to give a direction in relation to the conveyance in order to assess or manage biosecurity risk.

 

Part 3—Constitutional and international law provisions

 

Division 1—Introduction

 

Clause 22                    Guide to this Part

The guide provides a concise overview of Part 3 of Chapter 1. Part 3 contains provisions relating to the Constitution (such as the constitutional powers relied on for this Act), the application of the Act in relation to pests, protections in the Constitution, as well as provisions that ensure that the Act is consistent with the rights that foreign aircraft and vessels have under the United Nations Convention on the Law of the Sea.

 

Division 2—Constitutional and international law provisions

 

Clause 23                    Severability

This clause provides for continued operation of the Bill (or provisions of the Bill) in the event of a successful constitutional challenge. It sets out the various constitutional heads of power upon which the Bill can draw if its operation is expressly confined to acts or omissions under those constitutional powers. This clause is intended to ensure that the Bill is given the widest possible operation consistent with Commonwealth constitutional legislative power.

 

This clause provides that the Bill draws on the following constitutional powers:

·                  Quarantine power

section 51(ix) of the Constitution

·                  External affairs power

section 51(xxix) of the Constitution

·                  Trade and commerce power

section 51(i) of the Constitution

·                  Fisheries power

section 51(x) of the Constitution

·                  Aliens power

section 51(xix) of the Constitution

·                  Corporations power

section 51(xx) of the Constitution

·                  Territories and Commonwealth places power

section 122 of the Constitution and the Commonwealth places (Application of Laws) Act 1970

·                  Postal power

section 51(v) of the Constitution

·                  Sickness benefits power

section 51(xxiiiA) of the Constitution

·                  Census and statistics power

section 51(xi) of the Constitution

 

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

The definition of 'pest' in clause 9 of the Bill is broadly expressed to capture a wide range of pests. Subclause 24(1) limits the application of the Act (other than Part 1 of Chapter 8) to those pests which may pose quarantine risks (paragraph (a)) or are invasive pests (paragraph (b)). See clause 9 for the definition of ‘invasive pest’ and clause 25 for the application of the Act in relation to invasive pests.

 

Part 1 of Chapter 8, which deals with biosecurity emergencies, applies only to pests which may pose quarantine risks (subclause 24(2)).

 

Together with the definition of 'pest', clause 24 is intended to ensure that the widest range of pests that may pose a biosecurity risk can be dealt with under the Act, consistent with Commonwealth legislative power.

 

Clause 25                    Application of this Act in relation to invasive pests

This clause provides for the application of the Act in relation to invasive pests where this relies only on the external affairs power as engaged by the Biodiversity Convention (see clause 9 for the definition of invasive pest).

 

The external affairs power (section 51(xxix) of the Constitution), in its treaty implementation aspect, supports legislation that is capable of being reasonably considered appropriate and adapted to fulfilling the obligations and benefits of a treaty ( Victoria v Commonwealth (1996) 187 CLR 419 at 487-488). Clause 25 is intended to limit the effect of the Act to ensure that, in its application to invasive pests, it is appropriately supported by the external affairs power.

 

The clause does this by limiting the extent to which a provision of the Act confers a power, function or right, or imposes an obligation, in relation to an invasive pest to the circumstances set out in subclause 25(2). First, it is limited to the purpose of preventing the introduction of, or controlling or eradicating, invasive pests which threaten ecosystems, habitats or species. The second limitation is that the conferral of the power, function or right, or imposition of the obligation, must be reasonably capable of being considered appropriate and adapted to give effect to Australia's obligations under Articles 7 and 8 of the Biodiversity Convention. For example, Article 8(h) of the Convention imposes obligations on Australia to prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species.

 

The effect of paragraph 25(1)(b) is that the limitations in subclause 25(2) do not apply where the application of provisions of the Act to invasive pests would be supported by other sources of legislative power, that is, other than the external affairs power as engaged by the Biodiversity Convention.

 

Clause 26                    Compensation for acquisition of property

This clause is intended to ensure, for the purposes of section 51(xxxi) of the Constitution, that if the operation of the Act results in the acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay reasonable compensation to the person. This clause also provides for the person to institute court proceedings if the Commonwealth and the person do not agree on the amount of compensation. See also clause 9 for definitions of acquisition of property and just terms .

 

Clause 27                    Freedom of interstate trade, commerce and intercourse

This clause provides that a power or function conferred by this Act is not to be exercised in a way that prevents free trade and commerce among the states and territories of Australia.

 

Clause 28                    Commonwealth not to give preference

This clause is intended to ensure that a power of function conferred by this Act is not exercised or performed in a way that gives preference to one State or part of one State. This clause is not intended to limit the Commonwealth’s ability to consider regional differences in biosecurity risk between the states and territories that are based on valid scientific evidence.

 

Clause 29                    Application of the Act to foreign aircraft and vessels

This clause provides that the Act only applies to foreign aircraft or vessels to the extent that the application is consistent with the exercise of rights of foreign aircraft or vessels in accordance with the United Nations Convention on the Law of the Sea, above or in any of the following:

·          the territorial sea of Australia

·          the exclusive economic zone

·          waters of the continental shelf.

 

Part 4— Principles affecting decisions to exercise certain powers

 

Clause 30                    Guide to this Part

This clause provides a guide to Part 4 of Chapter 1. It provides that a biosecurity official who is making a decision to exercise a power under certain provisions of this Act must first consider the principles set out in this Part. The principles aim to ensure that the power is exercised only if exercising the power is likely to be effective in, or to contribute to, achieving the purpose for which the power is to be exercised, is appropriate and adapted for its purpose, and is no more restrictive or intrusive than is required. It also provides that where a power is to be exercised in relation to a conveyance, the biosecurity official must consider the impact of the exercise of the power on the health and safety of any persons on board the conveyance.

 

Clause 31                   The principles

This clause outlines a list of factors, known as ‘the principles’, which a biosecurity official must be satisfied of before exercising a number of specified powers in the Bill. The principles must be applied to the following decisions made under the specified clauses of the Bill (or instruments in force under these clauses):

·          to give approval for a direction requiring an aircraft or vessel to be moved to a place outside Australian territory (paragraph 205(3)(a))

·          to give approval to cause an aircraft or vessel to be moved to a place outside Australian territory (paragraph 205(3)(b))

·          to give approval for a conveyance to be removed from Australian territory, destroyed or otherwise disposed of (paragraph 208(5)(d))

·          to give approval for a conveyance to be destroyed (subclause 209(2))

·          to give approval for a direction requiring an aircraft not to land at any landing place in Australian territory (subclause 243(2))

·          to give approval for a direction requiring a vessel not to be moored at any port in Australian territory (subclause 251(2))

·          to enter premises at a landing place or port in Australian territory (subclause 254(2))

·          to give a direction about movement of a vessel that may have been involved in the commission of an offence against Chapter 5 (clause 303)

·          any power that may be exercised by a biosecurity official under Chapter 6

·          any power that may be exercised by a biosecurity official under Divisions 5 and 6 of Part 1 of Chapter 8

·          any power that may be exercised by a biosecurity official under Subdivision B of Division 2 of Part 4 of Chapter 12

·          to deal with an abandoned conveyance (clause 655), and

·          to deal with a forfeited conveyance (clause 656).

 

Subclause (2) outlines the principles that a biosecurity official must be satisfied of when making a decision under these clauses are that:

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

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

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

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

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

 

If the power is to be exercised in relation to a conveyance, subclause (3) provides the biosecurity official must also consider the impact of the exercise of the power on the health and safety of any persons on board the conveyance. This is consistent with Article 6 of the International Covenant on Civil and Political Rights (ICCPR) which provides for the right to life. For example, when making the decision to issue a direction for an aircraft or vessel not to go to a specific location, or be secured, a biosecurity official should consider whether the conveyance has adequate fuel and supplies to comply with this direction and whether any persons on board require life saving medical treatment.

 

These principles have been included in the Bill to ensure that any direction given or action undertaken is necessary, appropriate, and adapted and does not impact on a person or their rights any more than is necessary to manage the level of biosecurity risk posed. This is consistent with international treaties such as the ICCPR and the International Covenant on Economic, Social and Cultural Rights . These principles provide an appropriate balance between individual rights and the management of biosecurity risks, allowing a biosecurity officer to exercise the necessary powers to manage biosecurity risks.

 

Subclause (4) provides that the principles are not required to be applied in relation to the making of a biosecurity control order or the making of a legislative instrument under Chapter 6 (including a biosecurity control order or a legislative instrument made under Chapter 6 in accordance with Division 5 or 6 of Part 1 of Chapter 8). This is because the decision to make a biosecurity control order or a legislative instrument does not directly impact upon an individual or his or her rights. The impact will occur when a biosecurity official exercises the powers listed in the order, therefore the principles will apply to the decisions that may be included in the order.

 

See also clause 33, which provides for principles affecting the exercise of power under Chapter 2.

 



Chapter 2—Managing biosecurity risks: Human Health

 

Part 1—General protections and listing human diseases

 

Division 1—Introduction

 

Clause 32                   Guide to this Part

This clause provides a guide to this part.

 

Division 2—Protections

 

Subdivision A—General protections

 

Clause 33                   The principles

All decisions made under the human biosecurity chapter are bound by principles of general protection .

 

The person making the decision must be satisfied of all the following matters:

·          that exercising the power, or imposing the biosecurity measure, is likely to be effective in preventing, reducing or controlling the risk

·          that exercising the power or imposing the biosecurity measure is proportionate to the risk

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

·          that the power, or the biosecurity measure, is the least restrictive or intrusive power that could be exercised in relation to, or measure that could be imposed on, the individual

·          that the manner in which the power is to be exercised, or the biosecurity measure is to be imposed, is the least restrictive or intrusive manner

·          that the period during which the power is to be exercised, or the biosecurity measure is to be imposed, is only for as long as necessary.

 

The principles are intended to inform all decisions made under this chapter. An officer, in making a decision, must take into account each of these principles. The principles provide for consideration of the rights enshrined in the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the personal protections enshrined in the International Health Regulations 2005 (IHR), the seriousness of the circumstances and the balance between the public interest in giving an order or including a measure against the public interest in upholding the individual’s liberty.

 

These decisions are made by the officer, using their personal knowledge of infectious disease control in a public health capacity. The principles can inform internal review, merits review and judicial review, thus adding an additional layer of protection for an individual affected by a decision.

 

Guidelines issued by the Director of Human Biosecurity will provide officials with guidance in relation to the exercise of their powers.

 

Clause 34                   No interference with urgent or life-threatening medical needs

This power expressly provides that the urgent or life-threatening medical needs of an individual will prevail over the provision of any measures under this chapter to address human biosecurity risk.

 

Officers must ensure that, when making a decision with respect to biosecurity risk, that they first consider the urgent or life-threatening needs of the individual. This is in addition to considerations of the principles at clause 33 above.

 

Subdivision B—Protections for children and incapable persons

 

Clause 35                   Child or incapable person may be accompanied

A child is defined as a person less than 18 years old. An incapable person is defined as someone who is 18 years old or older, and who is incapable (whether temporarily or permanently) of:

·          understanding the nature, effect or purposes of carrying out a biosecurity measure; or,

·          indicating whether they do or do not consent to a biosecurity measure.

 

To ensure compliance with Commonwealth guidelines and international obligations, this provision requires that a child or incapable person may be accompanied at all times while subject to the provisions of the Act.

 

Clause 36                   Officer to contact parent, guardian or next of kin etc, of                          unaccompanied child or incapable person

A child or incapable person must not be subject to a requirement under this chapter unless an officer has taken reasonable steps to contact a parent, guardian or next of