2019-2020

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

Biosecurity amendment (traveller declarations and other measures) bill 2020

EXPLANATORY MEMORANDUM

(Circulated by authority of the Minister for Agriculture, Drought and

Emergency Management, the Hon. David Littleproud MP)

 

BIOSECURITY AMENDMENT (TRAVELLER DECLARATIONS AND OTHER MEASURES) BILL 2020

GENERAL OUTLINE

The Biosecurity Amendment (Traveller Declarations and Other Measures) Bill 2020 (the Bill) will amend the Biosecurity Act 2015 (Biosecurity Act) to provide for a flexible and proportionate compliance response through the targeted setting of amounts payable under an infringement notice. These changes will deter non-compliance with the Biosecurity Act to mitigate against biosecurity risks.

The Bill will:

·          amend the Biosecurity Act to:

o    allow the Biosecurity Regulation 2016 (the regulations) to specify different penalty amounts for infringement notices issued for different kinds of alleged contraventions of provisions of the Biosecurity Act

o    clarify that the regulations may prescribe different periods of time to pay an infringement notice depending on the kind of goods or class of goods to which an alleged contravention of the Biosecurity Act relates

·          amend the Biosecurity Act to permit the Director of Biosecurity to make a legislative instrument to specify goods or classes of goods that can attract a higher infringement notice amount

·          provide that the legislative instrument made by the Director of Biosecurity is not subject to parliamentary disallowance due to the technical and scientific nature of underlying risk assessments and is made for a period of not longer than 12 months

·          permit the regulations to incorporate references to the legislative instrument as in force from time to time.

The amendments will commence on 1 January 2021. This time will enable the Agriculture Department to implement the amendments, including putting enforcement and payment systems in place and delivering coordinated training to biosecurity officers and Australian Border Force officers.

Prior to commencement of the amendments, the Department of Agriculture, Water and the Environment will also conduct an education and awareness campaign targeting incoming passengers and crew, including through inflight videos and material displayed at airports. The list of goods determined in the legislative instrument will be made available on the Department’s website. 

BACKGROUND

All incoming passengers, crew and persons in charge of an aircraft or vessel (including Australian citizens and residents) must provide information for the purpose of assessing the level of biosecurity risk associated with the person and any goods that the person has with them, usually in the form of an Incoming Passenger Card or Crew Declaration.

Minor contraventions of the Biosecurity Act are generally dealt with by way of infringement notices issued under Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 , as modified by section 524 of the Biosecurity Act. The effect of the Biosecurity Regulation 2016 is that where the alleged contravention of specified provisions occurs at a first point of entry (such as an airport), the infringement notice amount is two penalty units.  Usually the period for paying the infringement notice ends when the person first leaves the first point of entry, but the period can be extended on request to 28 days. Infringement notices issued outside the airport context usually attract the default 12 penalty units (where the person is an individual) and the payment period is 28 days after the notice is given. For more serious breaches of the law, Australian citizens or residents could face court action, with potential penalties ranging from $12,600 (civil matters) to $420,000 and/or imprisonment for up to 10 years (criminal prosecutions).

There are continuing issues with passengers and crew entering Australia and failing to declare goods. For example, a biosecurity detector dog at Sydney Airport recently detected a considerable volume of undeclared goods in a passenger’s baggage: 3.5 kg of pork, 4.5 kg of millet, nearly a kilogram of dried fruit, almost 10kg of rice and an assortment of fruit, vegetables and spices weighing about 2kg. These types of products carry the risk of devastating pests and diseases such as African Swine Fever, Foot and Mouth Disease, and the plant pathogen Xylella .

In 2018-19, biosecurity officers issued on average 410 infringement notices per month at airports. They were on track to issue more than double this number in 2019-20 prior to the introduction of travel restrictions in response to COVID-19, with 1139 infringement notices issued in January 2020.

This Bill will enhance existing compliance and deterrence measures designed to protect Australia’s biosecurity status by encouraging people entering Australia to comply carefully and accurately with requirements to provide written information for the purpose of assessing the level of biosecurity risk associated with the person and the goods they are seeking to bring into Australia through a first point of entry, including airports and sea ports.

Consultation has been undertaken with appropriate Commonwealth agencies, including: the Department of Health; the Department of the Prime Minister and Cabinet; the Attorney-General’s Department; the Department of Foreign Affairs and Trade, and the Department of Home Affairs.

FINANCIAL IMPACT STATEMENT

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

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

The full statement of compatibility with human rights is attached to this explanatory memorandum.

 

 

ACRONYMS, ABBREVIATIONS AND COMMONLY USED TERMS

an acting SES employee	a non-SES employee who is acting in a position usually occupied by an SES employee.
an APS employee	(a)  a person engaged under section 22 of the Public Service Act 1999 ; or (b)  a person who is engaged as an APS employee under section 72 of the Public Service Act 1999 .
a non-SES employee	an APS employee other than an SES employee
an SES employee	an APS employee who is classified as an SES employee under the Classification Rules, being the rules made under section 23 of the Public Service Act 1999 .
APS	Australian Public Service
the Agriculture Department	the Department administered by the Agriculture Minister
the Agriculture Minister	The Minister administering the Primary Industries Levies and Charges Collection Act 1991
the Agriculture Secretary	the Secretary of the Agriculture Department
the Biosecurity Act	Biosecurity Act 2015
the regulations the Director of Biosecurity	Biosecurity Regulation 2016 the Director of Biosecurity referred to in section 540 of the Biosecurity Act, being the person who is, or is acting as, the Agriculture Secretary
the Regulatory Powers Act	Regulatory Powers (Standard Provisions) Act 2014

NOTES ON AMENDMENTS

Preliminary

Clause 1              Short Title

Clause 1 provides for the short title of the Act to be the Biosecurity Amendment (Traveller Declarations and Other Measures) Bill 2020 .

Clause 2              Commencement

Clause 2 provides for the commencement of each provision in the Act, as set out in the table.

Item 1 in the table provides that the whole Act commences on 1 January 2021.

Subclause 2(2) provides that any information in column 3 of the table is not part of the Act. It also clarifies that information may be inserted in column 3 of the table, or information in it may be edited, in any published version of the Act.

Clause 3              Schedules

Clause 3 provides that legislation that is specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule has effect according to its terms. This is a technical provision to give operational effect to the amendments contained in the Schedules.

 

Schedule 1—Amendments

Biosecurity Act 2015

Item 1                  At the end of subsection 524(3)

 

Item 1 inserts the words “, including, but not limited to, prescribing different periods depending on the kind of goods or class of goods to which an alleged contravention relates” at the end of subsection 524(3).

Existing subsection 524(2) of the Biosecurity Act provides that the payment period to be specified in an infringement notice must be:

(a)     28 days after the day the notice is given; or

(b)    if the regulations prescribe a period that ends earlier—the prescribed period.

Existing subsection 524(3) of the Biosecurity Act then provides that regulations made for the purposes of paragraph 524(2)(b) may prescribe different periods to pay the amount stated in an infringement notice for different kinds of contraventions of a relevant provision of the Biosecurity Act, being a provision mentioned in subsection 523(1). Item 1 mirrors the wording in new subsection 524(6) (Item 2) and permits the regulations to prescribe different payment periods depending on the kind of goods or class of goods to which an alleged contravention relates. 

Where an infringement notice is currently given to a person at a first point of entry for an alleged contravention of specified provisions in the Biosecurity Act, the payment period ends when the person leaves that place for the first time. Item 1 allows the regulations to specify different payment periods depending on the kind of goods or class of goods to which an alleged contravention relates, if the payment period is to end earlier than 28 days after the infringement notice is given.

 

Item 2                  At the end of section 524

 

Subsection 524(4) of the Biosecurity Act provides that the amount to be stated in an infringement notice for the purposes of paragraph 104(1)(f) of the Regulatory Powers Act for the alleged contravention of the provision by the person must be the least of:

(a)     one-fifth of the maximum penalty that a court could impose on the person for that contravention; and

(b)    12 penalty units where the person is an individual, or 60 penalty units where the person is a body corporate; and

(c)     if the regulations prescribe a different number of penalty units for the alleged contravention of the provision by the person—that number of penalty units.

Item 2 inserts new subsections 524(6) and 524(7) at the end of section 524 to permit the regulations to prescribe different numbers of penalty units that may be stated in an infringement notice for different kinds of alleged contraventions of provisions of the Biosecurity Act, and permit regulations made for the purposes of paragraphs 524(2)(b) or (4)(c) of the Biosecurity Act to make provision in relation to a matter by applying, adopting or incorporating matters referred to in a determination made by the Director of Biosecurity.

New subsection 524(6) will permit regulations made for the purposes of subsection 524(4)(c) to prescribe different numbers of penalty units for different kinds of contraventions of a relevant provision of the Biosecurity Act, including, but not limited to, prescribing different numbers of penalty units depending on the kind of goods or class of goods to which an alleged contravention relates.

This amendment will provide the flexibility needed by the Director of Biosecurity to take a differentiated approach to setting the amount payable under infringement notices depending on the relative biosecurity risk posed by a certain kind of goods or class of goods from time to time. A current example might be pork products, which carry the risk of African Swine Fever. This amendment will enable infringement notices to state amounts payable that are linked to the kind of goods or class of goods associated with the particular alleged contravention of a provision, applying a risk-based compliance response consistent with good regulatory practice.

New subsection 524(7) provides that despite subsection 14(2) of the Legislation Act 2003 , regulations made for the purposes of paragraph 524(2)(b) or (4)(c) may make provision in relation to a matter by applying, adopting or incorporating any matter contained in a determination made by the Director of Biosecurity under subsection 524A(1), as in force from time to time. Any determination made under new subsection 524A(1) will not impose or change the requirement for a person to provide information about themselves or any goods they have with them: that requirement can be imposed by the Director of Biosecurity under subsection 196(2) of the Biosecurity Act. However, by allowing the regulations to prescribe infringement notice penalty unit amounts, including by reference to a determination made by the Director of Biosecurity under new subsection 524A as in force from time to time, this measure will ensure an appropriate balance between the need for transparency and certainty, and the flexibility required by the Director of Biosecurity to make, vary or revoke a determination from time to time listing goods or classes of goods in response to new, escalating or diminished biosecurity risks.

The determination will be easily accessible at no cost so as to provide certainty to incoming travellers. The determination will be registered on the Federal Register of Legislation and made available through the Department of Agriculture, Water and the Environment’s website. In addition, information about the determination and goods or classes of goods listed will be publicised through education and awareness campaigns, including inflight videos, material displayed at points of entry such as airports, and targeted social media.

 

Item 3        After section 524

Item 3 inserts a new section 524A that provides the power for the Director of Biosecurity to determine, by legislative instrument, a list of goods or classes of goods for the purpose of infringement notice amounts under section 524. This approach allows the Director of Biosecurity to respond to new and emerging changes in the biosecurity risk environment, for example by listing goods or classes of goods that pose a new or increased level of biosecurity risk, and removing goods or classes of goods from that list where the biosecurity risk posed has been appropriately reduced through other avenues.

New section 524A(1) provides that the Director of Biosecurity may, in writing, determine a list of goods, or classes of goods, for the purposes of section 524.

New section 524A(2) permits the Director of Biosecurity to list particular goods or a particular class of goods in a determination under new subsection 524A(1) only if the Director is reasonably satisfied that there is a high level of biosecurity risk associated with the goods or the class of goods. 

New subsection 524A(3) requires that a determination under new subsection 524A(1) must specify the period during which the determination is to be in force. The period must not be longer than 12 months. The Director can also make a new determination at the end of the               12 months in the same terms as one that is no longer in force.

New subsection 524A(4) states that a determination made under new subsection 524A(1) is a legislative instrument, but is not subject to disallowance under section 42 of the Legislation Act 2003 .

A determination made under new subsection 524A(1) is critical to the management of biosecurity risks posed by the bringing of goods into Australia. The flexibility of Australia’s biosecurity system is one of its most important aspects. It must be adaptable to respond effectively to and manage evolving biosecurity risks threatening Australia, such as African Swine Fever. The legislative framework supporting the biosecurity system must therefore also be flexible and adaptable. 

This exemption from disallowance is similar in nature to a number of other determinations that can already be made under the Biosecurity Act, such as those made under section 182 suspending the bringing or importing of specified goods into Australian territory for a specified period of time. The identification of kinds of goods or classes of goods posing a high level of biosecurity risk is a technical and scientific decision based on whether the biosecurity risk is satisfactorily managed. Potential disallowance would have a significant impact on decision-making, the risk management process and the broader management of biosecurity risks.

The note to new subsection 524A(4) directs the reader to subsection 33(3) of the Acts Interpretation Act 1901 , which relates the power to vary and revoke the determination made under new subsection 524A(1).

 

 

 

 

 

 

Item 4                  Subsection 542(3) (after table item 26)

Item 4 inserts new item 26AA into the table in subsection 542(3) to provide that the power to determine a list of goods or classes of goods under new subsection 524A(1) is not to be subdelegated. Existing subsection 542(1) provides that the Director Biosecurity may, in writing, delegate any or all of the Director’s functions or powers under the Biosecurity Act to an SES employee, or an acting SES employee, in the Department of Agriculture, Water and the Environment. The power to make a determination under section 308A, and the functions and powers under subsections 541(1) and 618(2) cannot be delegated.

Existing subsection 542(2) provides that if, under subsection 542(1), the Director of Biosecurity delegates a function or power to an SES employee or an acting SES employee in the Department, the employee may, in writing, subdelegate the function or power to certain persons, including a person who is a biosecurity officer.  However, existing subsection 542(3) provides that a power under a provision of the Biosecurity Act referred to in the table in this subsection must not be subdelegated under subsection 542(2).

By inserting new item 26AA into the table in subsection 542(3), item 4 of Schedule 1 to the Bill ensures that the power to determine a list of goods or classes of goods under new subsection 524A(1), if delegated by the Director of Biosecurity, may not be subdelegated by an employee to whom the power has been delegated.

Statement of Compatibility with Human Rights

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

 

Biosecurity Amendment (Traveller Declarations and Other Measures) Bill 2020

 

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 Biosecurity Amendment (Traveller Declarations and Other Measures) Bill 2020 will amend the Biosecurity Act 2015 (Biosecurity Act) to provide for a flexible and proportionate compliance response through the targeted setting of amounts payable under an infringement notice. These changes will deter non-compliance with the Biosecurity Act to mitigate against biosecurity risks.

All incoming passengers, crew and persons in charge of an aircraft or vessel (including Australian citizens and residents) must, if required by the Director of Biosecurity, provide information for the purpose of assessing the level of biosecurity risk associated with the person and any goods that the person has with them.

There are continuing issues with passengers and crew entering Australia and failing to declare goods. Products not being declared carry the risk of devastating pests and diseases such as African Swine Fever, Foot and Mouth Disease, and the plant pathogen Xylella .

This Bill will enhance existing compliance and deterrence measures designed to protect Australian biosecurity by encouraging people entering Australia to comply with requirements to provide information for the purpose of assessing the level of biosecurity risk associated with the person and the goods they are seeking to bring into Australia through a first point of entry, including airports and sea ports.

Specifically, the Bill will:

·          amend section 524 of the Biosecurity Act to:

o    allow the Biosecurity Regulation 2016 (the regulations) to specify one or more different penalty amounts for infringement notices issued for alleged contraventions of provisions of the Act

o    clarify that the regulations may prescribe one or more different periods of time to pay an infringement notice issued for an alleged contravention of a provision of the Biosecurity Act up to the maximum permitted time period of 28 days

·          amend the Biosecurity Act by inserting a new provision to permit the Director of Biosecurity to make a legislative instrument determining, for the purposes of section 524, a list of goods, or classes of goods

·          provide that the legislative instrument made by the Director of Biosecurity not be subject to parliamentary disallowance and be made for a period of no longer than            12 months

·          permit the regulations to incorporate references to the legislative instrument from time to time as made.

Human Rights Implications

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

·          Right to be free from self-incrimination ( Article 14(3) of the International Covenant on Civil and Political Rights (ICCPR)).

Right to be free from self-incrimination

Article 14(3)(g) of the ICCPR protects the right of an individual to be free from self-incrimination in the determination of a criminal charge by providing that a person may not be compelled to testify against him or herself or confess guilt. 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 measures contained in the Bill do not themselves directly interfere with the right to be free from self-incrimination in certain circumstances: it is section 635 of the Biosecurity Act that expressly removes the privilege against self-incrimination in certain circumstances. Specifically, a person is not entitled to refuse to answer questions, provide information or produce documents under the provisions of the Biosecurity Act listed in subsection 635(1) on the ground that the answer, the information or the production of the document might tend to incriminate the person or make the person liable to a penalty.

In particular, the regulation power in the Bill will support the operation of subsection 196(2) of the Biosecurity Act by introducing a higher infringement notice amount than currently set for incoming passengers and crew who provide false or misleading information about goods or classes of goods listed in a determination made for the purposes of section 524 and may therefore be in breach of section 532(1) or 533(1) of the Biosecurity Act. Currently section   88 of the regulations provides for an infringement notice in the amount of two penalty units for contraventions of these sections. Goods that pose a particularly high biosecurity risk include meat or fresh fruit and vegetables. These goods carry the risk of African Swine Fever, Foot-and-Mouth Disease (FMD), and the plant pathogen Xylella , any of which, if introduced, could threaten Australia’s strict biosecurity regime, agriculture, exports, and economy.

Removing the privilege against self-incrimination for passengers and crew entering Australia is necessary to achieve the legitimate objective of effective assessment and management of biosecurity risks to human, plant and animal health, the environment and the economy in Australia.

Upholding the privilege against self-incrimination in relation to passengers and crew 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. An animal disease outbreak (such as FMD) has the potential to cause significant and long-term damage to Australian industries and the reputation of Australia as a reliable producer of quality food and fibre.

Where incoming passengers and crew provide false and misleading information about goods in their possession, an increased penalty amount will apply if the alleged contravention of the Act relates to goods listed in the new determination. The current infringement notice amount will increase from two penalty units to up to 12 penalty units, for goods listed in a determination made under section 524.

Without the limitation of the right to be free from self-incrimination, the Commonwealth’s ability to manage biosecurity risks at international passenger terminals will be significantly reduced. Removal of the privilege against self-incrimination ensures that the assessment of biosecurity risk and application of response measures can occur as urgently as is required in international passenger terminals and reflects the magnitude of the potential biosecurity risks. Once a passenger or crew member leaves the international passenger terminal, any biosecurity risk enters Australia’s wider environment.

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

Summary

These limitations of the right to be free from self-incrimination under Article 14(3)(g) of the ICCPR are permissible as protections such as those in section 635 of the Biosecurity Act apply to ensure the exercise of these powers is reasonable and proportionate to achieving the legitimate objective and adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion.

Conclusion

The Bill is compatible with human rights to the extent that where it may limit human rights, those limitations are reasonable, necessary and proportionate.

 

(Circulated by authority of the Minister for Agriculture, Drought and Emergency Management, the Hon. David Littleproud MP)