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Rural and Regional Affairs and Transport Legislation Committee—Biosecurity Amendment (Enhanced Risk Management) Bill 2021 [Provisions]—Report, dated October 2021


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October 2021

The Senate

Rural and Regional Affairs and Transport Legislation Committee

Biosecurity Amendment (Enhanced Risk Management) Bill 2021 [Provisions]

© Commonwealth of Australia 2021

ISBN 978-1-76093-305-0

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 4.0 International License.

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ttps://creativecommons.org/licenses/by-nc-nd/4.0/.

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Members

Chair Senator Susan McDonald NATS, QLD

Deputy Chair Senator Glenn Sterle ALP, WA

Members Senator Alex Antic LP, SA

Senator Malarndirri McCarthy ALP, NT

Senator Gerard Rennick LP, QLD

Senator Peter Whish-Wilson AG, TAS

Secretariat Gerry McInally, Committee Secretary Kaitlin Murphy, Senior Research Officer Joshua Wrest, Senior Research Officer Michael Fisher, Research Officer Alistair Shailer, Administrative Officer Lewis Tremayne, Administrative Officer

PO Box 6100 Telephone: (02) 6277 3511

Parliament House Fax: (02) 6277 5811

CANBERRA ACT 2600 Email: rrat.sen@aph.gov.au

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Contents

Members ............................................................................................................................................. iii

Chapter 1—Introduction .................................................................................................................... 1

Conduct of this inquiry ....................................................................................................................... 1

Acknowledgements ............................................................................................................................. 1

Structure of this report ........................................................................................................................ 1

Purpose of the bill ................................................................................................................................ 1

Background ........................................................................................................................................... 3

Consideration by other committees .................................................................................................. 5

Notes on references .............................................................................................................................. 8

Chapter 2—Key Issues ....................................................................................................................... 9

Overview ............................................................................................................................................... 9

Issues raised .......................................................................................................................................... 9

Committee view ................................................................................................................................. 17

Appendix 1—Submissions .............................................................................................................. 19

Appendix 2—Public hearing and witnesses ................................................................................ 21

1

Chapter 1 Introduction

1.1 On 2 September 2021 the Senate referred the Biosecurity Amendment (Enhanced Risk Management) Bill 2021 (the bill) to the Rural and Regional Affairs and Transport Legislation Committee (the committee) for inquiry and report by 14 October 2021.1

Conduct of this inquiry 1.2 Details of the inquiry were advertised on the committee's webpage. The committee also invited a number of organisations and individuals to submit to the inquiry by 27 September 2021. The committee received 14 submissions,

which are listed at Appendix 1. Public submissions were published on the committee's inquiry webpage.

1.3 The committee held a public hearing in Canberra on 7 October 2021. The witnesses who appeared at that hearing are listed at Appendix 2.

Acknowledgements 1.4 The committee thanks all submitters and witnesses for their contribution to this inquiry.

Structure of this report 1.5 This report consists of two chapters:

 Chapter 1 provides administrative details relating to the inquiry and outlines the key purpose of the bill; and  Chapter 2 examines the key issues raised in the evidence and provides the committee's view.

Purpose of the bill 1.6 The Biosecurity Act 2015 (Biosecurity Act) provides the regulatory framework for managing the risk of pests and diseases entering Australia. The bill would amend the Biosecurity Act to enhance this ability. It would 'strengthen the

management of biosecurity risks posed by maritime and aviation arrivals, improve the efficiency and effectiveness of the administration of the Biosecurity Act, and increase a range of civil and criminal penalties to deter non-compliance and provide proportionate penalties.'2

1 Journals of the Senate, No. 121, 2 September 2021, pp. 4086-4088.

2 Biosecurity Amendment (Enhanced Risk Management) Bill 2021 Explanatory Memorandum, p. 1.

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1.7 In particular, the bill would amend the Biosecurity Act to:

 strengthen pratique and human health requirements for aircraft and vessels3;  increase penalties (both civil and criminal) for contraventions of the Biosecurity Act relating to goods;  streamline the process for making determinations specifying prohibited,

conditionally non-prohibited, and suspended goods;  streamline the process for granting permits based on risk assessments; and  increase efficiency and ensure transparency of expenditure on biosecurity-related activities by permitting the Agriculture Minister and Health Minister

to authorise expenditure directly through the Biosecurity Act.4

1.8 International vessels are a key risk pathway for infectious diseases entering Australia. This risk was highlighted by the spread of COVID-19 on-board the Ruby Princess cruise ship. The ability to effectively respond to biosecurity risks entering Australia through maritime and aviation pathways will be a significant consideration in reopening Australia's borders. This Bill would strengthen the legislative framework for international arrivals via these pathways and contribute to greater preparedness at the border.5

1.9 The spread of COVID-19, detections of Khapra beetle, and the emergence of a new variant of African Swine Fever have shown that the number of biosecurity threats and the speed at which they spread continues to increase. These threats will be emphasised as travel and trade increase during the continuing COVID-19 economic recovery. The increase to penalty amounts contained in this Bill will ensure that penalty units appropriately reflect the impact that biosecurity contraventions may have on Australia's biosecurity status and that they are not merely seen as a 'cost of doing business'.6

1.10 The bill would increase transparency around the biosecurity risk assessment process when determining to prohibit or restrict the importation of goods. These processes play a central role in enabling the Australian Government to manage biosecurity risks. The amendments to the Biosecurity Act would identify the matters that must be considered in the risk assessment process while still applying the Appropriate Level of Protection for Australia to manage risk.7

3 Requirements include expanding pre-arrival reporting requirements for aircraft and vessels;

strengthening penalties for non-compliance with negative pratique requirements; and creating a mechanism to make a human biosecurity group direction.

4 Biosecurity Amendment (Enhanced Risk Management) Bill 2021 Explanatory Memorandum, p. 1.

5 Biosecurity Amendment (Enhanced Risk Management) Bill 2021 Explanatory Memorandum, pp. 1-2.

6 Biosecurity Amendment (Enhanced Risk Management) Bill 2021 Explanatory Memorandum, p. 2.

7 Biosecurity Amendment (Enhanced Risk Management) Bill 2021 Explanatory Memorandum, p. 2.

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1.11 The bill would also ensure that expenditure for biosecurity-related activities would fall within the Biosecurity Act. This amendment is designed to create a more efficient process to provide timely responses to biosecurity threats as they occur to effectively protect Australia's environment and economy.8

Background 1.12 Following the incident involving the Ruby Princess cruise ship at the Port of Sydney on 19 March 2020, independent reviews - including the New South Wales Special Commission of Inquiry into the Ruby Princess and the

Inspector-General of Biosecurity Review Confidence testing for at-border delivery of critical human biosecurity functions - Ruby Princess cruise ship incident - have identified areas in need of reform for better management of human biosecurity risks onboard vessels and aircraft entering Australia. Both reviews recommended changes to the Biosecurity Act for managing human health risks for incoming passengers. Specific issues highlighted by the response to the COVID-19 pandemic and identified by the reports include:

 the operation of pratique provisions within the Biosecurity Act;  pre-arrival reporting obligations and the importance of human health assessments prior to entry to a port; and  powers to manage human health of groups of arriving passengers.9

1.13 These two reviews raised concerns that the issues identified in the Ruby Princess incident could apply in similar circumstances to other cruise ships, in other ports, or for other biosecurity risk pathways. Of particular concern are circumstances where the probability of risk occurrence may be assessed to be low, but the consequences of biosecurity failure are potentially large.10

8 Biosecurity Amendment (Enhanced Risk Management) Bill 2021 Explanatory Memorandum, p. 2.

9 Department of Agriculture and Water Resources, Pratique and human health: amendments to the

Biosecurity Act 2015 Regulation Impact Statement, September 2021, p. 3, as attached to the Explanatory Memorandum.

10 Department of Agriculture and Water Resources, Pratique and human health: amendments to the

Biosecurity Act 2015 Regulation Impact Statement, September 2021, p. 3, as attached to the Explanatory Memorandum.

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New South Wales Special Commission report 1.14 On 14 August 2020, the New South Wales Special Commission of Inquiry into the Ruby Princess was published. Key findings of the report concluded that serious errors were made in choosing not to test all passengers despite them being

identified as 'suspect cases', not updating the acute respiratory diseases log on 18 and 19 March 2020, and the decision to assess the risk level of the cruise ship as 'low'.11 Recommendations made in the report include:

 reconsideration of the NSW Human Biosecurity Officer guideline that regards a grant of pratique as the default position, and indicates that pratique should only ever be withheld where there is a compelling reason to deny it;

 Human Biosecurity Officers, the Commonwealth Department of Agriculture, Water and the Environment (DAWE), the Commonwealth Department of Health, and NSW Health develop more formal protocols for their interaction and communication, including in the granting of pratique;

 that any future review of the Biosecurity Act considers the utility and possible expansion of human biosecurity control orders so as to be applicable to persons or groups; and that

 the Biosecurity Act make explicit a requirement to update superseded human health information.12

Inspector-General for Biosecurity report 1.15 On 29 April 2021, the Inspector-General for Biosecurity released a report titled Confidence testing for at-border delivery of critical human biosecurity functions - Ruby Princess cruise ship incident. The report made 42 recommendations for

reform, of which five were specifically targeted at amending the primary legislation:

 Recommendation 19 - to provide greater flexibility in managing pratique based on human biosecurity risk - in particular, to allow for aircraft and vessels to load and unload cargo and stores where this represents an acceptably low level of risk;

 Recommendation 20 - to provide biosecurity officers with broader powers that will assist them in managing large numbers of passengers and crew with potential Listed Human Diseases on-board foreign commercial vessels;

 Recommendation 21 - to provide biosecurity officers with greater powers to enforce negative pratique and to penalise individuals who breach negative pratique;

11 Special Commission of Inquiry into the Ruby Princess, 14 August 2021, p. 31, available at:

https://www.rubyprincessinquiry.nsw.gov.au/report (accessed 6 October 2021).

12 Special Commission of Inquiry into the Ruby Princess, 14 August 2021, p. 34.

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 Recommendation 22 - to provide biosecurity officers with clear powers to revoke pratique, including where incorrect or inaccurate information is supplied by the vessel operator or there are changes to the vessel’s human biosecurity risk status over time; and  Recommendation 24 - to require vessel operators to report updated

biosecurity information, including human biosecurity information, if there are any changes after the Pre-arrival Report.13

1.16 In his submission, the Inspector-General, Mr Rob Delane, commended the government for progressing legislation addressing these recommendations and believes these amendments satisfactorily deal with the human biosecurity risks associated with international passengers.14

Consideration by other committees 1.17 The bill has also been considered by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) and the Parliamentary Joint Committee on Human Rights (PJCHR).

Senate Standing Committee for the Scrutiny of Bills 1.18 The bill was considered by the Scrutiny Committee in September 2021. The Scrutiny Committee expressed concern about a number of details in the bill, in particular that some of the amendments would not be subject to the usual

parliamentary scrutiny processes.

1.19 In considering proposed sections 108N (requiring body examinations) and 108P (requiring body samples for diagnosis) the Scrutiny Committee expressed concern that a group direction is not a legislative instrument and, therefore, will not be subject to parliamentary scrutiny.15 The Scrutiny Committee also questioned why there is no high-level guidance in the bill in relation to the measures provided for under these sections, including:

 what examinations or sampling procedures may be included within a direction;  in what circumstances it is appropriate to require an examination or body sample;  when consent must be given;  how consent is to be given; and  what medical and professional standards will apply.16

13 Inspector-General for Biosecurity, Confidence testing for at-border delivery of critical human biosecurity

functions - Ruby Princess, April 2021, pp. 9-10.

14 Office of the Inspector-General of Biosecurity, Submission 4, p. 2.

15 Biosecurity Amendment (Enhanced Risk Management) Bill 2021 Explanatory Memorandum, pp. 23-25.

16 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, September 2021,

pp. 9-10.

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1.20 As such, the Scrutiny Committee requested further advice from the Minister as to whether the bill can be amended to include high-level guidance in relation to proposed sections 108N and 108P, and have requested whether the bill can be amended to include requirements for group directions to be made public via publishing online and in DAWE's annual report.17

1.21 The Scrutiny Committee also expressed concern with the taking and storage of bodily samples. While acknowledging that proposed section 108R provides that a procedure to take a body sample must be carried out in a manner consistent with appropriate medical and professional standards, the Scrutiny Committee was unclear as to why the bill cannot provide that samples must only be stored for as long as is strictly necessary and may only be used for the purpose for which the sample was taken. The

Scrutiny Committee requested further advice from the Minister to address these concerns.18

1.22 Finally, the Scrutiny Committee believes there is insufficient guidance in the primary legislation as to how the broad discretionary power to make agreements or grants will be exercised. The Scrutiny Committee's view is that, where it is proposed to allow the expenditure of a significant amount of public money, the expenditure should be subject to appropriate parliamentary scrutiny and oversight.19 The Scrutiny Committee therefore made the following requests for advice to the Minister:

 why it is considered necessary and appropriate to confer on the Agriculture Minister and the Health Minister a broad power to make arrangements and grants in circumstances where there is limited guidance on the face of the bill as to how that power is to be exercised;

 whether the bill can be amended to include at least high-level guidance as to the terms and conditions on which financial assistance may be granted; and  whether the bill can be amended to include a requirement that written agreements with the states and territories about grants of financial

assistance made under proposed section 614C are tabled in the Parliament within 15 sitting days after being made, and published on the internet within 30 days after being made.20

17 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, September 2021,

pp. 10-12.

18 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, September 2021,

pp. 13.

19 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, September 2021,

pp. 14.

20 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, September 2021,

pp. 15-16.

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Parliamentary Joint Committee on Human Rights 1.23 The PJCHR considered the bill in its Report 11 of 2021 and was yet to form a concluded view in relation to it. Instead, the PJCHR has requested further information from the Minister in order to assess the human rights implications

of the bill.21

1.24 The PJCHR noted that the bill is designed to prevent the spread of potentially communicable diseases and, as such, considers that the bill promotes the rights to life and health. However, the PJCHR also considers that the coercive powers enabled by the bill potentially infringe on a number of other rights, including those of liberty, freedom of movement, right to a private life, the rights of children, and the rights of the disabled.22 The PJCHR questioned whether the measures are proportional to the desired outcome and whether they have been properly considered in preparing the bill:

While the bill may limit these rights, most of these rights may be permissibly limited where it is demonstrated that the limitation pursues a legitimate objective, is rationally connected to (that is, effective to achieve) that objective and is proportionate to that objective.

The statement of compatibility recognises that the directions power promotes the right to health, and limits the right to liberty and privacy, but does not acknowledge that the measure may limit the right to freedom of movement or the rights of the child or persons with disabilities.23

1.25 In order to assess the human rights compatibility of the bill the PJCHR requested the following information from the Minister:

(a) why the legislation does not require that if an officer is made aware of a disability that would affect a person’s ability to comply with the direction, that they must consider making an exemption;

(b) why there is no legislative criteria as to the type of examinations that will require consent (e.g. anything invasive) and a specific requirement that such examinations be undertaken with regard to the dignity, and where necessary, privacy, of the person being examined;

(c) why there is no flexibility for officers to grant exemptions from the requirement to undergo certain examinations;

(d) why the bill provides no guidance as to when body samples must be destroyed (for example, once testing has been completed), noting that body samples can contain sensitive personal information; and

(e) how empowering an accompanying person of a ‘child or incapable person’ to give consent on their behalf to undergo examinations and provide body samples, without requiring any consideration as to the

21 Parliamentary Joint Committee on Human Rights, Report 11 of 2021, September 2021, p. 17.

22 Parliamentary Joint Committee on Human Rights, Report 11 of 2021, September 2021, pp. 16-17.

23 Parliamentary Joint Committee on Human Rights, Report 11 of 2021, September 2021, p. 11.

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wishes of the child or incapable person, is compatible with the rights of the child and the rights of persons with disabilities.24

Notes on references 1.26 In this report, references to Committee Hansard are to proof transcripts. Page numbers may vary between proof and official transcripts.

24 Parliamentary Joint Committee on Human Rights, Report 11 of 2021, September 2021, p. 11.

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Chapter 2 Key Issues

Overview 2.1 This chapter outlines issues raised by witnesses and submitters. The inquiry participants were broadly supportive of the amendments made by the bill, particularly provisions that improve pre-reporting requirements and increase

penalties for non-compliance. One matter of concern for some stakeholders is the bill's provision for enabling human biosecurity group directions. This matter, along with reporting requirements and increased penalties are considered further in this chapter. Other matters raised by stakeholders, but not explored in detail by the committee, include:

 the need to differentiate between types of vessel, for example cargo and cruise ships;1  the need for the Biosecurity Act 2015 (Biosecurity Act) to prescribe the use of protective clothing at earlier stages of the arrival, berthing, and stevedoring

process, and the type of clothing to be used;2 and  Australia's obligations under international maritime labour and health law to provide a basic right to healthcare for seafarers that cannot be interfered with in any way, including by group directions or other biosecurity

measures.3

Issues raised

Human biosecurity group direction 2.2 The bill would amend the Biosecurity Act to complement the existing mechanism to impose a human biosecurity control order on an individual. Under the amendments, provisions will be added to allow a human

biosecurity group direction for a group or class of individuals where the individuals have, or have been exposed to, a listed human disease.4 Biosecurity measures that would apply to individuals under a human biosecurity group direction include:

1 Shipping Australia, Submission 8, p. 6.

2 Maritime Union of Australia, Submission 3, p. 5.

3 Shipping Australia noted that during the COVID pandemic it has become aware of seafarers who

have been left in pain and 'been denied access to medical care for such things as broken ankles and dental abscesses.' Shipping Australia, Submission 8, p. 7.

4 Biosecurity Amendment (Enhanced Risk Management) Bill 2021 Explanatory Memorandum, p. 8.

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 requirement to provide certain contact information, including that of other individuals that the person may have been in contact with;  remain at, or go to and remain at, a specified place for a specified period;  wearing of protective clothing and equipment;  undergo testing to determine if the individual has traces of a listed human

disease;  provision of body samples, with consent of the individual; and  prevention of loading or unloading of goods from the vessel or aircraft.5

2.3 In its submission, the Department of Agriculture, Water and the Environment (DAWE) pointed out that under the current Biosecurity Act provisions for human biosecurity control order are only imposed on individuals. DAWE argued that this limitation is not a practical or effective way to manage human biosecurity risks posed by a larger group of individuals, such as that of a large passenger ship. The bill, in DAWE's view, would establish a new mechanism 'for managing groups of people where individuals in that group display signs or symptoms of a listed human disease, or have been exposed to such a disease'.6 The human biosecurity group direction, when applied, would:

...require individuals within the specified class to comply with certain biosecurity measures that would assist human biosecurity officers and chief human biosecurity officers to manage risks of entry, establishment or spread of a listed human disease in [an] Australian territory.7

2.4 Other submitters have argued that amendments relating to human biosecurity group directions create responsibilities that are potentially onerous and that it is unclear who will be accountable for their implementation.8 Whilst supportive of human biosecurity officers being authorised to make group direction, Cruise Lines International Association Australasia (CLIA) reported that it is unclear as to what extent the vessel operator is expected to be involved in ensuring a group complies with an order.9 This can include orders for the taking of samples, requesting consent for the taking of samples and potentially also transporting them.10

5 Biosecurity Amendment (Enhanced Risk Management) Bill 2021 Explanatory Memorandum, pp. 21-25.

6 Department of Agriculture, Water and the Environment, Submission 11, p. 6.

7 Department of Agriculture, Water and the Environment, Submission 11, p. 6.

8 In addition to those matters raised below, Ports Australia highlighted a concern that a 'group

direction could be utilised in place of appropriately identifying and minimising the risk to marine pilot and other maritime workers'. Ports Australia, Submission 10, p. 3.

9 The CLIAA submitted that it did not anticipate there being any issues with 'cruise operators

potentially being required to distribute the group direction where individuals in the group are still onboard (proposed section 108E(2) of the bill). However, considered it rational for the bill to include a requirement that vessel operators and persons in charge of the vessel to be given a copy of the direction where individuals' remained onboard.

10 Cruise Lines International Association Australasia, Submission 7, p. 2.

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2.5 Similarly, Carnival Australia raised a number of concerns about the application of human biosecurity group directions. Specific matters raised include:

 the potential for an 'information management problem' between Commonwealth and state/territory authorities, particularly when Commonwealth-conferred powers are delegated to state/territory officials;

 the risk of a breach of privacy laws, particularly given the potential for a variety of privacy laws from different countries to apply on a ship engaged on international cruising; and

 how a vessel operator can be expected to comply with an order to wear certain protective clothing or equipment when they are offshore and cannot be boarded.11

2.6 Additionally, the Maritime Union of Australia (MUA) in its submission claimed that it is the responsibility of federal and state/territory governments to provide a safe working environment for maritime workers. As such, maritime workers should not bear the brunt of any biosecurity failures by either their employer or government bodies and should be protected from 'becoming the subject of such a Group Direction when it would be unfair and unreasonable to do so simply because they were present (in whatever capacity and at whatever distance) at a Port where a human biosecurity risk was deemed to exist.'12

2.7 Representatives of the MUA used the recent case of port workers in Darwin being ordered to quarantine as an example. Mr Jamie Newlyn, Assistant National Secretary, informed the committee that the vessel berthed in Darwin less than 14 days after leaving South-East Asia. The vessel was given pratique, meaning there were no quarantine issues, and was boarded by a pilot to assist in navigating the harbour. Port workers also accessed the vessel 'as is usual custom and practice, to start the discharging process'.13 The Chief Biosecurity Officer or a deputy at the time observed the workers boarding the vessel without appropriate personal protective equipment, including masks or gowns. The workers themselves did not deem the equipment necessary due to pratique being given. Mr Newlyn went on to report to the committee the ensuing actions taken:

11 Carnival Australia added that the bill is silent on how clothing and equipment would be supplied

or whether it will be the responsibility of the ships operator to ensure it is available. Carnival Australia also queried who would be responsible for storing body samples, and be responsible for ongoing care of those groups subject to the direction. Carnival Australia, Submission 9, pp. 3-4.

12 Maritime Union of Australia, Submission 3, pp. 4-5.

13 Mr Jamie Newlyn, Assistant National Secretary, Maritime Union of Australia, Committee Hansard,

7 October 2021, p. 4.

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they were subsequently removed, the whole ship's panel or gang, and sent immediately to the Howard Springs quarantine facility for 14 days. They weren't given any opportunity to pack clothes or do anything, just off they went. They remonstrated with the police and the direction. It was captured on video that the police had said, 'Look, we understand this is over the top. This is a direction of the chief health officer.'14

2.8 During questioning from the committee regarding the potential for port workers to be affected by a group direction, officials from DAWE responded that diseases do not discriminate and that port workers may be at a heightened risk of contracting a disease due to close contact with an ill passenger. Ms Kristin Sykes, Director of the Analytics and Innovation Branch, informed the committee that orders will be no more restrictive than necessary:

The human biosecurity officer who makes the direction must be satisfied that the direction is no more restrictive or intrusive than is required in the circumstances. Consideration would need to be given to whether different measures are put in place in relation to those covered by a group direction

who were in close proximity to ensure that a group direction for a class of port workers is no more restrictive or intrusive than is required in the circumstances to address the particular listed human disease of concern.15

2.9 Ms Sykes went on to say that there is also the possibility of different directions being given to different groups. As an example, port workers may be directed to simply wear personal protective equipment and get tested if the contact risk is minimal. The decision on what measures are imposed within a group lies with the Department of Health.16

Pre-arrival reporting requirements 2.10 A significant risk is posed by a vessel or aircraft transporting a large amount of passengers. If biosecurity officers are not made aware of changes to the biosecurity risk on-board then they are unable to properly assess the risk

level.17 Under the current Biosecurity Act, the operator of a vessel or aircraft is required to submit a pre-arrival report if they intend to enter Australian territory. This pre-arrival report, under the Biosecurity Regulation 2016 (the regulation), must be provided between 12 to 96 hours prior to the estimated time of an arrival. If an operator becomes aware that the information provided

14 Mr Jamie Newlyn, Assistant National Secretary, Maritime Union of Australia, Committee Hansard,

7 October 2021, p. 4.

15 Ms Kristin Sykes, Director of the Analytics and Innovation Branch, Biosecurity Strategy and

Reform Division, Department of Agriculture, Water and Environment, Committee Hansard, 7 October 2021, p. 6.

16 Ms Kristin Sykes, Director of the Analytics and Innovation Branch, Biosecurity Strategy and

Reform Division, Department of Agriculture, Water and Environment, Committee Hansard, 7 October 2021, p. 6.

17 Department of Agriculture, Water and the Environment, Submission 11, pp. 5-6.

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to authorities was incorrect or incomplete, then a subsequent report is required.18

2.11 In their submission, DAWE explained that the amendments contained in the bill would insert a new subsection 193(1A) 'which would provide that the operator must give one or more other reports in relation to the aircraft or vessel in the circumstances prescribed by the regulations.'19 The regulations would set out the different types of reports required by different classes of vessels, depending on their circumstances.20

2.12 The introduction of the new subsection 194(1A) would allow for the regulations to prescribe the circumstances where the operator must give further information in relation to a previous report. The regulations may also prescribe what kind of further information is required and when that information must be given to a biosecurity officer.21

2.13 The MUA expressed its support for the additional reporting requirements of the bill. The MUA made reference to the Inspector-General of Biosecurity's report that found the Ruby Princess incident occurred in part due to the failure to enforce existing measures. For this reason, the MUA voiced its support for the further improvement of reporting requirements. The MUA also stressed the importance of an enforcement regime that prioritises the importance of compliance over convenience for shipping companies.22

2.14 In referencing the quarantine case in Darwin, the representatives of the MUA noted that the initial issue related to a discrepancy between the number of people reported to be on the ship and the actual number aboard. Mr Newlyn noted that incidences of this type are a continuing concern for the MUA:

The concerns we have around the arrangements for notifying of pratique, and that is, more often than not, particularly on these flag-of-convenience international vessels, the captain of those vessels, or the master of those vessels, is under enormous commercial pressure to make sure that the vessel keeps moving, that it's worked and that it's sailing to its next destination. They don't want to be held up… There are many, many examples of exploitation in that space, and we're concerned that those arrangements don't protect Australia's biosecurity arrangements to the best effect.23

18 Department of Agriculture, Water and the Environment, Submission 11, p. 5.

19 Department of Agriculture, Water and the Environment, Submission 11, p. 6.

20 Department of Agriculture, Water and the Environment, Submission 11, p. 6.

21 Department of Agriculture, Water and the Environment, Submission 11, p. 6.

22 Maritime Union of Australia, Submission 3, p. 3.

23 Mr Jamie Newlyn, Assistant National Secretary, Maritime Union of Australia, Committee Hansard,

7 October 2021, p. 4.

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2.15 Subsequent testing of the entire crew - at the expense of the employer, Qube - came back negative. Given the lack of workers available to unload the vessel due to quarantine orders, the vessel continued to Western Australia, where it was allowed to berth and unload, before returning to Darwin to complete unloading of cargo.24

2.16 In voicing support for the additional pre-reporting requirements, Mr Newlyn also submitted that enforcement needs to be robust and that discrepancies between jurisdictions remain an issue. The MUA emphasised the need for a uniformed approach to biosecurity issues across jurisdictions, in order to effectively enforce the Biosecurity Act. The MUA also called for the use of Commonwealth powers to override state and territory powers to facilitate a uniform approach, stating that currently:

[I]t's completely up to each state to determine whether they will let a vessel in within the 14-day period. Some states are far stricter than others; other states rely heavily on the captain's advice and the pratique declaration.25

2.17 Mr Newlyn noted that allowing the vessel involved in the Darwin incident to continue on to Western Australia indicated 'the differences in the two state jurisdictions are completely one end of the spectrum to the other. Interestingly, the state that has the strictest protocols in place allowed the vessel to be worked and berthed.'26

2.18 While acknowledging the need for pre-reporting, Shipping Australia submitted that reporting requirements can be burdensome and that duplication of reporting requirements should be avoided where possible. Shipping Australia advocated for a 'single window' approach in which necessary information is shared from a single government point across all necessary areas.27

2.19 In giving evidence at a public hearing, representatives of DAWE responded that they do not think there is an extra burden applied by the new amendments. Rather, the bill brings clarity and strengthens the Biosecurity Act to better deal with biosecurity risks. Mr Colin Hunter, First Assistant Secretary, Biosecurity Operations Division, directly addressed the issue of discrepancies in biosecurity risk handling between jurisdictions. He explained to the committee some of the different roles and responsibilities of the state, territory, and federal governments, and how they relate to each other:

24 Mr Jamie Newlyn, Assistant National Secretary, Maritime Union of Australia, Committee Hansard,

7 October 2021, p. 4.

25 Mr Jamie Newlyn, Assistant National Secretary, Maritime Union of Australia, Committee Hansard,

7 October 2021, p. 5.

26 Mr Jamie Newlyn, Assistant National Secretary, Maritime Union of Australia, Committee Hansard,

7 October 2021, p. 4.

27 Shipping Australia, Submission 8, p. 8.

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[W]e would hold joint portfolio responsibility of the Biosecurity Act with the Department of Health… In accordance with section 540 of the Biosecurity Act, the director of biosecurity is responsible for animal, plant and human health, whereas, under section 544, the chief medical officer is the director of human biosecurity. The chief medical officer delegates powers to the local state and territory jurisdictions to undertake and discharge the responsibilities of health actions at the border. We provide information to them to help them to take those decisions.28

2.20 Mr Hunter further clarified that the pre-reporting requirements are to ensure that officials at the border 'have the most up-to-date information available to assess the human health risk of the arriving vessel.'29 The additional requirements are needed to assist DAWE in its role as a distributor of information to other areas.30

Strengthening penalties for non-compliance 2.21 The bill proposes an amendment to section 48(1) to address practical and legal disparities in compliance with the Biosecurity Act. The amendments would extend the scope of the section to give responsibility for biosecurity matters to

a person in charge of an incoming aircraft or vessel. Currently, responsibility for pratique compliance lies only with the operator of the vessel or aircraft. Under the amendment, the person in charge of the vessel or aircraft will now be liable for civil penalties if pratique requirements are not met.31

2.22 The MUA affirmed its support for measures to strengthen penalties for non-compliance with Australia's biosecurity laws. However, in its submission the MUA noted the possibility of international shipping companies seeking to reduce operating costs by shirking responsibilities under the amended Biosecurity Act. The MUA warned that routine non-compliance remains a threat unless there is lasting cultural change across the sector brought about through greater enforcement of the Biosecurity Act.32

2.23 In opposition to the amendment, Shipping Australia submitted that it was not clear why large financial penalties need to be imposed on individual crew members of vessels. The amendment is designed as a disincentive for crew members to engage in non-compliance for financial gain. However, Shipping Australia believes there is no incentive for ship masters to flout biosecurity

28 Mr Colin Hunter, First Assistant Secretary, Biosecurity Operations Division, Department of

Agriculture, Water and Environment, Committee Hansard, 7 October 2021, p. 7.

29 Mr Colin Hunter, First Assistant Secretary, Biosecurity Operations Division, Department of

Agriculture, Water and Environment, Committee Hansard, 7 October 2021, p. 7.

30 Mr Colin Hunter, First Assistant Secretary, Biosecurity Operations Division, Department of

Agriculture, Water and Environment, Committee Hansard, 7 October 2021, p. 7.

31 Biosecurity Amendment (Enhanced Risk Management) Bill 2021 Explanatory Memorandum, p. 6.

32 Maritime Union of Australia, Submission 3, p. 4.

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laws as they are paid employees of the shipping companies and therefore do not stand to gain financially.33

2.24 Carnival Australia highlighted specific logistical issues with notifying passengers on a cruise liner and the possible penalties that may result. Carnival Australia submitted that potentially 4,000 people who are free to move around on-board a cruise liner is far more difficult than notifying a plane full of seated passengers, yet under the amendments these circumstances would be treated in the same way. The effect of the amendment:

[…] is that the person in charge would effectively have no defence to a failure to give the notification to all members of the class. What the proposed amendments require is that the class be notified of the direction and its contents. If the notice is not actually delivered to everyone in the class, there is then a contravention of the notification requirements.34

2.25 Carnival Australia are concerned that, given the logistical issues and the potentially large number of passengers, the person in charge would have no defence or excuse if even one passenger cannot be notified.35

2.26 Representatives of DAWE told the committee that the bill ensures 'the appropriate level of penalties applied for a range of offences.'36 Ms Peta Lane, First Assistant Secretary of the Biosecurity Strategy and Reform Division, noted that the department is not only looking to punish those who are non-compliant but will also provide support to those who comply with the obligations established by the Biosecurity Act. Ms Lane explained that DAWE was also looking at how it supports 'compliance entities in the biosecurity system' and simultaneously 'penalising those who are doing the wrong thing'. Ms Lane proceeded to explain the range of measures in place to enable compliance, such as trials that support:

[…] those entities that are doing the right thing—through streamlined clearance processes, for example. We're incentivising people to do the right thing but also ensuring that we have appropriate deterrents for those that continue to do the wrong thing.37

2.27 Ms Lane concluded that the bill does include amendments that broaden the liability for non-compliance beyond just the operator, but also that the penalties are just one part of a broader suite of activities aimed at increasing

33 Shipping Australia, Submission 8, p. 7.

34 Carnival Australia, Submission 9, p. 4.

35 Carnival Australia, Submission 9, p. 3.

36 Ms Peta Lane, First Assistant Secretary, Biosecurity Strategy and Reform Division, Department of

Agriculture, Water and Environment, Committee Hansard, 7 October 2021, p. 9.

37 Ms Peta Lane, First Assistant Secretary, Biosecurity Strategy and Reform Division, Department of

Agriculture, Water and Environment, Committee Hansard, 7 October 2021, p. 9.

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compliance.38 In response to questions taken on notice, the department detailed broader ways it has worked to strengthen compliance and enforcement arrangements:

 continued review of penalties to ensure there are sufficient deterrents to non-compliance;  introduction of penalty increases through two previous amendment bills;  introduction of new penalty provisions to enable the department to enforce

a broader range of offences;  work undertaken with the Department of Home Affairs to implement cancellations of visas for international travellers who commit serious breaches of the Biosecurity Act;  continued work on arrangements to offer streamlined clearances as a

reward for entities that operate with good compliance records; and  significantly bolstered capacity to target serious noncompliance through dedicated operations, including joint operations with Australian Border Force and the Australian Federal Police.39

Committee view 2.28 The committee supports the intent of the bill to strengthen biosecurity measures through more rigorous pre-reporting requirements, greater penalties for non-compliance with the Biosecurity Act, and the introduction of broader-

reaching biosecurity group directions.

2.29 All submitters and witnesses have agreed that strengthening biosecurity measures at Australia's borders is vital to protecting the environment and the economy. As demonstrated by the Ruby Princess experience, amendments to the Biosecurity Act are needed to strengthen Australia's biosecurity regime in order to prevent similar events in the future.

2.30 The committee accepts the department's assurances that biosecurity group directions will be proportionate to the risk level.

2.31 The committee also believes that increased pre-reporting requirements are not overly burdensome and are a necessary measure to ensure the most up-to-date information is available to federal, state and territory officials when assessing potential biosecurity risks.

2.32 Furthermore, the committee accepts that the application of greater penalties for a wider range of responsible officers is a necessary deterrent for non-compliance with the Biosecurity Act.

38 Ms Peta Lane, First Assistant Secretary, Biosecurity Strategy and Reform Division, Department of

Agriculture, Water and Environment, Committee Hansard, 7 October 2021, pp. 9-10.

39 Ms Peta Lane, First Assistant Secretary, Biosecurity Strategy and Reform Division, Department of

Agriculture, Water and Environment, answers to questions on notice, 7 October 2021 (received 11 October 2021).

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Recommendation 1

2.33 The committee recommends the Senate pass the bill.

Senator Susan McDonald Chair

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Appendix 1 Submissions

1 Ms Chris Nikolic 2 Animal Health Australia 3 Maritime Union of Australia 4 Office of the Inspector-General of Biosecurity 5 Ms Julie Parker 6 Fremantle Port Authorities 7 Cruise Lines International Association Australasia 8 Shipping Australia 9 Carnival Australia 10 Ports Australia 11 Department of Agriculture, Water and the Environment 12 Western Australian Department of Health 13 Integrity Systems Company 14 Maritime Industry Australia Ltd

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Appendix 2

Public hearing and witnesses

Thursday, 7 October 20211 Australian Parliament House Canberra ACT

Maritime Union of Australia  Ms Mich-Elle Myers, National Officer  Mr Jamie Newlyn, Assistant National Secretary

Department of Agriculture, Water and the Environment  Ms Barbara Cooper, Assistant Secretary, Pathway Policy, Cargo and Conveyances  Ms Vikki Fischer, Assistant Secretary, Pathway Policy—Travellers, Mail and

Imported Food Branch, Biosecurity Operations Division  Mr Colin Hunter, First Assistant Secretary, Biosecurity Operations Division  Mr Richard Keane, Acting Assistant Secretary, Analytics and Innovation

Branch, Biosecurity Strategy and Reform Division  Ms Peta Lane, First Assistant Secretary, Biosecurity Strategy and Reform Division  Ms Kristin Sykes, Director, Analytics & Innovation Branch, Biosecurity

Strategy and Reform Division

1 All witnesses appeared via videoconference.