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Biosecurity Bill 2014 [and] Biosecurity (Consequential Amendments and Transitional Provisions) Bill 2014



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ISSN 1328-8091

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BILLS DIGEST NO. 93, 2014-15 7 MAY 2015

Biosecurity Bill 2014 [and] Biosecurity (Consequential Amendments and Transitional Provisions) Bill 2014 Paula Pyburne Law and Bills Digest Section

Contents

The Bills Digest at a glance ................................................... 5

History of the Bill ................................................................. 6

Purpose of the Bills .............................................................. 6

Structure of the Bills ............................................................ 6

Background ......................................................................... 7

‘Quarantine’ vs ‘biosecurity’ .................................................... 7

Reviews of Australia’s biosecurity system ............................... 8

Nairn Report .......................................................................... 8

Callinan Review ..................................................................... 9

Beale Review ......................................................................... 9

Committee consideration .................................................. 10

Senate Rural and Regional Affairs and Transport Committee ............................................................................. 10

Senate Standing Committee for the Scrutiny of Bills ........... 10

Parliamentary Joint Committee on Human Rights ............... 10

Statement of Compatibility with Human Rights .................. 11

Policy position of non-government parties/independents ... 11

Position of major interest groups ....................................... 12

Financial implications ........................................................ 12

Key issue—Inspector-General of Biosecurity ....................... 12

Key issue—offences and civil penalties ............................... 13

Fault-based offences ............................................................. 13

Strict liability offences ........................................................... 14

Date introduced: 27 November 2014

House: House of Representatives

Portfolio: Agriculture

Commencement Biosecurity Act: Sections 1 and 2 on Royal Assent; all other sections on the earlier of a day fixed by Proclamation or 12 months after Royal Assent.

Commencement consequential amendments: various dates as set out in the body of the Bills Digest.

Links: The links to the Bills, their Explanatory Memoranda and second reading speeches can be found on the homepages for the Biosecurity Bill 2014 and the Biosecurity (Consequential Amendments and Transitional Provisions) Bill 2014, or through the Australian Parliament website

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

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Criminal penalties ................................................................ 14

Comments ........................................................................... 15

Chapter 1—preliminary ..................................................... 15

Key issue—constitutional reach ............................................ 15

Key issue—decision making principles .................................. 16

Chapter 2—managing biosecurity risks: human health ........ 16

Listed human disease ............................................................ 16

Overarching principle ............................................................ 17

Three grades of prevention activities .................................... 17

Preventing risks to human health ....................................... 17

Pre-border ......................................................................... 17

At the border ..................................................................... 18

Post-border ....................................................................... 18

Human biosecurity control orders ...................................... 18

Review of human biosecurity control order........................ 19

Human health response zones ............................................ 20

Information gathering powers .............................................. 21

Protections ............................................................................ 21

Key issue—human rights ....................................................... 22

Chapter 3—managing biosecurity risks: goods .................... 22

Biosecurity Import Risk Analyses—pre-border ..................... 23

Setting the appropriate level of protection ........................ 23

Stakeholder comment ......................................................... 23

Conduct of the Biosecurity Import Risk Analysis ................. 23

Prior use of risk estimation matrix ...................................... 24

Key issue—review rights ..................................................... 25

Key issue—regional differences .......................................... 25

Key issue—need for transparency and scientific basis ....... 26

Imposing biosecurity control ................................................. 27

Assessing the risk at the border ............................................ 28

Taking action at the border ................................................... 28

Key issue—suspects on reasonable grounds....................... 28

Unloading goods .................................................................. 28

Classes of goods..................................................................... 29

Permits................................................................................... 29

Key issue—incomplete definition of decision-making period .................................................................................. 30

Key issue—conditions for grant of permit .......................... 30

Fit and proper person........................................................ 30

Being an associate ............................................................. 31

Offences ................................................................................. 31

Chapter 4—managing biosecurity risks: conveyances .......... 31

Pre-arrival—aircraft or vessel ................................................ 33

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Assessing the level of risk ...................................................... 33

Key issue—vessels servicing offshore rigs ........................... 33

At the border ......................................................................... 34

Key issue—infrastructure costs ........................................... 36

Ship sanitation ....................................................................... 36

Chapter 5—ballast water and sediment.............................. 36

Why do ships carry ballast? ................................................... 37

Why is it a biosecurity issue? .............................................. 37

Ballast water convention ..................................................... 37

Relationship with other laws ................................................. 38

Reporting requirements ........................................................ 38

Offences ................................................................................. 38

Key issue—harshness of offence provisions ....................... 39

Sediment................................................................................ 39

Key issue—the Bill does not extend to biofouling ................. 40

Compliance ............................................................................ 40

Chapter 6—managing biosecurity risks ............................... 40

Nature of the risk ................................................................... 41

Assessing the level of the risk ................................................ 41

Biosecurity control orders (goods or premises) .................... 42

Biosecurity response zones (specified areas) ........................ 42

Offences .............................................................................. 43

Biosecurity monitoring zones—permanent .......................... 44

Biosecurity monitoring zones—temporary ........................... 44

Biosecurity activity zones ...................................................... 44

Key issue—broader post-border control of diseases or pests ...................................................................................... 45

Chapter 7—approved arrangements .................................. 46

Conditions for approval ......................................................... 47

Conditions for suspension or revocation ............................... 47

Reporting biosecurity incidents ............................................. 47

Auditing approved arrangements ......................................... 48

Civil penalties ......................................................................... 48

Chapter 8—biosecurity emergencies .................................. 48

Powers of the Minister .......................................................... 49

National response agency ..................................................... 50

Human biosecurity emergency .............................................. 50

Key issue—biosecurity emergency powers ........................... 51

Chapter 9—compliance and enforcement ........................... 51

Monitoring ............................................................................. 52

Nature of monitoring powers .............................................. 52

Issuing a monitoring warrant .............................................. 53

Investigating .......................................................................... 53

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Nature of investigation powers ........................................... 53

Issuing an investigation warrant ......................................... 54

Other warrants ...................................................................... 54

General rules—obligations and powers relating to warrants .............................................................................. 55

General rules—appropriate person .................................... 55

Entering without a warrant or consent ............................... 55

Civil penalties ......................................................................... 56

Infringement notices ............................................................. 56

Enforceable undertakings ...................................................... 57

Injunctions ............................................................................. 57

False and misleading information or documents .................. 57

Chapter 10—governance and officials ................................ 58

Biosecurity officers ................................................................ 59

Key issue—level of training ................................................. 59

Decontamination ................................................................... 60

Human biosecurity officers.................................................... 60

Ministerial reviews ................................................................ 61

Key issue—need for independence and reporting .............. 61

Chapter 11—miscellaneous ................................................ 62

Review of decisions ............................................................... 62

General rule ......................................................................... 62

Exception ............................................................................. 63

Confidentiality of information ............................................... 63

Cost recovery ......................................................................... 64

Charges ................................................................................ 64

Fees ..................................................................................... 65

Cost recovery charges ......................................................... 65

What happens when cost recovery charges are not paid ...................................................................................... 65

Stakeholder comments ....................................................... 65

Detention of conveyances ................................................... 66

Modification of the Act .......................................................... 66

Miscellaneous ........................................................................ 67

Other provisions ................................................................ 67

Consequential Amendments Bill ........................................... 67

Concluding comments ....................................................... 67

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The Bills Digest at a glance The Biosecurity Bill represents a major rewrite of the Quarantine Act 1908. That Act is based on the quarantine power in section 51(ix) of the Constitution, which gives the Commonwealth the express power to make laws with respect to quarantine. The proposed Biosecurity Act is based not just on the quarantine power, but also on a number of other Constitutional powers which provide the foundation for broader coverage to address changing patterns of overseas trade and Australia’s international obligations.

The Bill contains separate and self-contained chapters in relation to discrete biosecurity risks. Each chapter sets out the principles that are relevant to a specified risk, provides for powers to assess, contain or remove the risk, establishes fault based offences for breaches in relation to more serious risks and imposes civil penalties in respect of all breaches—some of which may also be criminal offences. In that respect it is a significant improvement on the Quarantine Act, which is considered cumbersome to administer, difficult to interpret and incompatible with business needs.

The aim of the Bill is to provide for a safe and seamless transition of people and goods across Australia’s borders. In order to ensure that biosecurity risks are identified and managed, the Bill tries to strike a balance between personal rights and the need to deal with biosecurity risks, including human biosecurity risks, quickly and effectively. That being the case, some provisions of the Bill would appear to infringe personal rights and freedoms. This is particularly the case, for example, in the event of the outbreak of a listed human disease where individuals who are subject to a human biosecurity control order may be required to comply with certain biosecurity measures. However, the Parliamentary Joint Committee on Human Rights, having considered the provisions, is satisfied that they are reasonable and proportionate to the risk to human health.

The Biosecurity Bill contains a suite of enforcement provisions which are subject to the operation of the Regulatory Powers (Standard Provisions) Act 2014, which was enacted to provide for uniformity of enforcement provisions across Commonwealth statutes. That being the case, the enforcement provisions in the Biosecurity Bill, though extensive, are consistent with relevant standards. The offences that arise from non-compliance with the provisions of the Bill are generally fault-based with some reliance on strict liability offences.

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History of the Bill The Biosecurity Bill 2012 (2012 Bill)1 was introduced into the 43rd Parliament on 28 November 2012. There had been no debate on the 2012 Bill and it had not been passed when the Parliament was prorogued on 5 August 2013 for the federal election.2 As a result, the 2012 Bill lapsed.

Prior to the lapse of the 2012 Bill, it was referred to the Senate Rural and Regional Affairs and Transport Committee for inquiry and report.3 However the Parliament was prorogued before the inquiry was complete and no report was produced.

Many of the provisions of the Biosecurity Bill 2014 (the Bill)4 are in equivalent terms to those in the 2012 Bill. This Bills Digest will indicate where the relevant similarities and differences between the two Bills occur.

Purpose of the Bills The Bill is the principal Bill in a suite of Bills which includes the following companion Bills:

• Biosecurity (Consequential Amendments and Transitional Provisions ) Bill 2014 (Consequential Amendments Bill)5

• Quarantine Charges (Imposition—General) Amendment Bill 20146

• Quarantine Charges (Imposition—Customs) Amendment Bill 20147 and

• Quarantine Charges (Imposition—Excise) Amendment Bill 2014.8

The purpose of the principal Bill is to replace the outdated Quarantine Act 19089 and to provide the 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.

The purpose of the Consequential Amendments Bill is to facilitate the transition from the Quarantine Act (which it repeals) to the Biosecurity Act.

Structure of the Bills The principal Bill is divided into 11 chapters as follows:

• Chapter 1 contains preliminary matters including the objects of the Biosecurity Act 2014, relevant definitions and the constitutional basis for the Bill

• Chapter 2 sets out the matters to be taken into account in, and the method for, managing biosecurity risks to human health

• Chapter 3 sets out the matters to be taken into account for managing biosecurity risks arising from goods brought into Australia—including the manner in which a Biosecurity Import Risk Analysis (BIRA) is undertaken

• Chapter 4 contains those matters which are to be considered in managing biosecurity risks arising from aircraft and vessels (or conveyances) entering Australian territory

1. Parliament of Australia, ‘Biosecurity Bill 2012 [2013] homepage’, Australian Parliament website, accessed 2 January 2015. 2. Commonwealth of Australia, Proclamation—Prorogue of the Parliament and Dissolution of the House of Representatives, Gazette, Government notices, C2013G01196, 5 August 2013, accessed 2 April 2015. 3. Details of the terms of reference, submissions to the Committee and interim report are contained on the Senate Standing Committee on Rural

and Regional Affairs and Transport Legislation Committee, Inquiry into Biosecurity Bill 2012 and Inspector-General of Biosecurity Bill 2012, inquiry homepage, accessed 2 January 2015. 4. Parliament of Australia, ‘Biosecurity Bill 2014 homepage’, Australian Parliament website, accessed 2 January 2015. 5. Parliament of Australia, ‘Biosecurity (Consequential Amendments and Transitional Provisions) Bill 2014 homepage’, Australian Parliament website, accessed 2 January 2015. 6. Parliament of Australia, ‘Quarantine Charges (Imposition—General) Amendment Bill 2014 homepage’, Australian Parliament website, accessed 2 January 2015. 7. Parliament of Australia, ‘Quarantine Charges (Imposition—Customs) Amendment Bill 2014 homepage’, Australian Parliament website, accessed 2 January 2015. 8. Parliament of Australia, ’Quarantine Charges (Imposition—Excise) Amendment Bill 2014 homepage’, Australian Parliament website, accessed 2 January 2015. 9. Quarantine Act 1908, accessed 5 January 2015.

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• Chapter 5 outlines the management of ballast water and sediment in external territory waters, Australian seas and the waters adjacent to the Australian Antarctic Territory

• Chapter 6 sets out the manner in which biosecurity risks are monitored, controlled and responded to

• Chapter 7 provides for the approval of arrangements for a person to carry out activities to manage biosecurity risks associated with certain goods, premises or other things

• Chapter 8 relates to biosecurity emergencies and human biosecurity emergencies

• Chapter 9 contains a suite of compliance and enforcement powers, including the right to enter into premises under warrant or by consent, powers to obtain a civil penalty order issuing infringement notices, accept enforceable undertakings and obtain injunctions to take certain action or to cease undertaking certain action. In many cases this is done by applying the Regulatory Powers (Standard Provisions) Act 201410 (Regulatory Powers Act) which is discussed below

• Chapter 10 contains the powers and functions of the Director of Biosecurity, the Director of Human Biosecurity, biosecurity officers and biosecurity enforcement officers and

• Chapter 11 contains miscellaneous provisions including review rights, confidentiality of information and cost recovery matters.

The Consequential Amendments Bill contains four schedules:

• Schedule 1 repeals the Quarantine Act and the Quarantine Charges (Collection) Act 2014.11 The provisions will commence when the substantive provisions of the Biosecurity Act commence

• Schedule 2 makes consequential amendments to a number of statutes to replace references to the Quarantine Act with references to the Biosecurity Act and will commence when the substantive provisions of the Biosecurity Act commence

• Schedule 3 contains transitional provisions which commence on Royal Assent and

• Schedule 4 contains application, saving and transitional provisions to manage the transition from the Quarantine Act to the biosecurity framework contained in the principal Bill. Those provisions will commence when the substantive provisions of the Biosecurity Act commence.

Background ‘Quarantine’ vs ‘biosecurity’ Quarantine is a narrower concept than biosecurity. Quarantine ‘has a largely negative, defensive connotation associated with isolation, segregation and disinfection at the border’.12

The Quarantine Act ‘plays a critical role in protecting Australia from exotic diseases and pests’.13 As such it is ‘important in preventing or controlling the introduction of IAS [invasive alien species], including those that impact upon the environment’.14 The Quarantine Act is supported by regulations15 and by proclamations such as the Quarantine Proclamation 1998 which prohibits the entry into Australia of animals, plants and their products unless they are on an authorised list, or they have been assessed and a permit has been granted for their importation.16 This Bill will replace the Quarantine Act, which has been much amended and is considered to have

10. Regulatory Powers (Standard Provisions) Act 2014, accessed 2 January 2015. 11. Quarantine Charges (Collection) Act 2014, accessed 5 January 2015. 12. Quarantine and Biosecurity Review Panel, One biosecurity: a working partnership, (Beale Review), The Panel, Canberra, 2008, p. xvii, accessed 2 January 2015.

13. S Riley, ‘Law is order, and good law is good order: the role of governance in the regulation of invasive alien species’, Environmental and Planning Law Journal, 29(1), 2012, pp. 16-44 at p. 28, accessed 2 January 2015. 14. Ibid.

15. Quarantine Regulations 2000, accessed 2 January 2015. 16. S Riley, ‘Law is order, and good law is good order: the role of governance in the regulation of invasive alien species’, op. cit., p. 28; Quarantine Proclamation 1998, accessed 14 April 2015.

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become ‘cumbersome to administer, difficult to interpret and incompatible with our needs as our business and our risks change’.17

Biosecurity, by comparison, is the 'protection of the economy, environment and human health from the negative impacts associated with entry, establishment or spread of exotic pests (including weeds) and diseases’.18 It is ‘a more pro-active concept, aligned with the pre-[border], border and post-border continuum, a multi-layered approach, a shift from zero risk to managed risk, from barrier prevention to border management.’19

The regulatory activities which take place on the biosecurity continuum are:

• pre-border (offshore) activities to prevent biosecurity risks reaching Australia include understanding global risks, working with international trading partners, the private sector and engaging with travellers about Australia’s biosecurity requirements—specifically by cooperating in multilateral forums, import risk analyses, intelligence gathering and audit activities20

• border activities to intercept biosecurity risks that present at airports, seaports, mail centres and along Australia’s coastline—including issuing import permits, inspection of passengers, goods, vessels and mail, audit activities and post-entry quarantine21

• post-border activities occurring where there has been an incursion of a pest or disease of biosecurity risk— including monitoring and surveillance activities for exotic animal and plant pests and diseases, emergency preparedness and response plans.22

Reviews of Australia’s biosecurity system

Nairn Report Australia’s biosecurity system has been the subject of a number of reviews. As early as 1996, the report of the Australian Quarantine Review Committee (known as the Nairn Report after the Chairperson, Professor Malcolm Nairn) recommended that the vision for quarantine be for Australia to ‘maintain its relative freedom from unwanted pests and diseases while fulfilling national and international obligations in a responsible manner’.23

According to the Nairn Report, fundamental changes to the quarantine culture in Australia needed to be made. Those changes encompassed:

• development of a partnership approach to quarantine policies and programs involving the whole Australian community

• establishment of a statutory authority to develop national quarantine policy and ensure national delivery of quarantine services

• establishment of a more balanced approach to animal and plant health and quarantine by providing additional inputs for plant health and quarantine

• development of a more formally structured process for conducting risk analysis to provide a scientifically based foundation for a policy of manageable risk

• acknowledgment of the importance of quarantine to the natural environment

• expansion of the scope of quarantine by recognising the importance of activities in all three elements of quarantine—pre-border, border and post-border—as a continuum and

17. B Joyce (Minister for Agriculture), ‘Second reading speech: Biosecurity Bill 2014’, House of Representatives, Debates, 27 November 2014, p. 13425, accessed 2 January 2015. 18. Quarantine and Biosecurity Review Panel, One biosecurity: a working partnership, (Beale Review), op. cit., p. 1. 19. Ibid., p. xvii. 20. Department of Agriculture, Fisheries and Forestry, Reform of Australia’s biosecurity system—an update since the publication of One

Biosecurity: a working partnership, Commonwealth of Australia, Canberra, March 2012, p. 6, accessed 2 January 2015. 21. Ibid.

22. Ibid.

23. Australian Quarantine Review Committee, Australian quarantine: a shared responsibility, (Nairn Report), Department of Primary Industries and Energy, Canberra, 1996, recommendation 1, p. 7, accessed 2 January 2015.

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• enhancement of the focus on pre-border and post-border activities of the continuum of quarantine in the achievement of Australia's quarantine goal.24

The Government supported this new direction for quarantine in Australia and stated that it would adopt the vision and direction for quarantine recommended by the Nairn Report.25 In a retrospective of the review, Professor Nairn acknowledged in 2008 that ‘to a large extent, the expectations of the 1996 quarantine team have been met, although some of the government responses, such as the establishment of an independent centre for risk analysis, only occurred about ten years post review’.26

Callinan Review The discovery of a horse suffering from equine influenza at the Eastern Creek Quarantine Station in Sydney was announced by the then Minister for Agriculture, Fisheries and Forestry, Peter McGauran, on 22 August 2007.27 Despite initial attempts at quarantine, the highly contagious horse virus spread throughout much of the eastern states of Australia at an alarming rate, impacting on both the horse industry and ancillary operations. The lucrative Australian horse racing industries in the eastern states were closed down and gambling revenue on horse racing was curtailed. The strict quarantine regime which was imposed prevented the transport of horses so that in many cases feed and care had to be maintained at sites away from any home base. The thoroughbred and harness racing industries were deeply affected by the loss of revenue caused by the cancellation of racing events and with the impact of quarantine restrictions on breeding programmes.28

In the wake of the outbreak, the Government appointed former High Court Justice, Ian Callinan AC, to head a Commission of Inquiry (the Callinan Review) into ‘the circumstances that contributed to the outbreak and the need for any strengthened biosecurity procedures for the quarantine management of imported horses’.29

The Callinan Review found that:

Fundamental biosecurity measures were not being implemented in the largest government-operated animal quarantine station in Australia. This constituted a serious failure by those within the Department of Agriculture, Fisheries and Forestry and AQIS [Australian Quarantine Inspection Service] who were and had been responsible for the management of quarantine risks and, in particular, the management of post-entry quarantine arrangements.

30

The outbreak demonstrated the cost to the Australian economy of failing to maintain its biosecurity. In 2008, the Government appropriated $255.7 million for financial aid to the horse industry as a result of the equine influenza outbreak31 and a further amount of $97.2 million to reimburse the states, the Northern Territory and the Australian Capital Territory for costs associated with the national response to eradicating equine influenza.32

Beale Review In the light of the need for such a significant financial response to the breach of quarantine measures, on 19 February 2008 the then Minister for Agriculture, Fisheries and Forestry, Tony Burke, announced a

24. Ibid., pp. 27-28. 25. Department of Agriculture, Fisheries and Forestry, ‘Australian quarantine a shared responsibility: the government response’, Department of Agriculture website, accessed 2 January 2015. 26. M Nairn, ‘A retrospective of the 1996 review of quarantine in Australia’, Farm Policy Journal, 5(1), February 2008, accessed 2 January 2015. 27. P McGauran (Minister for Agriculture, Fisheries and Forestry), Blow for Australia’s top horse studs, media release, 22 August 2007, accessed

2 January 2015. 28. Further detail about the outbreak of equine influenza and the Government response to it, is contained in M Coombs and B Hinton, Horse Disease Response Levy Bill 2008, Bills digest, 78-80, 2007-08, Parliamentary Library, Canberra, 2008, accessed 2 January 2015. 29. P McGauran (Minister for Agriculture, Fisheries and Forestry), Equine influenza inquiry commences, media release, 27 September 2007,

accessed 2 January 2015. 30. I Callinan, Equine influenza: the August 2007 outbreak in Australia: report of the Equine Influenza Inquiry, Attorney-General’s Department, Canberra, April 2008, p. xviii, accessed 13 April 2015. 31. L Tanner (Minister for Finance and Deregulation) ‘Second reading speech: Appropriation Bill (No. 3) 2007-08’, House of Representatives,

Debates, 13 February 2008, p. 198, accessed 2 January 2015. 32. J Faulkner (Special Minister of State and Cabinet Secretary), ‘Second reading speech: Appropriation (Drought and Equine Influenza Assistance) Bill (No. 2) 2007-08’, Senate, Debates, 14 February 2008, p. 373, accessed 2 January 2015. $86.4 million of this money was to be recovered

from the horse industry.

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comprehensive, independent review of Australia’s quarantine and biosecurity arrangements to be undertaken by an independent panel of experts chaired by Roger Beale (the Beale Review).33

The report arising from the Beale Review was published on 30 September 2008.34 It contained 84 recommendations including the development of a new Act—the Biosecurity Act—which would draw on the full range of the Commonwealth’s Constitutional powers and provide for modern and effective management of biosecurity risks.35

The principal Bill is the legislative response to some of the recommendations of the Beale Review. The Beale Review also recommended that the Commonwealth, states and territories enter into an Intergovernmental Agreement on Biosecurity (IGAB).36 Consistent with that recommendation the IGAB came into effect in January 2012. The IGAB is an agreement between the Commonwealth, state and territory governments, with the exception of Tasmania.37

Committee consideration Senate Rural and Regional Affairs and Transport Committee The package of Bills was referred to the Senate Rural and Regional Affairs and Transport Committee (Rural and Regional Affairs Committee) for inquiry and report by 17 March 2015.38 The report makes 14 recommendations including that, subject to those recommendations, the Senate pass the Bill and related Bills.39 The Australian Labor Party (Labor) members’ dissenting comments and the Australian Greens (Greens) members’ additional comments are canvassed below.

The Committee received 29 submissions and held one public hearing. The comments of stakeholders are canvassed under the relevant chapter headings below.

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) has made extensive comments in relation to this Bill.40 These are referred to where relevant in this Bills Digest.

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights (the Human Rights Committee) reported on the Bill and its companion Bills in February 2015, acknowledging that the Bill engaged the following rights:

• right to life

• right to freedom from torture and cruel, inhuman or degrading treatment

• right to liberty and freedom from arbitrary detention

• right to freedom of movement

• right to a fair trial and fair hearing rights

• right to privacy

• right to freedom of association

• rights of the child

33. T Burke (Minister for Agriculture, Fisheries and Forestry), Independent quarantine and biosecurity review launched, media release, 19 February 2008, accessed 2 January 2015. 34. Quarantine and Biosecurity Review Panel, One biosecurity: a working partnership, (Beale Review), op. cit., accessed 27 February 2015. 35. Ibid., pp. xxix and pp. xxxix, see especially recommendation 43. 36. Ibid., p. xxxii. 37. Council of Australian Governments (COAG), ‘Intergovernmental Agreement on Biosecurity’, COAG website, accessed 2 January 2015. 38. Details of the terms of reference, submissions to the Committee and the Committee’s final report are contained in the inquiry homepage,

accessed 13 April 2015. 39. Senate Rural and Regional Affairs and Transport Legislation Committee, Biosecurity Bill 2014 and related Bills, The Senate, Canberra, March 2015, p. viii, accessed 9 April 2015. 40. Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 2 of 2015, The Senate, Canberra, 4 March 2015, pp. 11-27, accessed

17 March 2015.

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• right to an adequate standard of living

• right to health

• right to enjoy and benefit from culture and

• rights of persons with disabilities.41

The Human Rights Committee opined that ‘the Bills have been drafted in a manner which is consistent with Australia's human rights obligations and that limitations on rights have been well considered with appropriate safeguards’.42 Whilst the Human Rights Committee had raised concern about certain provisions in the 2012 Bill, it was satisfied that the relevant provisions of this Bill ‘have been appropriately and sufficiently justified in the statement of compatibility for the Bill’.43 That being the case, whilst the ‘Bills limit multiple rights, the limitation on rights imposed by the Bills are justified and compatible with Australia's human rights obligations’.44

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.45 Whilst the Bill engages a number of human rights, the Government considers that the Bill is compatible with those rights, ‘because it advances the protection of human rights and to the extent that it may operate to limit these rights, the limitations are reasonable, necessary and proportionate to achieve legitimate objectives’.46

Policy position of non-government parties/independents Comments made by government and non-government members of the House of Representatives during the second reading debates of 9 February 2015 indicate that there is generally bipartisan support for the suite of Bills.47

However, it should be noted that the Labor members of the Senate Rural and Regional Affairs Committee provided a dissenting report, which sets out their concerns in relation to:

• clause 567 of the Bill which ‘provides the Agriculture Minister with review powers that will allow him to conduct reviews into the biosecurity system to identify opportunities for improvements in the assessment and management of biosecurity risks’ and

• clause 643 of the Bill which ‘allows the Agriculture Minister to delegate any or all of his, or her, powers and functions under the Act (and any regulations made under the Act) to the Director of Biosecurity, an SES employee, or acting SES employee in the Agriculture Department, except for those relating to the Minister’.48

Arising from those concerns, the Labor Senators recommended that ‘the Senate either amend the Bill or request the House of Representatives to amend the Bill to provide for establishment of the Inspector-General of Biosecurity as a statutory body’.49

The Greens members of the Senate Rural and Regional Affairs Committee made additional comments and recommendations. Like the Labor Senators, they preferred that ‘the Inspector-General be a statutory position’.50 Further, the Greens recommended, amongst other things:

41. Parliamentary Joint Committee on Human Rights, Eighteenth report of the 44th Parliament, The Senate, Canberra, 10 February 2015, pp. 31-33, accessed 23 February 2015. 42. Ibid., p. 33. 43. Ibid.

44. Ibid.

45. The Statement of Compatibility with Human Rights can be found at pages 19-56 of the Explanatory Memorandum to the Bill. 46. Ibid., p. 56. 47. ‘Second reading speeches: Biosecurity Bill 2014, Biosecurity (Consequential Amendment and Transitional Provisions) Bill 2014, Quarantine Charges (Imposition—General) Amendment Bill 2014, Quarantine Charges (Imposition—Customs) Amendment Bill 2014 and Quarantine

Charges (Imposition—Excise) Amendment Bill 2014’, House of Representatives, Debates, 9 February 2015, pp. 61-96, accessed 11 February 2015. 48. Senate Rural and Regional Affairs and Transport Legislation Committee, Biosecurity Bill 2014 and related Bills, op. cit., p. 45. 49. Ibid., p. 46.

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• a separate Biosecurity Agency, with a Director that is separate from the Department of Agriculture Secretary be created51

• regulations be provided to the committee and industry stakeholders for review before the Bill is passed52

• the consultative arrangements such as the Eminent Scientist Group be established in the legislation53

• the Bill be amended to include reference to the precautionary principle (see discussion below)54 and

• the Bill be amended to require that regional variations both on land and in the marine environment be considered in Biosecurity Import Risk Analyses.55

Position of major interest groups The submissions of many of the stakeholders related to single issues in the Bill rather than the whole of the Bill. That being the case, the comments of major interest groups are canvassed under the relevant chapter headings below.

Financial implications According to the Explanatory Memorandum, there will be no significant direct or indirect financial impact on the Commonwealth arising from the introduction of the Bill.56

Key issue—Inspector-General of Biosecurity The Beale Review recommended integration of the Commonwealth’s biosecurity activities in a dedicated statutory agency—the National Biosecurity Authority—which would:

… provide the necessary coordination and focus on managing biosecurity risks. An independent expert-based panel—the National Biosecurity Commission—should make science-based Biosecurity Import Policy Determinations independent from political intervention. 57

The Inspector-General of Biosecurity Bill 2012 (Inspector-General Bill) was the legislative response to recommendations of the Beale Review which related to the need for independence in the analysis of biosecurity import risk.58 The Inspector-General Bill, introduced into the House of Representatives in November 2012, established the statutory position of Inspector-General of Biosecurity. The Inspector-General was to review the performance of functions, and the exercise of powers, by the Director of Biosecurity and certain officers appointed in accordance with the then proposed Biosecurity Act 2012 and to undertake reviews of the process of conducting a Biosecurity Import Risk Analysis—generally and in relation to a particular Biosecurity Import Risk Analysis.59

Prior to the introduction of the legislation, the former Labor Government appointed an Interim Inspector-General with effect from 1 July 2009.60 The appointment continued despite the fact that the Inspector-General Bill lapsed when the 43rd Parliament was prorogued.61

50. Ibid., p. 49. 51. Ibid.

52. Ibid., p. 50. 53. Ibid., p. 51. 54. Ibid., p. 54. 55. Ibid., p. 55. 56. Explanatory Memorandum, Biosecurity Bill 2014, p. 18, accessed 2 January 2015. 57. Quarantine and Biosecurity Review Panel, One biosecurity: a working partnership, (Beale Review), op. cit., p. x, accessed 25 February 2015. 58. Parliament of Australia, ‘Inspector-General of Biosecurity Bill 2012 [2013] homepage’, Australian Parliament website, accessed 25 February

2015.

59. P Pyburne, Inspector-General of Biosecurity Bill 2012, Bills digest, 60, 2012-13, Parliamentary Library, Canberra, 2013, accessed 25 February 2015. 60. T Bourke (Minister for Agriculture, Fisheries and Forestry), Progress continues on reforms to strengthen Australia’s biosecurity, media release, 23 September 2009, accessed 25 February 2015. 61. Inspector-General of Biosecurity (IGB), ‘Background information’, IGB website, accessed 25 February 2015.

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As already stated, Labor and the Greens have significant concerns about the absence of a statutory position of Inspector-General. Members of either or both of those parties may seek to address their concerns through an amendment to the Bill before it is passed by the Senate. The Bill, as introduced, does not make specific reference to the Inspector-General. According to the Leader of the Opposition, Mr Shorten, ‘they’re cutting the Inspector-General of Biosecurity’.62 However, the Minister for Agriculture, Mr Joyce, states that the Government has confirmed that the Inspector-General of Biosecurity will continue to be independent of the Department of Agriculture and report directly to the Minister for Agriculture.63

In any case, the role of the Inspector-General as it currently stands falls far short of the Beale Review’s recommendations and there is no adequate safeguard that the BIRA process will be carried out with the degree of independence which the Beale Review envisaged.

Key issue—offences and civil penalties The Bill contains a number of criminal offences and civil penalty provisions.

The maximum penalty for committing an offence under the Bill is ten years imprisonment and/or 2,000 penalty units ($340,000).64 Many offences carry a maximum penalty of five years imprisonment and/or 300 penalty units ($51,000).65 Some offences are only punishable by a monetary penalty, rather than by imprisonment.66

The maximum penalty for contravening a civil penalty provision under the Bill is 120 penalty units ($20,400).67

There are also numerous provisions which allow for either criminal or civil penalties in respect of the same conduct.68

Providing criminal and civil penalties allows flexibility to respond to contraventions of an Act, with penalties proportionate to the seriousness of the conduct. A criminal offence must be proved ‘beyond reasonable doubt’ and usually results in a criminal record, whereas contravention of a civil penalty provision is proved on the ‘balance of probabilities’ and does not result in a criminal conviction.

Fault-based offences Chapter 2 of the Criminal Code Act 1995 (Criminal Code)69 sets out the principles of criminal responsibility that apply to Commonwealth offences. Offences are made up of physical elements70 and fault elements.71

A physical element of an offence may be conduct, a result of conduct, or a circumstance in which conduct (or a result of conduct) occurs.72 In this context ‘conduct’ includes an omission to act. The fault elements of an offence relate to a defendant’s state of mind at the time the physical elements occurred. The Criminal Code defines four fault elements-intention, knowledge, recklessness and negligence-but does not exclude the use of others. It also provides that if an offence does not specify a fault element for a particular physical element, the fault element of intention applies to a physical element that is conduct and that of recklessness applies to a physical element of a circumstance or result.73 For example clause 38 of the Bill empowers a biosecurity officer, human biosecurity officer or chief human biosecurity officer to give a direction to an accompanying person in specified circumstances. The accompanying person who is given the direction under clause 38, must comply with the direction.

62. B Shorten (Leader of the Opposition), Transcript of doorstop interview, media release, Sydney, 20 February 2015, accessed 25 February 2015. 63. B Joyce (Minister for Agriculture), Shorten wrong on Inspector General [sic] of Biosecurity, media release, [19 February 2015], accessed 25 February 2015. 64. This is the maximum penalty on conviction for bringing or importing prohibited or suspended goods into Australian territory to obtain

commercial advantage under subclause 185(4) of the Bill. It is also the maximum penalty for bringing or importing conditionally non-prohibited goods otherwise than in accordance with requirements under subclause 186(4) of the Bill. Section 4AA of the Crimes Act 1914 provides that a penalty unit is equivalent to $170. 65. See, for example: clauses 38(4), 107, 148 and 327 of the Bill. 66. See, for example: clauses 508, 517 and 612 of the Bill. 67. See, for example: clauses 47, 100, 120, 201, 319, 421, 555 and 606 of the Bill. 68. See, for example: clauses 120, 185, 216, 267, 351, 375, 403 and 440 of the Bill. 69. Criminal Code Act 1995, accessed 15 April 2015. 70. Criminal Code, section 3.1. 71. Criminal Code, section 5.1. 72. Criminal Code, section 4.1. 73. Criminal Code, section 5.6.

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Subclause 38(4) sets out the elements of the offence being first, that the person is an accompanying person, second, that the person is given a direction under this section and finally that the person fails to comply with the direction.

It is for the prosecution to prove, beyond a reasonable doubt, each of those physical elements and, because clause 38 does not specify particular fault elements, the default fault elements that apply to each physical element by virtue of the Criminal Code.

Strict liability offences The Criminal Code also provides for strict or absolute liability to be applied to one or more physical elements of an offence, in which case no fault element applies.74 A strict liability offence is one where strict liability is applied to all physical elements of the offence. This Bill contains a number of strict liability offences. While such an offence negates the requirement to prove fault, defences, including a defence of mistake of fact, are available for strict liability offences.75 This means that the offence will not criminalise honest errors and a person cannot be held liable if he, or she, had an honest and reasonable belief that they were complying with relevant obligations.

Where an offence is one of strict liability then the relevant provision in the Bill states that explicitly.

Criminal penalties The Bill expresses the amount of a criminal penalty as either a term of imprisonment or as an amount of penalty units or both. These amounts are maximum amounts and allow the courts to take into account both the degree of malfeasance and the nature of the wrongdoing involved.76

Importantly in setting the criminal penalties in any Commonwealth statute, regard is had to the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers which is published by the Attorney-General’s Department.77 The use of the Guide provides for a consistent approach to the setting of penalties across Commonwealth legislation and avoids the subjective use of penalties.

The Guide provides that a maximum penalty of 60 penalty units ($10,200) would generally be appropriate for offences of strict liability.78 However, there are a number of strict liability offences in the Bill where the maximum penalty exceeds this amount.79 Indeed, one offence of strict liability has a maximum penalty of 2,000 penalty units ($340,000)80 and a number have maximum penalties of 500 penalty units ($85,000).81 The Explanatory Memorandum states:

It is acknowledged that the penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. It should be noted that the offence and level of penalty are consistent with the offence in subsection 27A(5) of the Protection of the Sea (Prevention of Pollution from Ships) Act. These provisions are consistent with the Australian Government‘s international obligations to protect the marine environment.

A court would still be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. 82

74. Criminal Code, Division 6 of Part 2.2. 75. Criminal Code, section 6.1. 76. Crimes Act 1914, section 4D. 77. Attorney-General’s Department, Guide to framing Commonwealth offences, infringement notices and enforcement powers, Canberra, 2011,

accessed 23 February 2015. 78. Ibid., p. 23. 79. See, for example clause 301 (80 penalty units); clauses 292-294 (200 penalty units); clauses 270, 284 and 298 (500 penalty units); and

clause 305 (2,000 penalty units). 80. Clause 305 of the Bill. 81. Clauses 270, 284 and 298 of the Bill. 82. Explanatory Memorandum, Biosecurity Bill 2014, p. 217, accessed 23 February 2015.

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Comments The Bill regulates conduct in relation to the biosecurity of Australia. A person who does not comply with the regulatory regime contained in the Bill will be liable to face sanctions, which may or may not be criminal. Concerns by stakeholders are canvassed in relation to individual clauses below.

Chapter 1—preliminary Quick guide to Chapter 1

 Most of the provisions of Chapter 1 of the principal Bill are equivalent to those in Chapter 1 of the 2012 Bill. The main differences are that some definitions have been clarified; and references to the Regulatory Powers Act, which had not been enacted when the 2012 Bill was introduced, have been inserted.

 Chapter 1 sets out relevant definitions and the constitutional basis for the principal Bill.

 Chapter 1 also contains the first reference to the principles to be applied in deciding to exercise certain powers.

Clauses 1-30 of the principal Bill contain preliminary matters including the objects of the Biosecurity Act, relevant definitions and the constitutional basis for the Bill.

Key issue—constitutional reach The Quarantine Act is based on section 51(ix) of the Commonwealth of Australia Constitution Act (the Constitution)83 which gives the Commonwealth the express power to make laws with respect to quarantine.

‘Quarantine’ was originally the term of forty days, during which a ship arriving in port, and suspected of being infected with a malignant contagious disease, was required to remain isolated and was forbidden all intercourse with the shore. Hence it came to mean restraint or inhibition of intercourse; also the place where the infected or prohibited vessels were stationed. With the expansion of sanitary science and legislation, quarantine has acquired a much wider signification that that which it first possessed. It is now comprehensive enough to cover any forced stoppage of travel, or of transit, or of communication, as well as compulsion to remain at a distance, or in a given place, without intercourse, on account of any malignant, contagious, or dangerous disease on land as well as by sea.

84

There has been little judicial interpretation of the scope of the power. However, the Beale Review suggested that, given Australia’s biosecurity risks, international trade interests and treaty obligations, the new Biosecurity Act should draw ‘on the full range of the Commonwealth's Constitutional powers’.85

As such, clause 24 provides that the principal Bill is based on ten separate constitutional powers which are severable from one another. This is consistent with the views of the Beale Review which stated:

The Commonwealth unquestionably has Constitutional powers that allow for a much broader legislative base than currently exists for biosecurity matters … the Commonwealth could extend its reach well into the post-border elements of the continuum almost to the point of managing the entire biosecurity continuum. 86

The inclusion of the definition of ‘Appropriate Level of Protection’ or ALOP87 is consistent with the external affairs power of the Constitution which allows the Commonwealth to enact legislation to ensure Australia’s compliance with its international treaty obligations.

Similarly, clause 9 of the principal Bill inserts definitions of the Ballast Water Convention,88 International Health Regulations89 and United Nations Convention on the Law of the Sea,90 which reflect the terms of each of those

83. Commonwealth of Australia Constitution Act, accessed 2 January 2015. 84. R Garran, Commentaries on the Constitution of the Commonwealth of Australia, University of Sydney Library website, paragraph 172, accessed 2 January 2015. 85. Beale Review, op. cit., p. xxix. 86. Beale Review, op. cit., p. 18. 87. Biosecurity Bill, clauses 5 and 9.

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international agreements as they are in force in Australia, from time to time. Each of these agreements enlivens the external affairs power of the Constitution which is used in combination with other constitutional powers in relevant chapters of the Bill.

Key issue—decision making principles Subclause 32(1) of the Bill contains a table setting out those provisions to which the decision making principles apply. Subclause 32(2) requires that before a biosecurity official makes one of those decisions he, or she, must be satisfied of all of the following:

• 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.

Exceptions to the application of these broad principles are set out under the relevant chapter headings below.

Chapter 2—managing biosecurity risks: human health Quick guide to Chapter 2

 Most of the provisions of Chapter 2 of the principal Bill are equivalent to those in Chapter 2 of the 2012 Bill. The main difference is the inclusion of a power to make regulations prescribing measures to be taken to destroy disease agents on incoming or outgoing aircrafts and vessels.

 Chapter 2 provides for a range of prevention activities to take place along the biosecurity continuum in relation to listed human diseases. Those prevention activities are intended to be a proportionate response to the risk to human health of a listed human disease. A failure to comply with specified biosecurity measures gives rise to criminal and/or civil penalties.

 The prevention activities are supported by information gathering powers.

 Chapter 2 also includes a range of protections for those persons in relation to whom the powers in the chapter are exercised.

The provisions of Chapter 2 operate as follows.

Listed human disease First, clause 42 of the Bill empowers the Director of Human Biosecurity (who, under clause 544 of the Bill, is the Commonwealth Chief Medical Officer) to determine, in writing, that a human disease is a listed human disease if the Director considers that the disease may be communicable and cause significant harm to human health.91

According to the Chief Medical Officer of the Department of Health and Ageing, ‘there are five listed diseases including yellow fever, viral haemorrhagic fevers, influenza with pandemic potential, smallpox and SARS’.92

88. International Convention for the Control and Management of Ships’ Ballast Water and Sediments, done at London on 13 February 2004, [2005] ATNIF 18, (not yet in force), accessed 2 January 2015. 89. International Health Regulations (2005), done in Geneva on 23 May 2005, [2007] ATS 29, (entered into force 15 June 2007), accessed 2 January 2015. 90. United Nations Convention on the Law of the Sea, done in Montego Bay on 10 December 1982, [1994] ATS 31 (entered into force

16 November 1994). 91. Subclause 544(1) of the Bill provides that the Director of Human Biosecurity is the person who occupies the position of Commonwealth Chief Medical Officer.

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Chapter 2 (clauses 33-116) of the Bill sets out the matters to be taken into account in identifying, and the measures which may be used to prevent and respond to the threat of, listed human diseases. The provisions in Chapter 2 of the principal Bill relate to matters which are clearly identifiable as quarantine matters. These powers may be exercised pre-border, at the border and post-border.

Overarching principle Second, the overarching principle of Chapter 2 is that decisions to exercise a power under the chapter are made in order to manage the risk of contagion of a listed human disease or of a listed human disease entering, emerging, establishing itself, or spreading in all or a part of Australian territory.93 To that end, subclause 34(2) of the Bill sets out the principles about which a person making a decision under Chapter 2 must be satisfied, including that:

• exercising the power is likely to be effective in, or to contribute to, managing the risk and is appropriate and adapted to manage the risk

• the circumstances are sufficiently serious to justify exercising the power

• the power is no more restrictive or intrusive than is required in the circumstances

• 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 during a period—that the period is only as long as is necessary.

Three grades of prevention activities Third, Chapter 2 contains three grades of prevention activities. They are applied having regard to the overarching principle which is set out above and are intended to be proportionate to the seriousness of the risk of contagion of a listed human disease.

Preventing risks to human health

Pre-border In order to prevent a listed human disease from entering, or establishing itself or spreading in Australia, clause 44 of the Bill authorises the Health Minister to determine one or more requirements for individuals who are entering Australian territory at a landing place94 or port.95 Similarly, under clause 45 the Health Minister may determine one or more requirements for individuals who are leaving Australian territory or for operators of outgoing passenger aircraft or vessels96—to prevent a listed human disease from spreading to another country.

In either case, clauses 44 and 45 respectively set out the kinds of determinations that may be specified (for example, whether the determination applies to all individuals, or to classes of individuals)97 as well as certain requirements (for example, the requirement that an individual provide a declaration or evidence that he or she has received a specified vaccination).98 Determinations by the Health Minister are legislative instruments.

92. Dr Baggoley (Chief Medical Officer, Department of Health and Ageing), Evidence to the Rural and Regional Affairs and Transport Legislation Committee, Inquiry into the Biosecurity Bill 2012 [2013] and Inspector-General of Biosecurity Bill 2012 [2013], 8 February 2013, p. 15, accessed 2 January 2015.

93. Under clause 12 of the Bill a reference to Australian territory in the Biosecurity Act means Australia, Christmas Island, Cocos (Keeling) Islands and any external territory to which that provision extends (and the airspace over it), the coastal sea of Australia, of Christmas Island, of Cocos (Keeling) Islands and of any other external territory to which that provision extends. The definition of coastal sea of Australia or an external territory in subsection 15B(4) of the Acts Interpretation Act 1901 includes the airspace over Australia or the external territory.

94. Clause 9 defines a landing place in relation to an aircraft as any place where the aircraft can land including an area of land or water; and an area on a building or a vessel. 95. Clause 9 provides that a port includes a harbour. 96. Clause 9 defines the term outgoing passenger aircraft or vessel as an outgoing aircraft or vessel that is a passenger aircraft or a passenger

vessel.

97. Subclauses 44(5) and 45(5) respectively of the Bill. 98. Subclauses 44(6) and 45(6) respectively of the Bill.

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However, they are specifically excluded from the application of section 42 of the Legislative Instruments Act 2003 and so are not disallowable.99

Civil penalties apply where individuals or operators of outgoing passenger aircraft or vessels fail to comply with the relevant entry100 and exit requirements. The amount of the civil penalty is 30 penalty units.101

At the border Clause 48 prohibits an operator of an incoming aircraft or vessel that arrives at a landing place or port in Australian territory from allowing any thing to be unloaded from, or loaded onto, the aircraft or vessel; or any person from disembarking from, or embarking onto, the aircraft or vessel—unless pratique has been granted in relation to the aircraft or vessel.102 ‘Pratique’ is the licence to have dealings with a port which is granted to ships after quarantine, or on showing a clean bill of health.103 According to subclause 48(2) of the Bill pratique is granted (automatically) at the time the aircraft or vessel arrives at a landing place or port in Australian territory—unless it is one of a class of incoming aircraft or vessels that have been specified by the Director of Human Biosecurity as requiring pratique to be granted by a biosecurity officer.104

Post-border Clause 51 of the Bill adds to this suite of preventive powers by allowing the Health Minister, in consultation with the Director of Biosecurity and the Minister of each state and territory with responsibility for human health, to make determinations that one or more of the following biosecurity measures105 be taken by specified classes of persons in relation to the listed human disease:

• banning or restricting a behaviour or practice

• requiring a behaviour or practice

• requiring a specified person to provide a specified report or keep specified records

• conducting specified tests on specified goods.

The determination must specify the period for which it is in force which must not be more than one year.106

This clause allows the Commonwealth, in a domestic context, to prescribe biosecurity measures to respond to an outbreak of a disease or the reasonable belief that there is likely to be an outbreak of a disease as a result of a specified behaviour, practice or process. The measures that may be imposed under this clause—including banning or restricting a behaviour or practice may impose significant limits on important personal rights and liberties. However, the provision is justified on the ground that it provides for temporary management of a human biosecurity risk within a state or territory, ‘until the state or territory is able to create clauses within their own legislation to manage the risk in the long term’.107

Civil penalties apply where a person does not comply with a biosecurity measure.108 The amount of the civil penalty is 120 penalty units.109

Human biosecurity control orders Clauses 60-66 allow for a human biosecurity order110 to be imposed on an individual only in one of the three following circumstances:

99. Subclauses 44(3) and 45(3) respectively of the Bill. See also Legislative Instruments Act 2003, accessed 24 February 2015. 100. Note also that subclauses 60(2) and (3) of the Bill provide that an individual who fails to comply with an entry requirement may also be the subject of a human biosecurity control order. 101. Section 4AA of the Crimes Act 1914 provides that a penalty unit is equivalent to $170. This means that the maximum penalty is $5,100. 102. Department of Agriculture, ‘Vessel pratique’, Department of Agriculture website, accessed 18 March 2015. 103. Macquarie dictionary, fifth edn, Macquarie Dictionary Publishers, Sydney, 2009, p. 1306. 104. Clause 49 sets out the circumstances in which negative pratique operates. 105. Clause 9 provides that biosecurity measures are measures to manage biosecurity risks; the risk of contagion of a listed human disease; the

risk of listed human diseases entering Australian territory or a part of Australian territory or emerging, establishing themselves or spreading in Australian territory or a part of Australian territory; and biosecurity emergencies and human biosecurity emergencies. 106. Subclause 51(6) of the Bill. 107. Explanatory Memorandum, Biosecurity Bill 2014, p. 103. 108. Clause 52 of the Bill. 109. This means that the maximum penalty is equivalent to $20,400.

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• where an individual has one or more signs or symptoms of a listed human disease

• where the individual has been exposed to a listed human disease or someone who shows signs or symptoms of the disease or

• where an individual has failed to comply with an entry requirement in relation to a listed human disease.111

A human biosecurity control order must contain the information set out in clause 61, in particular, information about the listed disease,112 each biosecurity measure with which the person must comply,113 the duration of the order (which must not be more than three months),114 rights of review115 and the contact details of a chief human biosecurity officer who can be contacted for information about the order.116 The Bill provides for varying or revoking a human biosecurity control order.117 A person who fails to comply with a human biosecurity control order commits an offence.118 The penalty for the offence is imprisonment for five years or 300 penalty units, or both.119

In addition, clause 68 provides that an officer who intends to impose a human biosecurity control order on an individual may require the person to remain, for a period of no more than six hours, at the place where he, or she, was when the officer became satisfied that a human biosecurity control order should be imposed on the individual.120

Review of human biosecurity control order Clauses 85-101 of the Bill set out the types of biosecurity measures that may be included in a human biosecurity control order such as restricting behaviour,121 decontamination,122 requiring body samples for diagnosis,123 receiving a vaccination or treatment124 and ordering a person to remain isolated in a specified medical facility.125

A person may consent to a biosecurity measure that is included in a human biosecurity control order in relation to him or her.126

However, where the person does not consent, the Bill operates as follows:

• the Director of Human Biosecurity may be requested to give a direction for the person to comply127

• in that case the Director of Human Biosecurity must, within 72 hours, review both the diagnosis (if any) of the

listed human disease specified in the human biosecurity control order and the nature of the biosecurity measure, taking into account the reasons that the person gives for refusing his or her consent to the measure and any other relevant matters128

• having conducted that review, the Director of Human Biosecurity may give a direction for the person to

comply with a biosecurity measure only if the Director is satisfied, on reasonable grounds, that the

110. Subclause 60(1) provides that a chief human biosecurity officer, a human biosecurity officer or a biosecurity officer may impose a human biosecurity order on an individual. 111. Subclause 60(2) of the Bill. 112. Paragraphs 61(1)(b) and (c) of the Bill. 113. Paragraph 61(1)(f) of the Bill. 114. Paragraph 61(1)(h) of the Bill. 115. Subparagraph 61(1)(i)(iii) of the Bill. 116. Paragraph 61(1)(j) of the Bill. 117. Clauses 64 and 66 of the Bill respectively. 118. Clause 107 of the Bill. 119. This means that the maximum pecuniary penalty is equivalent to $51,000. 120. Note that a non-Australian citizen who is required to remain at a place is entitled to consular assistance under clause 102 of the Bill. 121. Clause 87 of the Bill. 122. Clause 89 of the Bill. 123. Clause 91 of the Bill 124. Clause 92 of the Bill. 125. Clause 97 of the Bill. 126. Subclause 71(2) of the Bill. 127. Subclause 71(3) of the Bill. 128. Clause 72 sets out different ways of calculating the 72 hours period depending on the nature of the biosecurity measure to be imposed.

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biosecurity measure contributes to reducing the risk of contagion of the listed human disease or the entry, emergency, establishment or spread of the listed human disease in Australian territory or a part of Australian territory.129

A person who is directed to comply with an isolation measure (clause 97) or a traveller movement measure (clause 96) under a biosecurity control order has a right to apply to the Administrative Appeals Tribunal (AAT) for review of the decision.130 Where the Director of Human Biosecurity gives a direction in relation to isolation measures, he, or she, must advise the person of their rights of review by the AAT and ensure that the person has reasonable access to facilities to do so.131

In that case, some of the provisions of the Administrative Appeals Tribunal Act 1975 are modified by the operation of the Biosecurity Act.132 That is:

• the application must be made within seven business days after the day the decision is made by the Director

of Human Biosecurity to issue a direction for the person to comply with the human biosecurity control order133

• section 28 (obtaining reasons for the decision) and subsections 37(1)-(1D) of the Administrative Appeals

Tribunal Act (about lodging documents) do not apply.134 Instead, the Director of Human Biosecurity must lodge the relevant documents with the AAT within two days

• the AAT must make a decision on the review within seven days after receiving the application 135

• if the AAT does not make a decision within the relevant time frame, it is taken to have affirmed the decision

under review.136

Decisions made under Chapter 2 may also be reviewed under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act).137

Human health response zones Clause 113 of the Bill allows the Director of Human Biosecurity to determine that a specified area within a state or territory is a human health response zone if he, or she, is satisfied that it is necessary to do so for the purposes of preventing, or reducing the risk of a listed human disease emerging, establishing itself or spreading in Australian territory or a part of Australian territory. According to subclause 113(2) a specified area may consist of the whole or a part of a specified building. The determination:

• must specify either any requirements for individuals who are entering or leaving the zone or whether specified classes of individuals must not enter the zone, or both138

• must not be in force for more than three months139—although the Director of Human Biosecurity may make a subsequent determination specifying the same area that was covered by the earlier determination140

• is a legislative instrument but is not subject to the disallowance provisions of the Legislative Instruments Act.141

129. Subclause 72(4) of the Bill. 130. Clause 76 of the Bill. 131. Clause 75 of the Bill. 132. Administrative Appeals Tribunal Act 1975, accessed 24 February 2015. 133. Subclause 76(2) of the Bill. 134. Subclause 77(1) of the Bill. 135. Clause 78 of the Bill. The AAT may extend the period for making a decision if it considers that would be reasonable in all the circumstances,

but may only do so once. 136. Subclause 78(4) of the Bill. 137. Administrative Decisions (Judicial Review) Act 1977, accessed 24 February 2015. However, note under clause 80 that an application must be

made within seven business days from the day the decision is made, unless the court allows a longer period. 138. Paragraph 113(3)(b) of the Bill. 139. Paragraph 113(3)(c) of the Bill. 140. Subclause 113(6) of the Bill. 141. Subclause 113(7) of the Bill.

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A person must comply with a requirement in a determination in respect of a human health response zone. The maximum penalty for failure to comply is 30 penalty units.142

Information gathering powers Clauses 54-58 of the Bill contain information gathering powers.

Essentially they operate to empower the Director of Human Biosecurity, a chief human biosecurity officer, a human biosecurity officer, a biosecurity officer or (in the context of a person who has been detained under a provision of Chapter 2) a member or special member of the Australian Federal Police, a member of the police force of a state or territory or a protective services officer (within the meaning of the Australian Federal Police Act 1979)143 to require answers to questions or written information.

The questions asked, or the information requested, must be for the purpose of preventing a listed human disease from entering, or emerging, establishing itself or spreading in Australia, preventing such a disease from spreading to another country; or determining the level of risk to human health associated with the relevant individual.144

In those circumstances, clause 58 creates an offence of strict liability where a person fails to answer a question or provide the required information. The Scrutiny of Bills Committee was particularly critical of this clause because:

… it is possible that persons subject to requirements to answer questions may have recently arrived in Australia and may also be suffering from an illness, there may be instances where they are not reasonably able to comply with a request to answer questions or provide information as required. 145

However, the Government has justified the clause on the grounds that the information required:

… is vital to address public health risk, and it is essential that as much information is collected as quickly as possible. Ideally this would occur before exposed individuals have the opportunity to depart the airport and enter the community, and potentially spread the disease to family and friends.

Alternative powers, such as monitoring and investigation powers, or enforcement, are not appropriate as the information being sought must be collected as soon as possible, to allow the Commonwealth to develop a picture of the disease needing to be managed, and the number of individuals potentially infected and in need of intervention.

146

Protections Chapter 2 of the Bill contains general protections such that the imposition of a biosecurity measure must not interfere with any urgent or life threatening medical treatment for an individual.147 In addition there are specific protections for a child or incapable person. This term is defined in clause 9 of the Bill as:

• a person who is less than 18 years old or

• a person who is at least 18 years old and either is incapable (whether permanently or temporarily) of understanding the general nature and effect of, and purposes of carrying out, a biosecurity measure; or is incapable (whether permanently or temporarily) of indicating whether he or she consents or does not consent to a biosecurity measure.

Those protections come into effect when a child or incapable person is not accompanied by an accompanying person that is, their parent, guardian or next of kin or a person authorised by their parent, guardian or next of kin.148 In that case, a biosecurity officer, human biosecurity officer or chief human biosecurity officer must take

142. Clause 116 of the Bill. This means that the maximum penalty is equivalent to $5,100. 143. Australian Federal Police Act 1979, accessed 24 February 2015. 144. Subclause 56(2) of the Bill. 145. Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 2 of 2015, op. cit., p. 16. 146. Explanatory Memorandum, Biosecurity Bill 2014, p. 106. 147. Clause 35 of the Bill. 148. This is defined in clause 9 of the Bill.

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reasonable steps to contact a parent, guardian or next of kin of a child or incapable person before he or she is subject to a requirement under Chapter 2 of the principal Bill.149

However, if a biosecurity officer, human biosecurity officer of chief human biosecurity officer gives a direction to an accompanying person in relation to a child or incapable person, under Chapter 2, the accompanying person commits an offence if he or she fails to comply with the direction. In that case, the maximum penalty is imprisonment for five years or 300 penalty units, or both.150

Key issue—human rights The provisions of Chapter 2 of the Bill authorise serious encroachments on the rights of individuals through the use of human biosecurity control orders. The Human Rights Committee noted that the ‘human health provisions of the Bill, such as those relating to isolation and treatment, limit the right to freedom of movement and the right to privacy’.151 Nevertheless, the Human Rights Committee was satisfied that ‘the Bills have been drafted in a manner which is consistent with Australia's human rights obligations and that limitations on rights have been well considered with appropriate safeguards’.152

Chapter 3—managing biosecurity risks: goods Quick guide to Chapter 3

 The provisions of Chapter 3 of the principal Bill are substantially similar to those in Chapter 3 of the 2012 Bill.

 Chapter 3 provides for pre-border and at-border management of the biosecurity risk of goods.

 Pre-border, the Director of Biosecurity may conduct Biosecurity Import Risk Analyses (BIRAs) in relation to particular goods, or a particular class of goods which may be imported, or are proposed to be imported into an Australian territory in order to evaluate the level of biosecurity risk associated with those goods. The outcome of a BIRA may be that the goods, or class of goods, are prohibited from entry, are permitted into Australian territory with or without conditions, or are suspended from entry for a period.

 At the border, those goods that are permitted into Australia are subject to biosecurity control from the time that they are brought into Australian territory and unloaded at a landing place or port, until they are released. That being the case, there is a suite of powers available to a biosecurity officer should he, or she, determine that the level of biosecurity risk associated with goods under biosecurity control is unacceptable.

 Chapter 3 introduces a fit and proper person test and a related associates test, in the context of decisions by the Director of Biosecurity to grant a permit to import goods into Australian territory.

Chapter 3 (clauses 115-188) of the Bill provides for the assessment of the risk arising from the import, or proposed import, of goods into Australia and for biosecurity measures153 to be taken where the level of biosecurity risk associated with goods in Australia is considered to be unacceptable. For the purposes of the principal Bill, goods are defined to include an animal, a plant, a sample or specimen of a disease agent,154 a pest,155 mail and any other article, substance or thing (including, but not limited to, any kind of moveable property).156

149. Clause 37 of the Bill. 150. Clause 38 of the Bill. This means the maximum pecuniary penalty is equivalent to $51,000. 151. Parliamentary Joint Committee on Human Rights, Eighteenth report of the 44th Parliament, op. cit., p. 33. 152. Ibid. 153. The term biosecurity measures is defined in clause 9 of the Bill as being measures to manage any of the following: (a) biosecurity risks; (b) the

risk of contagion of a listed human disease; (c) the risk of listed human diseases entering Australian territory or part of Australian territory or emerging, establishing themselves or spreading in Australian territory or a part of Australian territory; (d) biosecurity emergencies and human biosecurity emergencies. 154. Under clause 9 of the Bill, a disease agent includes but is not limited to, a microorganism, an infectious agent and a parasite. 155. Under clause 9 of the Bill, pest means 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. 156. Clause 19 of the Bill. Note that the term goods does not include ballast water or human remains as these are covered elsewhere in the Bill.

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Biosecurity Import Risk Analyses—pre-border

Setting the appropriate level of protection Australia’s response to biosecurity issues is based upon the requirements of the World Trade Organisation Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement).157 The SPS Agreement requires countries to adopt the least trade restrictive quarantine barriers possible, but gives member countries the right to take sanitary and phytosanitary measures necessary to protect human, plant and animal life or health in their jurisdiction. Each Member country is entitled to set its appropriate level of protection (ALOP)158 as it sees fit, taking into account the full range of national interest considerations. However, the SPS Agreement requires that those measures are scientifically based, non-discriminatory and consistently applied.159

Stakeholder comment The submission by AUSVEG to the Rural and Regional Affairs Committee expresses concern that the appropriate level of protection has been prescribed in the Bill as reducing risk to a ‘very low level’.

We would ask why the level of protection needs to be prescribed in the legislation, especially when there is no formal definition as to what a “Very Low Level” means. In our opinion, this either requires clarification or deletion from the Bill. 160

According to the Beale Review:

… the Appropriate Level of Protection in principle balances the costs and benefits of travel, trade and consumer interests arising from the movement of people and goods with the risk to human health, businesses and the environment result from the introduction of pests and diseases. Inherent in the Appropriate Level of Protection concept are human health, economic, social, and environmental gains and losses.

… setting Australia’s Appropriate Level of Protection is quintessentially a Government responsibility. It is not primarily a technical or scientific matter. Rather, it is a matter of values, which involves considering and articulating the Australian community’s interests and thereby the national interest. 161

Consistent with the requirements of the SPS Agreement, the appropriate level of protection for Australia is defined in clause 5 of the Bill as ‘a high level of sanitary and phytosanitary protection aimed at reducing biosecurity risks to a very low level, but not to zero’.

The wording of clause 5 is equivalent to the definition which was developed following the Senate Rural and Regional Affairs and Transport Legislation Committee inquiry into the importation of salmon products, in June 2000.162

Conduct of the Biosecurity Import Risk Analysis A Biosecurity Import Risk Analysis (BIRA) is an evaluation of the level of biosecurity risk associated with particular goods, or a particular class of goods, that may be imported, or are proposed to be imported, into Australian territory. A BIRA may include, if necessary, the conditions that must be met to manage the level of biosecurity risk associated with the goods, or the class of goods, to a level that achieves the ALOP for Australia.163

157. World Trade Organisation (WTO), The WTO agreement on the application of sanitary and phytosanitary measures, WTO website, accessed 2 January 2015. 158. Ibid., Annex A of the SPS Agreement defines the concept of an ‘appropriate level of protection’. 159. Ibid., Article 2. 160. AUSVEG, Submission to the Rural and Regional Affairs and Transport Committee, Inquiry into the Biosecurity Bill 2014 and related bills,

16 January 2015, p. 3, accessed 24 February 2015. 161. R Beale (Chair), One Biosecurity: a working partnership, op. cit., p. 104. 162. Rural and Regional Affairs and Transport Legislation Committee, An appropriate level of protection? The importation of salmon products: a

case study of the administration of Australian quarantine and the impact of international trade arrangements, Senate, Canberra, June 2000, accessed 2 January 2015; see also R Beale (Chair), One biosecurity: a working partnership, op. cit., p. 86. 163. Clause 166 of the Bill.

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Clause 167 of the Bill empowers the Director of Biosecurity164 to conduct a BIRA in relation to particular goods or a particular class of goods. Under clause 169 of the Bill, a BIRA must be conducted in accordance with a process prescribed in the regulations and taking into account the contents of any relevant guidelines made by the Director of Biosecurity.

Prior use of risk estimation matrix The process of conducting import risk analyses has been a contentious one. Up until at least March 2014, a key feature of the process was the use of a risk estimation matrix which combined the likelihood and consequences of an event to obtain a risk assessment. Risk assessment is defined in Annex A of the SPS Agreement as ‘the evaluation of the likelihood of entry, establishment or spread of a pest or disease … and of the associated biological and economic consequences’.

The Beale Review commented that the matrix ‘appears to place significant emphasis on the national impact of the pest or disease’.165 The Beale Review provided the following example:

… if the probability of entry, establishment or spread and relative impact on unit production costs is the same for a pest that might affect a small industry as a large industry, the consequence for the large industry will, by definition, be higher than for the small industry, and so therefore will the overall risk estimate. Many domestic agricultural groups are unhappy with this approach because they claim the assessment process means their (smaller) industries receive less biosecurity protection.

166

Comments in a similar vein were also expressed to the Beale Review in regard to highly regionalised or specialised industries as follows:

In order to assess the level of impact of the establishment of a disease, Biosecurity Australia discounts the effects of diseases which impact on industries that are concentrated in one state only ... It is a direct consequence of this matrix that even a significant impact on a state-based industry sector would not register as significant on a national scale. Thus the wipe-out of the Australian salmonid farming sector based almost entirely in Tasmania, or the Southern Bluefin Tuna farming sector based almost entirely in South Australia, would not register as significant enough on a national scale to contravene Australia’s ALOP.

167

Under clause 168, the Agriculture Minister may direct the Director of Biosecurity (who, under clause 540 of the Bill is the Secretary of the Department of Agriculture) to carry out a BIRA in respect of particular goods, or a particular class of goods, but may not direct the conduct, findings or outcome of a BIRA. This is inconsistent with the recommendation of the Beale Review that the BIRA process be undertaken by an expert and independent National Biosecurity Commission.168

The direction of the Agriculture Minister must be in writing and must be tabled in each House of the Parliament no later than 15 sitting days after it is given.169 The process for conducting a BIRA must be in accordance with prescribed regulations and any guidelines made (and published) by the Director of Biosecurity.170

Over a number of years, the Senate Rural and Regional Affairs Committee has been critical of the import risk analysis process and in particular the use of the risk estimation matrix.171

More recently, in March 2014, the Rural and Regional Affairs Committee recommended, amongst other things, that the Department of Agriculture give thorough consideration to an independent report commissioned by that

164. Under clause 540 of the Bill, the Director Biosecurity is the Secretary of the Department of Agriculture. 165. R Beale (Chair), One biosecurity: a working partnership, op. cit., p. 97. 166. Ibid. 167. Ibid. 168. Ibid., p. xix-xx. 169. Clause 168 of the Bill. 170. Clause 169 of the Bill. 171. Rural and Regional Affairs and Transport Legislation Committee, An appropriate level of protection? The importation of salmon products: a

case study of the administration of Australian quarantine and the impact of international trade arrangements, op. cit., pp. 178-188; Rural and Regional Affairs and Transport References Committee, Effect on Australian pineapple growers of importing fresh pineapple from Malaysia; Effect on Australian ginger growers of importing fresh ginger from Fiji; Proposed importation of potatoes from New Zealand: final report, Senate, Canberra, 2014, accessed 8 January 2015.

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committee,172 as well as the underlying themes of all other recommendations contained in its report, in developing the new biosecurity regulations and guidelines.173 Accordingly, the Department of Agriculture has undertaken an examination of the import risk analysis process.174 However, at the time of writing this Bills Digest, the outcomes of this examination had not been published.

At present an import risk analysis is conducted in accordance with the terms of Part 6A of the Quarantine Regulations.175 This can be in either a standard176 or expanded format.177 However, it is not known whether this process will be replicated in any new regulations which are promulgated upon the commencement of the Biosecurity Act. As the Department has not provided any draft regulations and the guidelines for the import risk analysis process appear to be under examination, the final form and content of those documents is not known. Importantly, the guidelines are not legislative instruments and so will not be subject to the scrutiny of the Parliament—although they will be published on the Department of Agriculture’s website.178

Key issue—review rights The outcome of a BIRA is not a reviewable decision in accordance with clause 574 of the Bill. (See the discussion under Chapter 11 below.) This means that it is not open to review by the Administrative Appeals Tribunal. According to the Explanatory Memorandum:

Internal review and merits review are not available if a decision is not listed in the table or the regulations as a reviewable decision. However, this does not limit the rights of a person who is affected by a decision from seeking judicial review of the decision under the Administrative Decisions (Judicial Review) Act 1977 or common law principles.

179

Key issue—regional differences A number of submitters to the Rural and Regional Affairs Committee inquiry into the Bill argued that the BIRA process does not sufficiently recognise the disease risk posed by imported material into certain regions due to such factors as geographic isolation or existing pest and disease-free status.180 In that case it was suggested that ‘special quarantine measures’ should be applied. This would operate to prevent some products approved for import into Australia by way of a BIRA from being allowed into those regions to prevent a pest incursion.181

According to the joint submission from the Department of Agriculture and Department of Health:

Australia does not use the words “regional difference” in legislation because it is not a term defined in relevant international agreements or standards. The Biosecurity Bill 2014 uses the words “part of Australian territory” [in the definition of biosecurity risk] to enable consideration of “regional differences”. 182

This statement is consistent with the Explanatory Memorandum on this point.

The reference to a part of Australian territory allows for a biosecurity risk to be assessed for a specific area or region, as well as for Australia as a whole. This means that BIRAs can consider and recommend biosecurity

172. Rural and Regional Affairs and Transport Committee, ‘Review of DAFF’s matrix’, Committee website, accessed 9 January 2015. 173. Rural and Regional Affairs and Transport Committee, Effect on Australian pineapple growers of importing fresh pineapple from Malaysia; Effect on Australian ginger growers of importing fresh ginger from Fiji; Proposed importation of potatoes from New Zealand: final report, op. cit., p. 43.

174. Department of Agriculture, ‘Examination of the Import Risk Analysis Process’, Department of Agriculture website, accessed 9 January 2015. 175. Quarantine Regulations 2000, accessed 24 February 2015. 176. Quarantine Regulations 2000, subsection 69C(1). 177. Quarantine Regulations 2000, subsection 69C(2). 178. Subclauses 169(3) and (4) of the Bill. 179. Explanatory Memorandum, Biosecurity Bill 2014, p. 338. 180. Tasmanian Salmonid Growers Association Ltd, Submission to the Rural and Regional Affairs and Transport Committee, Inquiry into the

Biosecurity Bill 2014 and related Bills, January 2015, p. 3, accessed 21 January 2015. 181. Cherry Growers Australia Inc., Submission to the Rural and Regional Affairs and Transport Committee, Inquiry into the Biosecurity Bill 2014 and related Bills, 15 January 2015, p. 3, accessed 21 January 2015. 182. Department of Agriculture and Department of Health, Joint Submission to the Rural and Regional Affairs and Transport Committee, Inquiry

into the Biosecurity Bill 2014 and related Bills, January 2015, p. 15, accessed 21 January 2015.

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measures based on the level of biosecurity risk in a part of Australian territory. A note has been included in the Bill to clarify this. 183

The Rural and Regional Affairs Committee opined that:

… the BIRA process is a cornerstone of the Bill and it is important that the framework is fair, accurate and achieves the intended purposes. The committee is concerned that the BIRA process as it is currently articulated may be deficient in these respects. The committee seeks assurances from the department that BIRA reports released by the Director of Biosecurity are subject to review, that reasons for BIRAs will be given, and that there is recourse for stakeholders who disagree with a BIRA made under this Part. The committee also seeks assurances from the department that the regulations will require that reasons for a BIRA be provided to stakeholders, and that, where appropriate, expert scientific assistance will be sought.

184

Key issue—need for transparency and scientific basis A continuing theme in the submissions to the Committee inquiry into this Bill is that a BIRA should be conducted transparently and be based on science.185 Of concern to many submitters was that the BIRA process is yet to be unveiled by way of updated regulations and guidance materials.

The submission to the Committee by the Australian Chicken Meat Federation urges that:

… the transparency and scientific evidence based process as it is currently practiced is retained, including the important role of the Eminent Scientists Group, which reviews whether scientific and technical information and arguments are taken into account appropriately when the [B]IRA is being developed. 186

The joint submission by the Departments of Agriculture and Health stresses the ‘wealth of scientific expertise [within the Department of Agriculture] which is readily accessible to assist decision makers’.187 Whilst this statement goes some way to assure stakeholders of a commitment to science, it does not address the concern about transparency. That is, any decisions about the scientific basis for a BIRA will not be seen as sufficiently ‘arms-length’ from the Director of Biosecurity.

AUSVEG expressed dismay:

… that previous issues raised by stakeholders, including the lack of a fully independent avenue for review of IRA processes, and a need to strengthen analysis of scientific content in IRA reports, have not been addressed ... At this stage, all that can be noted is that the key attributes of the Biosecurity Import Risk Analysis (BIRA) process will be covered by regulation. We note that Chapter 3, Part 2 (Clauses 165-170) is extremely vague and provides little information regarding the circumstances under which a BIRA would be conducted, the BIRA process and methods of BIRA review … There also appears to be nothing in the Bill that will improve transparency, accountability and rigour, or reduce conflict of interest.

188

The Rural and Regional Affairs Committee noted that:

The Bill does not set out the process the Director of Biosecurity would have to follow when making a BIRA, other than to state that s/he must follow the process set out in the Regulations and any guidelines created by the Director of Biosecurity. The guidelines may provide matters to be taken into account when conducting a BIRA. Any such

183. Explanatory Memorandum, Biosecurity Bill 2014, p. 9. 184. Rural and Regional Affairs and Transport Legislation Committee, Biosecurity Bill 2014 and related Bills, op. cit., p. 25. 185. Tasmanian Salmonid Growers Association Ltd, Submission to the Rural and Regional Affairs and Transport Committee, Inquiry into the Biosecurity Bill 2014 and related Bills, January 2015, p. 5, accessed 21 January 2015.

186. Australian Chicken Meat Federation, Submission to the Rural and Regional Affairs and Transport Committee, Inquiry into the Biosecurity Bill 2014 and related Bills, 18 December 2014, p. 3, accessed 23 February 2015. 187. Department of Agriculture and Department of Health, Joint submission to the Rural and Regional Affairs and Transport Committee, Inquiry into the Biosecurity Bill 2014 and related Bills, January 2014 [sic], p. 10, accessed 25 February 2015. 188. AUSVEG, Submission to the Rural and Regional Affairs and Transport Committee, Inquiry into the Biosecurity Bill 2014 and related Bills,

16 January 2015, p. 4, accessed 23 February 2015.

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guidelines would need to be published on the Department of Agriculture's website, and would not be a legislative instrument. 189

To remedy this perceived defect the Greens members of the Rural and Regional Affairs Committee recommended that the ‘consultative arrangements such as the Eminent Scientist Group be established in the legislation itself’.190

Imposing biosecurity control Subclause 119(2) of the Bill provides that goods become subject to biosecurity control when the aircraft or vessel carrying the goods enters Australian territory. Goods remain subject to biosecurity control until they are released from biosecurity control.191

Operation of the Consequential Amendments Bill

Item 3 of Schedule 4 of the Consequential Amendments Bill applies where goods have been brought into Australian territory before the commencement day. In that case, the goods will be subject to biosecurity control for the purposes of the Biosecurity Act if:

 the goods had not been unloaded from the aircraft or vessel

 the goods were within the precincts of a landing place or port

 the goods were subject to quarantine and were at a place approved under subsection 46A(1) of the Quarantine Act

 the goods were subject to quarantine and were subject to the application of procedures in accordance with a compliance agreement under section 66B of the Quarantine Act

 the goods had been ordered, or were taken to have been ordered, into quarantine under the Quarantine Act

 the goods were in a quarantine station, or other quarantine or biosecurity facility, in accordance with a law of the Commonwealth or a state or territory relating to quarantine or biosecurity or

 the goods were under quarantine surveillance under section 52 of the Quarantine Act and

the goods had not been released from quarantine after the most recent time one of these actions had started to apply to the goods.

Clause 120 requires a person (who is to be prescribed by regulations) to provide a notice, in a manner and form also prescribed by regulations, setting out information about goods which are, or are intended to be, brought into Australian territory and unloaded at a landing place or port in Australian territory.192 Subclause 120(4) of the Bill provides that regulations may prescribe exceptions to the requirement to give such notice. The Scrutiny of Bills Committee expressed concern about this clause, noting that a failure to comply with the notice gives rise to a fault based offence, the maximum penalty for which is two years imprisonment or 120 penalty units.193 In addition, the Note to the subclause states that a defendant bears an evidential burden in relation to any prescribed exceptions. According to the Scrutiny of Bills Committee ‘it is difficult to assess the appropriateness of placing an evidential burden without more information about the nature of the exceptions’.194

Clause 121 of the Bill requires the person to give an additional or corrected notice to a biosecurity officer where the information on the first notice was incomplete or incorrect. In addition, a biosecurity officer is empowered by clause 122 to request information, answers to questions or documents in relation to goods that are the subject of a notice but have not yet become subject to biosecurity control.

189. Rural and Regional Affairs and Transport Legislation Committee, Biosecurity Bill 2014 and related Bills, op. cit., p. 21. 190. Greens Senators, Additional Comments, Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry into the Biosecurity Bill 2014 and related Bills, The Senate, Canberra, March 2015, p. 51, accessed 9 April 2015. 191. Subclause 119(3) and clause 162 of the Bill. 192. Allowing the requirements of the notice to be prescribed in regulations gives the Commonwealth more flexibility because the information

required may change over time, as the nature and levels of biosecurity risk changes. Explanatory Memorandum, Biosecurity Bill 2014, p. 127. 193. Standing Committee for the Scrutiny of Bills, Alert Digest No. 2 of 2015, op. cit., p. 20. 194. Ibid.

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Assessing the risk at the border Clauses 123-130 of the Bill set out the power of biosecurity officers who are charged with assessing the level of biosecurity risk at the border. These include, but are not limited to, requiring the goods to be secured,195 inspecting goods and taking samples,196 asking questions and requiring documents to be produced197 and issuing a biosecurity control notice to a person or affixing one to the goods.198 A failure to comply with directions or notices under these clauses gives rise to civil penalties of up to 120 penalty units.199

Taking action at the border Where a biosecurity officer suspects, on reasonable grounds, that the level of biosecurity risk of goods that are subject to biosecurity control is unacceptable he, or she, may take a number of actions. These include requiring that the goods are moved,200 treated201 or even destroyed.202 Importantly, any decision to require goods to be destroyed is to be made subject to the overarching principles which are set out in Chapter 1 (see above) and where the goods are high-value goods this cannot be done without the written approval of the Director of Biosecurity. Clause 9 of the Bill defines high-value goods as goods of a value that is greater than the amount prescribed by the regulations. As already stated, draft Biosecurity Regulations have not yet been circulated. The current Quarantine Regulations 2000 do not address the issue.203

Where a biosecurity officer requires a biosecurity measure to be taken in relation to goods under clauses 132- 137, he, or she, may direct the person in charge of the goods to carry out the biosecurity measure, carry it out him, or herself, or arrange for another person with appropriate qualifications or expertise to carry out the biosecurity measure.204 A person who fails to comply with a direction to take a biosecurity measure commits a fault based offence or may incur a civil penalty of up to 120 penalty units.205

Key issue—suspects on reasonable grounds The threshold test for a biosecurity officer to require a biosecurity measure to be taken is a suspicion on reasonable grounds that the biosecurity risk of the goods is unacceptable.206 In Queensland Bacon Pty Ltd, the High Court held that a ‘suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to a “slight opinion, but without sufficient evidence”’.207

Where a suspicion is to be based on ‘reasonable grounds’, although the notion imports an objective test, ‘reasonable involves a value, or normative, judgment’.208 This does not mean that an officer has a non-examinable discretion. Rather the decision is open to challenge only if the decision was one that could not properly have been made on the basis of the materials before him or her.209

Unloading goods Clauses 142-149 deal with unloading of goods at landing places or ports. The clauses allow a biosecurity officer to give directions about the unloading of goods210 and require compliance with those directions. Fault-based offences arise and civil penalties may be imposed where, for instance, a person:

195. Clause 124 of the Bill. 196. Clause 125 of the Bill. 197. Clauses 126 and 127 of the Bill. 198. Clause 129 of the Bill. 199. This means that the maximum amount of the penalty is $20,400. 200. Clause 132 of the Bill. 201. Clause 133 of the Bill. 202. Clause 136 of the Bill. 203. Although they do have a provision relating to low-value goods, which is goods not exceeding a value of $1000: Quarantine Regulations 2000,

regulation 51. 204. Clause 138 of the Bill. 205. Clause 140 of the Bill. The maximum penalty is equivalent to $20,400. 206. Clause 131 of the Bill. 207. Queensland Bacon Ltd v Rees (1966) 155 CLR 266, at 303; [1966] HCA 21, accessed 22 January 2015. 208. Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125, at 167. 209. Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 275-6; [1996] HCA 6, accessed 22 January 2015. 210. Clause 143 of the Bill.

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• fails to comply with a direction relating to the unloading of some or all of the goods from an aircraft or vessel211 or

• fails to comply with a direction requiring goods to be unloaded at a biosecurity entry point.212

Clauses 150-152 relate to unloading goods that are subject to biosecurity control from an aircraft or vessel which is displaying a prescribed quarantine signal213 and receiving or possessing such goods.214 Fault-based offences arise and civil penalties may be imposed in the event that a person does not comply with the requirements of these clauses.

Under clause 154 the Director of Biosecurity may, by legislative instrument declare that an act, omission or event in relation to goods that are subject to biosecurity control is a reportable biosecurity incident. In the event that a person215 becomes aware that a reportable incident has occurred, 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 failure to do so gives rise to a fault-based offence or civil penalty. 216

Classes of goods The Bill creates three classes of goods:

• prohibited goods—that is, goods that the Director of Biosecurity and the Director of Human Biosecurity have determined must not be brought or imported into Australian territory. The determination is made only if each Director is satisfied that the level of biosecurity risk associated with the goods is unacceptable and biosecurity measures would not be able to be taken to reduce that level of biosecurity risk to an acceptable level217

• conditionally non-prohibited goods—that is, goods that may only be brought or imported into Australian territory if certain specified conditions are complied with.218 The Director of Biosecurity may require that a security be given in relation to the goods219 and

• suspended goods—that is, goods that the Director of Biosecurity has determined may not be brought or imported into Australian territory for a specified period which is not longer than six months. (The determination may be varied to extend the period for a further six months, and extensions of the period may be made more than once.) The Director of Biosecurity may make such a determination if he or she is satisfied that the level of biosecurity risk associated with the goods is unacceptable.220

Where prohibited goods or suspended goods are brought or imported into Australian territory, the goods may be forfeited to the Commonwealth. Similarly, where conditionally non-prohibited goods are brought or imported into Australian territory, and a condition applying to the goods has not been complied with, they may be forfeited to the Commonwealth.221

Permits Under clause 177 a person may apply to the Director of Biosecurity for a permit authorising the person to bring or import particular goods into Australian territory. (The relevant goods are conditionally non-prohibited goods that the Director of Biosecurity and the Director of Human Biosecurity have determined may only be brought or imported into Australian territory if a permit is granted).222

211. Clauses 143-146 of the Bill. 212. Clause 13 of the Bill defines the biosecurity entry point for an aircraft, a vessel and for goods for the purpose of the Biosecurity Act. 213. Subclause 221(2) of the Bill provides that regulations must prescribe the quarantine signal, the circumstances and the manner in which the quarantine signal must be displayed.

214. Clauses 151-152 of the Bill. 215. That is, a person who is in charge of the goods, or in charge of an aircraft or vessel on which the goods are on board. 216. Clauses 155 and 156 of the Bill. 217. Clause 173 of the Bill. 218. Clause 174 of the Bill. Clauses 176-181 of the Bill set out how a person may apply for a permit (I the event that one is required) and the

conditions under which a permit may be granted. These are discussed in further detail below. 219. Clause 175 of the Bill. 220. Clauses 182 and 183 of the Bill. 221. Clause 628 of the Bill. 222. Subclause 174(4) of the Bill.

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Clause 178 of the Bill contains time limits for making decisions about the grant of permits. The Director of Biosecurity must make a decision in relation to the application within the decision-making period. The relevant period starts when the Director receives the application and is the period prescribed by the regulations. If the Director of Biosecurity does not make a decision in relation to the application within the decision-making period, the Director is taken to have refused to grant the permit at the end of that period.223

There is a capacity to extend the decision-making period under subclauses 178(4) and (5) if, for example, the Director of Biosecurity requests further information or documents. Although the subclauses do not, in themselves, make reference to a number of days or weeks which apply, the period of time for the extension commences when the additional request is made and ends on the day the additional information or documents are received. The initial decision making-period can also be extended for the purposes of conducting activities prescribed in the regulations.

Key issue—incomplete definition of decision-making period AUSVEG was critical of the decision-making period which it states is ‘not appropriately defined’ and ‘the open ended nature of the decision-making period is an issue that requires clarification’.224

According to the Explanatory Memorandum the drafting of the decision-making period in this way:

… allows the Director to identify a specific period of time in which a category of applications must be considered. This is required because of the broad range of biosecurity risks posed by imported goods and the various conditions required to manage the risks to an acceptable level. Some applications will be straight forward and require a shorter consideration period. Others will cover goods which pose different levels of biosecurity risk and require a longer decision-making period…

225

Despite the flexibility that this drafting may provide for the Director, it could cause significant uncertainty to permit applicants.

Key issue—conditions for grant of permit In deciding whether to grant a permit to import goods, the Director of Biosecurity must take into account the level of biosecurity risk associated with the goods and whether it would be necessary to impose conditions on the permit to reduce that risk. In addition, the Director of Biosecurity may also consider a range of information including:

• whether the applicant is a fit and proper person and

• whether the applicant is the associate of a person whose application for a permit to import goods has been

refused.226

Fit and proper person In deciding whether a person is a fit and proper person, the Director of Biosecurity (or the Director of Human Biosecurity) must have regard to a range of matters including:

• whether the person, or an associate of the person, has been convicted of an offence against, or ordered to

pay a pecuniary penalty under the Biosecurity Act, the Quarantine Act, the Customs Act 1901,227 any other Act prescribed by the regulations, or the Criminal Code228 or the Crimes Act 1914229 to the extent that the offence relates to the other Acts mentioned in the provision

• whether a debt is due and payable by the person, or an associate of the person, to the Commonwealth under

any of the Acts listed above

223. Subclause 178(3) of the Bill. 224. AUSVEG, Submission to the Rural and Regional Affairs and Transport Committee, Inquiry into the Biosecurity Bill 2014 and related Bills, 16 January 2015, p. 7, accessed 25 February 2015. 225. Explanatory Memorandum, Biosecurity Bill 2014, p. 153. 226. Subclause 179(4) and clause 530 of the Bill. 227. Customs Act 1901, accessed 17 April 2015. 228. Criminal Code Act 1995, accessed 17 April 2015. 229. Crimes Act 1914, accessed 17 April 2015.

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• whether an application made by the person, or an associate of the person, under specified provisions of the Biosecurity Act or the Quarantine Act has been refused

• whether a permit granted to the person, or an associate of the person, to bring or import certain conditionally non-prohibited goods into Australian territory has been suspended or revoked and • whether certain permits, approvals or agreements made in accordance with the Quarantine Act have been

suspended, revoked or cancelled.230

Being an associate The term associate is defined in clause 11 of the Bill. The definition casts a wide net to include:

• a person who is or was a consultant, adviser, partner, representative on retainer, employer or employee of

the first person

• a spouse, de facto partner, child, parent, grandparent, grandchild, sibling, aunt, uncle, niece, nephew or

cousin of the first person

• a child, parent, grandparent, grandchild, sibling, aunt, uncle, niece, nephew or cousin of a spouse or de facto

partner of the first person and

• any other person who was directly or indirectly concerned in, or in a position to control or influence the

conduct of a business or undertaking of the first person; or a corporation of which the first person is an officer or employee, or in which the first person holds shares.

The intent of the associates’ test in the context of considering whether to grant an application for a permit to bring or import goods into Australian territory, is the need to identify whether a person is suitable to be responsible for managing biosecurity risks—given the potential consequences of non-compliance. It aims to do this by preventing a person whom the relevant Director has determined should not hold a permit from obtaining a permit via an associate, such as a family member or business partner, on his or her behalf.231

The tests, then, of whether a permit is to be granted are extremely broad and the range of information that the Director of Biosecurity can consider in making the decision is extensive. However, this reflects the seriousness of the consequences in the event that a permit holder does not fulfil the conditions of the permit. The Director of Biosecurity may vary or revoke a condition of a permit or impose further conditions on a permit.232

Offences Clauses 185-187 create fault-based offences and civil penalty provisions where persons bring or import goods into Australian territory which are prohibited or suspended or in contravention of the terms of a permit.

Subclause 188(1) provides that a person commits a strict liability offence if he, or she, received or has possession of goods which are prohibited or suspended goods. In that case the maximum penalty is 60 penalty units.233 Subclause 188(2) provides exceptions to the strict liability offence. In that case, the onus of proof is on the person who claims that the exception applies to him or her. This is based on the fact that these matters are peculiarly within the defendant’s knowledge.

Chapter 4—managing biosecurity risks: conveyances Quick guide to Chapter 4

 The provisions of Chapter 4 of the principal Bill are substantially similar to those in Chapter 4 of the 2012 Bill, although the wording of some of the offences has been clarified.

 The provisions of Chapter 4 operate at the border to assess and manage the biosecurity risk associated with conveyances entering Australian territory by controlling the place where they can land or be moored and their movement. It does this by requiring pre-arrival reporting; and by designating that certain landing places are first points of entry and/or biosecurity entry points.

230. Subclause 530(2) of the Bill. 231. Explanatory Memorandum, Biosecurity Bill 2014, p. 88. 232. Subclauses 180(2) and (3) of the Bill. 233. This means the maximum penalty in this case is $10,200.

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 In addition, Chapter 4 provides for biosecurity measures to be taken in respect of conveyances if their level of biosecurity risk is considered to be unacceptable.

 Importantly, Chapter 4 applies to both the operator of a conveyance— that is, either a body corporate or an unincorporated body responsible for the operation of the conveyance or else the person in charge of the conveyance.

 The Chapter also gives effect to Australia’s rights and obligations in relation to ship sanitation for the purposes of the International Health Regulations.

Chapter 4 provides for the assessment and management of the level of biosecurity risk associated with conveyances entering Australian territory by controlling the place where they can land or be moored; and by controlling the movement of conveyances which are subject to biosecurity control.234 For the purposes of Chapter 4 a conveyance is an aircraft, a vessel, a vehicle, a train (including railway rolling stock) and any other means of transport prescribed by the regulations. It does not include a conveyance being carried on board another conveyance; a reference to an aircraft does not include an aircraft being carried on board another conveyance; and a reference to a vessel does not include a vessel being carried on board another conveyance (these are considered goods and are regulated under Chapter 3).235

The requirements of Chapter 4 apply to both:

• the operator of a conveyance—that is, a body corporate or an unincorporated body responsible for the

operation of the conveyance or else the person in charge of the conveyance236

• the person in charge of the conveyance is the person in charge or command of the conveyance, but does not

include a ship’s pilot.237

As with goods, an aircraft or vessel is subject to biosecurity control:

• when it enters Australian territory238

• for an aircraft or vessel which leaves Australian territory during a flight or voyage between places in Australia—when the aircraft of vessel re-enters Australian territory239

• for an aircraft or vessel which is exposed to an aircraft or vessel that is subject to biosecurity control—at the time of exposure.240

An aircraft or vessel continues to be subject to biosecurity control until it is released from biosecurity control.241

Effect of the Consequential Amendments Bill

Item 32 of Schedule 4 of the Consequential Amendments Bill operates so that conveyances will become subject to biosecurity control on commencement day if the conveyance had entered Australian territory before the commencement day during a flight or voyage that commenced outside Australian territory, or the conveyance was subject to quarantine (under the Quarantine Act) immediately before commencement day.

If the conveyance was in quarantine under the Quarantine Act but had been released and was not subject to quarantine immediately before commencement day, the conveyance will not become subject to biosecurity control as it had been assessed as not posing a biosecurity risk.

234. Clause 189 of the Bill. 235. Clause 16 and subclause 19(2) of the Bill. 236. Clause 21 of the Bill. 237. Subclause 22(2) of the Bill. 238. Subclause 191(2) of the Bill. 239. Subclause 191(4) of the Bill. 240. Clause 192 of the Bill. 241. Subclause 191(3) and clause 218 of the Bill.

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Pre-arrival—aircraft or vessel Clause 193 of the Bill requires the operator of a vessel or aircraft to provide a pre-arrival report, in a manner and form prescribed by regulations, setting out information about the aircraft or vessel which is intended to be brought into Australian territory from outside Australian territory. Clause 194 of the Bill requires the person to give an additional notice to a biosecurity officer where the information on the first notice was incomplete or incorrect.

In addition, a biosecurity officer is empowered by clause 195 to request information, answers to questions or documents in relation to an aircraft or vessel that is the subject of a notice but has not yet become subject to biosecurity control. A failure to comply with these reporting requirements gives rise to fault-based offences and civil penalty provisions. Clause 196 applies to persons who intend to enter, or who enter Australia territory on an incoming aircraft or vessel, who may also be required to provide information to assess the level of biosecurity risk associated with him or her or any goods that they have.

Assessing the level of risk Once a conveyance is the subject of biosecurity control (that is, it has entered Australian territory) clauses 197- 204 empower biosecurity officers to assess the level of biosecurity risk for the conveyance by a number of methods, including requiring the conveyance to be secured,242 inspecting the conveyance,243 asking questions and requiring documents to be produced244 and giving a biosecurity control notice to the person in charge of the conveyance or affixing one to the conveyance.245 A failure to comply with directions or notices under these clauses gives rise to civil penalties of up to 120 penalty units.246

Where a biosecurity officer suspects on reasonable grounds that the biosecurity risk associated with a conveyance subject to biosecurity control is unacceptable, he, or she, may take a number of actions. These include requiring that an aircraft or vessel be moved (or not moved),247 treated248 or even destroyed.249 Importantly, any decision to require a conveyance to be moved to a specified place or destroyed must be made subject to the overarching decision-making principles which are set out in Chapter 1 (see above).

Where a biosecurity officer requires a biosecurity measure to be taken in relation to a conveyance under clauses 208-210 and 212, he, or she, may direct the person in charge of the conveyance to carry out the biosecurity measure, direct the owner or operator of the conveyance to arrange for the biosecurity measure to be carried out, carry it out him, or herself, or arrange for another person with appropriate qualifications or expertise to carry out the biosecurity measure.250 A person who fails to comply with a direction to take a biosecurity measure commits a fault based offence which carries a penalty of five years imprisonment or 300 penalty units or both.251

Key issue—vessels servicing offshore rigs According to the Australian Shipowners Association, the effect of the Bill will be to shift the burden of compliance for biosecurity risks from the installations (for example rigs and floating platforms) to the vessels that service those installations on a regular basis.

Vessels which service offshore installations conduct a range of tasks including, but not limited to, the transfer of drilling mud ashore for disposal and the transfer of waste and equipment ashore. Under the current Quarantine legislation, those vessels can move between the port and an offshore facility unhindered. However, the Biosecurity Act will operate so that ‘each time a vessel leaves and returns to port they will be exiting and

242. Clause 198 of the Bill. 243. Clause 199 of the Bill. 244. Clauses 200 and 201 of the Bill. 245. Clause 203 of the Bill. 246. This means that the maximum amount of the penalty is $20,400. 247. Clause 206 of the Bill. 248. Clause 208 of the Bill. 249. Clause 210 of the Bill. 250. Clause 213 of the Bill. 251. Clause 215 of the Bill. The maximum penalty is equivalent to $51,000.

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re-entering the quarantine zone’.252 The Association makes the point that ‘there are costs associated with the [new arrangements] that do not exist under the current arrangements’.253

The joint submission from the Department of Agriculture and the Department of Health acknowledged that the Bill will mean that ‘conveyances travelling between Australia and an installation outside 12 nautical miles would be subject to additional requirements’. The submission flagged that it ‘is intended that the Bill will allow for pre-arrival reporting exemptions through regulations and applications for a standing permission to enter a non-first point of entry by operators, in order to minimise these costs’ and that operators of rigs might be able to enter into an approved arrangement. It was suggested that this shift would achieve ‘better risk management outcomes’ because movements by conveyances travelling between the installation and mainland Australia ‘pose the greatest biosecurity risk’.254

At the border According to the Explanatory Memorandum to the Bill:

First points of entry are required to ensure that overseas aircraft and any goods on board enter Australia at a designated place that has the appropriate facilities to effectively manage any biosecurity risk. Overseas aircraft and goods have the potential to bring with them a range of different biosecurity risks that, if not managed appropriately, may result in foreign pests and diseases establishing or spreading and negatively impacting upon Australia’s human, plant and animal health, the environment and the economy.

255

Consistent with that explanation the Director of Biosecurity or the Director of Human Biosecurity may determine that a specified landing place or port is a first point of entry and that, within the first point of entry, there may be a biosecurity entry point.256 For the purposes of the Biosecurity Act the first point of entry:

• for an aircraft that is subject to biosecurity control is a landing place that is determined, under paragraph

223(1)(a), to be a first point of entry for that aircraft or a class of aircraft that includes that aircraft

• for a vessel that is subject to biosecurity control is a port 257 that is determined, under paragraph 229(1)(a), to

be a first point of entry for that vessel or a class of vessels that includes that vessel

• for goods that are subject to biosecurity control, or exposed goods in relation to which an exposed goods

order is in force, is:

- a landing place that is determined, under paragraph 223(1)(b), to be a first point of entry for those goods

or a class of goods that includes those goods or - a port that is determined, under paragraph 229(1)(b), to be a first point of entry for those goods or a class

of goods that includes those goods.258 The determinations relating to the first point of entry under paragraphs 223(1)(a) and (b) and 229(1)(a) and (b) of the Bill are to be made only if the Director who is making the determination is satisfied that any requirements set out in regulations in relation to the landing place or port are met and that the level of biosecurity risk associated with the operations carried out at the landing place or port is acceptable.259 The determinations may be made subject to conditions,260 may be for a specified period261 and may be varied or revoked in certain

252. Australian Shipowners Association, Submission to the Rural and Regional Affairs and Transport Committee, Inquiry into the Biosecurity Bill 2014 and related Bills, 16 January 2015, paragraphs 3.1-3.5, accessed 4 March 2015. 253. Ibid., paragraph 3.7. 254. Department of Agriculture and Department of Health, Submission to the Rural and Regional Affairs and Transport Committee, op. cit., p. 19;

and see also Department of Agriculture, Answers to written questions taken on notice on 11 February 2015, Canberra, accessed 25 March 2015. 255. Explanatory Memorandum, Biosecurity Bill 2014, p. 181, accessed 29 January 2015. 256. Clause 13 of the Bill defines the term biosecurity entry point. 257. According to clause 9 of the Bill, port includes a harbour. 258. Clause 18 of the Bill. 259. Subclauses 223(2) and 229(2) of the Bill. 260. Clauses 225 and 231 of the Bill. 261. Clauses 226 and 232 of the Bill

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circumstances.262 A determination under those paragraphs may designate a specified area of the landing place or port as a biosecurity entry point.263

The Explanatory Memorandum provides the following example of how these provisions may operate:

… a Director may determine … a landing place to be a first point of entry that can accept live animals, but may also determine that the biosecurity risk associated with live animals needs to be managed at a specific location within the landing place (such as a location with the appropriate facilities to assess and treat biosecurity risk, as well as house the animals). [In that case] the Director can designate that location to be a biosecurity entry point for live animals and all aircraft that import live animals must take them there as soon as practicable after they arrive. This might involve the aircraft landing, unloading the live animals and then transporting them to the biosecurity entry point.

264

Operation of the Consequential Amendments Bill

Schedule 3 of the Consequential Amendments Bill outlines the arrangements for transitioning first points of entry under the Biosecurity Act. The items provide for the Director of Biosecurity or the Director of Human Biosecurity to make determinations under subsections 223(1) and 229(1) of the Biosecurity Act that a landing place or port is a first point of entry for aircraft or vessels entering Australian territory even if all the requirements of those subsections are not met. The transitional period is three years after the commencement of the Biosecurity Act, although this period can be extended by either Director.

Clause 237 of the Bill requires an aircraft that is subject to biosecurity control (that is, it has entered Australian territory) to land at a first point of entry. Similarly, clause 245 of the Bill requires a vessel that is subject to biosecurity control to be moored at a port that is first point of entry. A person commits an offence if he, or she, is the person in charge or the operator of an aircraft or vessel which is subject to biosecurity control and fails to comply with this requirement.265

There are three exceptions to this general rule.

First, a person in charge or the operator of an aircraft may request permission in writing from the Director of Biosecurity or the Director of Human Biosecurity to land at a place that is not a first point of entry and that permission may be granted with or without conditions.266

Second, a biosecurity officer may give a direction requiring an aircraft to land or not to land at a specified landing place.267 The Director of Biosecurity must approve the giving of a direction that an aircraft not land at any landing place in Australian territory. That decision must be made subject to the decision making principles which are set out in Chapter 1 of the Bill. The Director must not give approval unless satisfied, on reasonable grounds, that:

• the level of biosecurity risk associated with the aircraft, or any person or thing on board the aircraft, is unacceptable and

• biosecurity measures cannot be taken to reduce that level of biosecurity risk to an acceptable level.268

The third exception is where there is a need to manage a human health risk269 associated with the aircraft, or a person or thing on board the aircraft. In that case, the chief human biosecurity officer or a human biosecurity officer may give a direction to the person in charge or the operator of an aircraft requiring the aircraft to land, or

262. Clauses 227 and 233 of the Bill. 263. Clauses 224 and 230 of the Bill. 264. Explanatory Memorandum, Biosecurity Bill 2014, p. 182, accessed 29 January 2015. 265. Subclauses 237(2) and 245(2) of the Bill. 266. Clause 239 of the Bill. See also clause 247 in relation to permission for a vessel to moor at a landing place which is not a first point of entry. 267. Clause 240 of the Bill. 268. Clause 241 of the Bill. 269. Human health risk is defined in clause 9 of the Bill as (a) the likelihood of a disease or pest entering Australian territory or a part of Australian

territory or emerging, establishing itself or spreading in Australian territory or a part of Australian territory; and (b) the potential for the disease or pest to cause harm to human health, or economic consequences associated with the entry, emergence, establishment or spread of the disease or pest, to the extent that the disease or pest has the potential to cause harm to human health.

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not to land at a specified landing place. Such a direction may be given only if the chief human biosecurity officer or the human biosecurity officer is satisfied on reasonable grounds that the direction is needed to manage a human health risk.270

Equivalent exceptions apply in respect of a vessel.271

Key issue—infrastructure costs Ports Australia has supported the establishment of first points of entry and is satisfied that the Bill sets out ‘a clear process for securing and maintaining this status’.

Nevertheless Ports Australia noted ‘the increasing cost of regulation, and the increasing disposition of governments to shift the costs of regulation to industry’ stating that ‘this is no trivial point because of the increasing impact this has on the competitiveness of our trading sector’.272 That being the case, Ports Australia urged the Department to ‘utilise its best endeavours to minimise additional application costs and other costs such as those attached to becoming or changing the terms for being a first point of entry which may also involve associated infrastructure costs or other costs for the upgrade of facilities’.273

Ship sanitation In addition, clauses 253-257 give effect to Australia’s rights and obligations in relation to ship sanitation for the purposes of the International Health Regulations (IHR).274 The IHR establish an agreed framework of commitments and responsibilities for member States and for the World Health Organisation to invest in limiting the international spread of epidemics and other public health emergencies while minimising disruption to travel, trade and economies.275

Clause 255 provides that regulations may prescribe a scheme in relation to ship sanitation. Importantly, the regulations may prescribe the meaning of sanitation health risk, the methods for determining the level of that risk and the circumstances in which the level of the risk associated with a vessel is unacceptable. Consistent with articles 20 and 39 of the IHR, ship sanitation certificates are to be issued in relation to the level of sanitation health risk associated with a vessel.276

Chapter 5—ballast water and sediment Quick guide to Chapter 5

 The terms of Chapter 5 of the Bill are equivalent to those in the 2012 Bill with the exception of Part 2 which requires the operator of a vessel to give a report if it is intended that the vessel discharge, or the vessel discharges, ballast water in Australian seas.

 The provisions in Part 2 significantly change the management of ballast water in Australian waters as they apply to both international and domestic vessels.

 The Chapter creates an offence of discharging ballast water in Australian seas and sets out various exceptions to that general rule.

Chapter 5 (clauses 258-308) of the Bill outlines the management of ballast water and sediment whether in external territory waters, Australian seas or in the waters adjacent to the Australian Antarctic Territory. For the purposes of the Biosecurity Act, the term Australian seas means the waters (including the internal waters of

270. Clause 242 of the Bill. 271. Clauses 247, 249 and 250 of the Bill. 272. Ports Australia, Submission to the Rural and Regional Affairs and Transport Committee, Inquiry into the Biosecurity Bill 2014 and related Bills, 8 December 2014, p. 2, accessed 27 February 2015.

273. Ibid. 274. States Parties to the IHR must strengthen public health capacities at designated airports, ports and ground crossings in both routine circumstances and when responding to events that may constitute a public health emergency of international concern. 275. World Health Organisation (WHO), ‘International Health Regulations enter into force’, WHO website, 14 June 2007, accessed 22 January 2015. 276. International Health Regulations (2005), accessed 22 January 2015.

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Australia) within the outer limits of the territorial sea of Australia (including every external territory).277 Australia’s territorial sea is the area within 12 nautical miles of the Australian coastal baseline.

Why do ships carry ballast? Ships are designed and built to move through water carrying cargo, such as oil, grains, containers, machinery and people. If the ship is travelling without cargo, or has discharged some cargo in one port and is on route to its next port of call, ballast may be taken on board to achieve the required safe operating conditions. This includes keeping the ship deep enough in the water to ensure efficient propeller and rudder operation and to avoid the bow emerging from the water, especially in heavy seas.

Water … is carried in separate tanks used just for ballast, or in empty cargo tanks. When a vessel is departing a port, water and any sediment that may be stirred up, is pumped into the ballast tanks, and released again when it takes on cargo at the next port… Safety, weather conditions, a ship’s load, and the route taken are the primary factors that determine how much ballast water is taken on board a vessel. For example, more ballast is necessary for ships to sit lower in the water during stormy weather. Ballast water is also used to balance the ship as it uses up fuel during a long voyage, or during loading and unloading operations.

278

Why is it a biosecurity issue? When ballast water from foreign waters is released, live marine organisms that it contains may establish exotic colonies. Ballast water exchange is a biosecurity issue, therefore, as it is a recognised pathway for the spread of marine pests. It is thought that between 20 to 30 per cent of the invasive species in the Australian marine environment have arrived via ballast water.279

Ballast water convention The Department of Agriculture is the lead agency of the Australian Government for the regulation of ballast water taken up by international vessels.280 The Department is responsible for ensuring that foreign ballast water intended for discharge inside Australia’s territorial sea (the area within 12 nautical miles of the Australian coastal baseline) has been managed in accordance with Australia’s requirements.281 Those requirements are consistent with the International Maritime Organisation (IMO) Ballast Water Convention282 that aims to minimise the translocation of harmful aquatic species in ships’ ballast water and ballast tank sediments.

At present the Department of Agriculture does not regulate the management of ballast water taken up within Australia’s territorial sea and domestic ports. This is managed by the state or territory government agencies responsible for the port location.283

The lack of consistency between Commonwealth and coastal ballast water management was noted by the Beale Review.284 It recommended that the Commonwealth should extend its legislative reach to cover the field with respect to international and domestic ballast water regulation.285 The Bill delivers on this recommendation.

277. Clause 9 of the Bill. 278. Transport Canada, ‘Ballast water defined’, Transport Canada website, accessed 30 January 2015. 279. Department of Agriculture (DA), 'Ballast water’, DA website, accessed 26 March 2015. 280. Ibid. 281. Department of Agriculture, National Seaports Program: Australian ballast water management requirements, version 5, Commonwealth of

Australia, Canberra, 2013, p. 3, accessed 30 January 2015. 282. International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004, accessed 30 January 2015. Australia signed the Convention, subject to ratification, in May 2005 and as a signatory is obliged to refrain from actions that would defeat the object

and purpose of the Convention. The Convention will enter into force 12 months after it is adopted by 30 states, representing at least 35 per cent of world merchant shipping tonnage. It is expected to come into force in 2015 or 2016: Department of Agriculture, Biosecurity Bulletin Edition 6, 2014, Department of Agriculture website, accessed 26 March 2015. 283. Department of Agriculture, National Seaports Program: Australian ballast water management requirements, op. cit., p. 4. For example, Victoria has additional requirements for the management of Australian sourced domestic ballast water which are enforced by the Victorian State Government Environment Protection Authority (EPA) under the Environment Protection Act 1970 (Vic), accessed 30 January 2015. 284. Quarantine and Biosecurity Review Panel, One biosecurity: a working partnership, (Beale Review), op. cit., p. 17. 285. Ibid., recommendation 4.

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Relationship with other laws Clauses 264 and 265 of the Bill set out the relationship of the provisions of Chapter 5 of the Bill with other Commonwealth laws and with state and territory laws, respectively. Essentially, the provisions of Chapter 5 are in addition to, not in substitution for, any other law of the Commonwealth such as the Protection of the Sea (Prevention of Pollution from Ships) Act 1983286 and the Protection of the Sea (Harmful Anti-fouling Systems) Act 2006.287

In relation to state and territory laws, Chapter 5 applies to the exclusion of such a law, or a provision of a law, to the extent that the law or provision deals with biosecurity risks associated with ballast water or sediment. The Chapter does not exclude or limit the concurrent operation of a law of a state or territory to the extent that the law deals with the treatment or disposal of ballast water or sediment after it has been removed from a vessel.

The rationale for the provisions is that it was ‘Parliament’s intention that Chapter 5 covers the field in relation to biosecurity risks associated with ballast water or sediment’.288

According to the Explanatory Memorandum clause 265:

… does not exclude or limit the concurrent operation of state or territory laws in respect of the treatment or disposal of ballast water or sediment after it has been removed from a vessel. This is to recognise that state and territory environmental protection laws may impose additional requirements once the ballast water or sediment has been released or removed from the vessel.

Section 109 of the Constitution invalidates a state law to the extent that it is inconsistent with a Commonwealth law. Determining whether a state law is inconsistent with a Commonwealth law involves interpreting both laws. If the Commonwealth law is interpreted as operating to the exclusion of state law, the state law will be inconsistent with the Commonwealth law and invalid. A provision such as clause 265, which sets out Parliament’s intention to exclude the operation of state laws will be used in interpreting the Commonwealth law to determine whether it does exclude a particular state law.

It is intended that ballast water will be managed under an Australian-wide ballast water and management regime, providing a comprehensive system for ballast water management that covers both international and domestic vessels, ensuring that Australia can give effect to the Ballast Water Convention. 289

Reporting requirements Under this Chapter the operator of a vessel must give a report if it is intended that the vessel discharge, or the vessel discharges, ballast water in Australian seas. If the operator later finds the report was incomplete or incorrect, the operator must give additional or corrected information.290

Offences Under subclause 270(1) of the Bill a person in charge, or the operator, of a vessel which is in Australian seas commits an offence if the person discharges ballast water. Both a fault based offence with a maximum penalty of 2,000 penalty units291 and a strict liability office292 with a maximum penalty of 500 penalty units293 arise from a contravention of this subclause.

There are exceptions to this general prohibition:

286. Protection of the Sea (Prevention of Pollution from Ships) Act 1983, accessed 17 April 2015. 287. Protection of the Sea (Harmful Anti-fouling Systems) Act 2006, accessed 3 March 2015. 288. Explanatory Memorandum, Biosecurity Bill 2014, p. 198. 289. Ibid. 290. Clauses 267 and 268 of the Bill. 291. This is equivalent to $340,000. 292. Strict liability offences are discussed earlier in this Bills Digest. 293. This is equivalent to $85,000.

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• where the ballast water has been managed for discharge in accordance with a method of ballast water management approved by the Director of Biosecurity (such as the Australian Ballast Water Management Requirements)294

• where the discharge of ballast water is part of an acceptable ballast water exchange295

• where there has been an approved discharge to a ballast water reception facility296

• where the discharge is covered by an exemption granted by the Director of Biosecurity297

• where the ballast water that was discharged was taken from the same place298

• where the discharge of ballast water has been necessary for safety of the vessel or persons at sea, the discharge was accidental and reasonable precautions were taken, or if the discharge was for the purpose of avoiding or minimising pollution from the vessel.299

Key issue—harshness of offence provisions The Scrutiny of Bills Committee noted that the penalties in this Chapter are ‘higher than those recommended by the Guide to Framing Commonwealth Offences but noted the explanation that they are ‘consistent with the penalty benchmarks under section 21 of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983,300 and consistent with the Australian Government’s international obligations to protect the marine environment’.301

Sediment Under clause 298 of the Bill a person in charge, or the operator, of a vessel which is in Australian seas commits an offence if the person disposes of sediment and the sediment is not disposed of to a sediment reception facility.302 A breach of that prohibition gives rise to a fault based offence with a maximum penalty of 2,000 penalty units303 and a strict liability office304 with a maximum penalty of 500 penalty units.305

However clause 298 does not apply in each of the following circumstances:

• first: if the disposal is necessary for the purpose of ensuring the safety of the vessel in an emergency or

saving life at sea306

• second: if the disposal of sediment is accidental and results from damage to the vessel or its equipment subject to the following provisos:

- all reasonable precautions to prevent or minimise the disposal are taken before and after the occurrence of the damage, before and after the discovery of the damage and before and after the discovery of the disposal and

- neither the person in charge of the vessel nor the owner or operator of the vessel intentionally caused the

damage, or was reckless as to the occurrence of the damage307 • third: the disposal of sediment was for the purpose of avoiding or minimising pollution from the vessel. 308

294. Clauses 271-274 of the Bill; Department of Agriculture, Australian Ballast Water Management Requirements, version 5, Commonwealth of Australia, Canberra, 2013, p. 4, accessed 4 March 2015. 295. Clause 276 of the Bill. 296. Clause 277 of the Bill. 297. Clauses 279 and 280 of the Bill. 298. Clause 282 of the Bill. 299. Clause 283 of the Bill. 300. Protection of the Sea (Prevention of Pollution from Ships) Act 1983, accessed 17 April 2015. 301. Scrutiny of Bills Committee, op. cit., p. 21. 302. Under clause 9 of the Bill a sediment reception facility is a facility in Australian territory for receiving sediment from vessels for treatment or

disposal in a way authorised under a law of the Commonwealth or, if the facility is in a state or territory—a law of the state or territory. 303. This is equivalent to $340,000. 304. Strict liability offences are discussed earlier in this Bills Digest. 305. This is equivalent to $85,000. 306. Subclause 299(1) of the Bill. 307. Subclause 299(2) of the Bill. 308. Subclause 299(3) of the Bill.

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Key issue—the Bill does not extend to biofouling Biofouling is the attachment of an organism or organisms to a surface in contact with water for a period of time. One of the most common biofouling sites is on the hulls of ships.309 Research suggests that biofouling has been responsible for more foreign marine introductions than ballast water.310

The Beale Review acknowledged that ‘international standards for biofouling management have not yet been established’ and recommended that:

In relation to biofouling, the Commonwealth’s legislative reach should be restricted to international vessels arriving in Australia, with the states and territories retaining responsibility for domestic biofouling requirements. The Commonwealth should promote the development of an international convention covering biofouling through the International Maritime Organization.

311

According to the Invasive Species Council, the absence of a regulatory regime for biofouling is Australia ‘is a major gap in biosecurity and environmental law’.312

The Department of Agriculture has developed biofouling management guidelines but these are only utilised on a voluntary basis.313

Compliance Clauses 301-306 of the Bill set out compliance and enforcement provisions including the powers of the Director of Biosecurity and biosecurity officers to, amongst other things:

• require the owner of an Australian vessel to produce records from the vessel’s ballast water record system314

• require that ballast water is not discharged

• direct the person in charge of a vessel to remove the vessel from a port in Australian territory and

• direct the person in charge of a vessel to keep the vessel in a specified location.

Chapter 6—managing biosecurity risks Quick guide to Chapter 6

 The provisions of Chapter 6 of this Bill are substantially equivalent to those in the 2012 Bill with the exception that some of the penalty provisions have been redrafted for clarity.

 Chapter 6 contains a modified definition of the term biosecurity risk which focuses on the risk posed by a disease or pest that may be present in, or on, goods or premises in Australian territory.

 It provides for general and specific powers to be exercised in, or in relation to goods or premises in, certain areas in Australian territory for the purpose of managing biosecurity risks posed by a disease or pest that may pose an unacceptable level of biosecurity risk in, or in relation to, the area.

 Chapter 6 provides for the making of biosecurity control orders in relation to goods or premises including the content and form of the order. In addition, Chapter 6 provides for the Director of Biosecurity to determine that a specified area is a biosecurity response zone within which certain powers may be exercised for the purpose of managing the biosecurity risk posed by the disease or pest.

 Where areas in Australian territory are proximate to other areas that are considered to have a high level of

309. Department of Agriculture (DA), 'Biofouling’, DA website, accessed 26 March 2015; see also Commonwealth of Australia, ‘What is marine biofouling?', The National System for the Prevention and Management of Marine Pest Incursions website, accessed 26 March 2015. 310. C Hewitt and M Campbell, Assessment of relative contribution of vectors to the introduction and translocation of marine invasive species, report for the Department of Agriculture, Fisheries and Forestry and the National Centre for Marine Conservation and Resource Sustainability

Australian Maritime College, 2010, accessed 26 March 2015. 311. Quarantine and Biosecurity Review Panel, One biosecurity: a working partnership, (Beale Review), op. cit., recommendation 5. 312. Invasive Species Council, Submission to the Rural and Regional Affairs and Transport Committee, Inquiry into the Biosecurity Bill 2014 and

related Bills, 21 January 2015, p. 56, accessed 25 February 2015. 313. Department of Agriculture (DA), 'National system for the prevention and management of marine pest incursions', DA website, accessed 27 February 2015. 314. Clauses 285-296 of the Bill set out the requirements for ballast water management plans and ballast water management certificates,

including the relevant rules for how vessels are to keep records of the ballast water operations.

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biosecurity risk (such as first points of entry), Chapter 6 empowers the Director of Biosecurity to determine that they are permanent biosecurity monitoring zones or temporary biosecurity monitoring zones.

 Finally, the Director of Biosecurity may determine biosecurity activity zones. These are places where powers are exercised or functions or duties are performed under the Biosecurity Act by the Commonwealth or on behalf of the Commonwealth—such as an area where an approved arrangement is in place.

Chapter 6 (clauses 309-403) of the Bill sets out the manner in which biosecurity risks are monitored, controlled and responded to. The powers in Chapter 6 are to be exercised having regard to the decision-making principles expressed in clause 32 of the Bill (see discussion under Chapter 1, above).

Nature of the risk The term biosecurity risk is modified for the purposes of Chapter 6 when compared to the general definition contained in clause 9 of the Bill. The definition, as modified, refers to the likelihood of a disease or pest entering Australian territory or a part of Australian territory or emerging, establishing itself or spreading in Australian territory or a part of Australian territory and the potential for 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

• the economic consequences associated with the entry, emergence, establishment or spread of the disease or pest.315

Importantly, the term biosecurity risk is given an expanded meaning if the pest is suspected of being, or is known to be an invasive pest.316 In that case the relevant biosecurity risk is the likelihood of the invasive pest entering Australian territory or a part of Australian territory or emerging, establishing itself or spreading in Australian territory or a part of Australian territory and the potential for the invasive pest to cause harm to ecosystems, habitats or species.317

Assessing the level of the risk Clauses 313-326 of the Bill specify the powers which may be exercised by a biosecurity officer if he, or she, suspects on reasonable grounds that a disease or pest may be present in, or on, goods or premises in Australian territory and that the level of biosecurity risk posed by the disease or pest is unacceptable.318 These are the biosecurity risk assessment powers. The clauses impose a legal obligation on a person to comply with a direction of, or requirement to give information or documents by, a biosecurity officer. The purpose of such a direction or requirement is to establish whether the disease or pest is present, to identify the disease or pest and to assess the level of biosecurity risk posed by the disease or pest. In each case, a civil penalty of a maximum of 120 units will arise in the event that the person fails to comply with the direction or requirement.319

The powers of a biosecurity officer include the power to require goods or conveyances to be secured,320 inspect and take samples of goods or premises,321 ask questions or require documents,322 give directions to move or not to move goods or conveyances,323 operate electronic equipment on the premises, to put relevant data in documentary form and to remove the documents so produced from the premises.324

315. Subclause 310(1) of the Bill. 316. Clause 9 of the Bill defines the term invasive pest as a pest that is an alien species within the meaning of the Biodiversity Convention, but is not capable of infesting humans, animals or plants; or acting as a vector for a disease; or causing disease in any other way. 317. Subclause 310(2) of the Bill. 318. Clause 314 of the Bill. 319. The maximum amount of the penalty is $20,400. 320. Clause 317 of the Bill. 321. Clause 318 of the Bill. 322. Clauses 319 and 320 of the Bill. 323. Clause 321 of the Bill. 324. Clause 324 of the Bill. Note that clause 326 of the Bill provides for compensation to be paid in the event that electronic equipment being

operated in accordance with clause 324 is damaged.

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Biosecurity control orders (goods or premises) Once a biosecurity officer has undertaken the assessment of the biosecurity risk, as outlined above, the Director of Biosecurity may make a biosecurity control order if he, or she, is satisfied that biosecurity measures need to be taken in relation to the goods or premises for the purpose of managing the biosecurity risk posed by the disease or pest.325 In making the order the Director of Biosecurity has a suite of powers which can be invoked depending on the nature and extent of the biosecurity risk. Subclause 354(2) of the Bill requires that the biosecurity control order specifies the following:

• the goods or premises to which the order relates

• each disease or pest that poses an unacceptable level of biosecurity risk and has been identified

• the nature of the biosecurity risk that needs to be managed

• each of the powers set out in clauses 332-345 (general powers) that may be exercised in relation to the goods or premises326

• each power provided by regulations made for the purposes of clause 346 that may be exercised in relation to the goods or premises in accordance with those regulations327

• each of the powers set out in clauses 316-326 (biosecurity risk assessment powers) that may be exercised in relation to the goods or premises328 and

• the period during which the order is to be in force—being a period of no more than 12 months.329

Clause 360 of the Bill provides that, in addition to the powers which operate when a biosecurity control order is in force, additional powers may be exercised. These powers authorise a biosecurity officer to carry out a biosecurity measure, or to direct a person to carry out that measure330 and to affix a notice to goods or premises indicating that a disease or pest may be present, that the disease or pest may pose an unacceptable level of biosecurity risk and stating what biosecurity measures are required to be taken.331 Once such a notice is affixed to goods or premises a person must not interfere with it, remove or deface it. A person who takes any of those actions is liable to a maximum civil penalty of 120 penalty units.332

Biosecurity response zones (specified areas) Clauses 364-376 of the Bill empower the Director of Biosecurity to determine that a specified area in Australian territory is a biosecurity response zone if each of the following is satisfied:

• a biosecurity officer suspects, on reasonable grounds, that a disease or pest may be present in or on goods or premises in the area

• the disease or pest may pose an unacceptable level of biosecurity risk

• the Director of Biosecurity is satisfied it is necessary to make the determination for the purpose of managing the biosecurity risk posed by the disease or pest.333

Importantly, before making such a biosecurity response zone determination the Director of Biosecurity must consult the head of the state or territory body that is responsible for the administration of matters relating to

325. Clause 353 of the Bill. 326. These powers range from power to impose restrictions or requirements on people, goods or conveyances entering or exiting from premises, treatment of goods, conveyances and premises and destruction of goods, conveyances and premises. Under subclause 354(4), the exercise of the power specified must be appropriate and adapted for the purpose of managing the biosecurity risk posed by the disease or pest.

327. An example of an additional biosecurity measures that may be prescribed in a regulation is the power to impose movement restrictions in relation to animals during an outbreak of disease such as equine influenza. Source: Explanatory Memorandum, p. 235. 328. These are the biosecurity risk assessment powers. They can be used on an ongoing basis so that the nature and extent of the risk is continually reassessed during the time that the biosecurity control order is in place. Under subclause 354(4), the exercise of the power

specified must be appropriate and adapted for the purpose of managing the biosecurity risk posed by the disease or pest. 329. Subclause 354(3) of the Bill. 330. Clause 347 of the Bill. 331. Clause 348 of the Bill. 332. The maximum amount of the penalty is $20,400. 333. Clause 365 of the Bill.

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biosecurity in the state or territory in which the biosecurity response zone will lie.334 Although a biosecurity response zone determination is a legislative instrument, the disallowance provisions of the Legislative Instruments Act do not apply.335

Clause 366 of the Bill is in equivalent terms to clause 354—that is, a biosecurity response zone determination must set out the basis for declaring a biosecurity response zone, specify the disease or pest that poses an unacceptable level of biosecurity risk, the nature of the biosecurity risk that needs to be managed, list each of the powers which can be exercised by a biosecurity officer within the biosecurity response zone and the period during which the determination is to be in force. That period must be of no more than 12 months. There is no provision to automatically extend the period of a biosecurity response zone determination. Instead, where a biosecurity response zone determination ceases to be in force a new determination must be made.336

Once a biosecurity response zone determination is in force, a range of powers may be exercised within the relevant zone for the purpose of managing the biosecurity risk posed by the disease or pest to which the determination relates. These powers are to be exercised having regard to the decision-making principles which are expressed in clause 32 of the Bill.337

Clauses 373-376 of the Bill create offences and civil penalties that may arise from a failure to comply with a lawful direction given to a person within the biosecurity response zone. The maximum penalty is five years imprisonment or 300 penalty units or both.338

Offences Clauses 327-330 of the Bill set out the offences which apply only in relation to contraventions relating to the powers that are exercised in accordance with a biosecurity control order or a biosecurity response zone determination.

Importantly, clause 327 of the Bill provides that a person commits an offence if:

• the power to give a direction under any of the following provisions is specified in a biosecurity control order

or a biosecurity response zone determination:

- direction to secure goods or a conveyance339 - direction to deliver samples of goods or premises 340

- direction relating to movement of goods or conveyance 341 and

• the person is given a direction under any of those provisions

• the direction is given in accordance with the biosecurity control order or the biosecurity response zone

determination and

• the person engages in conduct and

• the conduct contravenes the direction.

The offence is a criminal offence with a maximum penalty of imprisonment for five years of 300 penalty units, or both.342 The other offences created under these clauses provide for equivalent penalties for the contravention of a requirement to answer questions (under subclause 319(1)), the contravention of a requirement to produce documents (under subclause 320(1)) and the unauthorised movement of goods or a conveyance to which a notice has been affixed.

334. A failure to consult does not affect the validity of the temporary biosecurity monitoring zone determination: subclause 368(2) of the Bill. 335. Subclause 365(4) of the Bill. Legislative Instruments Act 2003, accessed 17 February 2015. 336. Subclause 366(5) of the Bill. 337. Note 4 to clause 370 of the Bill. 338. The maximum amount of the penalty is $51,000. 339. Subclause 317(1) or (2) of the Bill. 340. Paragraph 318(2)(b) of the Bill. 341. Paragraph 321(1)(a) of the Bill. 342. The maximum amount of the penalty is $51,000.

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Biosecurity monitoring zones—permanent Clause 378 of the Bill provides for certain areas in Australian territory to be declared as a permanent biosecurity monitoring zone. These areas are within the permissible distance343 of the outer boundary of each of the following:

• a landing place that is a first point of entry for aircraft or goods

• a port that is a first point of entry for vessels or goods

• an international mail centre

• a biosecurity activity zone (see the discussion below) and

• any other place prescribed by the regulations.

Essentially then, a permanent biosecurity monitoring zone can be established at the places described and includes both the area within the place of high biosecurity risk and the area within the permissible distance of the outer boundary of these areas.

Clauses 379 and 380 of the Bill set out the suite of powers which can be exercised by a biosecurity officer within the permanent biosecurity monitoring zone whilst clauses 381-383 of the Bill contain the civil penalty provisions which arise from conduct by an unauthorised person within the permanent biosecurity monitoring zone.

Biosecurity monitoring zones—temporary Clauses 384-388 of the Bill empower the Director of Biosecurity to determine that a specified area in Australian territory is a temporary biosecurity monitoring zone if the Director is satisfied it is necessary to do so for the purpose of monitoring whether a disease or pest that may pose an unacceptable level of biosecurity risk has entered, emerged, established or spread in the area or is likely to do so.

According to the Explanatory Memorandum:

… it is envisaged that temporary biosecurity monitoring zones will be determined around biosecurity response zones, to ensure that the disease or pest has not spread. The temporary biosecurity monitoring zone may cover the whole or part of specified premises … 344

These clauses are in similar terms to those which empower the Director or Biosecurity to make a biosecurity control order—that is, the content of the relevant determination, the powers which can be exercised by a biosecurity officer within the temporary biosecurity monitoring zone and the civil penalty provisions which relate to conduct by unauthorised person within the temporary biosecurity monitoring zone. In addition, clause 387 of the Bill requires the Director of Biosecurity to consult the head of the State or Territory body that is responsible for the administration of matters relating to biosecurity in each state or territory in which the temporary biosecurity monitoring zone is located.345

Clauses 389 and 390 of the Bill set out the suite of powers which can be exercised by a biosecurity officer within the temporary biosecurity monitoring zone whilst clauses 391-393 of the Bill contain the civil penalty provisions which arise from conduct by an unauthorised person within the temporary biosecurity monitoring zone.

Biosecurity activity zones A biosecurity activity zone is an area in an Australian territory where powers are exercised or functions or duties are performed by, or on behalf of, the Commonwealth. The Director of Biosecurity may determine that a specified area is a biosecurity activity zone.346 Clause 399 of the Bill sets out the powers that can be exercised by a biosecurity officer in relation to goods or premises in a biosecurity activity zone. Importantly clause 400 of the Bill authorises a biosecurity enforcement officer to use such force against things in the biosecurity activity zone as is necessary and reasonable in the circumstances. ‘The use of force may allow, for example, the forceful

343. The term permissible distance is defined in clause 9 of the Bill as 400 metres or such greater distances as is prescribed by regulations. 344. Explanatory Memorandum, Biosecurity Bill 2014, p. 251. 345. A failure to consult does not affect the validity of the temporary biosecurity monitoring zone determination: subclause 387(2) of the Bill. 346. Clause 395 of the Bill.

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opening of a door or the movement of things to assist with the execution of a warrant’ but the clause ‘does not authorise the use of force against a person’.347

Clauses 401-402 of the Bill contain the civil penalty provisions which arise from conduct by unauthorised persons within the biosecurity activity zone. Clause 403 provides that a person who fails to comply with a direction given by a biosecurity officer to leave a biosecurity activity zone commits an offence and is liable to a civil penalty. The maximum penalty for the fault-based office is five years imprisonment or 300 penalty units or both.348 The maximum civil penalty is 120 penalty units.349

Key issue—broader post-border control of diseases or pests Essentially, Chapter 6 deals with post-border activities which will come into operation once a disease or pest has already entered Australian territory and has emerged, established itself or spread giving rise to some harm to human, animal or plant health or to the environment. As the Explanatory Memorandum states:

The Bill contains new powers that allow for the management of a wider range of pests and diseases already present in Australian territory, such as fruit fly, which can adversely affect a wide range of fruit crops grown in Australia, and noxious weeds which might pose a threat to agricultural industries or the environment. The Bill also extends the coverage of existing powers so that some of the biosecurity risks posed by invasive pests can be more effectively managed. This is significant, as some invasive pests have the potential to cause significant damage to Australia’s agriculture sector and the environment … These additional powers will complement current arrangements with states, territories and industry to support the management of pest and disease incursions.

350

Australia has experienced a number of serious incursions of invasive alien species.351 For instance, fire ants were discovered in Brisbane in February 2001 after being brought in on a ship. By August 2001, the ants had been found at 733 sites across 23,000 hectares and were believed to be occupying more than 2000 sites.352 It has been reported that more than a decade after an eradication plan was initiated, fire ants remain a problem.353

The small hive beetle was accidentally introduced from Africa in 2002. It has been reported that ‘the beetle has the potential to devastate the commercial honey bee population as well as widespread populations of wild bee’.354 The Queensland Primary Industries Department surveyed 1,400 beekeepers across Queensland who ‘reported the loss of more than 3,000 hives at a cost of $400 each—the price of clean-up, control and restoration’.355

Citrus canker, an exotic bacterial disease of citrus and other related plants, was detected at Emerald in Central Queensland in June 2004.356 In response to the outbreak, ‘a pest quarantine area was established to prevent further spread and facilitate eradication of the disease’357 and some 500,000 citrus trees were destroyed.358

In May 2007, a nest of Asian honey bees was discovered in the mast of a yacht in dry dock at Cairns, in north Queensland. Over the 18 months after the Cairns nest was discovered, 16 nests and two swarms were found in the region.359 Asian honey bees are a natural host for varroa mites which pose a serious threat to the honey bee

347. Explanatory Memorandum, Biosecurity Bill 2014, p. 257, accessed 17 February 2015. 348. The maximum amount of the penalty is $51,000. 349. The maximum amount of the penalty is $20,400. 350. Explanatory Memorandum, Biosecurity Bill 2014, p. 8. 351. Convention on Biological Diversity (CBD), ‘What are invasive alien species?’, CBD website, accessed 27 February 2015. 352. G Roberts, ‘Experts warn of fire ant disaster’, The Age, 24 August 2001 and ‘Fire ants may have crossed the border’, The Courier Mail,

21 November 2001, accessed 12 February 2015. 353. General news, ‘Fire ants unvanquished 10 years on’, Australian Associated Press, 22 June 2011, accessed 12 February 2015. 354. C Jay, ‘Bees down on their knees’, Australian Financial Review, 11 September 2009, p. 49, accessed 27 February 2015. 355. P Morley, ‘Bug killing beehives’, The Courier Mail, 8 September 2009, p. 13, accessed 27 February 2015. 356. C Trevor, ‘Private Member’s business: foot and mouth disease’, House of Representatives, Hansard, 15 June 2009, p. 6035, accessed

12 February 2015. 357. Ibid. 358. A Fraser, ‘Senate blasts lack of citrus canker action’, The Australian, 21 June 2006, p. 7, accessed 12 February 2015; see also Rural and

Regional Affairs and Transport Legislation Committee, The Administration by the Department of Agriculture, Fisheries and Forestry of the citrus canker outbreak, The Senate, Canberra, June 2006, accessed 26 March 2015. 359. R Beeby, ‘The plight of the honey bee’, The Canberra Times, 19 February 2011, p. 1, accessed 9 February 2015.

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industry and crops dependant on European honey bees for pollution.360 Unfortunately the Asian Honey Bee National Management Group formed the view in January 2011 that eradication of the Asian honey bee was no longer technically feasible.361

According to the Explanatory Memorandum, the modified meaning of biosecurity risk in this chapter:

• expands the coverage of the powers available to cover emerging pests and diseases that are found or already established in some parts of Australia and may spread to other parts of Australia

• allows the Commonwealth’s post-border powers to deal with quarantine pests and invasive pests .362

Chapter 7—approved arrangements Quick guide to Chapter 7

 The terms of Chapter 7 of the Bill are substantially similar to those in the 2012 Bill, with the exception that additional provisions have been inserted to deal with the management of biosecurity risks where an approved arrangement is suspended or revoked.

 Chapter 7 introduces the term approved arrangement. This would allow a person to apply for approval of an arrangement that allows the person to carry out specified biosecurity activities (for example, fumigation) to manage the biosecurity risk associated with their own operation.363

 The Chapter deals with the approval, variation, suspension and revocation of approved arrangements as well as the penalties arising from non-compliance with the terms of an approved arrangement.

 The requirements for determining whether an approved arrangement is to be suspended or revoked are in equivalent terms. They include, for example, whether a person who carries out an approved arrangement is a fit and proper person. A discussion about the fit and proper person test and the related associates’ test is set out above in this Bills Digest, in relation to Chapter 3 of the Bill.

 Chapter 7 sets out the requirements for reporting a biosecurity incident which occurs under an approved arrangement, who bears the responsibility for the costs of a biosecurity incident and the powers of the auditors to audit compliance with the requirements or conditions of an approved arrangement.

 Civil penalties may be imposed where a person gives false or misleading information or documents to a biosecurity industry participant.

 Chapter 7 also contains a broad protection for the Commonwealth or a biosecurity industry participant against civil proceedings provided that relevant biosecurity activities are carried out in good faith.

Chapter 7 (clauses 404-441) of the Bill provides for the approval of arrangements for a person to carry out activities to manage biosecurity risks associated with certain goods, premises or other things. It deals with biosecurity industry participants364and approved arrangements.365 For example, premises may be the subject of an approved arrangement whereby quarantine activities such as fumigation are authorised to take place.366 Importantly, approved arrangements may relate to goods, premises or other things.

360. Queensland Government Department of Agriculture and Fisheries (Qld DAF), ‘Asian honey bees in Queensland’, Qld DAF website, accessed 26 March 2015. 361. Department of Agriculture (DA), ‘The Asian honey bee in Australia’, DA website, accessed 9 April 2015. 362. Explanatory Memorandum, Biosecurity Bill 2014, p. 218. 363. Explanatory Memorandum, Biosecurity Bill 2014, p. 12. The approved arrangements will replace quarantine approved premise and

compliance agreement schemes in the Quarantine Act: Department of Agriculture, Answers to written questions taken on notice on 11 February 2015, Canberra, p. 10, accessed 25 March 2015. 364. Clause 14 of the Bill sets out the meaning of the terms biosecurity industry participant and covered by so that a person who is the holder of the approval of an approved arrangement (including a person to whom an approved arrangement has been transferred in circumstances

prescribed by regulations made under section 411) is a biosecurity industry participant and is covered by the approved arrangement. 365. The term approved arrangement is defined in clause 10 of the Bill as an arrangement for which an approval is in force under paragraph 406(1)(a) (including a varied arrangement for which an approval is in force under that paragraph as it applies because of

subsection 412(3)). 366. Department of Agriculture (DA), ‘Onshore treatment providers’, DA website, accessed 9 February 2015.

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Conditions for approval Under the Bill, a person may apply367 to the Director for approval of a proposed arrangement that provides for the person to carry out biosecurity activities to manage biosecurity risks associated with specified goods, premises or other things.368 The Director may approve the arrangement, approve it subject to conditions (including a condition that a security be given), or refuse to approve the arrangement.369

Conditions for suspension or revocation Where approval is given, the Bill further allows for the Director to vary,370 suspend371 or revoke372 the approval in certain circumstances. Subclause 418(1) of the Bill sets out the circumstances in which an approved arrangement may be suspended (either wholly or in part) for a period. Those circumstances are:

• the arrangement, or the part of the arrangement, no longer meets the requirements on the basis of which approval was given

• the biosecurity industry participant is no longer a fit and proper person

• a condition of the arrangement has been contravened

• the level of biosecurity risk associated with the operation of the arrangement has changed

• the biosecurity industry participant is liable to pay a cost-recovery charge that is due and payable

• the biosecurity industry participant is an associate of a person who has been refused approval of a proposed arrangement or a person who was a biosecurity industry participant covered by an approved arrangement that has been revoked.

Subclause 423(1) of the Bill, which relates to the revocation of an approved arrangement, is in equivalent terms. A discussion about the fit and proper person test and the associates’ test is set out in relation to Chapter 3 of the Bill, above.

Once authorised, biosecurity industry participants must carry out biosecurity activities in accordance with an approved arrangement. Clause 428 of the Bill creates a fault based offence if a person contravenes the requirement. The maximum penalty for the offence is imprisonment for five years or 300 penalty units, or both.373 In addition there is a civil penalty provision so that breach of the requirement attracts a maximum civil penalty of 120 penalty units.374

Reporting biosecurity incidents An approved arrangement may require the occurrence of a biosecurity incident to be reported. In that case the relevant report must be in the manner and form set out in a legislative instrument made for that purpose.375 If the report does not comply with those requirements it is taken not to have been made. The consequences of a failure to comply with the manner and form provisions are serious. At first instance, the failure may give rise to an offence or contravention of a civil penalty provision because it is a breach of a requirement of the approved arrangement. In addition, such a failure would be a breach of a condition of the approved arrangement which could also lead to the suspension or revocation of the approved arrangement.376

The Director of Biosecurity or the Director of Human Biosecurity may apply to a court for a cost order requiring a biosecurity industry participant to pay to the Commonwealth the whole, or a part, of the costs incurred by the Commonwealth in relation to a biosecurity incident.377

367. Clauses 433-435 of the Bill deal with the manner and form of an application and the time for dealing with applications. 368. Clause 405 of the Bill. 369. Clauses 406 and 407 of the Bill. 370. Clauses 413-416 of the Bill. 371. Clauses 417-420 of the Bill. 372. Clauses 422-425 of the Bill. 373. This is equivalent to $51,000. 374. This is equivalent to $20,400. 375. Clause 431 of the Bill. 376. Paragraphs 418(1)(c) and 423(1)(c) of the Bill. 377. Clause 432 of the Bill.

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Auditing approved arrangements In order to be sure of compliance with approved arrangements the Director of Biosecurity or the Director of Human Biosecurity may require audits to be carried out.378 Auditors may require a person to produce those documents, records or things that the auditor is satisfied are relevant to the audit. A person commits a fault based offence if the person fails to produce a document, record or things that an auditor requires. The maximum penalty for the offence is six months imprisonment or 30 penalty units, or both.379

The Explanatory Memorandum provides the rationale for the auditing arrangements.

It can be used by the relevant Director to determine whether the [biosecurity industry participant] is being compliant with the requirements or conditions of its existing arrangement and managing its biosecurity risks appropriately. If the [biosecurity industry participant] is not compliant, the relevant Director may decide to start the process of suspending or revoking its arrangement.

Auditing powers can also be used to assess an application for a new arrangement or a varied arrangement and help the relevant Director determine whether, if approved, a [biosecurity industry participant] has the appropriate facilities or personnel to manage biosecurity risks appropriately.

An audit must be carried out by a biosecurity officer or an auditor approved in writing by the relevant Director. All approved auditors must be appropriately qualified and experienced. This is intended to ensure auditors have the skills required to conduct audit activities correctly. For example, the appropriate skills to complete an audit that involves highly specialised equipment in a university research laboratory.

380

This should go some way to assuaging the concerns of stakeholders such as the National Farmers Federation (NFF) which has pointed out that approved arrangements are ‘a critical area for the farming and agribusiness sectors in that it represents the point of highest exposure to risk of incursions’ and therefore should be subject to stringent regulation.381

Civil penalties A person is liable to a civil penalty if the person gives information to a biosecurity industry participant which the person knows is false or misleading (or which the person knows omits any matter or thing without which the information is misleading) where the information relates to biosecurity activities that are being, or are to be, carried out in accordance with an approved arrangement.382 An equivalent penalty arises in relation to the giving of a document which the person knows is false and misleading.383

Importantly, in relation to the giving of information, it is the responsibility of a biosecurity industry participant (that is—the holder of an approval in relation to an arrangement to carry out biosecurity activities) to take reasonable steps to inform a person giving information that he or she may be liable to a civil penalty where the information is false or misleading.384

There is a broad protection in respect of civil proceedings against the Commonwealth, or a person who is, or was a biosecurity industry participant, in relation to anything done, or omitted to be done, in good faith in carrying out biosecurity activities as a biosecurity industry participant in accordance with an approved arrangement.385

Chapter 8—biosecurity emergencies Quick guide to Chapter 8

 The provisions of Chapter 8 of this Bill are equivalent to those in the 2012 Bill.

378. Clause 436 of the Bill. 379. This is equivalent to $5,100. 380. Explanatory Memorandum, Biosecurity Bill 2014, p. 270. 381. National Farmers’ Federation, Submission to the Rural and Regional Affairs and Transport Committee, Inquiry into the Biosecurity Bill 2014

and related Bills, 21 January 2015, p. 3, accessed 2 March 2015. 382. Clause 438 of the Bill. 383. Clause 439 of the Bill. 384. Subclause 438(4) of the Bill. 385. Clause 441 of the Bill.

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 Chapter 8 empowers the Governor-General to make a biosecurity emergency declaration if the Agriculture Minister is satisfied that special powers are needed to deal with a biosecurity emergency. Notably, whilst those declarations are legislative instruments, they are not subject to the disallowance provisions of the Legislative Instruments Act.

 The Agriculture Minister may declare Commonwealth bodies (in whole or in part) to be national response agencies during a biosecurity emergency period.

 During a biosecurity emergency period, operation of other provisions of the Act may be modified—in particular, biosecurity enforcement officers and biosecurity officers may enter premises without a warrant or consent.

 Chapter 8 also empowers the Governor-General to make a human biosecurity emergency declaration if the Health Minister is satisfied that special powers are needed to deal with a human biosecurity emergency.

 Special powers for both types of biosecurity emergencies under Chapter 8 may be exercised anywhere in Australian territory.

 The special powers in this Chapter were the subject of concern to the Scrutiny of Bills Committee which noted that they may impinge on civil liberties.

Powers of the Minister Chapter 8 (clauses 442-479) of the Bill contains the powers for dealing with biosecurity emergencies of national significance. Clauses 443-447 operate as follows:

• the Agriculture Minister must, in the first instance, be satisfied that a disease or pest is posing a severe and immediate threat, or causing harm, on a nationally significant scale to animal or plant health, the environment or economic activities related to animals, plants or the environment and that a declaration of a biosecurity emergency is necessary to prevent or control the disease or pest386

• on the advice of the Agriculture Minister, the Governor-General declares that a biosecurity emergency exists. That declaration must specify the nature of the biosecurity emergency and the period for which the declaration is in force.387 Although the declaration is a legislative instrument, it is not subject to disallowance388

• once the biosecurity emergency declaration has been made it is for the Agriculture Minister to determine

the requirements to prevent or control the spread of the disease or pest, including requirements:

- that apply to persons, goods or conveyances when entering or leaving specified places

- that restrict or prevent the movement of persons, goods or conveyances in or between specified places - that specified places are evacuated

- that goods or conveyances are removed from specified places or

- that goods are treated or destroyed389 • during the biosecurity emergency period, the Agriculture Minister may give directions or take action to prevent or control the establishment or spread of the disease or pest390 including:

- a direction requiring a person to treat or destroy good

- a direction requiring a person to secure goods or a conveyance - a direction not to move, deal with or interfere with goods or a conveyance

- any direction relating to the movement of goods or a conveyance

386. Clause 443 of the Bill. Note, however, that this Chapter does not apply in relation to invasive pests: see subclause 25(2). 387. Under subclause 443(4), the period must not be longer than three months. However, this may be extended under clause 444. 388. Subclause 443(2) of the Bill. 389. Subclause 445(3) of the Bill. 390. Clause 446 of the Bill.

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- a direction requiring a person leaving specified premises to leave the premises only at a specified place or

places - a direction to a person who is in a position to close specified premises, or prevent access to them to do so

- a direction of a general or specific nature to the Director of Biosecurity, an officer or employee of the

Commonwealth (including a biosecurity officer or a biosecurity enforcement officer) about the performance of his or her functions or the exercise of his or her powers.391 The concentration of power in the Minister for Agriculture during a biosecurity emergency period is to ‘ensure that the Minister is the sole person in charge of coordinating the national biosecurity emergency response. Otherwise conflicting directions or actions might be undertaken during a declared biosecurity emergency, limiting the effectiveness of the response’.392

A person must comply with the requirements and directions set out above. A person who does not do so commits a fault-based offence, the maximum penalty for which is imprisonment for five years or 300 penalty units or both.393 Alternatively, the person may be liable to a maximum civil penalty of 120 penalty units.394

National response agency Clauses 452-455 of the Bill empower the Agriculture Minister to declare that the Australian Defence Force, a Commonwealth body, or part of a Commonwealth body, is a national response agency for the purposes of dealing with a biosecurity emergency of national significance. Importantly the definition of national response agency in clause 9 of the Bill includes the Agriculture Department so that it will automatically become a national response agency. According to the Explanatory Memorandum, ‘the Australian Defence Force has been listed in this clause as its personnel have specific training and expertise that can be utilised to assist with a biosecurity emergency response’.395

Clauses 458-469 of the Bill provide for the exercising some of the powers in other Parts of the Bill in a modified way during a biosecurity emergency. These are detailed provisions which will need to be interpreted given the nature and extent of the relevant biosecurity emergency. Clause 470 provides biosecurity enforcement officers and biosecurity officers with the power to enter premises without a warrant or consent in certain circumstances during a biosecurity emergency period.

Human biosecurity emergency Clause 475 of the Bill empowers the Governor-General to declare that a human biosecurity emergency exists if the Health Minister is satisfied that a listed human disease is posing a severe and immediate threat, or is causing harm, to human health on a nationally significant scale and the declaration is necessary to prevent or control the entry or the emergence, establishment or spread of the listed human disease in Australian territory or a part of Australian territory. The declaration must specify the nature of the human biosecurity emergency and the period for which the declaration is in force. Although the declaration is a legislative instrument, it is not subject to disallowance.396

As with the powers of the Agriculture Minister outlined above, the Health Minister may determine the emergency requirements to prevent or control the entry, emergence, establishment or spread of the listed human disease.397 The Health Minister may also give directions to prevent or control the entry, emergence, establishment or spread of the disease.398

A person must comply with the requirements and directions set out above. A person who does not do so commits a fault-based offence, the maximum penalty for which is imprisonment for five years or 300 penalty units or both.399

391. Subclause 446(2) of the Bill. 392. Explanatory Memorandum, p. 277. 393. Clause 449 of the Bill. The maximum monetary penalty for the offence is equivalent to $51,000. 394. The maximum civil penalty is equivalent to $20,400. 395. Explanatory Memorandum, Biosecurity Bill 2014, p. 282. 396. Subclause 475(2) of the Bill. 397. Clause 477 of the Bill. 398. Clause 478 of the Bill. 399. Clause 479 of the Bill. The maximum monetary penalty for the offence is equivalent to $51,000.

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Key issue—biosecurity emergency powers The Scrutiny of Bills Committee drew attention to a number of provisions in Chapter 8, including clauses 443 and 470, and subclauses 445(4) and 446(4) which relate to biosecurity emergencies and subclauses 477(5) and 478(4) which relate to human biosecurity emergencies.400 Clauses 443 and 475 of the Bill relate to the powers to declare a biosecurity emergency or human biosecurity emergency respectively. The Scrutiny of Bills Committee drew attention to these powers on the grounds that they may make rights and liberties unduly dependent on an insufficiently defined administrative power. In particular, the Scrutiny of Bills Committee noted that these clauses authorise ‘the exercise of a number of ‘potentially invasive’ powers during the period of the emergency declaration’, including the power to enter premises without a warrant or consent.401 According to the Explanatory Memorandum, ‘these powers are necessary for the legitimate objective of managing biosecurity risks during a biosecurity emergency period’.402

Clause 470 of the Bill provides biosecurity enforcement officers and biosecurity officers with the power to enter premises without a warrant or consent in certain circumstances during a biosecurity emergency period. The Scrutiny of Bills Committee noted the potential for this clause to trespass on personal rights and liberties, but left the general issue of whether entry without consent or warrant is justifiable in the context of a biosecurity emergency ‘to the consideration of the Senate as a whole’.403

Under clauses 445 and 446 the Agriculture Minister may determine certain requirements, directions and actions if he or she is satisfied that the measure is appropriate and adapted to the prevention or control of the establishment or spread of the specified disease or pest. Clauses 477 and 478 of the Bill are in similar terms although they relate to the prevention or control of the establishment or spread of a listed human disease.

The nominated subclauses provide that they are to have effect ‘despite any provision of any other Australian law’. However, that is not precisely how the subclauses operate. According to the Explanatory Memorandum:

A biosecurity emergency requirement determined by the Minister will have effect despite any provision of any other Australian law. This ensures that during a biosecurity emergency period any person who acts in accordance with a requirement from the Agriculture Minister (or a delegate as provided for in this Act) will not be liable for an offence under that Australian law in circumstances where their actions would ordinarily be in contravention of that law. However, this clause does not override any other Australian law, which means that unless a person‘s compliance with the requirement conflicts with another law, that law will continue to be in force.

404

Chapter 9—compliance and enforcement Quick guide to Chapter 9

 The provisions of Chapter 9 of the Bill are substantially different from those in the 2012 Bill. In particular the provisions enliven Part 2 of the Regulatory Powers Act 2014 which had not been enacted when the 2012 Bill was drafted and introduced into the Parliament.

 The Regulatory Powers Act provides for a framework of standard regulatory powers exercised by agencies across the Commonwealth. It reflects the Guide to Framing Commonwealth Offences, Infringements Notices and Enforcement Powers405 and applies to regulatory schemes which trigger its provisions through primary legislation—as the Biosecurity Bill does.406

 Chapter 9 contains monitoring, investigation and warrant powers which enliven the Regulatory Powers Act.

 In addition to criminal sanctions, Chapter 9 also canvasses other enforcement options such as civil penalties, infringement notices, enforceable undertakings and injunctions.

400. Standing Committee for the Scrutiny of Bills, Alert Digest No. 2 of 2015, op. cit., pp. 22-24. 401. Ibid., p. 22. 402. Explanatory Memorandum, Biosecurity Bill 2014, pp. 44-45 and see also p. 290. 403. Standing Committee for the Scrutiny of Bills, Alert Digest No. 2 of 2015, op. cit., p. 25. 404. Explanatory Memorandum, Biosecurity Bill 2014, p. 276. 405. Attorney-General’s Department (AG), Guide to framing Commonwealth offences, infringement notices and enforcement powers, AG website,

accessed 17 February 2015. 406. Replacement Explanatory Memorandum, Regulatory Powers (Standard Provisions) Bill 2014, p. 2, accessed 17 February 2015.

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Chapter 9 (clauses 480-538) of the Bill contains compliance and enforcement powers.

Monitoring

Nature of monitoring powers Clause 481 of the Bill provides that the Biosecurity Act and information given in compliance with its provisions are subject to monitoring under Part 2 of the Regulatory Powers Act.407 The clause also ensures that a biosecurity enforcement officer under the Biosecurity Act is an authorised applicant and an authorised person for the purposes of Part 2 of the Regulatory Powers Act (which provides a framework for monitoring compliance with relevant legislation).408

The monitoring powers (set out at section 19 of the Regulatory Powers Act) which may be exercised on premises that an authorised person has entered under warrant or consent, include the power to:

• search the premises and any thing on the premises

• examine or observe any activity conducted on the premises

• inspect, examine, take measurements of or conduct tests on any thing on the premises

• make any still or moving image or any recording of the premises or any thing on the premises

• inspect any document on the premises

• take extracts from, or make copies of, any such document

• take onto the premises such equipment and materials as the biosecurity enforcement officer requires in order to exercise powers in relation to the premises

• operate electronic equipment on the premises, to put relevant data in documentary form and remove those documents from the premises409

• secure electronic equipment where an authorised person enters premises under a monitoring warrant410

• secure a thing for a period of 24 hours in circumstances where the thing is found during the exercise of monitoring powers on the premises and a biosecurity enforcement officer believes on reasonable grounds that it relates to the contravention of a related provision.411

These powers may only be exercised to:

• determine whether the Biosecurity Act is being complied with and/or

• determine whether information supplied under the Biosecurity Act is correct.412

Clause 482 of the Bill provides additional monitoring powers, being the power to sample any thing on the premises and for a biosecurity enforcement officer to be accompanied by, and use, an animal to assist him or her in executing a monitoring warrant or when they have entered premises by consent.413 A biosecurity enforcement officer may use such force as is reasonable and necessary in the circumstances against things. However, this does not extend to the use of force against a person.414

407. Regulatory Powers (Standard Provisions) Act 2014 , accessed 2 May 2015. Clause 481 of the Bill, together with sections 8 and 9 of the Regulatory Powers (Standard Provisions) Act operate to apply Part 2 of that Act to the Biosecurity Act and information given in compliance with the Biosecurity Act.

408. See sections 11 and 12 of the Regulatory Powers (Standard Provisions) Act 2014. 409. Regulatory Powers (Standard Provisions) Act, subsections 20(1) and (4). 410. Regulatory Powers (Standard Provisions) Act, subsection 21(2). 411. Regulatory Powers (Standard Provisions) Act, subsection 22(1). 412. Regulatory Powers (Standard Provisions) Act, subsection 18(1). 413. Subclause 482(2) of the Bill. 414. Subclause 482(8) of the Bill; and see also Explanatory Memorandum, Biosecurity Bill 2014, p. 297.

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Issuing a monitoring warrant A monitoring warrant may be issued if the issuing officer415 is satisfied that it is reasonably necessary for one or more biosecurity enforcement officers to have access to premises for the purpose of determining whether a provision that is subject to monitoring has been, or is being, complied with or that information subject to monitoring is correct.416 (All the provisions of the Biosecurity Act, and all information given in compliance with that Act, are subject to monitoring).417 In that case the relevant warrant must do all of the following:

• describe the premises to which the warrant relates

• state that the warrant is issued under section 32 of the Regulatory Powers Act

• state the purpose for which the warrant is issued

• authorise one or more biosecurity enforcement officers (whether or not named in the warrant) from time to time while the warrant remains in force to enter the premises and to exercise the monitoring powers

• state whether entry is authorised to be made at any time of the day or during specified hours of the day and

• specify the day (not more than three months after the issue of the warrant) on which the warrant ceases to be in force.418

A biosecurity enforcement officer may enter premises and exercise the monitoring powers only if the occupier of the premises has consented to the entry, or the entry is made under a monitoring warrant.419

Investigating

Nature of investigation powers Clause 484 of the Bill sets out the provisions that are subject to investigation under Part 3 of the Regulatory Powers Act. They are:

• an offence against the Biosecurity Act

• a civil penalty provision under the Biosecurity Act or

• an offence against the Crimes Act or the Criminal Code that relates to the Biosecurity Act.

Part 3 of the Regulatory Powers Act applies to the evidential material in respect of the above.420 Evidential material is material relevant to criminal offences and civil penalty provisions under the Biosecurity Act.421 Subclause 484(2) of the Bill aligns the designated positions in both statutes as above and also provides that the Director of Biosecurity is equivalent to the relevant chief executive under the Regulatory Powers Act.

The investigation powers (set out at section 49 of the Regulatory Powers Act) which may be exercised on premises that an authorised person has entered under warrant or consent, include the power to:

• where the occupier consents to entry—search the premises and any thing on the premises for the evidential material the biosecurity enforcement officer suspects on reasonable grounds may be on the premises

• where the entry is under warrant—search the premises and any thing on the premises for the kind of evidential material specified in the warrant and to seize evidential material of that kind if the biosecurity enforcement officer finds it on the premises

• inspect, examine, take measurements of, or conduct tests on, the evidential material

• make any still or moving image or any recording of the premises or evidential material

415. Under clause 9 of the Bill, issuing officer means a magistrate or a judge of a state or territory court, the Federal Court or the Federal Circuit Court. 416. Regulatory Powers (Standard Provisions) Act, section 32. 417. Subclauses 481(1) and (2) of the Bill. 418. Regulatory Powers (Standard Provisions) Act, subsection 32(4). 419. Regulatory Powers (Standard Provisions) Act, section 18. 420. Clause 484 of the Bill, together with section 38 the Regulatory Powers (Standard Provisions) Act operate to apply Part 3 of that Act to the

Biosecurity Act. 421. Section 39 of the Regulatory Powers (Standard Provisions) Act contains the definition of evidential material.

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• take onto the premises such equipment and materials as the biosecurity enforcement officer requires for the purpose of exercising powers in relation to the premises

• operate electronic equipment on the premises, to put relevant data in documentary form and remove those documents from the premises422

• secure electronic equipment where an authorised person enters premises under an investigation warrant423

• seize a thing that is not evidential material specified in a warrant if other evidential material is found in the execution of an investigation warrant which a biosecurity enforcement officer believes on reasonable grounds is evidence of the contravention of a related provision.424 (A ‘related provision’ is an offence under the Biosecurity Act or the Quarantine Act; a civil penalty provision of the Biosecurity Act; or an offence under the Crimes Act or the Criminal Code that relates to the Biosecurity Act or the Quarantine Act).425

Similar to the provisions about monitoring powers, clause 485 of the Bill provides for additional investigation powers—being the power to sample any thing on the premises and for a biosecurity enforcement officer to be accompanied by, and use, an animal to assist him or her in exercising an investigation power.426 A biosecurity enforcement officer may use such force as is reasonable and necessary in the circumstances against things. However, this does not extend to the use of force against a person.427

Issuing an investigation warrant Where a biosecurity enforcement officer suspects on reasonable grounds that there may be evidential material on any premises, he, or she, may enter the premises and use investigation powers so long as the occupier consents or the biosecurity enforcement officer has an investigation warrant.428 The provisions in Part 3 of the Regulatory Powers Act set out the requirements for applying for an investigation warrant and its contents.429

Other warrants Clause 487 of the Bill lists the other types of warrants (that is, warrants other than monitoring or investigation warrants) for which a biosecurity enforcement officer may apply, being:

• a biosecurity risk assessment warrant authorising entry to premises and the exercise of the powers in clauses 313-326 which relate to the assessment of a biosecurity risk430

• a biosecurity control order warrant authorising entry to premises and the exercise of the powers that are available to be exercised under a biosecurity control order in accordance with clause 360431

• a biosecurity response zone warrant authorising entry to premises and the exercise of the powers that are available to be exercised in a biosecurity response zone in accordance with clause 370432

• a biosecurity monitoring zone warrant authorising entry to premises and the exercise of the powers that are available to be exercised in a permanent biosecurity monitoring zone in accordance with subclauses 379(1) and (2) or in a temporary biosecurity monitoring zone in accordance with clause 389433

• an adjacent premises warrant authorising entry to premises and remaining on premises for such period as is reasonably necessary to gain access to other premises434

422. Regulatory Powers (Standard Provisions) Act, subsections 50(1) and (2). 423. Regulatory Powers (Standard Provisions) Act, subsection 51(2). 424. Regulatory Powers (Standard Provisions) Act, section 52. 425. See: definition of ‘related provision’ in clause 9 of the Bill, paragraph 484(2)(a) of the Bill, and section 40 of the Regulatory Powers (Standard

Provisions) Act. 426. Subclause 485(2) of the Bill. 427. Subclause 485(8) of the Bill; and see also Explanatory Memorandum, Biosecurity Bill, p. 299. 428. Regulatory Powers (Standard Provisions) Act, section 48. 429. Regulatory Powers (Standard Provisions) Act, section 70. 430. Item 1 in the table contained in subclause 490(4) of the Bill. 431. Item 2 in the table contained in subclause 490(4) of the Bill. 432. Item 3 in the table contained in subclause 490(4) of the Bill. 433. Item 4 in the table contained in subclause 490(4) of the Bill.

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• a conveyance possession warrant authorising the taking of possession of a conveyance for the purpose of allowing it to be dealt with or destroyed in accordance with subclauses 209(5) or 338(5)435

• a premises possession warrant authorising the taking of possession of premises (other than a conveyance) for the purpose of allowing the premises to be dealt with or destroyed in accordance with subclause 341(3) or clause 344.436

Clause 489 of the Bill sets out in table form the threshold tests which must be met before any of the above warrants is issued by an issuing officer. 437 Generally the maximum length of a warrant is one month from the day the warrant is issued.438

General rules—obligations and powers relating to warrants Clauses 501-505 of the Bill set out general obligations and powers in respect warrants that are not monitoring and investigation warrants. Essentially those provisions require a biosecurity enforcement officer or a biosecurity officer to announce his or her authority to enter the premises and show his or her identify card to an appropriate person.439 In addition, a biosecurity enforcement officer must be in possession of the warrant (or a copy of the warrant) and provide a copy of the warrant to the appropriate person. A biosecurity enforcement officer who is executing a warrant (or a person assisting the biosecurity enforcement officer) may use such force against things (but not persons) as is necessary and reasonable in the circumstances—for instance ‘the opening of doors or the movement of things’.440

General rules—appropriate person Clauses 507 and 508 of the Bill set out the rights and responsibilities of appropriate persons in relation to warrants other than monitoring and investigation warrants. These are:

• the appropriate person for premises is entitled to observe the execution of an entry warrant if the person is present at the premises while the warrant is being executed

• the appropriate person for a conveyance is entitled to observe the execution of a conveyance possession warrant if the person is on board the conveyance while the warrant is being executed

• the right to observe ceases if the appropriate person impedes the execution of the relevant warrant

• an appropriate person for premises or a conveyance to which a warrant relates is required to provide a biosecurity enforcement officer, a biosecurity officer or a person assisting those officers with all reasonable facilities and assistance for the effective exercise of their powers.

Entering without a warrant or consent Clauses 509-517 of the Bill permit a biosecurity officer or biosecurity enforcement officer to enter relevant premises without a warrant or valid consent. For the purposes of those clauses, relevant premises are those where a biosecurity industry participant is covered by an approved arrangement and landing places or ports which are first points of entry.441 ‘Entry to a premise in these circumstances recognises that the nature of the

434. Item 5 in the table contained in subclause 490(4) of the Bill. Under subclause 490(2) an adjacent premises warrant must cease to be in force no later than 14 days after the day of issue. Clause 499 of the Bill requires a biosecurity officer who enters premises under such a warrant to take all reasonable steps to ensure that they cause as little inconvenience to the occupier of the premises as is practicable.

435. Item 6 in the table contained in subclause 490(4) of the Bill. Under subclause 490(2) a possession warrant must cease to be in force no later than 14 days after the day of issue. 436. Item 7 in the table contained in subclause 490(4) of the Bill. Under subclause 490(2) a possession warrant must cease to be in force no later than 14 days after the day of issue. 437. Under clause 9 of the Bill, issuing officer means a magistrate or a judge of a state or territory court, the Federal Court or the Federal Circuit

Court.

438. Subclause 490(3) of the Bill. 439. Clause 9 of the Bill defines the term appropriate person in relation to an entry warrant as the occupier of the premises or another person who apparently represents the occupier. Where the warrant is a conveyance possession warrant, the appropriate person is the person responsible for the conveyance or another person who apparently represents the person responsible for the conveyance.

440. Explanatory Memorandum, Biosecurity Bill 2014, p. 309. See also clause 505 of the Bill. 441. Clause 510 of the Bill.

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unique activities at these premises may require entry for a biosecurity enforcement officer without a warrant or consent to manage biosecurity risks.’442

A biosecurity enforcement officer may enter relevant premises without a warrant for the purpose of exercising monitoring or investigation powers (as set out in Parts 2 and 3 of the Regulatory Powers Act)—as if the officer had a warrant.

In particular, clause 511 of the Bill operates to allow a biosecurity enforcement officer to stop and detain a conveyance for the purpose of exercising the monitoring powers.

Despite the absence of a warrant or consent, a biosecurity enforcement officer or a biosecurity officer must announce their entry and show their identity card to the appropriate person and explain their reasons for entering the premises.443 Occupiers of premises which are entered without warrant, and their representatives, may observe the exercise of powers there.444

Civil penalties Clause 519 of the Bill provides that each civil penalty provision under the Biosecurity Act is enforceable under Part 4 of the Regulatory Powers Act.445 The clause also provides that the Director of Biosecurity and the Director of Human Biosecurity are authorised applicants for the purposes of the Regulatory Powers Act.

Part 4 of the Regulatory Powers Act operates so that a provision of the Biosecurity Act will be an enforceable civil penalty provision446 and the Director of Biosecurity and the Director of Human Biosecurity may apply to a relevant court447—within four years of the alleged contravention—for an order that a person pay the Commonwealth a pecuniary penalty.448 Where the court is satisfied that the person has contravened the civil penalty provision, it may order the person to pay to the Commonwealth a pecuniary penalty.449 A pecuniary penalty is a debt payable to the Commonwealth and is recoverable as a judgement debt.450

However, clause 520 of the Bill operates to modify the effect of other provisions in Part 4 of the Regulatory Powers Act. The rationale for the modification is that ‘there are similar offences at Commonwealth and state and territory law’.451 By way of example, a person is not liable under Part 4 of the Regulatory Powers Act to have a civil penalty order made against him, or her, if the person has been convicted of an offence under an Australian law or has been found by a court to have contravened a civil penalty provision under an Australian law that is the same, or substantially the same, as constituting the contravention under the Biosecurity Act.452

Infringement notices Clause 523 of the Bill provides a list of each provision in the Biosecurity Act that is subject to an infringement notice under Part 5 of the Regulatory Powers Act.453 The clause also provides that the Director of Biosecurity is an infringement officer for the purposes of the Regulatory Powers Act as well as the relevant chief executive.454

Part 5 of the Regulatory Powers Act operates so that an infringement notice may be given if the Director of Biosecurity believes on reasonable grounds that a person has contravened a provision subject to an

442. Explanatory Memorandum, Biosecurity Bill 2014, p. 310. 443. Clause 514 of the Bill. 444. Clause 516 of the Bill. 445. Subclause 519(1) of the Bill, together with sections 78 and 79 of the Regulatory Powers (Standard Provisions) Act operate to apply Part 4 of

that Act to the Biosecurity Act. 446. Subclause 519(1) of the Bill and section 79 of the Regulatory Powers (Standard Provisions) Act. 447. Subclause 519(3) of the Bill. 448. Regulatory Powers (Standard Provisions) Act, subsections 82(1) and (2). 449. Regulatory Powers (Standard Provisions) Act, subsection 82(3). 450. Regulatory Powers (Standard Provisions) Act, section 83. 451. Explanatory Memorandum, Biosecurity Bill 2014, p. 314. 452. Subclause 520(1) of the Bill. 453. Clause 523 of the Bill, together with subsection 99(2) and section 100 of the Regulatory Powers (Standard Provisions) Act operate to apply

Part 5 of that Act to the Biosecurity Act. 454. Subclause 523(2) of the Bill.

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infringement notice. An infringement notice must be given within 12 months after the day on which the contravention is alleged to have taken place.455

The contents of an infringement notice are set out in detail in section 104 of the Regulatory Powers Act including amongst other things:

• the day on which, and the name of the person to whom, the notice is given

• the name and contact details of the person who gave the notice and brief details of the alleged contravention

• the amount that is payable under the notice and how payment may be made

• the requirement to pay the amount specified within 28 days after the day the notice is given and the consequences of a failure to do so—including the possibility of prosecution for a contravention of a civil penalty provision.

Clause 524 of the Bill operates to modify the effect of some provisions in Part 5 of the Regulatory Powers Act. In particular, the period for paying an infringement notice may be reduced from 28 days to some lesser period by regulations.456

Enforceable undertakings Clause 526 of the Bill provides that provisions of the Biosecurity Act are enforceable under Part 6 of the Regulatory Powers Act.457 The clause also provides that the Director of Biosecurity is an authorised person in relation to those provisions.458

The Regulatory Powers Act will operate so that the Director of Biosecurity may accept undertakings that a person will take specified action or refrain from taking specified action. The person who gives the undertaking may withdraw, or vary, it at any time with the written consent of the Director of Biosecurity. Similarly, the Director of Biosecurity may, by written notice given to the person, cancel the undertaking.459 In addition, the Director of Biosecurity may apply to a relevant court for an order where he or she believes that a person has breached their undertaking.460

Injunctions Similarly clause 528 of the Bill provides that provisions of the Biosecurity Act are enforceable under Part 7 of the Regulatory Powers Act.461 The clause also provides that the Director of Biosecurity and the Director of Human Biosecurity are authorised persons in relation to those provisions.462

The Regulatory Powers Act will operate so that the Director of Biosecurity or the Director of Human Biosecurity may apply to a relevant court for the grant of an injunction to restrain a person from engaging in specified conduct or requiring the person to do a thing.463

False and misleading information or documents Clause 532 of the Bill provides that a person is liable to a civil penalty if the person gives information in compliance with the Biosecurity Act and that person does so, knowing that the information is false and misleading. The civil penalty also arises if the person omits any matter or thing without which the information is misleading. Similarly clause 533 provides that a person is liable to a civil penalty if the person produces a document in purported compliance with the Biosecurity Act and that person does so, knowing that the document is false and misleading.

455. Regulatory Powers (Standard Provisions) Act, subsection 103(2). 456. Paragraph 524(1)(b) and subclauses 524(2) and (3) of the Bill. 457. Clause 526 of the Bill, together with section 111 of the Regulatory Powers (Standard Provisions) Act operate to apply Part 6 of that Act to the Biosecurity Act.

458. Subclause 526(2) of the Bill. 459. Regulatory Powers (Standard Provisions) Act, section 114. 460. Regulatory Powers (Standard Provisions) Act, section 115. 461. Clause 528 of the Bill, together with section 118 of the Regulatory Powers (Standard Provisions) Act operates to apply Part 7 of that Act to the

Biosecurity Act. 462. Subclause 528(2) of the Bill. 463. Regulatory Powers (Standard Provisions) Act, section 121.

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In either case the civil penalty will not apply unless the information given, or the document produced, is false and misleading in a material particular.464 In addition, the civil penalty in relation to the giving of false and misleading information does not apply if, before the person gave the information, he or she was not informed by the officer requesting it of his or her possible liability to the civil penalty.

These clauses were of concern to the Customs Brokers and Forwarders Council of Australia because of the possibility of a cargo owner providing false documentation or information to a licensed customs broker/brokerage. In that case, the Customs Brokers and Forwarders Council of Australia considered that the responsible person for compliance failure is the cargo owner, rather than the customs broker who is acting in good faith based on the information and documentation provided by the cargo owner to facilitate biosecurity border clearance. The Customs Brokers and Forwarders Council of Australia expressed the view that the Regulations or Departmental policy on this aspect should clearly define the responsible parties.465

However, the Department of Agriculture provided the following explanation in answer to a written question on notice:

A person providing information to the department should ensure that the information they are providing is true and accurate. Clauses 532-533 provide that a person is liable to a maximum civil penalty of 60 penalty units if a person knowingly provides false and misleading information or documents in compliance or purported compliance with the Biosecurity Act.

These clauses are intended to dissuade persons from providing false or misleading information to an official for the purposes of complying with the Biosecurity Act, thereby ensuring that officials have access to information that is relevant, reliable and correct. If an official relies upon false or misleading information it has the potential to reduce the official‘s ability to assess or manage biosecurity risk.

Section 95 of the Regulatory Powers Act provides for a defence of mistake of fact. A person is not liable to have a civil penalty order made against the person for a contravention of a civil penalty provision if: at or before the time of the conduct constituting the contravention, the person: (i) considered whether or not facts existed; and (ii) was under a mistaken but reasonable belief about those facts; and had those facts existed, the conduct would not have constituted a contravention of the civil penalty provision.

466

Chapter 10—governance and officials Quick guide to Chapter 10

 Chapter 10 of this Bill is in similar terms to Chapter 12 of the 2012 Bill. The exception is the inclusion in this Bill of a new Part 6 which authorises the Agriculture Minister to review the performance of functions and the exercise of powers by biosecurity officials.

 Such reviews may be undertaken by the Inspector-General of Biosecurity, which remains an administrative office rather than a statutory one. (See the discussion about the Inspector-General of Biosecurity above.)

 The Chapter sets out the hierarchy of officials and the persons to whom powers may be delegated. It includes the arrangements for state or territory officers or employees to be biosecurity officers or biosecurity enforcement officers.

Chapter 10 (clauses 539-572) of the Bill sets out the functions and powers of the following officials:

• the Director of Biosecurity467—who is also the Agriculture Secretary468

464. Subclauses 532(2) and 533(2) of the Bill. 465. Customs Brokers and Forwarders Council of Australia, Submission to the Rural and Regional Affairs and Transport Committee, Inquiry into the Biosecurity Bill 2014 and related Bills, January 2015, p. 5, accessed 2 March 2015. 466. Senate Rural and Regional Affairs and Transport Legislation Committee, Answers to Questions on Notice, Department of Agriculture, Inquiry

into the Biosecurity Bill 2014 and related Bills, Question 15, accessed 9 April 2015. 467. Clauses 540 and 541 of the Bill.

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• the Director of Human Biosecurity—who is also the Commonwealth Chief Medical Officer469

• biosecurity officers470 and biosecurity enforcement officers471

• chief human biosecurity officers and human biosecurity officers.472

Biosecurity officers The powers of the Director of Biosecurity are capable of delegation to, and further subdelegation by, an SES employee, or acting SES employee in the Agriculture Department.473 Some powers are not capable of being delegated.474 Some powers are not capable of being subdelegated. These are set out in the table in subclause 542(3) of the Bill. In any other case the power may be subdelegated to a biosecurity officer or a biosecurity enforcement officer. The Director of Biosecurity may authorise a person to be a biosecurity officer if, amongst other things, the person satisfies pre-determined training and qualification requirements.475

Appointment as a biosecurity enforcement officer requires that the person is already a biosecurity officer and has satisfied additional training and qualification requirements.476 According to the Explanatory Memorandum for the Bill:

This ensures that biosecurity enforcement officers have adequate training and qualifications to conduct biosecurity operations effectively and respond to incidents where necessary. Additional qualification and training requirements for biosecurity enforcement officers will likely be based on enforcement experience, to ensure that enforcement and compliance powers across the Bill are exercised safely and effectively.

477

As has already been outlined elsewhere in this Digest, biosecurity officers and biosecurity enforcement officers have a range of functions and powers under the Biosecurity Act. Clauses 550-561 of the Bill confirm these general powers and also authorise biosecurity officers and biosecurity enforcement officers to undertake various activities in relation to goods and conveyances including carrying out tests on samples.478

Key issue—level of training Although the Bill indicates that a biosecurity officer must satisfy pre-determined training and qualification requirements the nature of those requirements is not specified. In answers to questions on notice, the Department of Agriculture and the Department of Health stated that:

Biosecurity officers currently undertake general departmental staff training and formalised on the job training which includes competency based assessments, for example:

 Certificate III in Government

 on-the-job assessments

 competency based assessments.

468. The term Agriculture Secretary is defined in clause 9 of the Bill as the Secretary of the Agriculture Department. 469. Clause 544 of the Bill. 470. Clause 545 of the Bill. 471. Clause 546 of the Bill. 472. Clauses 562 and 563 of the Bill. 473. Clause 542 of the Bill. 474. Paragraph 542(1)(b) of the Bill. 475. Paragraph 545(1)(b) and subclause 545(5) of the Bill. 476. Subclause 546(1) of the Bill. 477. Explanatory Memorandum, Biosecurity Bill 2014, p. 326. 478. Clause 554 of the Bill.

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A number of biosecurity officers are scientists who use their expertise to provide high-quality and timely science to support the Department of Agriculture’s business. 479

The Australian Veterinary Association argues that private practitioners and veterinary specialists in disciplines like epidemiology, microbiology and pathology have roles to play in surveillance and early detection of disease— particularly emergency animal diseases.

Biosecurity operations must be able to address low levels of risk of contamination or infection of goods. It must be made clear that the probability of the animals or plants being contaminated or infected does not have to be assessed objectively or quantitatively, but can be assessed by examination of the circumstances under which they come under suspicion.

480

Decontamination Importantly a biosecurity officer may request an individual to be decontaminated if the officer suspects, on reasonable grounds, that the person may have been exposed to a disease or pest and the officer is satisfied, on reasonable grounds, that decontaminating the individual is likely to be effective in, or to contribute to, managing the level of biosecurity risk of the disease or pest.481 This is a decision which is to be made using the decision-making principles in clause 32 of the Bill which are explained above.

Once the biosecurity officer has explained to the person how, where and when the decontamination will take place, and who would conduct the decontamination, the person may consent and the decontamination will be undertaken.

However, if the person refuses consent the biosecurity officer may request the Director of Biosecurity to give a direction to the person that he or she undergoes decontamination. In that case, the Director of Biosecurity must consider whether to give that direction. Subclause 559(3) sets out the relevant test which is in the same terms as the original test applied by the biosecurity officer. The Director must give a notice to the person within 72 hours of receiving the request from the biosecurity officer, either directing the person to be decontaminated or advising that decontamination is not required.482

A biosecurity officer may also require an individual to permit his or her clothing or personal effects, including baggage, to be decontaminated. Where clothing is to be decontaminated, the person must be taken to a place that affords adequate personal privacy to him or her, and suitable alternative clothing provided if the person does not have any.483

Human biosecurity officers The Director of Human Biosecurity may authorise a person to be a chief human biosecurity officer for a state or territory body provided that the person is a medical practitioner employed by the State or Territory body for the administration of health services.484 Clause 563 of the Bill empowers the Director of Human Biosecurity to authorise a person to be a human biosecurity officer if:

• the person is an officer or employee of the Health Department or an officer or employee of the State or

Territory body responsible for the administration of health services in a State or Territory; or a member of the Australian Defence Force and

• the Director of Human Biosecurity is satisfied that the person has appropriate clinical expertise.

479. Department of Agriculture and Department of Health, Answers to written questions taken on notice by the Senate Rural and Regional Affairs and Transport Legislation committee: question 13, 27 February 2015, accessed 4 March 2015. 480. Australian Veterinary Association, Submission to the Rural and Regional Affairs and Transport Committee, Inquiry into the Biosecurity Bill 2014 and related Bills, 15 January 2015, Attachment 1, p. 3, accessed 27 February 2015. 481. Clause 558 of the Bill. 482. Subclause 559(4) of the Bill. 483. Clause 560 of the Bill. 484. Clause 562 of the Bill.

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The Director of Human Biosecurity may, in writing, vary or revoke an authorisation at any time. It is for the Director or Human Biosecurity to determine, in writing, the training and qualification requirements for human biosecurity officers.485

Clause 564 of the Bill provides for the partnership arrangements between the Commonwealth, states and territories which will operate across the biosecurity continuum.

A human biosecurity officer has functions and powers which are conferred by the Biosecurity Act, subject to any restrictions which are specified in the instrument of authorisation.486

Ministerial reviews As stated above (see the discussion about the Inspector-General of Biosecurity in relation to Chapter 3 of the Bill) the role of undertaking reviews of the performance of functions or exercise of powers by biosecurity officials under the Biosecurity Act will not sit formally with an Inspector-General of Biosecurity as was proposed under the 2012 Bill.

The review power in this Bill permits the Agriculture Minister to give written notice to a person to answer questions, to give information in writing, or to produce specified documents, to the Minister within the time specified in the notice—being at least 14 days after the notice is given.487 According to the current Agriculture Minister, ‘it is intended that these powers will be used by the Inspector-General of Biosecurity’.488

This would be made possible by the terms of subclause 643(4) of the Bill which allows the Agriculture Minister to delegate all or any of the Agriculture Minister’s functions or powers to conduct a review (under clause 567) or to require information to be provided in respect of a review (under clause 568) to an individual (the Minister’s delegate) who the Minister considers has appropriate qualifications or expertise to perform the delegated functions or exercise the delegated powers. However, it should be noted that the Minister’s delegate must comply with any directions of the Agriculture Minister.489

The Minister’s delegate may, in writing, sub-delegate the function or power to another individual who will be responsible to the Minister’s delegate.490 However, it should be noted that a subdelegate must also comply with any directions of the Agriculture Minister.491

Key issue—need for independence and reporting The Invasive Species Council has summed up many of the concerns of stakeholders in relation to the Minister’s review powers:

Minister Joyce indicated in his second reading speech for the Bill that he intends to use these powers to delegate an ongoing review role to the current interim Inspector-General of Biosecurity, which will now be a non-statutory position.

This is a backward step from the arrangement proposed in 2012: the loss of an independent review process.

The Minister for Agriculture has a clear conflict of interest as both Minister administering biosecurity legislation and person responsible for reviewing biosecurity performance. The areas subject to review are likely to be influenced by political considerations, and matters that could embarrass the government of the day are likely to be avoided. The risk of this would be substantially reduced and the public would have greater trust in the reviews if they were initiated and conducted by an independent statutory officer.

Further, the nature of any review is undescribed and totally discretionary. There is no requirement to publicly release terms of reference of any review or to release the results. Without input from the Minister for the

485. Subclauses 563(4) and (5) of the Bill. 486. Clause 566 of the Bill. 487. Clauses 567 and 568 of the Bill. 488. B Joyce (Agriculture Minister), ‘Second reading speech: Biosecurity Bill 2014 and related Bills’, House of Representatives, Debates,

27 November 2014, p. 13427, accessed 2 March 2015. 489. Subclause 643(6) of the Bill. 490. Subclause 643(5) of the Bill. 491. Subclause 643(6) of the Bill.

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Environment reviews are likely to focus primarily on agricultural biosecurity and neglect environmental biosecurity. The Inspector-General of Biosecurity Bill 2012 provided for independent powers of review and detailed transparency provisions including Parliamentary reporting.

At the minimum, there needs to be an independent review process with requirements for public release of the terms of reference, the capacity for submission by the public and tabling in Parliament of the results of all reviews. 492

The Tasmanian Salmonid Growers Association agreed, stating that the Ministerial review powers are:

… useful, but [it] is entirely discretionary and does not have transparency and independence provisions—no systematic method for determining when to conduct a review, reviews would be unlikely to reveal issues critical of the current government and there is no requirement to publish the results. TSGA considers this is a backward step compared to the 2012 proposal that included an Inspector-General of Biosecurity Bill.

493

Another stakeholder AUSVEG was also critical:

… there is no provision for a review of process, science, or any other operational aspects of the Department.

As it stands the Department is not subject to any form of mandated review. This is a retrograde step and only serves to reinforce the impression that the Department does not want any meaningful dialogue with industry unless it is on their terms. 494

Chapter 11—miscellaneous Quick guide to Chapter 11

 Chapter 11 of the Bill contains a range of matters which were formerly set out in Chapter 13 of the 2012 Bill.

 Matters covered include review of decisions, confidentiality of information, cost recovery measures, provisions to deal with goods or conveyances that are abandoned or forfeited as well as goods that are damaged or destroyed. In each case these provisions are substantially equivalent to those provisions in the 2012 Bill.

 The provisions which modify the operation of the Biosecurity Act in relation to declared movements between parts of Australian territory were not included in the 2012 Bill.

Chapter 11 (clauses 573-645) contains miscellaneous provisions.

Review of decisions Clauses 574-578 of the Bill set out the process by which certain decisions under the Biosecurity Act will be subject to internal review and external review by the Administrative Appeals Tribunal (AAT). Importantly the decisions to which Chapter 11 relates and the Minister’s review which is undertaken under Chapter 10 of the Bill (see above) are entirely separate.

General rule Each of the decisions which may be subject to review is set out in table form.495 These are called reviewable decisions. When a reviewable decision has been made, the decision-maker must give written notice of the decision and the reason for that decision to the relevant person. Once the written reasons have been received, the relevant person may apply to the Director of Biosecurity for a review of that decision.

492. Invasive Species Council, Submission to the Rural and Regional Affairs and Transport Committee, Inquiry into the Biosecurity Bill 2014 and related Bills, 21 January 2015, p. 3, accessed 3 March 2015. 493. Tasmanian Salmonid Growers Association Ltd, Submission to the Rural and Regional Affairs and Transport Committee, Inquiry into the Biosecurity Bill 2014 and related Bills, undated, p. 6, accessed 3 March 2015. 494. AUSVEG, Submission to the Rural and Regional Affairs and Transport Committee, Inquiry into the Biosecurity Bill 2014 and related Bills, 16

January 2015, p. 9, accessed 3 March 2015. 495. Clause 574 of the Bill.

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The process to be followed is:

• the relevant person must lodge an application for review within 30 days after the day that the reviewable decision first came to the notice of the applicant—although the Director of Biosecurity may extend the 30 day period496

• the application must be in writing and set out the reasons for the application497

• when the application is received the Director of Biosecurity must either review the decision personally or ensure that it is reviewed by an internal reviewer who was not involved in making the decision498

• the Director of Biosecurity or the internal reviewer may affirm, vary or set aside the reviewable decision 499

• if the reviewable decision is set aside the Director of Biosecurity or the internal reviewer may substitute

another decision as he or she thinks appropriate500

• the decision on review takes effect on a day specified in the decision or on the day the decision on review

was made501

• the person who made the decision must give the applicant written notice of the review decision502 and

• a person who has received notice of the outcome of an internal review of a reviewable decision may make an application for further review by the AAT.503

Exception The only stated exception to that general procedure is where the decision maker was the Director of Biosecurity or the Director of Human Biosecurity.504 In that case the person may make an application for review directly to the AAT.505

Confidentiality of information Clauses 579-590 of the Bill provide that personal and commercial-in-confidence information may be collected under the Biosecurity Act. There are two definitions which are relevant to these clauses.

Protected information means personal information, or information that is commercial-in-confidence, that:

• is obtained under, or in accordance with, the Biosecurity Act

• is derived from a record of personal information, or information that is commercial-in-confidence, that was

made under, or in accordance with, the Biosecurity 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, the Biosecurity Act.506

Information is commercial-in-confidence if a person demonstrates to the Director of Biosecurity that:

• 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.507

496. Paragraph 576(2)(c) of the Bill. 497. Paragraphs 576(2)(a) and (b) of the Bill. 498. Subclause 576(3) of the Bill. 499. Paragraph 576(4)(a) of the Bill. 500. Paragraph 576(4)(b) of the Bill. 501. Subclause 576(5) of the Bill. 502. Subclause 576(6) of the Bill. 503. Paragraph 578(1)(b) of the Bill. 504. Subclause 576(1) of the Bill. 505. Subclause 578(1) of the Bill. 506. Clause 9 of the Bill. 507. Clause 15 of the Bill.

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Clause 580 of the Bill authorises a person to make a record of, disclose or otherwise use protected information in certain circumstances, being:

• that a record is made, or information is disclosed or used, for a permissible purpose in performing the

person’s functions or duties under the Biosecurity Act and

• the disclosure is to any of the following:

- an officer or employee of the Commonwealth, a state, the Australian Capital Territory or the Northern

Territory or a Commonwealth body, or a state or territory body - a person engaged by the Commonwealth, a Commonwealth body, a state, the Australian Capital Territory,

the Northern Territory or a state or territory body, to perform public health work or to manage biosecurity risks in relation to plant or animal health - a biosecurity industry participant or a survey authority, or an officer or employee of a biosecurity industry

participant or a survey authority508 • the person makes the record, or discloses or otherwise uses, the information in carrying out his or her functions or duties, or exercising his or her powers for the purpose of promoting the objects of the Biosecurity Act.

In addition, the Bill also sets out three specific circumstances in which a person may make a record of, disclose or otherwise use protected information, being first to a court or tribunal, or the coroner, by order, for the purpose of proceedings; second where the information is received from another source and used by a prescribed agency; and third where the use is authorised by another law.509

A person commits an offence if he or she obtains protected information, makes a record of or discloses or uses the information, and that record, disclosure or use is not authorised.510

Cost recovery

Charges The Australian Government Cost Recovery Guidelines provide that ‘Australian Government entities should generally set charges to recover the full cost of providing specific activities’. 511

Consistent with those guidelines, the Quarantine Charges (Collection) Act 2014512 which commenced on 1 July 2014 enables the Commonwealth to recover costs for the provision of key biosecurity and quarantine services.513 The relevant charges are imposed by:

• Quarantine Charges (Imposition—General) Act 2014514

• Quarantine Charges (Imposition—Customs) Act 2014515 and

• Quarantine Charges (Imposition—Excise) Act 2014.516

Under the Quarantine Charges (Collection) Act, amongst other things:

• unpaid quarantine charges and late payment fees are debts to the Commonwealth and may be recovered by action in a relevant court

• the Commonwealth has enforcement powers to deal with goods and vessels to recover unpaid charges and late payment fees

508. See clause 289 of the Bill for ‘survey authority’. 509. Clauses 582-584 of the Bill. 510. Clause 585 of the Bill. Note that a number of exceptions to this offence are set out in clauses 586-589 of the Bill. 511. Department of Finance, Australian Government Cost Recovery Guidelines, Commonwealth of Australia, 2014, p. 6, accessed 8 January 2015. 512. Quarantine Charges (Collection) Act 2014, accessed 8 January 2015. 513. Further information about the operation of the Quarantine Charges Collection Act 2014 is contained in the R Dossor and P Pyburne,

Quarantine Charges (Collection) Bill 2014 [and] Quarantine Charges (Imposition—General) Bill 2014 [and] Quarantine Charges (Imposition— Excise) Bill 2014 [and] Quarantine Charges (Imposition—Customs) Bill 2014, Bills digest, 53, 2013-14, Parliamentary Library, Canberra, 2014, accessed 8 January 2015. 514. Quarantine Charges (Imposition—General) Act 2014, accessed 8 January 2015. 515. Quarantine Charges (Imposition—Customs) Act 2014, accessed 8 January 2015. 516. Quarantine Charges (Imposition—Excise) Act 2014, accessed 8 January 2015.

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• the Commonwealth may create a charge on a good or vessel and withhold goods that are subject to a charge

• the Commonwealth has the power to sell goods and vessels to recover outstanding debts.517

The Biosecurity (Consequential Amendments and Transitional Provisions) Bill 2014 repeals the Quarantine Charges (Collection) Act. The cost recovery provisions which are currently in that Act are set out in equivalent terms, with some exceptions, in Part 3 of Chapter 11 of the Bill.

Fees In addition to the charges discussed above, which are collected as taxes (in accordance with section 55 of the Constitution) the Bill proposes to collect fees for fee bearing activities. Clause 592 of the Bill provides that regulations may prescribe fees that may be charged for fee bearing activities which are carried out by, or on behalf of, the Commonwealth in performing functions and exercising powers under the Biosecurity Act—for example, fumigation.

Where legislation provides for the rate of a fee or levy to be set by regulation, there is a risk that the fee may, in fact, become a tax. The vice to be avoided is delegating an unfettered power to impose fees. Whilst subclause 592(3) provides that the fee must not be such as to amount to taxation, it should be noted that subclause 592(4) provides that regulations may prescribe rules relating to deposits to be paid in relation to fee-bearing activities and amounts to be paid in respect of application fees.

Cost recovery charges Clause 9 of the Bill provides the definition of cost recovery charges. Essentially these are comprised of:

• a fee arising from a fee-bearing activity

• a charge imposed as a tax by the Charges Impositions Acts listed above or

• a late payment fee relating to either an above fee or charge.

Clause 593 of the Bill allows for regulations to prescribe:

• when a cost recovery charge is due and payable

• that one or more persons are liable to pay a cost recovery charge (that is, joint and several liability) and

• rules about the liability of an agent to pay cost recovery charges on behalf of a person which would then have to be recovered by the agent from the person.

What happens when cost recovery charges are not paid A cost recovery charge that is due and payable to the Commonwealth under the Biosecurity Act may be recovered as a debt due to the Commonwealth in a relevant court.518 Importantly, clauses 598-599 empower the Commonwealth to create a charge over certain goods whilst clauses 604-605 empower the Commonwealth to create a charge over a conveyance (which has priority over other interests in the goods or conveyance in accordance with subsection 73(2) of the Personal Property Securities Act 2009519) in order to recover a fee that is payable. In that case, the goods or the conveyance may be sold in order to recover unpaid cost recovery charges.520

Stakeholder comments Some stakeholders expressed concern about the cost recovery provisions. According to the Customs Brokers and Forwarders Council of Australia:

… [cost recovery arrangements] must be equitable, transparent, cost efficient and cost effective. The failure of regulatory agencies to enter into, or seek consultation with industry, as to cost recovery to benefit all parties, either business or regulatory is well documented. The recent Joint Review of Border Fees, Charges and Taxes 17 September 2014 is an example of a review which does not give effect to the [Cost Recovery Guidelines].

517. Explanatory Memorandum, Quarantine Charges (Collection) Bill 2014, pp. 3-4, accessed 8 January 2015. 518. Clause 596 of the Bill. 519. Personal Property Securities Act 2009, accessed 2 May 2015. 520. Clauses 603 and 609 of the Bill.

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To determine whether activities and services provided by the Department should be a cost recovered or deemed community service obligation, the issue which needs identification is what service(s) is to be cost recovered in accordance with Government policy. What constitutes the service and its respective component(s) needs to be determined by way of a matrix of service/positions/costs. Such transparency and information provided by the Department should give effect to collaboration with industry to develop a sustainable financial model.

521

Similarly, the submission by Tasmanian Salmonid Growers Association is to the effect that the cost recovery provisions cause considerable concern for industry for several reasons:

Firstly, the delivery of biosecurity services is to the advantage of the general population (public good), especially in a country which has a strong reliance on primary industry across all states and territories. Strong biosecurity protects ecosystems, world heritage forests, tourism, public health and a range of other categories - it is not just there to protect growers, farmers, harvesters and producers.

Secondly, breaches to biosecurity are rarely due to the action of commercial operators who risk their own potential livelihood. Biosecurity breaches may be due to tourists, recreational users who do not adhere to farm hygiene policies or codes of practice to ensure that best practice is implemented. Past Biosecurity incursions have been the result of home gardeners, backpackers, bushwalkers (to name a few) who have inadvertently spread pests and diseases which have caused considerable costs and disruption to commercial industries.

TSGA recognises that some fee for service activities should occur but primary industry should not be responsible for covering the costs due to the demonstrated public good that biosecurity has to the Australian public. 522

Detention of conveyances The Director of Biosecurity may detain a conveyance in Australian territory if it is subject to a charge because a cost recovery charge has not been paid by the owner or operator of the conveyance.523 In that case the Director of Biosecurity must take the following action:

• give written notice to the owner and the operator of the conveyance that the conveyance is detained and

warning the owner of the conveyance that it may be sold if the cost-recovery charge has not been paid by the end of the day specified in the notice—being at least 30 days after the day the notice is given

• in addition, the Director of Biosecurity may give the person in charge of the conveyance a direction relating

to the movement of the conveyance, requiring it to be left at a specified place or requiring goods on board to be unloaded at a specified place in a specified manner.

A civil penalty applies where a person has been given such a direction and the person moves, deals with or interferes with the conveyance.524 Where the Director of Biosecurity has exercised his or her right to sell withheld goods or a detained conveyance, the proceeds of sale are to be applied against the relevant cost recovery charge and then any other cost recovery charge that is due and payable by the owner. The remainder of the proceeds must then be paid to the owner of the goods or conveyance.525

Modification of the Act Clauses 618 to 624 of the Bill set up a scheme to enable the management of specific areas of Australian territory which have a different risk status than the rest of Australian territory, and would not be effectively managed through the general provisions of the Bill. For example, if there are different biosecurity risks between the mainland and an external territory then different import conditions could be set to manage that difference.

521. Customs Brokers and Forwarders Council of Australia, Submission to the Rural and Regional Affairs and Transport Committee, Inquiry into the Biosecurity Bill 2014 and related Bills, January 2015, p. 6, accessed 4 March 2015. 522. Tasmanian Salmonid Growers Association Ltd, Submission to the Rural and Regional Affairs and Transport Committee, Inquiry into the Biosecurity Bill 2014 and related Bills, undated, p. 6, accessed 4 March 2015. 523. Clause 606 of the Bill. 524. Clause 607 of the Bill. 525. Clause 611 of the Bill.

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Areas intended to be regulated under this scheme include Christmas Island, the Cocos (Keeling) Islands, and the Torres Strait region.526

Miscellaneous The Bill provides for dealing with abandoned or forfeited goods and conveyances and the authority of the Director of Biosecurity to cause them to be sold, destroyed or otherwise disposed of.527 In addition it sets out the powers of the Director of Biosecurity to approve payment of compensation in respect of goods, conveyances or premises which have been destroyed under a provision of the Biosecurity Act.528

Finally, the Bill provides the Governor-General with a broad power to make regulations prescribing matters required or permitted to be prescribed by the Biosecurity Act, or necessary or convenient for giving effect to the Biosecurity Act.529

Other provisions Consequential Amendments Bill Items 1 and 2 of Schedule 1 of the Consequential Amendments Bill repeal the Quarantine Act and the Quarantine Charges (Collection) Act. These items will take effect when the substantive provisions of the Biosecurity Act commence.

The items in Schedule 2 of the Consequential Amendment Bill make consequential amendments to a number of statutes to replace references to the Quarantine Act with references to the Biosecurity Act. The items will commence when the substantive provisions of the Biosecurity Act commence.

Schedule 3 contains transitional provisions in relation to first points of entry which commence on Royal Assent. (See the discussion about the transitional provisions under Chapter 4 above.)

Schedule 4 contains application, saving and transitional provisions to manage the transition from the Quarantine Act to the biosecurity framework contained in the principal Bill. Those provisions will commence when the substantive provisions of the Biosecurity Act commence. Some of the measures are outlined under the relevant Chapter headings above.

Concluding comments The Biosecurity Bill has been the subject of considerable consultation in both its current and earlier incarnation as the 2012 Bill. For that reason many stakeholders have welcomed the Bill on the grounds that the Quarantine Act, which it will replace, is cumbersome to administer, difficult to interpret and incompatible with current business needs.

However, despite its length, the Biosecurity Bill contains many provisions which delegate the detail of how the biosecurity regime will operate to subordinate legislation. At the time of writing this Bills Digest draft versions of those regulations were not available. That being the case, it is not possible to say with any degree of certainty how successful the Biosecurity Act will be in meeting the needs of business and adapting to the fluid nature of biosecurity risk.

526. Department of Agriculture and Department of Health, Joint Submission to the Rural and Regional Affairs and Transport Committee, Inquiry into the Biosecurity Bill 2014 and related Bills, January 2015, p. 16, accessed 4 March 2015. However, it should be noted that clause 617 allows for exemptions for the Torres Strait Treaty area.

527. Clauses 625-630 of the Bill. 528. Clauses 632-634 of the Bill. 529. Clause 645 of the Bill.

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