Title Biosecurity Amendment (Strengthening Penalties) Bill 2021
Database Explanatory Memoranda
Date 18-05-2021 09:10 AM
Source House of Reps
System Id legislation/ems/r6671_ems_388eaed7-d6c8-4f7f-83f0-e83b44998aac


Biosecurity Amendment (Strengthening Penalties) Bill 2021

2019-2020-2021

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

BIOSECURITY AMENDMENT (STRENGTHENING PENALTIES) BILL 2021

 

EXPLANATORY MEMORANDUM

(Circulated by authority of

the Minister for Agriculture, Drought and Emergency Management,

the Hon. David Littleproud MP)

 


BIOSECURITY AMENDMENT (STRENGTHENING PENALTIES) BILL 2021

GENERAL OUTLINE

The Biosecurity Amendment (Strengthening Penalties) Bill 2021 (the Bill) would amend the Biosecurity Act 2015 (the Act) by increasing the maximum penalties that a court could impose for non-compliance with requirements under the Act. It increases the penalties for specified existing civil penalty provisions to provide a proportionate regulatory response to the conduct covered by those provisions and increases the penalties for specified criminal offences to ensure appropriate punishment for those who jeopardise Australia’s biosecurity status by breaking the law. 

 

The Act provides the regulatory framework for the management of risks of pests and diseases entering Australian territory which may cause harm to animal, plant and human health, the environment and the economy. The Act also gives effect to Australia’s relevant international rights and obligations.

  

In the face of growing regional and global threats such as African Swine Fever and hitchhiker pests (such as khapra beetle) the current penalty regime needs reinforcement to provide an effective deterrent against non-compliance. The growth in trade and travel expected as part of the economic recovery from the current COVID-19 pandemic is expected to accentuate the threats, making it imperative to send a strong message that breaking Australia’s biosecurity laws is not worth the potential commercial gain. The penalty amounts in this Bill more appropriately reflect the impact the contraventions may have on Australia’s biosecurity status, market access and economy.

The proposed amendments relate to key provisions of the Act that, if not complied with, may significantly undermine the integrity of the biosecurity regulatory framework, with potentially devastating consequences for Australia’s agricultural industries, jobs, plant, animal and environmental health, and the confidence of trading partners. Many of the specified provisions apply to persons in charge of goods, including those individuals and bodies corporate who should reasonably be aware of their obligations under the Act. Some of the proposed amendments, for example, only apply to biosecurity industry participants (as defined in section 14 of the Act) who hold an arrangement with the Department of Agriculture, Water and the Environment (the department) to undertake biosecurity activities on behalf of the department, and commercial importers.

Under the Act penalties for a contravention may include either a civil penalty or a criminal offence or both. The penalties that may be ordered by a court in relation to a body corporate are substantially higher than the maximum pecuniary penalties available for an individual, both in relation to the civil penalty (see the Regulatory Powers (Standard Provisions) Act 2014, as enlivened by section 519 of the Act) and the criminal offence (see section 4B of the Crimes Act 1914).

The increases to the civil penalties are intended to deter non-compliance with the Act, and to ensure that the maximum penalties available reflect the gains that individuals and businesses might obtain, or seek to obtain, from engaging in conduct that jeopardises Australia’s biosecurity status. It is important that civil penalties are set at a level that means that the penalty is not merely perceived as a cost of doing business. This is particularly the case for corporations.

In addition to increasing criminal penalties to allow for proportionate and appropriate punishment for contraventions of the Act, the Bill also aligns maximum penalties across key provisions.

The provisions would commence on the day after the Act receives the Royal Assent and would apply only to conduct engaged in on or after commencement of the Act.

Consultation has been undertaken with appropriate Commonwealth agencies including the Department of Health, the Department of Prime Minister & Cabinet, and the Attorney-General’s Department.

FINANCIAL IMPACT STATEMENT

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

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

The full statement of compatibility with human rights for the Bill is included in this explanatory memorandum (Attachment A).


 

BIOSECURITY AMENDMENT (STRENGTHENING PENALTIES) BILL 2021

 

NOTES ON CLAUSES

Clause 1          Short title

1.           Clause 1 would provide for the short title of the proposed Act to be the Biosecurity Amendment (Strengthening Penalties) Act 2021 (Strengthening Penalties Act).

Clause 2          Commencement

2.           Subclause 2(1) would provide for the commencement of the whole of the Strengthening Penalties Act on the day after it receives the Royal Assent.

3.           Subclause 2(2) would provide that any information in column 3 of the table is not part of the proposed Strengthening Penalties Act. It would clarify that information may be inserted in column 3 of the table, or information in it may be edited, in any published version of the Strengthening Penalties Act.

Clause 3          Schedules

4.           Clause 3 would provide that legislation specified in a Schedule to the Strengthening Penalties Act is amended or repealed as set out in the applicable items of the Schedule, and any other item in a Schedule has effect according to its terms.


 

SCHEDULE 1—AMENDMENTS

Biosecurity Act 2015

Item 1                         Amendments of listed provisions—offences and civil penalty provisions

5.           Item 1 of Schedule 1 would increase the penalties that apply to specified criminal offences and civil penalty provisions in the Act. The table in item 1 sets out the provisions that would be amended. These are key provisions of the Act, contravention of which has the potential to result in significant adverse effects for Australia’s biosecurity status, and consequential impacts on agricultural, tourism and other industries, plant and animal health, the economy and the environment.

6.           Item 1 would increase the maximum pecuniary (i.e. monetary or financial) penalty for a number of criminal offences and civil penalty provisions across the Act.

7.           The proposed increases to the penalty amounts listed in table items 1 to 28 are intended to provide for more proportionate and appropriate maximum penalties for contraventions of the Act than the current penalties regime. They are intended to deter non-compliance and to allow for appropriate punishment of those who jeopardise Australia’s biosecurity status.

Table item 1 – Subsection 124(2)

8.           Subsection 124(1) of the Act permits a biosecurity officer to direct a person in charge of goods that are subject to biosecurity control to secure the goods in a manner specified by the biosecurity officer. Subsection 124(2) requires a person who is given a direction under subsection 124(1) to comply with the direction. A person who fails to comply with the direction is liable to a (maximum) civil penalty of 120 penalty units (currently $26,640 where the person is an individual).

9.           Table item 1 would amend subsection 124(2) to increase the maximum pecuniary (monetary) penalty that a relevant court may order a person to pay to the Commonwealth if the court is satisfied the person has contravened subsection 124(1) from 120 penalty units to 300 penalty units (where the person who contravenes the provisions is an individual). If the person is a body corporate, the maximum penalty must not be more than 5 times this amount (see subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014, as enlivened by section 519 of the Act).

10.       Goods that are brought or imported into Australian territory from outside Australian territory become subject to biosecurity control when they enter Australian territory. The Act provides biosecurity officers with various powers to identify, assess and manage biosecurity risks, including the power to direct a person in charge of the goods to secure the goods in a specified manner, so as to enable a biosecurity officer to assess and then manage the level of biosecurity risk associated with the goods.

11.       If the person in charge of the goods does not secure the goods as directed, they may jeopardise the ability of the biosecurity officer to effectively assess the level of biosecurity risk associated with the goods. The higher penalty proposed by table item 1 more appropriately reflects the seriousness of the contravention than the current penalty and is intended to better deter non-compliance with this provision.  

 

Table item 2 – Subsection 125(4)

12.       Paragraph 125(2)(b) of the Act allows a biosecurity officer to direct a person in charge of goods that are subject to biosecurity control to deliver to the biosecurity officer samples of such of those goods as are specified in the direction. Subsection 125(4) provides that a person who is given a direction under paragraph 125(2)(b) must comply with the direction. A person who fails to comply with the direction is liable to a (maximum) civil penalty of 120 penalty units (currently $26,640 where the person is an individual).

13.       Table item 2 would amend subsection 125(4) to increase the maximum pecuniary (monetary) penalty that a court may order a person who is an individual to pay for contravening paragraph 125(2)(b) from 120 penalty units to 300 penalty units. If the person is a body corporate, the maximum penalty must not be more than 5 times this amount (see subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014, as enlivened by section 519 of the Act).

14.       The taking of samples of goods enables a biosecurity officer to identify whether a pest or disease is present and to assess the level of biosecurity risk associated with the goods. If a person in charge of the goods does not comply with a direction to deliver samples of the relevant goods to a biosecurity officer, they may jeopardise the ability of the biosecurity officer to effectively assess the level of biosecurity risk associated with the goods. The proposed higher penalty as set out in table item 2 more appropriately reflects the seriousness of the contravention than the current penalty and is intended to better deter non-compliance with this provision.  

Table item 3 – Subsection 126(2)

15.       Subsection 126(1) of the Act allows a biosecurity officer to require a person who the biosecurity officer suspects, on reasonable grounds, has information in relation to                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           goods to answer questions, or provide information in writing, in relation to the goods. Subsection 126(2) provides that a person who is required to answer questions or provide information in writing under subsection 126(1) must comply with the requirement. A person who fails to comply with the requirement is liable to a (maximum) civil penalty of 120 penalty units (currently $26,640 where the person is an individual).

16.       Table item 3 would amend subsection 126(2) to increase the maximum pecuniary (monetary) penalty that a court may order a person who is an individual to pay for contravening subsection 126(2) from 120 penalty units to 300 penalty units. If the person is a body corporate, the maximum penalty must not be more than 5 times this amount (see subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014, as enlivened by section 519 of the Act).

17.       The power to require someone to answer questions or provide information in relation to goods that are subject to biosecurity control ensures that biosecurity officers have access to necessary information to make an accurate and timely assessment of the level of biosecurity risk associated with the goods. If a person has information in relation to the goods and fails to provide this information or answer questions as required by the biosecurity officer, this may jeopardise the ability of the biosecurity officer to effectively assess the level of biosecurity risk associated with the goods and seek to manage that risk accordingly. The increased penalty is appropriate to reflect the seriousness of the contravention and is intended to better deter non-compliance with the provision.   

Table item 4 – Subsection 127(3)

18.       Subsection 127(1) of the Act provides that a biosecurity officer may require a person who the biosecurity officer suspects, on reasonable grounds, has the custody or control of documents in relation to goods that are subject to biosecurity control to produce to the biosecurity officer such of those documents as are specified by the biosecurity officer. Subsection 127(3) provides that a person who is required to produce documents under subsection 127(1) must comply with the requirement. A person who fails to comply with the requirement is liable to a (maximum) civil penalty of 120 penalty units (currently $26,640 where the person is an individual).

19.       Table item 4 amends subsection 127(3) to increase the maximum pecuniary (monetary) penalty that a court may order a person who is an individual to pay for contravening subsection 127(3) from 120 penalty units to 300 penalty units. If the person is a body corporate, the maximum penalty must not be more than 5 times this amount (see subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014, as enlivened by section 519 of the Act).

20.       The power to require the production of documents ensures that a biosecurity officer has access to necessary information to make an accurate and timely assessment of the level of biosecurity risk associated with the goods. If a person has documents in relation to the goods and fails to provide these documents as required by the biosecurity officer, they may jeopardise the ability of the biosecurity officer to effectively assess the risk of the goods and seek to manage that risk accordingly. The increased penalty is appropriate to reflect the seriousness of the contravention and is intended to better deter non-compliance with the provision.  

Table item 5 – Subsection 128(2)

21.       Paragraph 128(1)(a) of the Act provides that a biosecurity officer may give certain directions to a person in charge of goods that are subject to biosecurity control. The direction may require the person not to move, deal with or interfere with the goods; to move the goods, as soon as practicable, to a place specified by the biosecurity officer; or otherwise relate to the movement of the goods. Subsection 128(2) provides that a person who is given a direction under paragraph 128(1)(a) must comply with the direction. A person who fails to comply with the requirement is liable to a (maximum) civil penalty of 120 penalty units (currently $26,640 where the person is an individual).

22.       Table item 5 would amend subsection 128(2) to increase the maximum pecuniary (monetary) penalty that a court may order a person who is an individual to pay for contravening subsection 128(2) from 120 penalty units to 300 penalty units. If the person is a body corporate, the maximum penalty must not be more than 5 times this amount (see subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014, as enlivened by section 519 of the Act).

23.       Issuing a direction about the movement (or not) of goods allows a biosecurity officer to assess the level of biosecurity risk associated with the goods and to take appropriate action to manage that risk. If a person moves, deals with, interferes with, or fails to move goods in contravention of a direction given by a biosecurity officer, they may jeopardise the ability of the biosecurity officer to effectively assess the level of biosecurity risk associated with the goods and seek to manage that risk accordingly. The increased penalty is appropriate to reflect the seriousness of the contravention and is intended to better deter non-compliance with the provision.    

Table item 6 – Subsection 129(2)

24.       Subsection 129(2) of the Act provides that a person is liable to a civil penalty if the person interferes with, removes or defaces a biosecurity control notice that is affixed to, or as near as reasonably practicable to, goods that are subject to biosecurity control by a biosecurity officer under paragraph 129(1)(a) (and where none of the exceptions in paragraph 129(2)(c) apply). The (maximum) civil penalty that applies where the person is an individual is 120 penalty units (currently $26,640).

25.       Table item 6 would amend subsection 129(2) to increase the maximum pecuniary (monetary) penalty that a court may order a person who is an individual to pay for contravening subsection 129(2) from 120 penalty units to 300 penalty units. If the person is a body corporate, the maximum penalty must not be more than 5 times this amount (see subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014, as enlivened by section 519 of the Act).

26.       A biosecurity control notice (which is defined in section 9 of the Act) is used to indicate that the goods to which the notice is affixed are subject to biosecurity control. If a person interferes with, removes or defaces a biosecurity control notice in relation to relevant goods without lawful authority, the goods may be moved or otherwise dealt with before a biosecurity officer has an opportunity to effectively assess the biosecurity risk associated with the goods and seek to manage the risk accordingly. The increased penalty is appropriate to reflect the seriousness of the contravention, and is intended to better deter non-compliance with the provision.  

Table item 7 – Subsection 130(2)

27.       Subsection 130(2) of the Act provides that a person is liable to a civil penalty if the person moves, deals with, or interferes with goods that have been secured in accordance with a direction given under subsection 124(1); that are the subject of a direction relating to movement under paragraph 128(1)(a); that have been moved under paragraph 128(1)(b); or in relation to which a biosecurity control notice has been affixed under paragraph 129(1)(a). Subsection 130(2) does not apply if the person is authorised to engage in the conduct (subsection 130(3)). The (maximum) civil penalty that applies where the person is an individual is 120 penalty units (currently $26,640).

28.       Table item 7 would amend subsection 130(2) to increase the maximum pecuniary (monetary) penalty that a court may order a person who is an individual to pay for contravening subsection 130(2) from 120 penalty units to 300 penalty units. If the person is a body corporate, the maximum penalty must not be more than 5 times this amount (see subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014, as enlivened by section 519 of the Act).

29.       Any person who moves, deals with, or interferes with goods subject to biosecurity control under the Act may jeopardise the ability of the biosecurity officer to assess the level of biosecurity risk of the goods and seek to manage the risk accordingly.

30.       The increased penalty is appropriate to reflect the seriousness of the contravention, particularly where the goods are subject to biosecurity control and the person is neither authorised nor needs to engage in the conduct prohibited by subsection 130(2). It is also intended to create a greater deterrent effect than the current penalty.  

Table item 8 – Subsection 139(3)

31.       Section 139 of the Act applies in the context of biosecurity measures that may be required to manage an unacceptable level of biosecurity risk (under Division 5 of Part 1 of Chapter 3 of the Act). Subsection 139(1) allows a biosecurity officer to affix a notice to, or as near as reasonably practicable to, goods in relation to which biosecurity measures have been required. Those measures may include requiring the goods to be treated in a specified manner (section 133); requiring the goods to be exported from Australian territory (section 135); and requiring the goods to be destroyed (section 136). Subsection 139(3) provides that a person is liable to a civil penalty if a person interferes with, removes or defaces a biosecurity control notice affixed by a biosecurity officer under subsection 139(1) (and where none of the exceptions in paragraph 139(3)(c) or subsection 139(4) applies). The (maximum) civil penalty that applies where the person is an individual is 120 penalty units (currently $26,640).

32.       Table item 8 would amend subsection 139(3) to increase the maximum civil penalty that a court may order a person who is an individual to pay for contravening subsection 139(1) from 120 penalty units to 300 penalty units. If the person is a body corporate, the maximum penalty must not be more than 5 times this amount (see subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014, as enlivened by section 519 of the Act).

33.       The intention of this amendment is to reflect the seriousness of a person interfering with a biosecurity control notice without lawful excuse. For example, interfering with a notice may prevent other people from knowing that the goods are subject to biosecurity control (and possibly endangering themselves, other people and/or the environment). It may also restrict a biosecurity officer’s ability to manage the risk in an efficient, timely and suitable way. The proposed increase to the penalty amount is appropriate and proportionate to deter non-compliance.  

Table items 9 and 10 – Subsections 140(2) and (3)

34.       Section 140 of the Act applies in the context of biosecurity measures that may be required to manage an unacceptable level of biosecurity risk (under Division 5 of Part 1 of Chapter 3 of the Act). Subsection 140(1) provides that a person who is given a direction under paragraph 135(2)(b) or 138(1)(a) must comply with the direction. Paragraph 135(2)(b) allows a biosecurity officer to direct a person in charge of relevant goods to arrange for the goods to be exported from Australian territory. Paragraph 138(1)(a) allows a biosecurity officer to direct a person in charge of relevant goods to carry out certain measures in relation to goods (such as destruction, movement or treatment).

35.       Subsection 140(2) provides that a person who engages in conduct that contravenes a direction given under paragraph 135(2)(b) or 138(1)(a) commits a fault-based (criminal) offence, and subsection 140(3) provides that a person who contravenes subsection 140(1) is liable to a civil penalty.

36.       Table item 9 would amend subsection 140(2) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based (criminal) offence from 300 penalty units to 1,000 penalty units. Where a body corporate is convicted of the offence, a court may, if the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times this amount (see subsection 4B(3) of the Crimes Act 1914).

37.       Table item 10 would amend subsection 140(3) to increase the maximum penalty for the civil penalty provision from 120 penalty units to 300 penalty units. If the person is a body corporate, the maximum penalty must not be more than 5 times this amount (see subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014, as enlivened by section 519 of the Act).

38.       Directions are given by biosecurity officers in relation to goods under Division 5 of Part 1 of Chapter 3 of the Act to seek to manage the biosecurity risk associated with these goods. Failure to comply with directions may result in an inability to manage the unacceptable level of biosecurity risk posed by the goods in an efficient, timely and suitable manner, potentially exacerbating the risk. This creates the potential for serious and sustained damage to plant and animal health, and in turn to Australia’s agriculture, tourism and other industries, trade relationships, the economy and the environment.

39.       The proposed increases to the maximum pecuniary penalty for the criminal offence are intended to reflect the seriousness of offending behaviour where a person fails to comply with a direction, and to allow for more appropriate punishment of offences than under the current penalty regime.

40.       The proposed increase to the civil penalty is intended to achieve the necessary deterrent effect for non-compliance with the Act, to signify the magnitude of the likely harm, and to be proportionate to the gains that individuals and businesses might obtain, or seek to obtain, from engaging in conduct that breaches the Act and jeopardises Australia’s biosecurity status.

Table items 11 and 12 – Subsections 141(3) and (4)

41.       Section 141 of the Act applies in the context of biosecurity measures that may be required to manage an unacceptable level of biosecurity risk (under Division 5 of Part 1 of Chapter 3 of the Act). Subsection 141(1) provides that a person contravenes the subsection if a notice has been affixed to, or as near as reasonably practicable to, goods in relation to which biosecurity measures have been required under subsection 139(1) and the person moves, deals with, or interferes with the goods (and none of the exceptions in paragraph 141(1)(c) or subsection 141(2) applies).

42.       Subsection 141(3) provides that a person who contravenes subsection 141(1) commits a fault-based (criminal) offence, and subsection 141(4) provides that a person who contravenes subsection 141(1) is liable to a civil penalty.

43.       Table item 11 would amend subsection 141(3) to increase the maximum pecuniary penalty that can be imposed when a court convicts an individual for the fault-based (criminal) offence from 300 penalty units to 1,000 penalty units. Where a body corporate is convicted of the offence, a court may, if the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times this amount (see subsection 4B(3) of the Crimes Act 1914).

44.       Table item 12 would amend subsection 141(4) to increase the maximum penalty for the civil penalty provision from 120 penalty units to 300 penalty units. If the person is a body corporate, the maximum penalty must not be more than 5 times this amount (see subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014, as enlivened by section 519 of the Act).

45.       The affixing of a biosecurity control notice to or near goods alerts people to the fact the goods are subject to biosecurity control. Moving, dealing with, or interfering with goods to which a notice has been affixed without proper authority may result in an inability to manage the unacceptable level of biosecurity risk posed by the goods in an efficient, timely and suitable manner, potentially exacerbating the risk. This creates the potential for serious and sustained damage to plant and animal health, and in turn to Australia’s agriculture, tourism and other industries, trade relationships, the economy and the environment.

46.       The proposed increase to the maximum pecuniary penalty for the criminal offence is intended to reflect the seriousness of behaviour where a person interferes with goods that present an unacceptable level of biosecurity risk, and the person is aware that goods are subject to biosecurity measures (as a notice has been affixed). The higher penalty is also intended to allow for more appropriate punishment of offenders than under the current penalty regime.

47.       The proposed increase to the civil penalty is intended to achieve the necessary deterrent effect for non-compliance with the Act, to signify the magnitude of the likely harm, and to be proportionate to the gains that individuals and businesses might obtain, or seek to obtain, from engaging in conduct that breaches the law and jeopardises Australia’s biosecurity status.

Table items 13 to 16 – Subsections 185(2), (3), (4), and (5)

48.       Section 185 of the Act provides for a number of offences for bringing or importing prohibited or suspended goods into Australian territory. These are a basic fault-based offence (subsection 185(2)), a civil penalty provision (subsection 185(3)), and two aggravated fault-based offences that indicate more serious offending than the basic fault-based offence: one involving obtaining commercial advantage (subsection 185(4)) and one involving harm to the environment or economic consequences (subsection 185(5)).

49.       The term “prohibited goods” refers to goods specified in a determination in force under subsection 173(1) of the Act, which provides that the Director of Biosecurity and the Director of Human Biosecurity may jointly determine that specified goods, or a specified class of goods, must not be brought or imported into Australian territory. In making the determination, the Director of Biosecurity and the Director of Human Biosecurity must be jointly satisfied that the level of biosecurity risk associated with the goods (or class of goods) is unacceptable and biosecurity measures would not be able to be taken to reduce that level of biosecurity risk to an acceptable level.

50.       The term “suspended goods” refers to goods specified in a determination in force under subsection 182(1) of the Act, which provides that the Director of Biosecurity may determine that specified goods, or a specified class of goods, must not be brought or imported into Australian territory for a specified period not longer than 6 months. In making the determination, the Director of Biosecurity must be satisfied that the level of biosecurity risk associated with the goods (or the class of goods) is unacceptable.

51.       Table item 13 would amend subsection 185(2) to increase the maximum pecuniary penalty for the basic fault-based (criminal) offence from 300 penalty units to 1,000 penalty units. Where a body corporate is convicted of the offence, a court may, if the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times this amount (see subsection 4B(3) of the Crimes Act 1914).

52.       Table item 14 would amend subsection 185(3) to increase the maximum penalty for the civil penalty provision from 120 penalty units to 1,000 penalty units. If the person is a body corporate, the maximum penalty must not be more than 5 times this amount (see subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014, as enlivened by section 519 of the Act).

53.       Table item 15 would amend subsection 185(4) to increase the maximum pecuniary penalty for the fault-based offence involving obtaining commercial advantage from 2,000 penalty units to 5,000 penalty units. Where a body corporate is convicted of the offence, a court may, if the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times this amount (see subsection 4B(3) of the Crimes Act 1914).

54.       Table item 16 would amend subsection 185(5) to increase the maximum pecuniary penalty for the fault-based offence involving harm to the environment or economic consequences from 600 penalty units to 2,000 penalty units. Where a body corporate is convicted of the offence, a court may, if the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times this amount (see subsection 4B(3) of the Crimes Act 1914).

55.       It is appropriate for higher penalties to apply to these provisions than under the current penalty regime, as individuals and business are on notice as to which goods are prohibited or suspended. The determinations made under sections 173 and 182 of the Act are published on the Federal Register of Legislation and are also notified to the public via other channels, such as industry advice notices published on the department’s website. Regulated entities, especially importers, have a responsibility to know and understand their obligations under the Act and to take steps to organise their affairs in a way that allows them to comply with the law. The offences in subsections 185(2), (4) and (5) are all fault-based, and the default fault element of intention applies (under section 5.6 of the Criminal Code, which is the schedule to the Criminal Code Act 1995). Accordingly, the offences do not apply when a person inadvertently breaches the law. 

56.       Prohibited and suspended goods, or classes of goods, pose such a significant and unacceptable level of biosecurity risk that it is not possible for biosecurity measures to be taken to reduce that level of risk to an acceptable level, including for the period of any suspension. This unacceptable level of biosecurity risk cannot be managed in the usual way (as outlined above in the context of sections 139-141 of the Act). It may vary from goods to goods but is highly likely to result in serious damage to plant and animal health, and thus to Australia’s agriculture, tourism and other industries, the economy and the environment. Depending on the nature and scale of the biosecurity risk, the social and economic costs of managing the risk and mitigating actual and potential damage may be significant.

57.       The proposed increases to the maximum pecuniary penalties for both the criminal offences and the civil penalty provision by table items 13 to 16 are therefore more appropriate and proportionate than under the current penalty regime. They better reflect the seriousness of bringing or importing prohibited or suspended goods into Australian territory, as described in the preceding paragraph, and are intended to allow for more appropriate deterrence and punishment of wilful and serious offending. 

58.       In sentencing an offender and determining the level of penalty to impose, a court has regard to a number of factors, including the facts and circumstances of the particular case; the nature and significance of the alleged conduct; and any previous history of non-compliance. The increased penalties for the fault-based offences are intended to reinforce the punishment and retributive objective of the current penalty regime while allowing a court a greater capacity to respond meaningfully and proportionally to the worst breaches of the law.

59.       The penalties for obtaining a commercial advantage from bringing in or importing prohibited or suspended goods are higher than those outlined in the Australian GovernmentGuide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. Obtaining a commercial advantage from bringing in or importing prohibited goods are aggravated circumstances that warrant the additional penalty because of the added profit or gain incentives for those individuals and corporations who choose to engage in conduct that breaches the law, especially in circumstances where their competitors choose to abide by the law. 

60.       Similarly, the higher civil penalty is intended to achieve the necessary deterrent effect to promote compliance with the Act while also indicating the magnitude of likely harm arising from the relevant wrongdoing.

Table items 17 to 20 – Subsections 186(2), (3), (4) and (5)

61.       Section 186 of the Act provides for a number of offences for contravening conditions applying to conditionally non-prohibited goods brought or imported into Australian territory. These are a basic fault-based offence (subsection 186(2)), a civil penalty provision (subsection 186(3)), and two aggravated fault-based offences: one involving obtaining commercial advantage (subsection 186(4)) and one involving harm to the environment or economic consequences (subsection 186(5)).

62.       The term “conditionally non-prohibited goods” refers to goods specified in a determination in force under subsection 174(1) of the Act, which provides that the Director of Biosecurity and the Director of Human Biosecurity may jointly determine that specified classes of goods must not be brought or imported into Australian territory unless specified conditions are complied with. In making this determination, the Director of Biosecurity and the Director of Human Biosecurity must apply the appropriate level of protection for Australia (as defined in section 5 of the Act) in conducting a risk assessment for the purpose of deciding whether to make a determination under subsection 174(1).  

63.       Table item 17 would amend subsection 186(2) to increase the maximum financial penalty for the basic fault-based offence from 300 penalty units to 1,000 penalty units. Where a body corporate is convicted of the offence, a court may, if the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times this amount (see subsection 4B(3) of the Crimes Act 1914).

64.       Table item 18 would amend subsection 186(3) to increase the maximum pecuniary penalty for the civil penalty provision from 120 penalty units to 1,000 penalty units. If the person is a body corporate, the maximum penalty must not be more than 5 times this amount (see subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014, as enlivened by section 519 of the Act).

65.       Table item 19 would amend subsection 186(4) to increase the maximum financial penalty for the fault-based offence involving obtaining commercial advantage from 2,000 penalty units to 5,000 penalty units. Where a body corporate is convicted of the offence, a court may, if the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times this amount (see subsection 4B(3) of the Crimes Act 1914).

66.       Table item 20 would amend subsection 186(5) to increase the maximum financial penalty for the fault-based offence involving harm to the environment or economic consequences from 600 to 2,000 penalty units. Where a body corporate is convicted of the offence, a court may, if the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times this amount (see subsection 4B(3) of the Crimes Act 1914).

67.       It is appropriate for higher penalties to apply to these provisions than under the current penalty regime, as individuals and business are on notice as to which goods are conditionally non-prohibited. The determinations made under section 174 of the Act are published on the Federal Register of Legislation and are also notified to the public via other channels, such as industry advice notices published on the department’s website. Regulated entities, especially importers, have a responsibility to know and understand their obligations under the Act and to take steps to organise their affairs in a way that allows them to comply with the law. The offences in subsections 186(2), (4) and (5) are all fault-based, and the default fault element of intention applies (under section 5.6 of the Criminal Code, which is the schedule to the Criminal Code Act 1995). Accordingly, the offences do not apply when a person inadvertently breaches the law. 

68.       Conditionally non-prohibited goods, or classes of goods, pose a significant level of biosecurity risk if the specified conditions are not complied with. It may vary from goods to goods but this level of risk is highly likely to result in serious damage to plant and animal health, and thus to Australia’s agriculture, tourism and other industries, the economy and the environment. Depending on the nature and scale of the biosecurity risk, the social and economic costs of managing the risk and mitigating actual and potential damage may be significant.

69.       The proposed increases to the maximum pecuniary penalties for both the criminal offences and the civil penalty provision by table items 17 to 20 are therefore more appropriate and proportionate than under the current penalty regime. They better reflect the seriousness of bringing or importing conditionally non-prohibited goods into Australian territory, and are intended to allow for more appropriate deterrence and punishment of wilful and serious offending. 

70.       In sentencing an offender and determining the level of penalty to impose, a court has regard to a number of factors, including the facts and circumstances of the particular case; the nature and significance of the alleged conduct; and any previous history of non-compliance. The increased criminal penalties are intended to reinforce the retributive effect of the current penalty regime while allowing a court a greater capacity to respond meaningfully and proportionally to the worst breaches of the law.

71.       The penalties for obtaining a commercial advantage from bringing in or importing conditionally non-prohibited goods where the specified conditions are not complied with are higher than those outlined 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. Obtaining a commercial advantage from contravening a condition specified in a determination made under subclause 174(1) is an aggravated circumstance that warrants the additional penalty because of the added monetary benefit that can be gained by individuals and corporations who chose to engage in conduct that breaches the law.

72.       Similarly, the higher civil penalty is intended to achieve the necessary deterrent effect to promote compliance with the Act while also indicating the magnitude of likely harm arising from the relevant wrongdoing.

Table items 21 to 24 – Subsections 187(1), (2), (3), and (4)

73.       Section 187 of the Act provides for a number of offences for contravening conditions of a permit issued under section 179 in relation to goods that are determined to be conditionally non-prohibited. Section 187 provides for offences for contravention of conditions of permits in force, which are a fault-based offence (subsection 187(1)) and a civil penalty provision (subsection 187(2)). Section 187 also provides for offences for contravention of conditions of suspended or revoked permits (where such conditions continue to apply under subsection 181(3)), which are a fault-based offence (subsection 181(3)) and a civil penalty provision (subsection 181(4)).

74.       Section 179 provides that the Director of Biosecurity may, on application by a person under section 177 for a permit in relation to particular conditionally non-prohibited goods, grant the permit. In deciding whether to grant the permit in relation to the goods, the Director of Biosecurity must consider the level of biosecurity risk associated with the goods and whether it would be necessary to impose conditions on the permit to reduce the level of biosecurity risk associated with the goods to an acceptable level. The Director of Biosecurity must apply the appropriate level of protection (as defined in section 5 of the Act) for Australia in conducting a risk assessment for the purpose of deciding whether to grant the permit in relation to the goods.

75.       Table item 21 would amend subsection 187(1) to increase the maximum pecuniary penalty for the fault-based offence, for contraventions in relation to permits in force, from 300 penalty units to 1,000 penalty units. Where a body corporate is convicted of the offence, a court may, if the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times this amount (see subsection 4B(3) of the Crimes Act 1914).

76.       Table item 22 would amend subsection 187(2) to increase the maximum penalty for the civil penalty provision, for contraventions in relation to permits in force, from 120 penalty units to 1,000 penalty units. If the person is a body corporate, the maximum penalty must not be more than 5 times this amount (see subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014, as enlivened by section 519 of the Act).

77.       Table item 23 would amend subsection 187(3) to increase the maximum pecuniary penalty for the fault-based offence, for contraventions in relation to suspended or revoked permits, from 300 penalty units to 1,000 penalty units. Where a body corporate is convicted of the offence, a court may, if the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times this amount (see subsection 4B(3) of the Crimes Act 1914).

78.       Table item 24 would amend subsection 187(4) to increase the maximum penalty for the civil penalty provision, for contraventions in relation to suspended or revoked permits, from 120 penalty units to 1,000 penalty units. If the person is a body corporate, the maximum penalty must not be more than 5 times this amount (see subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014, as enlivened by section 519 of the Act).

79.       It is appropriate for higher penalties to apply to these provisions than under the current penalty regime, as individuals and business are on notice as to the conditions of the permit issued under section 179 of the Act. Regulated entities, especially importers, have a responsibility to know and understand their obligations under the Act and to take steps to organise their affairs in a way that allows them to comply with the law. The offences in subsections 187(1), (3) and (4) are fault-based; and the default fault element of intention applies (under section 5.6 of the Criminal Code Act 1995). Accordingly, the offences do not apply when a person inadvertently breaches the law. 

80.       Conditionally non-prohibited goods, or classes of goods, that must not be brought or imported into Australian territory unless the Director of Biosecurity has granted a permit pose a significant level of biosecurity risk if the conditions of the permit are not complied with. It may vary from goods to goods but is highly likely to result in serious damage to plant and animal health, and thus to Australia’s agriculture, tourism and other industries, the economy and the environment. Depending on the nature and scale of the biosecurity risk, the social and economic costs of managing the risk and mitigating actual and potential damage may be significant.

81.       The proposed increases to the maximum pecuniary penalties for both the criminal offences and the civil penalty provision by table items 21 to 24 are therefore more appropriate and proportionate than under the current penalty regime. They better reflect the seriousness of contravening a condition of an import permit and are intended to allow for more appropriate deterrence and punishment of wilful and serious offending. 

82.       In sentencing an offender and determining the level of penalty to impose, a court has regard to a number of factors, including the facts and circumstances of the particular case; the nature and significance of the alleged conduct; and any previous history of non-compliance. The increased criminal penalties are intended to reinforce the retributive effect of the current penalty regime while allowing a court a greater capacity to respond meaningfully and proportionally to the worst breaches of the law.

83.       Similarly, the higher civil penalty is intended to achieve the necessary deterrent effect to promote compliance with the Act while also indicating the magnitude of likely harm arising from the relevant wrongdoing.

Table items 25 and 26 – Subsections 428(2) and (3)

84.       Section 428 of the Act provides for a fault-based offence (subsection 428(2)) and a civil penalty provision (subsection 428(3)) that are contravened if a “biosecurity industry participant” (as defined in section 14 of the Act) is authorised to carry out biosecurity activities in accordance with an approved arrangement covering the biosecurity industry participant, and the biosecurity industry participant: fails to carry out biosecurity activities in accordance with an approved arrangement; fails to comply with any requirements specified in the arrangement; or fails to comply with any conditions to which the arrangement is subject.

85.       Only a “biosecurity industry participant” can contravene subsection 428(1). The provision is therefore of discrete and limited application. It does not, for example, apply to members of the general public. A biosecurity industry participant has voluntarily applied to carry out biosecurity activities in accordance with an approved arrangement, and as such, should be aware of obligations under that arrangement. They should take steps to know and understand the law, and should seek legal or other advice where appropriate. If they are unable to carry out biosecurity activities in accordance with the approved arrangement, they should notify the department as soon as practicable to discuss their options.

86.       Table item 25 would amend subsection 428(2) to increase the maximum pecuniary penalty for the fault-based offence from 300 penalty units to 1,000 penalty units. Where a body corporate is convicted of the offence, a court may, if the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times this amount (see subsection 4B(3) of the Crimes Act 1914).

87.       Table item 26 would amend subsection 428(3) to increase the maximum penalty for the civil penalty provision from 120 penalty units to 1,000 penalty units. If the person is a body corporate, the maximum penalty must not be more than 5 times this amount (see subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014, as enlivened by section 519 of the Act).

88.       Biosecurity industry participants hold a position of trust in Australia’s biosecurity system. If a biosecurity industry participant cannot perform activities under the approved arrangement or otherwise meet relevant requirements or conditions, this may result in significant risks to the integrity of Australia’s biosecurity system and its safeguards. There is a high likelihood for serious damage to plant and animal health, and in turn to Australia’s agriculture, tourism and other industries, trade relationships, the economy and the environment.

89.       The increases to the penalty amounts proposed by table items 25 and 26 are appropriate and proportionate to reflect the seriousness of contravention of subsection 428(1). The higher criminal penalty is also intended to allow for appropriate punishment of this offence, while the higher civil penalty is intended to achieve the necessary deterrent effect for non-compliance with the Act and reflect the magnitude of harm that may be caused by the person’s behaviour.

Table items 27 and 28 – Subsections 429(5) and (6)

90.       Section 429 provides for a fault-based offence (subsection 429(5)) and civil penalty provision (subsection 429(6)) for contravention by a biosecurity industry participant of a direction given by a biosecurity officer under subsection 429(1). Subsection 429(1) allows a biosecurity officer to give a biosecurity industry participant a direction in relation to the operation of the approved arrangement, if the biosecurity officer is satisfied that it is necessary to do so to manage biosecurity risks (subject to the exception in subsection 429(3)).

91.       Table item 27 would amend subsection 429(5) to increase the maximum pecuniary penalty for the fault-based offence from 300 penalty units to 1,000 penalty units. Where a body corporate is convicted of the offence, a court may, if the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times this amount (see subsection 4B(3) of the Crimes Act 1914).

92.       Table item 28 would amend subsection 429(6) to increase the maximum penalty for the civil penalty provision from 120 penalty units to 1,000 penalty units. If the person is a body corporate, the maximum penalty must not be more than 5 times this amount (see subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014, as enlivened by section 519 of the Act).

93.       Biosecurity industry participants hold a position of trust in Australia’s biosecurity system. If a biosecurity industry participant engages in conduct that contravenes a direction given by a biosecurity officer, then it is likely that the biosecurity risk in relation to which the direction was issued cannot be managed adequately. If so, there is likely to be an increased level of biosecurity risk including the threat of serious damage to plant and animal health, and thus Australia’s agriculture, tourism and other industries, the economy and the environment.

94.       The increase to the penalty amounts in section 429 proposed by table items 27 and 28 are appropriate and proportionate to reflect the seriousness of contravening a direction given by a biosecurity officer. The higher criminal penalty is also intended to allow for appropriate punishment of this contravention, while the higher civil penalty is intended to achieve the necessary deterrent effect for non-compliance with the Act and reflect the magnitude of harm that may be caused by the person’s behaviour.

Item 2             Application of amendments

95.       Item 2 would provide that the amendments made by item 1 of Schedule 1 apply in relation to conduct engaged in on or after the commencement of item 1. Item 2 makes clear that the amendments in item 1 are not proposed to have retrospective effect.

 


 

ATTACHMENT A

 

Statement of Compatibility with Human Rights

 

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

 

Biosecurity Amendment (Strengthening Penalties) Bill 2021

 

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

 

Overview of the Bill

The Biosecurity Amendment (Strengthening Penalties) Bill 2021 seeks to amend the Biosecurity Act 2015 (the Act) to increase the civil and criminal penalty amounts for contraventions of certain key requirements relating to the assessment and management of biosecurity risks of goods that are brought or imported into Australian territory, and the carrying out of biosecurity activities in accordance with an approved arrangement.

The objective of strengthening these penalty provisions is to deter future non-compliance with the Act, and to ensure that criminal penalties allow for appropriate and proportionate punishment for individuals and bodies corporate jeopardising Australia’s biosecurity status with their offending conduct.

The increased penalties reflect the seriousness of non-compliance with Australia’s biosecurity laws and the impact the contraventions may have on Australia’s biosecurity status, market access and economy. Large numbers of pests and diseases currently pose a high risk to Australia’s biosecurity in an increasingly complex import environment, threatening the livelihoods of farmers with the potentially devastating impact they would have on agriculture, industry and trade.

The current penalty regime no longer serves as an effective deterrent against non-compliance in the face of growing biosecurity threats such as African Swine Fever. It is expected these biosecurity threats will be accentuated through growth in international trade and travel as the economy recovers from COVID-19.

In several instances, the civil penalty amounts relate to contraventions of requirements that operate in a regulatory context and would not apply to the general public, but to a sector or class of people who should reasonably be aware of their obligations under the Act, for example biosecurity industry participants with an approved arrangement. In this regulatory context, the civil penalties can be considered to be disciplinary-like in nature.

The setting of increased and not insubstantial civil penalty amounts reflects the seriousness of the consequences that may result from a failure to comply with the requirements and obligations imposed by the Act. This includes not only impacts on Australia’s plant and animal health, environment, and biosecurity status and related impacts on the economy, but also the diversion of departmental regulatory resources to compliance and enforcement activities, away from other biosecurity risk management activities. The penalty increases are also consistent with an assessment of the maximum penalty required to deter those who would seek to profit or gain from such conduct and the potentially substantial profits to be made through the market gain or commercial advantage a business might stand to gain from a contravention.

For a number of the provisions in this Bill, the civil penalty provisions are provided as disciplinary-like alternatives to the more punitive deterrent of criminal offences. Civil penalties will also enable an effective disciplinary-like approach to dealing with non-compliance by corporations. There is no sanction of imprisonment for non-payment of penalties and the maximum amount of each civil penalty is the same as, or lower than, the corresponding criminal offence. The maximum civil penalty quantum is set to effectively disincentivise the financial benefit that persons are likely to stand to gain from non-compliance.  The integrity of the regulatory framework will be undermined if the civil penalties for a contravention are being calculated into profit margins and seen as a ‘cost of doing business’.

The Bill will amend the following provisions:

Sections 124 to 130

Sections 124 to 130 of the Act provide for civil penalty provisions where a person contravenes certain requirements or engages in certain conduct in relation to goods that are subject to biosecurity control.  This includes requirements to secure the goods, provide a sample, provide information about the goods, produce documents in relation to the goods, follow a direction about the movement of the goods, not interfere with a biosecurity notice about the goods or interfere with the goods.  They apply in the context of the assessment of the level of biosecurity risk (Division 4 of Part 1 of Chapter 3 of the Act). 

Subsections 124(2), 125(4), 126(2), 127(3), 128(2), 129(2) and 130(2) currently carry a civil penalty amount of 120 penalty units.  The Bill will increase the maximum civil penalty that a court can impose under each of these provisions to 300 penalty units.  The increase will reflect the seriousness of contravening behaviour where a person is aware that the goods are subject to biosecurity control.

Goods are subject to biosecurity control to allow biosecurity officers to identify, assess and manage biosecurity risks. If a person does not adhere to these requirements, they may jeopardise the ability of the biosecurity officer to effectively assess the risk of the goods and seek to manage that risk accordingly. The increased penalties proposed by table items 1 to 7 of Schedule 1 to the Bill are appropriate to reflect the seriousness of the contravention and to seek to deter non-compliance with this provision.

Sections 139 to 141

Sections 139 to 141 provide for fault-based offences and civil penalty provisions where a person contravenes certain requirements or engages in certain conduct in relation to goods that are subject to biosecurity control.  They apply in the context of biosecurity measures to manage an unacceptable level of biosecurity risk (Division 5 of Part 1 of Chapter 3 of the Act). 

The fault-based offences (subsections 140(2) and 141(3)) attract a maximum penalty of 5 years’ imprisonment or 300 penalty units or both.  They apply where a person has:

·         failed to comply with a direction given by a biosecurity officer under paragraph 135(2)(b) to arrange for the export of goods;

·         failed to comply with a direction given by a biosecurity officer under paragraph 138(1)(a) to carry out a biosecurity measure (such as destruction); or

·         had moved, dealt with or interfered with goods subject to a notice affixed to the goods in accordance with section 139 without lawful excuse.

The Bill will increase the maximum pecuniary (i.e. monetary or financial) penalty from 300 penalty units to 1,000 penalty units.

The civil penalty provisions (subsections 139(3), 140(3) and 141(4)) carry a civil penalty amount of 120 penalty units. Subsections 140(3) and 141(4) mirror 140(2) and 141(3) but apply a civil penalty provision.  Subsection 139(3) applies where a person interferes with a biosecurity control notice. The Bill will increase the maximum civil penalty amount in each of these three civil penalty provisions to 300 penalty units.

Directions and notices are given by biosecurity officers in relation to goods to seek to manage the biosecurity risk associated with those goods. The proposed increases to the maximum pecuniary penalty for the criminal offence is intended to reflect the seriousness of offending behaviour where a person fails to comply with a direction or interferes with the goods or a notice in relation to the goods, and to allow for appropriate punishment of contraventions. The proposed increase to the civil penalty is intended to achieve the necessary deterrent effect for non-compliance with the Act and to be proportionate to the gains that individuals and businesses might obtain, or seek to obtain, from engaging in conduct that jeopardises Australia’s biosecurity status. Contraventions in relation to goods that present an unacceptable level of risk may have very significant consequences for Australia’s biosecurity status. The increases to the penalty amounts proposed by table items 8 to 12 of Schedule 1 to the Bill are appropriate and proportionate to deter non-compliance.

Sections 185 and 186

Section 185 currently provides for the following offences and civil penalty provision for bringing or importing prohibited or suspended goods into Australian territory and section 186 provides for the following offences for contravening conditions applying to conditionally non-prohibited goods brought or imported into Australian territory:

·         A basic fault-based offence carrying a penalty of 5 years’ imprisonment or 300 penalty units or both (subsections 185(2) and 186(2)). The Bill will increase the pecuniary penalty to 1,000 penalty units;

·         A civil penalty provision of 120 penalty units (subsections 185(3) and 186(3)). The Bill will increase this to 1,000 penalty units;

·         A fault-based offence involving obtaining commercial advantage carrying a penalty of 10 years’ imprisonment or 2,000 penalty units or both (subsections 185(4) and 186(4)). The Bill will increase the pecuniary penalty to 5,000 penalty units; and

·         A fault-based offence involving harm to the environment or economic consequences carrying a penalty of 10 years’ imprisonment or 600 penalty units or both (subsections 185(5) and 186(5)). The Bill will increase the pecuniary penalty to 2,000 penalty units.

It is appropriate for higher penalties to apply to these provisions, as individuals and business are on notice as to which goods are prohibited or suspended or are conditionally non-prohibited goods. Determinations about prohibited goods, suspended goods and conditionally non-prohibited goods are made under sections 173, 182 and 174 of the Act respectively and are published on the publicly available Federal Register of Legislation as well as on the Department of Agriculture, Water and the Environment’s website. The increases proposed by table items 13 to 20 of Schedule 1 to the Bill to the maximum pecuniary penalty for both the criminal offences and the civil penalty provision are appropriate and proportionate to reflect the seriousness of bringing or importing goods into Australia that pose an unacceptable level of biosecurity risk, particularly where a person can easily inform themselves about the goods that are prohibited, suspended or conditionally non-prohibited at any point in time. The higher criminal penalty is also intended to allow for appropriate punishment of these offences, while the higher civil penalty is intended to achieve the necessary deterrent effect for non-compliance with the Act. The offences in subsections 185(2), (4) and (5) are all fault-based and accordingly do not apply when a person inadvertently contravenes the provisions.

Section 187

Section 187 currently provides for the following offences and civil penalty provisions for contravening conditions of a permit issued under section 179 in relation to goods that are determined to be conditionally non-prohibited goods:

·         A fault-based offence in relation to permits in force, carrying a penalty of 5 years’ imprisonment or 300 penalty units or both (subsection 187(1)). The Bill will increase the pecuniary penalty to 1,000 penalty units;

·         A civil penalty provision in relation to permits in force, carrying a penalty of 120 penalty units (subsection 187(2)). The Bill will increase this to 1,000 penalty units;

·         A fault-based offence in relation to suspended or revoked permits, carrying a penalty of 5 years’ imprisonment or 300 penalty units or both (subsection 187(3)). The Bill will increase the pecuniary penalty to 1,000 penalty units; and

·         A civil penalty provision in relation to suspended or revoked permits, carrying a penalty of 120 penalty units (subsection 187(4)). The Bill will increase this to 1,000 penalty units.

A person is granted a permit under section 179 after applying for one under section 177. Accordingly, those who hold permits are on notice of the conditions which must be followed in relation to the permit and that there is a significant level of biosecurity risk to Australia if the conditions of the permit are not complied with. The proposed increases to both the criminal and civil penalties in section 187 by table items 21 to 24 of Schedule 1 to the Bill are appropriate and proportionate to reflect the seriousness of contraventions of conditions of permits relating to conditionally non-prohibited goods. The higher criminal penalties are also intended to allow for appropriate punishment of these offences, while the higher civil penalty is intended to achieve the necessary deterrent effect for non-compliance with the Act. The offences in subsections 187(2) and (3) are both fault-based and accordingly do not apply when a person inadvertently contravenes the provisions.

Section 428

Section 428 currently provides for the following offence and civil penalty provision for a failure by a biosecurity industry participant to carry out biosecurity activities in accordance with an approved arrangement, comply with any requirements specified in an approved arrangement, or comply with any conditions to which the arrangement is subject:

·         A fault-based offence carrying a penalty of 5 years’ imprisonment or 300 penalty units or both (subsection 428(2)). The Bill will increase the pecuniary penalty to 1,000 penalty units; and

·         A civil penalty provision of 120 penalty units (subsection 428(3)). The Bill will increase this to 1,000 penalty units.

Only a biosecurity industry participant can contravene subsection 428(1). The fault-based offence and civil penalty provision therefore have limited application and do not apply to members of the general public. A biosecurity industry participant has voluntarily applied to carry out biosecurity activities in accordance with an approved arrangement and is accordingly on notice of the requirements under the Act and their obligations. Biosecurity industry participants hold a position of trust. Being unable to perform their activities under the approved arrangement could pose significant risk to the integrity of Australia’s biosecurity system and its safeguards. The increases to the penalty amounts proposed by table items 25 and 26 of Schedule 1 to the Bill are appropriate and proportionate to reflect the seriousness of any contravention of subsection 428(1). The higher criminal penalty is also intended to allow for appropriate punishment of this offence, while the higher civil penalty is intended to achieve the necessary deterrent effect for non-compliance with the Act and reflect the level of harm. The offence in subsection 428(2) is a fault-based offence and accordingly does not apply when a person inadvertently contravenes the provision.

Section 429

Section 429 provides for the following offence and civil penalty provision for a biosecurity industry participant contravening a direction given by a biosecurity officer:

·         A fault-based offence carrying a penalty of 5 years’ imprisonment or 300 penalty units or both (subsection 429(5)). The Bill will increase the pecuniary penalty to 1,000 penalty units; and

·         A civil penalty provision of 120 penalty units (subsection 429(6)). The Bill will increase this to 1,000 penalty units.

Biosecurity industry participants hold a position of trust in Australia’s biosecurity system. If a biosecurity industry participant contravenes a direction given by a biosecurity officer, it is likely that the biosecurity risk in relation to which the direction was given, cannot be managed adequately. This is likely to result in an increased level of biosecurity risk including the threat of serious damage to plant and animal health, and thus Australia’s agriculture, tourism and other industries, the economy and the environment. It is appropriate and proportionate to increase the penalties under these provisions as biosecurity industry participants are, by virtue of their status under the Act, on notice of the requirement to comply with directions given by biosecurity officers. The increases to the penalty amounts proposed in table items 27 and 28 of Schedule 1 to the Bill are appropriate and proportionate to reflect the seriousness of contravening a direction given by a biosecurity officer. The higher criminal penalty is also intended to allow for appropriate punishment of this offence, while the higher civil penalty is intended to achieve the necessary deterrent effect for non-compliance with the Act and reflect the level of harm that may be caused by the person’s behaviour.

 

Assessment of Compatibility with Human Rights

 

The Bill engages the right to a fair trial under Article 14 of the International Covenant on Civil and Political Rights (ICCPR).

 

Right to a fair trial (Article 14 of the ICCPR)

 

The right to a fair trial and equality before the courts contained in Article 14 of the ICCPR applies to criminal and civil proceedings. The increase of civil penalty provisions may engage Article 14 of the ICCPR.

 

Right to fair trial – civil penalty provisions

 

The Bill will increase a number of civil penalty provisions of the Act, namely:

·         Subsection 124(2);

·         Subsection 125(4);

·         Subsection 126(2);

·         Subsection 127(3);

·         Subsection 128(2);

·         Subsection 129(2);

·         Subsection 130(2);

·         Subsection 139(3);

·         Subsection 140(3);

·         Subsection 141(4);

·         Subsection 185(3);

·         Subsection 186(3);

·         Subsection 187(2);

·         Subsection 187(4);

·         Subsection 428(3); and

·         Subsection 429(6).

 

These civil penalties apply to failure to meet requirements under the Act and are discussed in detail in the Overview.  They are contraventions which have serious consequences for the biosecurity status of Australia and thus the agricultural industry and the economy.

 

As discussed in the Guidance Note 2: Offence provisions, civil penalties and human rights published by the Parliamentary Joint Committee on Human Rights, civil penalty provisions may engage criminal process rights under Articles 14 and 15 of the ICCPR, regardless of the distinction between criminal and civil penalties in domestic law. When a provision imposes a civil penalty, an assessment is required as to whether it amounts to a criminal penalty for the purposes of Articles 14 and 15 of the ICCPR.

 

Determining whether penalties could be considered to be criminal under international human rights law requires consideration of the classification of the penalty provisions under Australian domestic law, the nature and purpose of the penalties, and the severity of the penalties.

 

The civil penalty provisions in the Act expressly classify the penalties as civil penalties. Those provisions create solely pecuniary penalties in the form of a debt payable to the Commonwealth. The civil penalties aim to deter non-compliance with the Act and will not impose criminal liability and a finding by a court that they have been contravened does not lead to the creation of a criminal record. The penalties will apply to people involved in bringing or importing goods into Australian territory, including importers and biosecurity industry participants (as defined in section 14 of the Act). Such persons will reasonably be expected to be aware of their obligations under the Biosecurity Act, because they engage in an activity that is regulated under very clear conditions. These factors all suggest that the civil penalties imposed by the Bill are civil rather than criminal in nature.

 

The increased maximum penalty amounts that may be imposed by a court as civil penalty orders range from 300 to 1000 penalty units. Paragraph 82(5)(a) of the Regulatory Powers (Standard Provisions) Act 2014 is applied to the Act by section 519 and provides that the maximum penalties a court may apply to individuals will be those specified in the civil penalty provisions amended by the Bill. The application of paragraph 82(5)(b) to civil penalties under the Act means that the corporate multiplier will apply to bodies corporate so that a court may set the penalties payable by such entities at no more than five times the penalty specified in the civil penalty provision. In this Bill, the application of the corporate multiplier would result in a range from increased maximum penalties between 1500 and 5000 penalty units.

 

The proposed increases to the civil pecuniary penalties set out in Schedule 1 to the Bill have been set by reference to the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. They seek to reflect the seriousness of the contravening conduct and the risk that the conduct may pose to Australia’s trading reputation, the integrity of the biosecurity management system, animal or plant life or health and the environment. Consistent with the original setting of penalty amounts, the upper range of civil penalty amounts in this Bill are proposed for contraventions involving aggravated circumstances.

 

Even if these civil penalties were considered criminal in nature, they do not engage the criminal process rights provided for by Article 14 of the ICCPR.

 

Right to fair trial – fault-based offences

 

Schedule 1 to the Bill will increase the maximum penalty for a number of fault-based offences against the Act, namely:

·         Subsection 140(2);

·         Subsection 141(3);

·         Subsection 185(2);

·         Subsection 185(4);

·         Subsection 185(5);

·         Subsection 186(2);

·         Subsection 186(4);

·         Subsection 186(5);

·         Subsection 187(1);

·         Subsection 187(3);

·         Subsection 428(2); and

·         Subsection 429(5).

 

These offences apply to a range of contraventions of the Act and are discussed in detail in the Overview.  They relate to serious contraventions that threaten the biosecurity status of Australia.

 

Article 14 provides that, in the determination of any criminal charge against the person, that person shall be entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law.

 

These criminal penalties also engage Article 14 in relation to the guarantees of general application to proceedings, and guarantees which specifically relate to criminal proceedings. The guarantees specific to criminal proceedings under Article 14 are the presumption of innocence, freedom from self-incrimination, right to be informed of the charge, right to an adequate defence, and the right to review.

 

The increase in penalties for specific fault-based offences serves the purpose of deterring offending conduct, and reflects the seriousness of the offending, which could have serious consequences for Australia’s agriculture, the environment and the economy. Schedule 1 to the Bill will only increase the maximum pecuniary penalty amount which a sentencing court may impose for certain fault-based offences, not the maximum term of imprisonment. The proposed penalties set out in Schedule 1 to the Bill will provide scope for sentencing courts to address high level offending while maintaining the discretion to impose lesser penalties for less serious offending conduct.  For certain offences, sentencing courts will also have the discretion whether to apply a term of imprisonment or a financial penalty or both, to reflect the seriousness of the offending.

 

The increased penalties under the Bill do not affect the procedure by which a criminal proceeding is heard in relation to offences against the Act and therefore do not limit the right to a fair trial under Article 14 of the ICCPR.

 

 

Conclusion

The Biosecurity Amendment (Strengthening Penalties) Bill 2021 is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary, and proportionate.

 

 

 

The Hon. David Littleproud MP

Minister for Agriculture, Drought and Emergency Management