Bills Digest No. 59, 2020–21
PDF version [380KB]
David Markham
Law and Bills Digest Section
27 April 2021
Contents
Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Concluding comments
Date introduced: 18 February 2021
House: House of Representatives
Portfolio: Agriculture, Water and the Environment
Commencement: The day after the Act receives the Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, 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 Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as at April 2021.
Purpose of
the Bill
The purpose of the Biosecurity
Amendment (Strengthening Penalties) Bill 2021 (the Bill) is to amend the Biosecurity Act
2015 (the Act) to increase the maximum financial penalties, both civil
and criminal, for a number of offences that are already subject to penalties
under the Act.
Structure of
the Bill
The Bill has a single Schedule containing a table listing
28 separate provisions of the Act for which the maximum penalties are intended
to be increased.
Background
The
Biosecurity Act
The Biosecurity Act was passed in 2015, representing
a major rewrite of the Quarantine Act 1908.
In the Bills
Digest prepared by the Parliamentary Library at that time, it was noted
that a large number of penalties were set out in the Bill and that many,
particularly in relation to criminal penalties, were set at levels considerably
higher than the suggested penalties in the Guide to
Framing Commonwealth Offences, Infringement Notices and Enforcement Powers
(published by the Attorney-General’s Department).[1]
The Explanatory
Memorandum to the Biosecurity Bill at the time acknowledged the severity of
some proposed penalties, but noted that the highest penalties of 2,000 penalty
units were consistent with the penalties in subsection 27A(5) of the Protection of the
Sea (Prevention of Pollution from Ships) Act 1983; were consistent with
the Australian Government’s international obligations to protect the marine
environment; and reflected the severity of the potential consequences of an
offence.[2]
The Bills Digest also noted that the maximum civil penalty
for any offence in the Act was 120 penalty units, and that numerous
provisions allowed for either criminal or civil penalties for the same conduct.[3]
Since the passage of the Act, the penalties in it, as expressed as penalty
units, have not prior to this Bill been amended to any substantial extent.[4]
A recent
example of a biosecurity breach
Possibly the most serious breach of Australia’s
biosecurity in recent times was that caused by the importation of uncooked prawns
and prawn products infected with White Spot Syndrome Virus (WSSV) in 2016–17.
This importation ultimately led to widespread destruction of the prawn industry
in the Logan River/Moreton Bay area of Queensland.[5]
Following the WSSV outbreak then Inspector-General of
Biosecurity Helen Scott-Orr, with two colleagues, investigated and reported on
the effectiveness of biosecurity controls.[6]
While many of the report’s recommendations were of an administrative nature,
two recommendations, numbers 12 and 13, suggested stronger legislative powers.[7]
Recommendation 13 recommended recall powers in the Act in
relation to products that had already been imported but were later found to be
problematic. This recommendation led to legislative amendment implemented in
the Biosecurity
Legislation Amendment (Miscellaneous Measures) Act 2018, which enabled
the Director of Biosecurity, together in some cases with the Director of Human
Biosecurity, to require importers to reveal the location of such products.
While this may not actually allow recall, it allows the Director(s) to assess
or manage the level of biosecurity risk associated with the goods.[8]
Recommendation 12 stated:
The department should consider seeking stronger powers under
the Biosecurity Act 2015 to apply direct penalties for serious
non-compliance and impose administrative sanctions or on-the-spot fines for
relatively minor non-compliance.
In their summary of the report’s findings, the authors
commented:
In practice, the penalties available and applied were often
not commensurate with the potential profits to be made or risks that could be
caused by the non-compliant behaviour.[9]
The then Department of Agriculture, Water Resources and
the Environment agreed with Recommendation 12 noting:
While the Biosecurity Act already provides powers to apply
direct penalties for serious non-compliance and penalties for relatively minor
non-compliance in the form of infringement notices, the department will
consider whether stronger powers are required.[10]
How
penalties are expressed
Financial penalties in the Act, and indeed in legislation
generally, are set in the form of penalty units. Each penalty unit equates to a
dollar value, currently $222.[11]
The reason for setting penalties this way is simple. Penalties can be adjusted
from time to time, for example to take account of inflation by the Minister
issuing a notifiable
instrument specifying the new amount under the Crimes Act 1914—
that sets the new value of a penalty unit, rather than having to amend every
piece of legislation that contains penalty provisions.
How penalties
are enforced
In general, civil financial penalties are enforceable on
the balance of probabilities and in line with the provisions of the Regulatory Powers
(Standard Provisions) Act 2014. Division 2 of Part 4 of that Act sets
out the provisions for obtaining a civil penalty order. The number of penalty
units expressed in the Biosecurity Act (or other Act) relate to the
maximum penalties that can be imposed on an individual. If the penalty applies
to a body corporate, the maximum financial penalty is five times the penalty
set out in the relevant Act.[12]
Criminal penalties for fault-based offences are enforced
consistent with the provisions of Chapter 2 of the Criminal Code Act
1995, which sets out the principles of criminal responsibility that
apply to Commonwealth offences. A criminal offence must be proved beyond
reasonable doubt.[13]
A fault-based offence requires proof of one or more fault elements: intention, knowledge,
recklessness or negligence.[14]
Once again, the maximum financial penalty that can apply to a body corporate is
five times that which is set out in a penalty provision of an Act.[15]
Committee
consideration
Senate
Selection of Bills Committee
In its most recent report, the Committee noted that
consideration of the Bill would be deferred until its next meeting.[16]
Senate
Standing Committee for the Scrutiny of Bills
The Committee had no comment on the Bill.[17]
Policy
position of non-government parties/independents
No comments on this Bill from non-government parties or
independents were apparent at the time of writing this Bills Digest.
Position of
major interest groups
Interest groups such as Australian
Pork and NSW
Farmers have expressed their support for the proposed increased penalties.
Australian Pork said:
APL welcomes proposed amendments to the Biosecurity Act 2015
to strengthen biosecurity penalties.[18]
NSW Farmers said:
NSW Farmers has welcomed a crackdown on biosecurity breaches,
as the Australian Government acts to further bolster protection from growing
pest and disease threats.
In a move that reflects the seriousness of biosecurity to
industries such as agriculture, the maximum penalty for non-compliance with our
biosecurity laws has been increased to $1.11 million.[19]
Financial
implications
The Government notes the Bill will have no financial
impact on the Australian Government Budget.[20]
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. The
Government considers that the Bill is compatible.[21]
Parliamentary Joint Committee on Human Rights
In its Report of 24 February 2021, the Committee sought
further information about the increased penalties in the Bill — namely, whether
the new provisions could apply to individuals (‘members of the general public’)
as well as business importers or exporters; and whether the civil penalties had
risen to such a level that they may be more properly regarded as criminal
penalties. If that was the case, the committee suggested that criminal process
rights might be engaged and that criminal process guarantees should be set out
in the Bill.[22]
The Committee stated it would give its final view on the
Bill when it received further advice in response to these points.[23]
Following the receipt of this advice on 10 March 2021, the Committee concluded
that two of the civil penalty provisions (relating to contraventions in
relation to prohibited or suspended goods, and conditionally non-prohibited
goods) might be more appropriately considered as criminal penalties, given they
could apply to the general public.[24]
The Committee noted that these penalties may not comply with criminal process
rights given the lower standard of proof for civil penalties. The Committee
draws these human rights concerns to the attention of the Minister and the
Parliament.[25]
Key issues and
provisions
The only substantive provisions in the Bill are the proposed
increases to maximum penalties. The increases can be divided into five
categories, with the provisions of each category representing the same numerical
increase in penalty units. It should be noted again that the penalties set out
in the Act relate to individuals. The maximum penalty relating to a body
corporate will be five times the figure set out in the Bill.
It should also be stressed that these are maximum penalties,
which would probably only be applied for serious or repeated offences.
Nevertheless, an increase in the maximum penalty also gives a decision-maker or
court a broader range of financial penalties that can be applied for other less
serious or one-off offences.
It might also be noted that not every penalty in the Act has
been increased—there remain a large number that have not. In his second reading
speech Mr Littleproud noted that this Bill ‘targets key provisions of the
Biosecurity Act where non-compliance has the potential to cause a significant
and unacceptable risk for Australia’s biosecurity status’.[26]
The fact that some penalties in the Act are to be increased
while others are not will mean that pre‑existing internal correlations in
the Act between the penalties for certain offences will be significantly varied.
Category 1 –
Maximum penalty increased from 120 units to 300 (10 instances)
Each of the 10 penalties proposed to be increased from
maximum 120 to 300 penalty units is a civil penalty offence provision. Eight of
the provisions (sections 124 to 130 inclusive and section 139) only contain
civil penalty provisions – no fault-based (criminal) provisions apply. Two
provisions, contained in sections 140 and 141 of the Act, also contain
fault-based (criminal) penalties – these penalties will also be increased and
are discussed under the Category 3 subheading below.
The proposed increases in Category 1 apply to breaches such
as:
- not
complying with the direction of a biosecurity officer to secure goods[27]
- not
complying with a requirement of a biosecurity officer to provide information
about goods[28]
- moving,
dealing with or interfering with goods contrary to a legal direction[29]
- engaging
in conduct contrary to a direction to take biosecurity measures.[30]
The other offences in this Category are similar in nature
and seriousness.
Category 2 –
Maximum penalty increased from 120 units to 1,000 (six instances)
In numerical terms these are the most significant proposed
increases. The new maximum penalty is over eight times what the current penalty
is. For a body corporate this would mean that the maximum penalty could
increase from $133,200 to $1.11 million. Again, the increases proposed that
fall into Category 2 are, in each instance, in relation to civil penalty
provisions.
In each Category 2 case the breaches to which these
penalties refer can also attract fault-based (criminal) penalties. The
financial penalty for these criminal offences will also be increased and these are
set out in the following Category (Category 3). The proposed new maximum
figures in Category 2 and Category 3 are the same, meaning that the maximum
financial penalties for civil and criminal offences will be aligned (noting
that the criminal offences can also attract a term of imprisonment and the
stigma of a criminal conviction).
The offences in Category 2 relate to:
- importing
prohibited or suspended goods[31]
- not
complying with a condition relating to the import of conditionally
non-prohibited goods[32]
- contravening
a condition of a permit granted under section 179 of the Act (that is a permit
granted by the Director of Biosecurity authorising the import of particular
goods)[33]
- contravening
a condition of a suspended or revoked permit that was granted under section 179,
where that condition continues to apply[34]
- a
biosecurity industry participant (rather than a member of the public) acting
contrary to an approved arrangement[35]
and
- a
biosecurity industry participant acting contrary to a direction given by a
biosecurity officer in relation to an approved arrangement.[36]
Category 3 –
Maximum penalty increased from 300 units to 1,000 (eight instances)
All of the instances in this Category relate to the maximum
penalty for fault-based (criminal) offences. In each case, a term of
imprisonment can also apply. The maximum terms of imprisonment set out in the
Act have not been increased — the increases only apply to the financial aspect of
a potential penalty.
As noted in the previous section, six instances of this
increase are in relation to fault-based offences corresponding to the civil
penalty offences that are described in Category 2 above.
The other two instances relate to fault-based offences where
the corresponding maximum civil penalty will increase from 120 to 300 penalty
units (Category 1). These two provisions relate to a person acting:
- contrary
to a biosecurity direction[37]
or
- moving,
dealing with or interfering with goods to which a notice (setting out required
biosecurity measures) has been affixed.[38]
Category 4 –
Maximum penalty increased from 600 units to 2,000 (two instances)
These two increases relate to serious fault-based offences,
for which a maximum term of imprisonment for 10 years also applies (and which
is not increased by the Bill). These offences are also mentioned in Categories
2 and 3, but the increased penalties in Category 4 apply where there are
additional elements to the offence.
The first relevant offence is bringing or importing into
Australia prohibited or suspended goods, where such an action has caused or has
the potential to cause environmental harm or economic consequences.[39]
The second is similar to the previous offence as regards
environmental harm or economic consequences, but where the basic offence is a
person breaching a condition in relation to conditionally prohibited goods.[40]
Category 5 –
Maximum penalty increased from 2,000 units to 5,000 (two instances)
These two increases also relate to serious fault-based
offences for which maximum terms of imprisonment for 10 years apply. These
offences are for the same offences as those in Category 4, but with the additional
aggravating element that they relate to biosecurity breaches for the purpose
of, or which have the effect of, providing a person with a commercial advantage
over law abiding competitors in the market.[41]
Concluding comments
The increases to penalties made by the Bill are undoubtedly
substantial—the new maximum financial penalties will range between 2.5 times
and 8.33 times the current maximum penalty. The Explanatory Memorandum to the
Bill and the Minister’s second reading speech both set out, in general terms,
the reasoning behind the increased penalties in the Act. In his second reading
speech the Minister said:
This Bill ensures that penalties are set at a level that
means that they are not merely a cost of doing business. These maximum
penalties, in some cases up to $1.1 million, reflect the potential gains
someone might obtain or seek to obtain through non-compliance with our
biosecurity laws, as well as the devastating impact that contraventions may
have on Australia’s biosecurity status, market access and economy.[42]
It is self-evident that for financial penalties to have a
deterrent effect they must be set at a level which actually deters people from
offending. However, there is only a broad, and not a specific, explanation of
how the new penalty figures have been arrived at. That is not to imply that
they are wrong or excessive, but simply to note that there is no detailed
justification in the explanatory materials as to the specific level of
increases set out in the Bill.
It is a matter worth noting again that the increases to
maximum civil penalties from 120 to 1,000 penalty units set out in Category 2
above will align the maximum civil financial penalty with the maximum criminal
financial penalty for essentially the same conduct; whereas currently the
maximum criminal financial penalty (300 units) is 2.5 times the maximum civil
penalty (120 units). In effect, this will mean that a financial penalty
equivalent to the maximum criminal financial penalty will be able to be applied
on the civil rather than the criminal standard of proof. Whether this is a
desirable outcome is open to question.
[1]. P
Pyburne, Biosecurity
Bill 2014 and Biosecurity (Consequential Amendments and Transitional
Provisions) Bill 2014, Bills digest, 93, 2014–15, Parliamentary
Library, Canberra, 7 May 2015, pp. 13–14.
[2]. Explanatory
Memorandum, Biosecurity Bill 2014, p. 216.
[3]. Pyburne,
op. cit., p. 13.
[4]. The
Biosecurity
Amendment (Ballast Water and Other Measures) Act 2017 amended
subsection 284(4) to decreased the penalty from 500 penalty units to 120
penalty units.
[5]. H
Scott-Orr, B Jones and N Bhatia, Uncooked prawn
imports: effectiveness of biosecurity controls, Department of
Agriculture and Water Resources, Canberra, 2017, p. 6.
[6]. Ibid.
[7]. Ibid.,
p. 26.
[8]. Biosecurity
Act, section 312A.
[9]. Scott-Orr
et al, op. cit., p. 20.
[10]. Ibid.,
p. 26.
[11]. Crimes Act 1914
(Cth), section 4AA and Notice of Indexation
of the Penalty Unit Amount.
[12]. Regulatory Powers
(Standard Provisions) Act 2014, subsection 82(5).
[13]. Criminal Code Act
1995, Schedule 1, clause 13.2.
[14]. Ibid.,
clause 5.1, See also: Attorney-General’s Department (AGD), ‘The
Commonwealth Criminal Code: Guide for practitioners: 5.1 Fault elements’,
AGD website.
[15]. Crimes
Act 1914, subsection 4B(3).
[16]. Senate
Standing Committee for the Selection of Bills, Report,
4, 2021, The Senate, Canberra, 18 March 2021, p. [3].
[17]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 4, 2021, 24 February 2021, p. 16.
[18]. Australian
Pork, ‘Strengthened
biosecurity penalties’, Australian Pork website.
[19]. Sheep
Central, ‘NSW
Farmers welcomes crackdown on biosecurity breaches’, Sheep Central
website, 19 February 2021.
[20]. Explanatory
Memorandum, Biosecurity Amendment (Strengthening Penalties) Bill 2021, p.
2.
[21]. The
Statement of Compatibility with Human Rights can be found at pages 18 to 25 of
the Explanatory Memorandum to the Bill.
[22]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 2, 2021, 24 February 2021, pp. 2–4.
[23]. Ibid.
[24]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 4, 2021, 31 March 2021, pp. 16 and 25.
[25]. Ibid.,
p. 25.
[26]. D
Littleproud, ‘Second
reading speech: Biosecurity Amendment (Strengthening Penalties) Bill 2021’,
House of Representatives, Debates, (proof), 10 February 2021, p. 1.
[27]. Biosecurity Act
2015, section 124.
[28]. Biosecurity
Act, section 126.
[29]. Biosecurity
Act, section 130.
[30]. Biosecurity
Act, section 140.
[31]. Biosecurity
Act, section 185.
[32]. Biosecurity
Act, section 186.
[33]. Biosecurity
Act, subsection 187(2).
[34]. Biosecurity
Act, subsection 187(4).
[35]. Biosecurity
Act, section 428.
[36]. Biosecurity
Act, section 429.
[37]. Biosecurity
Act, section 140.
[38]. Biosecurity
Act, section 141.
[39]. Biosecurity
Act, subsection 185(5).
[40]. Biosecurity
Act, section 186(5).
[41]. Biosecurity
Act, subsections 185(4) and 186(4).
[42]. Littleproud,
‘Second
reading speech’, op. cit., p. 1.
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