Chapter 2Key issues
2.1All submitters to the inquiry supported the intent of the bill.
2.2In a joint submission, the Department of Agriculture, Fisheries and Forestry, and the Department of Health and Aged Care (DAFF and DHAC) explained that some of the bill’s amendments would simply ‘address practical gaps and minimise administrative burden’, while others are more future-focused. The more substantive amendments are designed to engender a more ‘intelligence and evidence-based approach to biosecurity interventions’, and boost the Commonwealth’s ability to respond efficiently to contraventions of the law.
2.3While the Biosecurity Act 2015 (the Act) already enables biosecurity officers to request information from persons arriving in Australia, according to DAFF and DHAC, amendments in Schedule1 of the bill would:
…provide the Commonwealth with an enhanced ability to maintain accurate datasets for incoming travellers to inform future profiling, and future biosecurity assessment and management processes which will allow for targeted interventions, as well as to streamline the assessment and management of biosecurity risk which may be posed by classes of incoming travellers.
2.4DAFF and DHAC said these changes are necessary, as the number of incoming travellers continues to grow post-pandemic, with over 1608010 entering Australia in January 2023. In this context, the departments argued the need for ‘complete and accurate datasets’, especially in relation to flights and vessels arriving from countries or regions with ‘a high biosecurity risk posed by a disease or pest’.
2.5Schedule 2 addresses existing ‘inefficiencies’ in the requirements for ‘show cause notices’ and provides ‘more flexibility’ for DAFF officers to respond to non-compliance. DAFF and DHAC submitted that it would also provide ‘greater clarity and certainty’ to industry participants that are covered by approved arrangements.
2.6The departments argued that the new and strengthened penalties in Schedules3 and 4 are ‘reasonable, necessary and proportionate to the level of risk posed by non-compliance’, and would help to ensure the adequacy of the penalty regime.
2.7GrainGrowers suggested increased powers and penalties contained in the bill would ‘serve as a deterrent to potential offenders’. The National Farmers’ Federation (NFF) said the amendments would ‘help strengthen a key element of our biosecurity system, being at-border prevention’. Australian Dairy Farmers said the changes represent a logical next step in implementing the National Biosecurity Strategy, and would ‘provide additional revenue for the biosecurity system’.
2.8Australian Pork Limited (APL) noted that contraventions of biosecurity laws can lead to pest and disease outbreaks which can have ‘significant long term economic, social and agricultural industry impact[s]’. APL applauded the introduction of greater civil penalties in the bill, and suggested that government considers implementing additional deterrence mechanisms, ‘such as broadening the scope of Visa cancellation options or the imposition of movement restrictions’.
2.9Some submitters raised concerns or made suggestions; these related to:
resourcing and implementation;
performance measures;
transparency and information-sharing; and
allocation of responsibility for biosecurity compliance in the cargo shipping sector.
Resourcing and implementation
2.10GrainGrowers and the NFF both argued that additional resourcing would be required to ensure the provisions in the bill could be enforced. The bill’s Explanatory Memorandum (EM) states that the changes would have no financial impact. However, GrainGrowers contended the amendments would have ‘implications for resourcing of compliance activities and applying penalties’, and the NFF said:
Appropriate resourcing is vital in processing intelligence, understanding biosecurity threats, policing the changes in compliance arrangements and prosecution measures for non-compliant activities. The establishment of appropriate resources to support at-border biosecurity will ensure that Australia can effectively combat biosecurity risks by enforcing the proposed changes as outlined amended Bill.
2.11NSW Farmers noted that penalties play ‘an important role’ in Australia’s biosecurity system and identified a continuing need to review and strengthen civil penalties, as well as to increase resources for surveillance activities.
2.12To facilitate an increase in resourcing, GrainGrowers advocated for the development and implementation of ‘a risk creator/container levy’, which is currently being evaluated by government.
2.13Queensland Department of Agriculture and Fisheries (QLD DAF) noted the need for agile and responsive auditing of approved arrangement sites under the Act. It pointed to a previous recommendation from the Inspector‑General of Biosecurity for ‘better training for auditors and those carrying out treatments at [approved arrangement sites]’. Noting the need for biosecurity treatments to be effective against hitchhiker pests, such as tramp ants, QLD DAF suggested there is an ‘opportunity in the Bill to allow more efficient amendment to [approved arrangement] conditions’.
Education and awareness
2.14The provisions of the bill would lead to an increase in ‘declaration paperwork for entry into Australia’. As such, QLD DAF recommended government implement ‘a comprehensive education and awareness campaign in appropriate languages’, to ensure persons entering Australia understand the new requirements.
Performance measures
2.15GrainGrowers and the NFF commented on the need for agreed performance indicators to measure the performance of Australia’s biosecurity system. GrainGrowers submitted that ‘greater transparency and accountability’ from government on biosecurity activities would facilitate better evaluation of the laws and measures in place, and drive ‘a culture of continuous improvement’. Similarly, the NFF said:
Developing well-defined metrics will allow for ongoing performance indicators, identify any potential gaps or weaknesses, and make necessary adjustments to improve the efficacy of our biosecurity system.
2.16GrainGrowers argued that improving confidence among agricultural industry participants in the performance of Australia’s biosecurity system would not be possible without ‘public performance reporting’. Such reporting would help industry understand ‘the extent to which compliance has avoided or deterred incursions and if the situation is improving or getting worse’.
Transparency and information-sharing
2.17APL argued that success of the new compliance measures will require effective information‑sharing. While enhanced information-gathering could improve the ‘efficient allocation of resources and biosecurity controls’, APL suggested it will also be ‘crucial to establish appropriate mechanisms for the sharing of information and analysis of risks’ across the sector. These mechanisms should include greater collaboration between customs and biosecurity officers, industry, and all those involved in Australia’s ‘formal and informal’ biosecurity frameworks. As an example, APL suggested information on ‘import risk pathways and biosecurity breaches’ could be shared with Animal Health Australia and its members; this would ‘allow broader industry consideration and analysis of risk mitigation needs’.
2.18The Queensland Department of Agriculture and Fisheries (QLD DAF) raised concerns around ‘operational effectiveness’ of the biosecurity system, suggesting efficiencies could be achieved through providing:
information about approved arrangement sites ‘in electronic real time format to jurisdictions’; and
‘prompt advice to jurisdictions about changed risk profiles’.
These operational improvements would increase the effectiveness of post border surveillance.
2.19NSW Farmers also argued for greater transparency around compliance activities. It pointed to Operation Avoca, where thirty-eight tonnes of risk material were detected in early 2023, saying:
Despite best efforts to contain the hazardous material, there was limited information or transparency from [DAFF] or otherwise as to the severity of the penalties taken against people who imported the material and how those penalties would act to deter other operators from engaging in highrisk behaviour that places the agriculture industry at risk.
Responsibility in relation to shipped cargo
2.20The committee received two submissions relating to biosecurity of shipped cargo. Shipping Australia, which represents organisations that are locally owned and/or locally active in the ocean freight shipping industry, argued that the shipping industry is not the biosecurity risk creator, ‘shippers [importers/exporters] are’. Shipping Australia said shipping companies and crews have no ‘role in organising the handling, logistics, storage of the cargo before it is readied for loading, nor the actual loading of the cargo’, and that it is ‘the cargo itself that is the biosecurity risk’.
2.21In relation to motor vehicles, Shipping Australia said vehicles become contaminated because they are stored in open areas before being shipped. As the shipping companies have no control over this, Shipping Australia argued that ‘biosecurity responsibilities and penalties should not be placed upon shipping companies … it is the shippers and consignors who have direct control over the nature and condition of the cargo being shipped to Australia’.
2.22Shipping Australia suggested that, rather than responding to incidences where contaminated cargo has already arrived in Australia, it would be better to prevent bio-risk material being loading onto a vessel in the first place. This could be achieved by introducing a requirement for shippers to ‘ensure that their cargoes are bio-secure and to provide various certificates and information to that effect’. This currently happens in relation to container weights, which must be certified at the point of loading:
Should that certification not be provided then the ship master should be empowered to refuse loading with all cost implications and any financial penalties falling upon the shipper. Shipping Australia would even go so far as to suggest that such biosecurity obligations on shippers should be written into our bilateral free trade agreements.
Strict liability
2.23The Federal Chamber of Automotive Industries (FCAI) is the peak industry body representing the importers and distributors of new motor vehicles and motorcycles in Australia. FCAI acknowledged the risks associated with importing motor vehicles, which are not generally packed or fully covered onboard ships, and are therefore exposed to contaminants. Vehicles are cleaned when they arrive in Australia, which is ‘effective’, according to FCAI, but not ideal compared with zero contamination.
2.24While FCAI appreciated the ‘rationale’ for making a number of offences strict liability, it was concerned with section 140(2A), which makes the failure to comply with certain biosecurity directions a strict liability offence. Under this provision, if biosecurity officers serve a notice requiring ‘a person to export [contaminated] goods [away] from Australia’, failure to comply with that order would be an offence of strict liability. FCAI argued this is unreasonable for the automotive industry, as importers cannot compel shipping lines to load or take contaminated cargo offshore:
Vessels that deliver our members’ vehicles are programmed for a particular voyage. Once the vehicles are unloaded the vessel is committed to travel to another place. They cannot simply head back to the Australian port and load up the affected vehicles.
2.25FCAI also argued that importers should not be issued with notices in relation to vehicles that have arrived with contamination but have yet to undergo cleaning and treatment. Introducing a strict liability offence in this circumstance would ‘not provide for any increased deterrence’, nor encourage importers to ‘ensure that the vehicles are properly cleaned, and the border protected’.
2.26DAFF and DHAC explained that the introduction of strict liability offences is deigned to work in concert with the new infringement notice scheme. These high-volume, often low-level contraventions could now be managed through ‘immediate regulatory responses’ issued ‘in a timely manner’. The departments argued these amendments extend DAFF’s ‘commitment to ensuring appropriate regulatory action for non-compliance’, and were developed with regard to the Attorney-General Department’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.
Committee view
2.27Australia’s borders are the front line when it comes to protecting our environment, agricultural industries, and way of life. Strong at-border biosecurity protects over $90 billion worth of agricultural production and our unique environmental assets, stopping incursions of pests and diseases.
2.28With ever-increasing globalisation, and growing movement of goods and people around the globe, Australia’s borders are constantly being tested. Our biosecurity system must be able to withstand these tests. More international travellers and growing cargo volume mean increased regional and global threats, such as foot-and-mouth disease and hitchhiker pests like khapra beetle.
2.29Most importers, transporters and travellers do the right thing—but there are inevitably some who seek to flout the rules and get around the system. Incursions caused through error, negligence, or deliberate disregard for Australia’s biosecurity laws can lead to devasting consequences. The officers at Australia’s biosecurity front line need a strong and sophisticated toolset with which to detect and mitigate these risks.
2.30Through recent legislative and policy changes, governments are modernising Australia’s biosecurity protection regime, and implementing a national strategic approach. In line with these changes, it is time to revise the penalty regime.
2.31The new powers in this bill are supported by the sustainable biosecurity funding model, delivered in the Government’s 2023–24 Budget. This funding includes $845 million to support biosecurity operations across the country, protecting our valuable agriculture sector.
2.32The amendments in this bill will strengthen the Biosecurity Act in a way that enables more targeted intervention, better risk management and more proportionate responses to non-compliance. The stronger penalties in this bill reflect the potential for serious and devasting consequences posed by biosecurity breaches.
2.33While industry submitters were strongly supportive of these changes, the committee acknowledges industry concerns around resourcing, measuring performance, and the transparency of government compliance activity. In its 2022 report on the adequacy of Australia’s biosecurity measures and response preparedness, the Rural and Regional Affairs and Transport References Committee made a number of recommendations for improving Australia’s biosecurity system, including identifying a need for:
sustainable, ongoing funding for the biosecurity system;
greater cooperation and communication with industry, and across jurisdictions;
better data collection and information sharing, and greater transparency; and
faster workforce expansion and capability-building.
2.34The committee understands this work is ongoing and will take time. We continue to monitor the department’s progress in implementing these recommendations, and the recommendations still outstanding from previous reviews.
2.35The committee notes concerns raised by some submitters around higher penalties for non-compliance, and the new strict liability offences. However, we also note these provisions will generally result low-grade penalties, infringement notices, or a ‘reprimand’, which, as the departments submitted, would have no ‘immediate consequences’ for industry participants, but could be used to put people and corporations ‘on notice’.
2.36The legislation is flexible enough to provide for the appropriate and proportionate use of civil penalties and infringement notices. With evidence suggesting that some industry participants see the existing penalties as simply a ‘cost of doing business’, the committee is convinced that the benefits of these new penalties and offences will outweigh any risks.
2.37Australia's biosecurity system is among the best in the world. The amendments in this bill will help protect that reputation, and ensure we remain a preferred supplier of safe, high-quality produce around the world. Strong at-border biosecurity will protect our farmers, our economy and our environment from biosecurity risks, now and into the future.
2.38The committee recommends that the Senate passes the bill.
Senator Glenn Sterle
Chair