Bills Digest No. 60, 2012–13

1 February 2013

Inspector-General of Biosecurity Bill 2012

Paula Pyburne
Law and Bills Digest Section 

The Bills Digest at a glance

This Bill adopts the recommendations of the both the Callinan and Beale reviews to establish an independent body focussed only on reviewing biosecurity processes. It establishes the position of the Inspector-General of Biosecurity.

What the Inspector-General of Biosecurity can do

The Inspector-General’s function is to review the performance of functions, and the exercise of powers, by the Director of Biosecurity and certain officers appointed in accordance with the proposed Biosecurity Act 2012 and to undertake reviews of the process of conducting a Biosecurity Import Risk Analysis—generally and in relation to a particular Biosecurity Import Risk Analysis.

The Inspector-General carries out these functions primarily as part of an annual review program or at the written direction of the Agriculture Minister. In order to do so, the Inspector-General has significant powers to obtain information and documents. A report of each review of this kind is to be given to the Agriculture Minister.

In addition, the Inspector-General may undertake a review of the process of conducting a particular Biosecurity Import Risk Analysis at the request of a person whose interests were, or may be, adversely affected by the failure to conduct the process in accordance with the Biosecurity Act. In doing so the Inspector-General has limited power to obtain information and documents from the Director of Biosecurity. A report of a review of this kind is to be given to the Director of Biosecurity.

What the Inspector-General of Biosecurity cannot do

The Inspector-General may conduct audits, evaluation and assessments as part of a review. The Inspector-General can make recommendations, but the power to provide recommendations is highly qualified. The Inspector-General must not make recommendations about, or comment on, any of the following:

·         the policy of the Commonwealth Government in relation to managing biosecurity risk

·         a decision made under the Biosecurity Act or any other law of the Commonwealth—particularly a decision relating to a permit to bring or import goods into Australian territory

·         the outcome of a Biosecurity Import Risk Analysis or

·         the scientific analysis of anything done in the performance of a function, or the exercise of a power, under the Biosecurity Act.

The offences and penalties provisions in the Bill operate as if they were provisions of the Biosecurity Act.

The Bill seeks to balance individual rights with powers that are reasonable, proportionate and necessary to safeguard Australia’s biosecurity system by prescribing certain protections, including exclusions on reporting and secrecy provisions

Date introduced: 28 November 2012

House: The Senate

Portfolio: Agriculture, Fisheries and Forestry

Commencement: Sections 1 and 2 on Royal Assent; sections 3–67 at the same time as section 3 of the Biosecurity Act 2012[1] commences.[2]

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose of the Bill

The purpose of the Inspector-General of Biosecurity Bill 2012 (the Bill) is to establish the
Inspector-General of Biosecurity as statutory body to carry out the following functions:

·         to review the performance of functions and the exercise of powers by the Director of Biosecurity, biosecurity officers and biosecurity enforcement officers

·         to review the process of conducting Biosecurity Import Risk Analysis (BIRA)[3] generally or the process of conducting a particular BIRA and

·         to report on those reviews in accordance with the requirements set out in the Bill.

Structure of the Bill

The Bill consists of seven parts:

·         Part 1 contains preliminary matters, including relevant definitions

·         Part 2 establishes the Inspector-General of Biosecurity and outlines the key functions of the position, including the requirement to set a review program

·         Part 3 sets out the powers of the Inspector-General to obtain information or documents for the purpose of conducting a general review or setting a review program—this includes the power to enter specified premises under warrant or by consent

·         Part 4 contains the reporting requirements in respect of general reviews—in particular the matters that are to be excluded from the written report that must be prepared for the Agriculture Minister

·         Part 5 sets out the power of the Inspector-General to carry out a review of the process for conducting a BIRA on the request of an adversely affected person, including the requirement to give a copy of the report to the Director of Biosecurity and publish the report as prescribed by the regulations

·         Part 6 contains details about the appointment of the Inspector-General of Biosecurity including the period of tenure and the engagement of staff under the Public Service Act 1999 and

·         Part 7 contains miscellaneous provisions, in particular the requirement for secrecy, the application of the Biosecurity Act and the regulation making power.

It should be noted that some of the terms in this Bill are defined in the Biosecurity Act.[4]

Background

Inquiry into outbreak of equine influenza

The discovery of a horse suffering from equine influenza at the Eastern Creek Quarantine Station in Sydney was announced by the then Minister for Agriculture, Fisheries and Forestry, Peter McGauran, on 22 August 2007.[5] Fifty-two horses at Eastern Creek, as well as 27 horses at Spotswood, Victoria, were quarantined until 30 days after they were proven free of the disease. On 25 August 2007,
Mr McGauran announced that 11 horses at Centennial Park in Sydney had been found to be infected with equine influenza.[6] As a result, all horse movements in New South Wales and the Australian Capital Territory were halted.[7] Notwithstanding the measures taken to contain the outbreak, ‘by 30 September 2007, 3193 infected premises had been notified in New South Wales and Queensland’.[8]

In the wake of the outbreak, the Government announced that a Commission of Inquiry, headed by former High Court Justice, Ian Callinan AC, would take place and that Commissioner Callinan would ‘report on the circumstances that contributed to the outbreak and the need for any strengthened biosecurity procedures for the quarantine management of imported horses’.[9]

The report of the Commission of Inquiry was critical that:

… policies current at August 2007 did not provide for premises to be approved and inspected by AQIS [the Australian Quarantine and Inspection Service], Biosecurity Australia or another qualified person before they could be used for pre-export quarantine.

Nor did they require that such premises have fully documented procedures drawn up in accordance with a Hazard Analysis Critical Control Point system. Nor were there any arrangements for implementation of those procedures to be audited from time to time by AQIS, Biosecurity Australia or another qualified person. Introduction of those measures would reduce risk of infection of horses during pre-export quarantine.[10]

Commissioner Callinan considered that there were three areas where implementation of biosecurity measures needed to be checked regularly. These were:

… the proposed written procedures for pre-export quarantine facilities; the other requirements imposed by the import conditions before a horse is transported to Australia; and the operating procedures for the clearance and quarantine of horses once they arrive in Australia.[11]

Commissioner Callinan recommended that the position of Inspector General of Horse Importation should be created:

… the primary function of whom would be to act as an external auditor of quarantine premises (both in Australia and overseas), of the performance of employees of the Commonwealth charged with responsibilities relevant to the importation and quarantining of horses, and of the procedures used in association with that process (here and overseas). [12]

Government response

That recommendation was accepted by the Government.[13] As it was expected that it would take time to draft and implement legislation giving effect to the position, the Government moved to appoint, on an administrative basis, an ‘interim inspector’. On 11 September 2008, ‘former Queensland Chief Veterinary Officer and internationally-recognised quarantine expert Dr Kevin Dunn’ was appointed to the position.[14]

Beale review

On 19 February 2008, the then Minister for Agriculture, Fisheries and Forestry, Tony Burke, announced a comprehensive, independent review of Australia’s quarantine and biosecurity arrangements to be undertaken by an independent panel of experts chaired by Roger Beale AO (the Beale Review).[15]

Commissioner Callinan’s report into the outbreak of equine influenza, publicly released in June 2008, identified a number of matters involving AQIS and the horse industry which may have contributed to the outbreak. Noting that the report was ‘a disturbing commentary on Australia's quarantine and biosecurity arrangements for horse imports before August last year’, Mr Burke also requested that Roger Beale ‘address these issues as part of his review’.[16]

The report of the Beale Review recommended, amongst other things:

… a statutory office of Inspector General of Biosecurity, subsuming the Interim Inspector General of Horse Importation recently recommended by Commissioner Callinan in his report on the equine influenza outbreak. The Inspector General of Biosecurity’s administrative support would be provided by the Department of Agriculture, Fisheries and Forestry. The Inspector General would report directly to the Minister, have broad powers of audit and investigation and would be responsible for conducting systems audits and reviews of the biosecurity programs carried out by the National Biosecurity Authority. The Minister would be empowered to refer matters to the Inspector General of Biosecurity for review and report.[17]

Government response

The Government issued a preliminary response to the Beale Review in which it agreed in principle with the recommendations relating to the appointment of an Inspector-General of Biosecurity.[18]

As a result, on 1 July 2009, the Government appointed Dr Kevin Dunn as the Interim Inspector-General of Biosecurity to provide independent assurance of the performance, and appropriateness, of biosecurity systems and risk management measures that are the responsibility of the biosecurity divisions of the Department of Agriculture, Fisheries and Forestry.[19]

Committee consideration

Senate Rural and Regional Affairs and Transport Committee

The Bill has been referred to the Senate Rural and Regional Affairs and Transport Committee for inquiry (the Senate Committee) and report by 27 February 2013.[20] Comments by individual submitters available at the time of writing are included in the discussion under the heading ‘Position of major interest groups’ in this Bills Digest.

Senate Standing Committee for the Scrutiny of Bills

At the time of writing this Bills Digest, the Senate Standing Committee for the Scrutiny of Bills had not published any comments about the Bill.

Joint Parliamentary Committee on Human Rights

At the time of writing this Bills Digest, the Joint Parliamentary Committee on Human Rights had not published any comments about the Bill.

Position of major interest groups

As noted above, most of the submissions made to the inquiry by the Rural and Regional Affairs and Transport Committee relate to the Biosecurity Bill, rather than this Bill. Some of the submissions in relation to this Bill express disappointment that the role of the Inspector-General of Biosecurity is to review the process of conducting an import risk analysis rather than its scientific content.[21] According to Ausveg:

This Bill does not go far enough. We believe that if this Bill is to have real meaning then any review should be independent of [the Department of Agriculture, Fisheries and Forestry] DAFF and should be provided with powers to permit investigation not only of process but also content and rigour of DAFF work … There is no provision in this Bill to deal with sub-standard work from DAFF. This is no visible independence in the review process and it is our belief that without fundamental reform to this part of DAFF’s operation the current existing conflicts between DAFF and industry will continue.[22]

Similarly, Apple and Pear Australia urged the Government to reconsider the role of the Inspector-General of Biosecurity in reviewing the import risk analysis process rather than the outcome of the decision.[23]

As the Biosecurity Bill contains provisions which are relevant to the biosecurity import risk assessment, further discussion about the review and appeals process is contained in the Bills Digest for that Bill.

Financial implications

According to the Explanatory Memorandum:

No significant direct or indirect financial impact on the Commonwealth will arise from the introduction of this Bill, apart from the remuneration of the Inspector-General (which is to be determined by the Remuneration Tribunal). The Office of the Inspector-General of Biosecurity will be staffed by APS staff from the Department of Agriculture, Fisheries and Forestry.[24]

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.[25] The Government considers that the Bill is compatible. The submissions to the Senate Committee in relation to this Bill do not appear to raise any human rights issues.

As noted above, the Joint Parliamentary Committee on Human Rights has not yet reported on this Bill.

Key issues and provisions

Establishing the Inspector-General of Biosecurity

Clause 5 of the Bill establishes the Inspector-General of Biosecurity. The primary functions[26] of the Inspector-General are:

·         to review the performance of functions, and the exercise of powers, by the Director of Biosecurity[27], biosecurity officers[28] and biosecurity enforcement officers[29]

·         to review the process of conducting Biosecurity Import Risk Analysis (BIRA)[30] generally, as well as the process of conducting a particular BIRA and

·         to report on those reviews in accordance with the requirements of the Bill.

The terms and conditions of the Inspector-General’s appointment are set out in clauses 48–57 of the Bill.[31] In particular, the Inspector-General is appointed by the Agriculture Minister on a full-time[32], or part-time[33], basis for a period of up to five years. The Inspector-General must not hold office for a total of more than ten years.[34] The Bill sets out those circumstances under which the Agriculture Minister may terminate the appointment of the Inspector-General.[35]

The Inspector-General will be assisted by persons engaged under the Public Service Act 1999[36] who are made available by the Director of Biosecurity. In addition, the Inspector-General may engage a person with suitable qualifications and experience as a consultant.[37] When exercising the power to enter premises in Part 3, clause 25 of the Bill provides that the Inspector-General may be assisted by a member of staff, a consultant engaged under clause 59, or a person who has the requisite technical expertise—if the assistance is necessary and reasonable.

Carrying out reviews—general

It is the responsibility of the Inspector-General to set the review program each year.[38] The review program encompasses the Inspector-General’s broad functions—that is to review the performance of functions, and the exercise of powers, by the Director of Biosecurity and certain officers appointed in accordance with the Biosecurity Act and to undertake reviews of the process of conducting a BIRA—generally or in relation to a particular BIRA.

The Inspector-General is required to consult with the Director of Biosecurity and the Agriculture Minister, at least once a year, in setting the review program.[39]

Issue—independence of the Inspector-General

This Bill is the legislative response to those recommendations of the Beale Review which relate to the need for an Inspector-General of Biosecurity. Draft forms of the Bill and the relevant explanatory material were the subject of extensive public consultation prior to the introduction of the Bill in final form.[40]

During this consultation process, questions were raised about the independence of the Inspector-General of Biosecurity and the co-location of the position with the Director of Biosecurity. In response, the Government has stated that the Inspector-General of Biosecurity:

… is not subject to the direction of the Director of Biosecurity in relation to the review of a particular subject matter, the way in which a particular review is conducted or the priority given to a particular review [see subclause 7(5) of the Bill].

The Inspector-General of Biosecurity is a statutory office holder independent to the Director of Biosecurity and the Department of Agriculture, Fisheries and Forestry and is appointed by the Minister for Agriculture, Fisheries and Forestry. This appointment will be consistent with Senior Commonwealth Officer appointment guidelines. [41]

The Inspector-General must conduct reviews in accordance with the review program. The Agriculture Minister may, in writing, direct the Inspector-General to conduct a review, including a review about the process of conducting BIRA’s generally or a particular BIRA[42], in which case it must be included in the review program.[43] However, in order to protect the independence of the Inspector-General, he or she is not subject to direction by the Agriculture Minister about the way in which a particular review is to be conducted or the priority to be given to any particular review.[44]

Whilst this provision, on its face, appears to ensure the independence of the Inspector-General, it is noteworthy that the staff of the Inspector-General are to be ‘made available’ by the Agriculture Secretary and presumably would often be DAFF staff.[45]  That being the case, questions about independence arise not only about how the review program is determined, but also about how, and by whom, it is conducted.

Biosecurity import risk analysis

It is reviews about the process of conducting BIRA’s which have drawn the most attention from submitters, as set out under the heading ‘Position of major interest groups’ above.

Basis for biosecurity import risk analysis

Australia’s response to biosecurity issues is based upon the requirements of the World Trade Organisation Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement).[46] The SPS Agreement requires countries to adopt the least trade restrictive quarantine barriers possible, but gives member countries the right to take sanitary and phytosanitary measures necessary to protect human, plant and animal life or health in their jurisdiction. Each Member country is entitled to set its appropriate level of protection[47] as it sees fit, taking into account the full range of national interest considerations. However, those measures must be scientifically based, non-discriminatory and consistently applied.[48]

Australia has determined that the appropriate level of sanitary and phytosanitary protection is ‘providing a high level of sanitary and phytosanitary protection aimed at reducing risk to a very low level, but not to zero’.[49]

Importantly:

Australia’s Appropriate Level of Protection was set by the Government following lengthy consultations through the Agriculture and Resource Management Council of Australia and New Zealand, and the Primary Industries Ministerial Council. It does not reflect a formal cabinet or ministerial decision.[50]

Existing import risk analysis procedure

Australia’s appropriate level of protection is given practical expression through, amongst other things, Biosecurity Australia’s import risk analysis process.[51] According to the Department of Agriculture, Fisheries and Forestry (and consistent with Article 5 of the SPS Agreement), the Australian Government uses risk analysis (formally referred to as a biosecurity import risk analysis (BIRA) in this Bill) to assist it in considering the level of quarantine risk that may be associated with the importation or proposed importation of animals, plants or other goods.

In conducting a risk analysis, Biosecurity Australia identifies the pests and diseases of quarantine concern that may be carried by the good, assesses the likelihood that an identified pest or disease … would enter, establish or spread, and assesses the probable extent of the harm that would result.

If the assessed level of quarantine risk exceeds Australia’s [appropriate level of protection] ALOP, Biosecurity Australia will consider whether there are any risk management measures that will reduce quarantine risk to achieve the ALOP. If there are no risk management measures that reduce the risk to that level, trade will not be allowed.[52]

Risk assessment is defined in Annex A of the SPS Agreement as ‘the evaluation of the likelihood of entry, establishment or spread of a pest or disease … and of the associated biological and economic consequences’. Consistent with this definition, the following risk estimation matrix is applied to the making of decisions:

Risk estimation matrix

Likelihood of pest entry, establishment and spread

High

Negligible

Very low risk

Low risk

Moderate risk

High risk

Extreme risk

Moderate

Negligible

Very low risk

Low risk

Moderate risk

High risk

Extreme risk

Low

Negligible

Negligible risk

Very low risk

Low risk

Moderate risk

High risk

Very low

Negligible

Negligible risk

Negligible risk

Very low risk

Low risk

Moderate risk

Extremely low

Negligible

Negligible risk

Negligible risk

Negligible risk

Very low risk

Low risk

Negligible

Negligible

Negligible risk

Negligible risk

Negligible risk

Negligible risk

Very low risk

Negligible

Very low

Low

Moderate

High

Extreme

Consequences of pest entry, establishment and spread

Source: Department of Agriculture, Fisheries and Forestry, Provisional final import risk analysis report for fresh mango fruit from India, May 2008, p. 17, viewed 14 January 2013, http://www.daff.gov.au/__data/assets/word_doc/0009/1889568/Final_IRA_-_Mangoes_from_India.doc[53]

Issue—effectiveness of the risk estimation matrix

The 2000 Senate Rural and Regional Affairs and Transport Legislation Committee report An Appropriate Level of Protection?—The Importation of Salmon Products: A case study of the Administration of Australian Quarantine and the Impact of International Trade Arrangements recommended that the Commonwealth Government, in consultation with the community and the states, be responsible for establishing a more explicit appropriate level of protection.[54] Subsequently, the Primary Industries Ministerial Council agreed that ‘the draft guidelines for risk analysis, developed by Biosecurity Australia and which illustrated the concept by way of a risk estimation matrix, adequately met Australia’s needs’.[55]

Submitters to the Beale review commented on the matrix which ‘appears to place significant emphasis on the national impact of the pest or disease’.[56] The Beale review provides the following example:

… if the probability of entry, establishment or spread and relative impact on unit production costs is the same for a pest that might affect a small industry as a large industry, the consequence for the large industry will, by definition, be higher than for the small industry, and so therefore will the overall risk estimate.

Many domestic agricultural groups are unhappy with this approach because they claim the assessment process means their (smaller) industries receive less biosecurity protection.[57]

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

In order to assess the level of impact of the establishment of a disease, Biosecurity Australia discounts the effects of diseases which impact on industries that are concentrated in one state only ... It is a direct consequence of this matrix that even a significant impact on a state-based industry sector would not register as significant on a national scale. Thus the wipe-out of the Australian salmonid farming sector based almost entirely in Tasmania, or the Southern Bluefin Tuna farming sector based almost entirely in South Australia, would not register as significant enough on a national scale to contravene Australia’s ALOP.[58]

The Rural and Regional Affairs and Transport Committee is currently undertaking an inquiry into the effect on Australian pineapple growers of importing fresh pineapple from Malaysia. According to the interim report, the Committee:

heard evidence from a number of witnesses, including officers from DAFF Biosecurity. During the hearing, concerns were once again raised about the validity of the Risk Estimation Matrix, which expresses the likelihood of pest entry, establishment and spread, and is used by DAFF Biosecurity as part of the Import Risk Analysis process …

Subsequently, the committee received further evidence which raises concerns about the use of the Risk Estimation Matrix and the Import Risk Analysis' conclusion of 'low' risk [in relation to the importation of fresh pineapples from Malaysia]. Information provided … argued that the overall risk is in fact 'moderate' to 'high'.[59]

The Bill does not address this issue as the Inspector-General is not entitled to make recommendations in relation to, or comments on the outcome of, a BIRA—that will include the way in which the risk estimation matrix operates in relation to that case.[60]

Undertaking a BIRA

Biosecurity Australia’s Chief Executive is empowered to make an administrative decision as to whether an import risk analysis will be conducted in accordance with the terms of Part 6A of the Quarantine Regulations.[61] At present, this can be in either a standard[62] or expanded format.[63] The regulated steps for both types of import risk analysis include:

·         announcement and commencement which triggers the regulated timeframe for the import risk analysis[64]

·         issues paper preparation—expanded IRA only[65]

·         consultation on issues paper—expanded IRA only[66]

·         risk analysis and draft IRA report preparation[67]

·         consultation on draft IRA report through publication on the Biosecurity Australia website and an invitation for public comment[68]

·         review of draft report by the Eminent Scientists Group—expanded IRA only[69]

·         preparation and publication of the provisional final IRA report taking into account stakeholder comments and, in the case of an expanded import risk analysis, any recommendations made by the Eminent Scientists Group[70] and

·         the opportunity for appeal to the Import Risk Analysis Appeals Panel for any stakeholder who believes there was a significant deviation from the prescribed process that adversely affected their interests.[71]

The final import risk analysis report is forwarded to the Director of Animal and Plant Quarantine for determination. ‘The determination provides a policy framework for decisions on whether or not to grant an import permit and any conditions that may be attached to a permit’.[72]

Carrying out reviews under Part 3

Obtaining information and documents

Part 3 of the Bill sets out the powers of the Inspector-General to obtain information and documents and to enter premises, including by consent or under warrant, for the purposes of carrying out a review. Importantly, the powers set out in Part 3 apply to any review of the process for conducting a BIRA which is part of the Inspector-General’s review program, including a BIRA that is being undertaken at the written direction of the Agriculture Minister. However, the powers do not apply to a review about a particular BIRA which has been initiated by an affected person under Part 5 of the Bill.[73]

Where the Inspector-General has reason to believe that a person has information or documents that are relevant to a review, or is capable of giving evidence that is relevant to a review, he or she may require the person, by written notice, to give information or to produce documents in the manner and form specified in the notice or to attend to answer questions relevant to the review.[74] The notice must specify the time for complying with the notice, being at least 14 days.[75] Importantly, whilst the Inspector-General may delegate all or any of his or her functions and powers under the Act to a member of staff, the power under clause 10 of the Bill may only be delegated to a member of staff who is an SES employee or an acting SES employee.[76]

Under clause 16 of the Bill, a person is liable to a civil penalty of 30 penalty units if the person fails to comply with the terms of the notice within the notice period or, in the case of a person who is required to attend, if the person refuses to attend or refuses to answer questions put by the Inspector-General.[77] A person is not excused from giving information, producing a document or answering a question in accordance with a notice on the ground that doing so might incriminate the person[78] or make the person liable to penalty.[79]

The rationale for abrogating an individual’s right to the privilege against self-incrimination is set out in the Explanatory Memorandum as follows:

… self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court (known as ‘use’ immunity) or indirectly to gather other evidence against the person (known as ‘derivative use’ immunity).

… The abrogation of the privilege against self-incrimination is in the public interest as it will ensure that the Inspector-General has access to the information and documents needed to provide oversight and public confidence that biosecurity risks are being managed effectively through a formal system of auditing and verification activities.

The abrogation of privilege against self-incrimination as contained within clause 17 is both reasonable and proportionate due to the protections contained in clause 17 and elsewhere in the Bill. Protections include that: a person may request that the information not be made public (subclauses 10(6) and (7)); certain material must be excluded from reports (clause 38); it is an offence to disclose information collected under the Act (clause 64). As a result of these safeguards there is low harm to the individual when balanced against the public interest of protecting Australia’s strong biosecurity framework.[80]

The Inspector-General may require that the information is provided, or the answers are given, on oath or by affirmation.[81] Under clause 16, a person who does not comply with this requirement is liable to a civil penalty of 30 penalty units.[82]

The Inspector-General may also invite members of the public or particular persons or organisations to make submissions relevant to a review.[83]

Information or documents that are provided in response to a notice, submissions and records of submissions, made in response to an invitation by the Inspector-General may be made available to the public generally, or to particular persons or organisations, in a manner that the Inspector-General thinks is appropriate.[84] However, there are exceptions to this rule.[85] For example, a person who is required to give information, or provide documents, in response to a notice may request that it not be made available (either wholly or partly) at the time it is given to the Inspector-General, for reasons of confidentiality.[86] Where the Inspector-General has agreed to the request, that information must not be made publicly available.[87]

Similarly, a person who has provided a submission in response to an invitation may, at the time of making the submission, request that the Inspector-General not make all, or part, of the submission available for reasons of confidentiality.[88]

These exceptions apply not only to making the information generally available but may also apply to the Inspector-General’s report of the review[89] and the annual report.[90]

In addition[91], the Inspector-General must not make available any information, answer to a question, document or submission that names, or specifically identifies, an officer or employee of a Commonwealth body, an officer or employee of a state or territory body, a consultant to the Department or that contains information relating to a matter specified in a certificate given by the Agriculture Minister under section 61 of the Act (further comment about certificates is set out under the heading ‘Other provisions’ below).[92]

In conducting a review the Inspector-General must have regard to the information and documents provided in response to a notice, to submissions made in response to an invitation (unless removed or withdrawn), and to information and documents relevant to the review that have been requested[93] from the Director of Biosecurity.[94] The Inspector-General may also have regard to other information.[95]

Entering premises

The Inspector-General may enter the following premises at any reasonable time for the purpose of conducting a review:

·         premises that are owned or controlled by the Commonwealth where functions are or have been performed, or powers are or have been exercised, under the Biosecurity Act by the Director of Biosecurity or by biosecurity officers or biosecurity enforcement officers or

·         premises at which a biosecurity industry participant[96] carries out biosecurity activities as authorised by an approved arrangement covering the biosecurity industry participant.[97]

In addition, the Inspector-General may enter other premises where functions are or have been performed, or powers are or have been exercised, under the Biosecurity Act by the Director of Biosecurity or by biosecurity officers or biosecurity enforcement officers, but only if the occupier has consented to the entry or the entry is under a review warrant.[98]

Importantly, whilst the Inspector-General may delegate all or any of his or her functions and powers under the Act to a member of staff, the power under clause 20 may only be delegated to a member of staff who is an SES employee or an acting SES employee.[99]

Where the Inspector-General has entered premises with the consent of the occupier, the Inspector-General must leave if the consent ceases to have effect.[100] In exercising the power to enter premises the Inspector-General is to have regard to minimising any resulting disruption to the operations or work undertaken by the occupiers of the premises.[101]

The Inspector-General, or a person assisting the Inspector-General[102], having entered premises under the terms set out above, is authorised to exercise the review powers which are listed in clause 21 of the Bill. These powers may only be exercised in respect of matters that the Inspector-General thinks are relevant to the review. They include, but are not limited to, the power to:

·         search the premises and any thing on the premises

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

·         the power to make any still or moving image or any recording of the premises or any thing on the premises

·         the power to inspect any document on the premises and to take extracts from, or make copies of, that document and

·         the power to operate electronic equipment on the premises, either to put relevant data in documentary form which can be removed from the premises or to transfer data to a disk, tape or other storage device which can be removed from the premises.[103]

Warrants

The Inspector-General may apply to an issuing officer[104] for a warrant in relation to premises or adjacent premises.[105] Importantly, whilst the Inspector-General may delegate all or any of his or her functions and powers under the Act to a member of staff, the power under clauses 34 and 35 of the Bill may only be delegated to a member of staff who is an SES employee or an acting SES employee.[106]

A warrant may be issued only if the issuing officer is satisfied that it is reasonably necessary for the Inspector-General to have access to the premises for the purpose of conducting a review.[107] Before issuing a warrant for access to adjacent premises, the issuing officer must be satisfied that such access is required to allow access to other premises for the purpose of conducting a review.[108] All warrants must contain a description of the premises to which the warrant relates, the legislative basis for the warrant and the purpose of the warrant.[109] In addition:

·         a review warrant must: authorise the Inspector-General, while the warrant remains in force, to enter the premises and to exercise the review powers; state whether entry is authorised at a specific time; and specify the day on which the warrant ceases to be in force—which must be within one month of the date of issue of the warrant[110] and

·         an adjacent premises warrant must: authorise the Inspector-General, while the warrant remains in force, to enter the premises and remain on the premises for the period that is reasonably necessary to gain access to other premises to conduct a review; state whether entry is authorised at a specific time; and specify the day on which the warrant ceases to be in
force, which must be within 14 days of the issue of the warrant.[111]

Where the Inspector-General enters premises under a review warrant he, or she, may secure any electronic equipment that is on the premises by locking it up or placing it under guard if there are reasonable grounds to suspect that relevant data may be accessible by operating the
equipment—but that expert assistance is required to do so—and the relevant data may be destroyed, altered, or otherwise interfered with, if the Inspector-General does not take action.[112] In that case the Inspector-General must give notice to the occupier of the premises, or the occupier’s representative of his, or her, intention to secure the equipment for up to 24 hours.[113]

The Inspector-General may apply to an issuing officer for an extension of the 24-hour period if the Inspector-General believes on reasonable grounds that the equipment needs to be secured for longer than that period.[114] The 24-hour period may be extended more than once.[115]

Occupier’s rights and responsibilities

Where a review warrant or an adjacent premises warrant is being executed in relation to premises, the Inspector-General must, as soon as practicable, make a copy of the warrant available to the occupier or the occupier’s representative and inform that person in writing of the occupier’s rights and responsibilities.[116] The occupier of the premises, or the occupier’s representative, has the right to observe the exercise of the review powers.[117]

The occupier, or the occupier’s representative, must provide reasonable facilities and assistance to the Inspector-General, or a person assisting the Inspector-General, for the effective exercise of the review powers.[118] The Bill is silent as to what constitutes ‘reasonable facilities and assistance’.[119] However the Explanatory Memorandum provides, by way of example, that ‘a person may be required to unlock a door for the Inspector-General to gain access to a particular room on the premises, or to provide access to a computer on the premises’.[120] Under subclause 33(2) of the Bill a person who fails to comply with this responsibility commits an offence. The penalty for the offence is 30 penalty units.[121]

The Inspector-General may use such force against things—but not people—as is necessary and reasonable in the circumstances.[122] By way of example, the use of force may allow ‘for the opening of doors or the movement of things to assist with the execution of a warrant’.[123]

Reports on reviews under Part 3

What is to be included in the report

After completing a review in accordance with Part 3, the Inspector-General must prepare a written report for the Agriculture Minister which contains the subject and findings of the review, the evidence and other material on which those findings are based, and any relevant recommendations arising from the review.[124]

The power to provide recommendations is highly qualified. The Inspector-General must not make recommendations about, or comment on, any of the following:

·         the policy of the Commonwealth Government in relation to managing biosecurity risk

·         a decision made under the Biosecurity Act or any other law of the
Commonwealth—particularly a decision relating to a permit to bring or import goods into Australian territory[125]

·         the outcome of a BIRA or

·         the scientific analysis of anything done in the performance of a function, or the exercise of a power, under the Biosecurity Act.[126]

Issue—scope of the Inspector-General’s powers

Submitters to the Senate Rural and Regional Affairs and Transport Committee considered that the Bill should broaden the scope of the powers of the Inspector-General of Biosecurity to include scientific analysis and an assessment of the activities of both the Department and Director of Biosecurity. The Government responded by reiterating that the Inspector-General of Biosecurity ‘provides for system review and is established under separate legislation to provide independence to the system’.[127]

According to the Explanatory Memorandum, ‘the limitations provided for in this clause are to ensure that the Inspector-General’s role is limited to reviewing and reporting on biosecurity functions and processes only and is not to extend to commenting on the merits of scientific or policy decisions’.[128]

In addition, the Inspector-General has a recommendatory, not a decision making, function. This means that if, for example, the Inspector-General found that the discretion to undertake a BIRA was not exercised by the Director of Biosecurity (under section 164 of the Biosecurity Act) when it was appropriate that it should have been or that a standard format BIRA was undertaken when an expanded format BIRA would have been preferable, the Inspector-General cannot require the Agriculture Minister to rectify those matters.

What is to be excluded from the report

The report must not name, or specifically identify, an officer or employee of a Commonwealth, state or territory body, a consultant to the Department or a member of the Australian Defence Force as being a person whose conduct has been considered in the course of a review.[129] This reflects the focus of the Inspector-General on ‘the processes within the biosecurity system’, rather than on reviewing an individual.[130]

A report on a review must not include any information or documents provided in response to a notice (under clause 10) where the Inspector-General has agreed to a person’s request that the information or document not be published for reasons of confidentiality. Similarly any submission (or part of a submission) which was made in response to an invitation (under clause 11) must not be included if the person who made the submission has required its return or has withdrawn it.[131]

In a report on a review, the Inspector-General must not include material containing an express or implied criticism of a person in any of the positions listed in subclause 39(1) of the Bill, unless the Inspector-General has given the Director of Human Biosecurity or the Director of Biosecurity a reasonable opportunity to make submissions about the material. Those submissions may be made orally or in writing, or both.[132]

In effect then, the report of a review must not identify any individual—other than the Director of Biosecurity—and it must not contain any criticism of persons in certain roles before that person has had the opportunity to make submissions in relation to the relevant material. Whilst the process, on its face, appears to protect individual privacy and to promote natural justice, the process may also give rise to further questions about the independence of the role of the Inspector-General.

Information or a document must not be included in a report on a review if the information or document that has been given or produced to the Inspector-General is either the subject of legal professional privilege, or is derived from information or a document that is the subject of legal professional privilege. However, the Inspector-General may include a statement in the report on a review to the effect that legal advice was considered in the course of the review and setting out the relevance of the advice to the review in general terms.[133]

Tabling the report

The Agriculture Minister must cause a copy of each report on a review (other than a review under Part 5 of the Bill) to be tabled in each House of Parliament or to be otherwise made publicly available.[134]

The Bill empowers the Inspector-General to recommend that the report not be made publicly available for a specified period.[135] The duration of that period is not limited by the Bill. According to the Explanatory Memorandum, the rationale for this provision is that ‘the publication of a report may be delayed where a review uncovers a flaw in the system that could increase biosecurity risk if exploited. The Inspector-General may recommend delay until the flaw can be remedied’.[136] In that case, the report must not be tabled or otherwise made publicly available until after the specified period ends.

According to subclause 41(4) of the Bill, unless the report has been made publicly available earlier, the report must be tabled in each House of Parliament within 25 sittings days of that House after:

·         the day the Agriculture Minister receives the report or

·         if the Inspector-General has recommended that the report not be made publicly available for a specified period—the day the specified period ends.

Carrying out reviews and reporting under Part 5

Section 164 of the Biosecurity Act empowers the Director of Biosecurity to conduct a BIRA in relation to particular goods or a particular class of goods. Under section 166 of that Act, a BIRA is to be conducted in accordance with a process prescribed in the regulations and taking into account the contents of any relevant guidelines that have been made by the Director of Biosecurity. Section 167 of the Biosecurity Act provides that regulations must require the Director of Biosecurity to prepare a draft BIRA report, a provisional BIRA report and a final BIRA report.

Part 5 of this Bill provides an additional pathway by which the Inspector-General is empowered to conduct a review of the process of conducting a particular BIRA—that is, it is separate from the power to review the process of conducting BIRAs generally or the process of conducting a particular BIRA as part of the Inspector-General’s review program (under clause 7), including at the direction of the Agriculture Minister (under clause 8).

Under Part 5 of the Bill a person may request the Inspector-General to review the process of conducting a particular BIRA where the person considers that the process was not in accordance with the process outlined in the Biosecurity Act, the departure from the process was significant and as a result, the person’s interests were, are or may be adversely affected.[137] According to the Explanatory Memorandum ‘this review function replaces the current administrative review process undertaken by the Import Risk Analysis Appeals Panel’.[138] An appeal to the Import Risk Analysis Appeals Panel is currently based on the same criteria.

The written request must be made within the prescribed period after the provisional BIRA report required by section 167 of the Biosecurity Act has been published. As that period will be set by regulation it is unclear how long it will be.[139]

Having received a request to review a BIRA process, the Inspector-General must either:

·         carry out the review of the process of conducting the BIRA and notify the person who made the request in writing when his, or her, report is published or

·         notify the person who made the request, in writing, that the Inspector-General is not satisfied that it is appropriate to review the process of conducting the BIRA.

According to the Explanatory Memorandum:

Whether a person is considered to have valid grounds of appeal or not is at the discretion of the Inspector-General and is not subject to review. This is because the Inspector-General’s role in reviewing the BIRA process is by nature a recommendation to the Director of Biosecurity, rather than a decision which affects the outcome of the final BIRA.[140]

The Inspector-General does not have the same broad powers to obtain information and documents in relation to a review under this Part as those which exist in relation to a review under Part 3 of the Bill.  Instead the Inspector-General may request the Director of Biosecurity to give information, produce document or answer questions which are relevant to the review.[141] The Director of Biosecurity must comply with any reasonable request from the Inspector-General for assistance for the purposes of a review under Part 5. However, the Bill does not contain any time limits within which the requested assistance is to be given by the Director of Biosecurity.

Once the review of the process of conducting a BIRA under Part 5 is complete, the Inspector-General must prepare a report setting out the subject and findings of the review, the evidence and other material on which those findings are based and any recommendations resulting from the review.[142] The power to make recommendations is qualified in the same terms as subclauses 37(3) and (4), which relate to reports of reviews carried out under Part 3.[143]

The contents of a report of a review under Part 5 are also limited by clauses 38—40 (which are discussed above) and clause 61 (which is discussed below) in relation to the material, including criticism, which can be included in the report. The report is to be given to the Director of Biosecurity and be published within the period and in the manner set out in regulations.[144] According to the Explanatory Memorandum, ‘findings on the BIRA review process will be published on a website maintained by the Department of Agriculture, Fisheries and Forestry’.[145]

Other provisions

Information that may be prejudicial to the public interest

Clause 61 of the Bill empowers the Agriculture Minister to give the Inspector-General a certificate stating that the disclosure of information relating to a specified matter would be prejudicial to the public interest for any of the reasons prescribed in paragraphs 61(1)(a)–(l) of the Bill. The certificate may state that it is for the purposes of either or both of the following:

·         the Inspector-General’s information-gathering powers under Division 2 of Part 3 (that is,
clauses 10–15 of this Bill)—in which case a person must not be required under clause 10 to give information, produce documents or answer questions relating to the matter specified in the certificate whilst the certificate is in force and any request made under clause 10 before the certificate was given ceases to have effect, so far as it relates to the matter specified in the certificate or

·         the Inspector-General’s reporting obligations under Part 4 (that is, clauses 37–41 of this Bill) or section 47 (being the Inspector-General’s obligation to prepare a report about a review of the conduct of a BIRA conducted under Part 5 of the Bill)—in which case information relating to the matter specified in the certificate must not be included in a report on a review whilst the certificate is in force.

Secrecy

The Inspector-General or former Inspector-General, a member of staff, or a consultant engaged by the Inspector-General must not make a record of or directly or indirectly disclose to another person or to a court[146], any protected information[147], or of all or part of a protected document[148] unless the person is acting in accordance with their functions or powers under the Act.[149] A person who contravenes this prohibition commits an offence. The penalty for the offence is imprisonment for two years or 120 penalty units[150], or both. Alternatively, a person is liable to a civil penalty of 200 penalty units.[151]

There is an exception to this broad prohibition. The Inspector-General, or a person authorised by the Inspector-General, may make a record of protected information, or of all or part of a protected document, or disclose protected information, or all or part of a protected document, to another person or to a court where the Inspector-General has reasonable grounds to believe that making the record or disclosure is necessary for the purpose of preserving the safety of any person.[152] The Explanatory Memorandum does not provide any guidance about the circumstances in which this provision might be exercised.

The note to subclause 64(2) clarifies that if the defendant seeks to rely on the matters set out at subclause 64(3) he or she bears the evidential burden in relation to those matters. The rationale for this is that where a matter is peculiarly within the defendant’s knowledge and not available to the prosecution, it is legitimate to cast the matter as a defence. The matters in subclause 64(3) of the Bill fall into this category.

Concluding comments

This Bill establishes the Inspector-General of Biosecurity in terms which are equivalent to those recommended by the Beale report. Whilst the new role will not satisfy the desires of many in the industry for an independent arbitrator of the merits or otherwise of DAFF decisions, it will fulfil the audit function which was recognised as being necessary by both the Callinan Commission of Inquiry and the Beale report.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

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ISSN 1328-8091

[1].              The Biosecurity Bill 2012 will be enacted as the Biosecurity Act 2012 once it has received the Royal Assent. However, to ensure consistency with the wording of the Bill as introduced, this Bills Digest will refer to the Biosecurity Bill as the Biosecurity Act.

[2].              Details about the passage through the Parliament of the Biosecurity Bill 2012 can be viewed on the Bill homepage at: http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fs897%22

[3].              Section 163 of the Biosecurity Act defines a Biosecurity Import Risk Analysis as an evaluation of the level of biosecurity risk associated with particular goods, or a particular class of goods, that may be imported, or are proposed to be imported, into Australian territory, including, if necessary, the identification of conditions that must be met to manage the level of biosecurity risk associated with the goods, or the class of goods, to a level that achieves the appropriate level of protection for Australia.

[4].              Ibid.

[5].              P McGauran (Minister for Agriculture, Fisheries and Forestry), Blow for Australia’s top horse studs, media release,
22 August 2007, viewed 8 January 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2FM92O6%22

[6].              P McGauran (Minister for Agriculture, Fisheries and Forestry), Flu outbreak threat to horse racing, media release,
25 August 2007, viewed 8 January 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2FFK3O6%22

[7].              General news, ‘The racing crisis: ban may last weeks’, The Sunday Telegraph, 26 August 2007, p. 11, viewed
8 January 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressclp%2FVU2O6%22 and General news, ‘Stanhope bans movement of horses in the ACT’, The Sunday Canberra Times, 26 August 2007, p. 4, viewed 8 January 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressclp%2FDS2O6%22

[8].              I Callinan, Equine influenza: the August 2007 outbreak in Australia,  Report of the Equine Influenza Inquiry , Commonwealth of Australia, April 2008, p. 10, viewed 8 January 2013, http://www.equineinfluenzainquiry.gov.au/eiiexhibits/REP.0001.001.0001.pdf 

[9].              P McGauran (Minister for Agriculture, Fisheries and Forestry), Equine influenza inquiry commences, media release,
27 September 2007, viewed 8 January 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F1HHO6%22

[10].              I Callinan, Equine influenza: the August 2007 outbreak in Australia, op. cit., p. xxiv.

[11].              Ibid., p. xxvii.

[12].              Ibid., p. 314.

[13].              Department of Agriculture, Fisheries and Forestry (DAFF) website, ‘Equine influenza inquiry government response’, viewed
8 January 2013, http://www.daff.gov.au/about/publications/eiinquiry/equine_influenza_inquiry_government_response

[14].              T Burke (Minister for Agriculture, Fisheries and Forestry), Government acts on another key equine influenza recommendation, media release, 11 September 2008, viewed 8 January 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2FU5JR6%22

[15].              T Burke (Minister for Agriculture, Fisheries and Forestry), Independent quarantine and biosecurity review launched, media release, 19 February 2008, viewed 8 January 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2FG8PP6%22

[16].              T Burke (Minister for Agriculture, Fisheries and Forestry), Government releases equine influenza inquiry report, media release, 12 June 2008, viewed 8 January 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2FEMUQ6%22

[17].              R Beale (Chair), One biosecurity: a working partnership, Commonwealth of Australia, 30 September 2008, p. xx, viewed 8 January 2013, http://www.daff.gov.au/__data/assets/pdf_file/0010/931609/report-single.pdf

[18].              Department of Agriculture, Fisheries and Forestry website, ‘Review of Australia’s quarantine and biosecurity arrangements: preliminary Commonwealth Government response’, viewed 8 January 2013, http://www.daff.gov.au/about/publications/quarantine-biosecurity-report-and-preliminary-response/beale_response

[19].              Department of Agriculture, Fisheries and Forestry website, ‘Interim Inspector General of Biosecurity’, viewed
8 January 2013, http://www.daff.gov.au/about/publications/interim-inspector-general-of-biosecurity

[20].              Details of the inquiry including the terms of reference, submissions to the Committee and the report (when published) can be viewed at: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=rrat_ctte/Biosecurity_2012/index.htm

[21].              Australian Chicken Meat Federation (ACMF) Inc., Submission to Rural and Regional Affairs and Transport Committee, Inquiry into the Biosecurity Bill 2012 [and] Inspector-General of Biosecurity Bill 2012, 19 December 2012, viewed 15 January 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=rrat_ctte/biosecurity_2012/submissions.htm and Growcom, Submission to Rural and Regional Affairs and Transport Committee, Inquiry into the Biosecurity Bill 2012 [and] Inspector-General of Biosecurity Bill 2012, December 2012, viewed 15 January 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=rrat_ctte/biosecurity_2012/submissions.htm

[22].              AUSVEG, Submission to Rural and Regional Affairs and Transport Committee, Inquiry into the Biosecurity Bill 2012 [and] Inspector-General of Biosecurity Bill 2012, 14 December 2012, p. 10,  viewed 15 January 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=rrat_ctte/biosecurity_2012/submissions.htm

[23].              Apple and Pear Australia, Submission to Rural and Regional Affairs and Transport Committee, Inquiry into the Biosecurity Bill 2012 [and] Inspector-General of Biosecurity Bill 2012, 19 December 2012, viewed 15 January 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=rrat_ctte/biosecurity_2012/submissions.htm

[24].              Explanatory Memorandum, p. 6.

[25].              The Statement of Compatibility with Human Rights can be found at pages 7–11 of the Explanatory Memorandum to the Bill.

[26].              Clause 6 of the Bill.

[27].              Under section 578 of the Biosecurity Act the Director of Biosecurity is the person who is, or is acting as, the Agriculture Secretary.

[28].              The Director of Biosecurity may, in writing, authorise a person to be a biosecurity officer if the person satisfies the conditions of section 583 of the Biosecurity Act.

[29].              The Director of Biosecurity may, in writing, authorise a person to be a biosecurity enforcement officer if the person satisfies the conditions of section 584 of the Biosecurity Act. The Director of Human Biosecurity may, in writing, authorise a person to be a biosecurity enforcement officer if the person satisfies the conditions of section 586 of the Biosecurity Act. Under section 582 of the Biosecurity Act, the Director of Human Biosecurity is the Commonwealth Chief Medical Officer.

[30].              Section 163 of the Biosecurity Act defines a Biosecurity Import Risk Analysis as an evaluation of the level of biosecurity risk associated with particular goods, or a particular class of goods, that may be imported, or are proposed to be imported, into Australian territory, including, if necessary, the identification of conditions that must be met to manage the level of biosecurity risk associated with the goods, or the class of goods, to a level that achieves the appropriate level of protection for Australia.

[31].              These are standard provisions which are drafted in accordance with the Office of Parliamentary Counsel’s Drafting Direction No. 3.6 for Statutory and other bodies, October 2012, viewed 22 January 2013, http://www.opc.gov.au/about/docs/drafting_series/DD3.6.pdf

[32].              Where the Inspector-General is appointed on a full-time basis, he or she must not engage in paid employment outside the duties of his or her office without the approval of the Agriculture Minister: subclause 52(1) of the Bill.

[33].              Where the Inspector-General is appointed on a part-time basis, he or she must not engage in paid employment that in the opinion of the Agriculture Minister conflicts, or may conflict, with the proper performance of his or her
duties: subclause 52(2) of the Bill. This is a standard provision drafted in accordance with the Office of Parliamentary Counsel’s Drafting Direction No. 3.6 for Statutory and other bodies. See footnote 31.

[34].              Clause 49 of the Bill.

[35].              Clause 56 of the Bill.

[36].              The text of the Public Service Act 1999 can be viewed at: http://www.comlaw.gov.au/Details/C2012C00319/Download

[37].              Clauses 58 and 59 of the Bill.

[38].              Subclause 7(1) of the Bill. Information about the review program for 2012–13 can be viewed at Department of Agriculture, Fisheries and Forestry website, ‘Interim Inspector General of Biosecurity’, viewed 9 January 2013, http://www.daff.gov.au/about/publications/interim-inspector-general-of-biosecurity

[39].              Subclause 7(4) of the Bill.

[40].              Department of Agriculture, Fisheries and Forestry website, ‘Exposure draft: Inspector-General of Biosecurity Bill 2012’, viewed 8 January 2013, http://www.daff.gov.au/bsg/biosecurity-reform/new-biosecurity-legislation/the-bills/inspector-general-of-biosecurity-bill; Submissions in respect of the draft Bill can be viewed at: http://www.daff.gov.au/bsg/biosecurity-reform/new-biosecurity-legislation/submissions-received

[41].              Department of Agriculture, Fisheries and Forestry website, ‘Summary of submissions received’, viewed 15 January 2013, http://www.daff.gov.au/bsg/biosecurity-reform/new-biosecurity-legislation/submissions-received/summary-of-submissions-received

[42].              Subclause 8(2) of the Bill.

[43].              Subclause 8(4) of the Bill.

[44].              Subclause 8(3) of the Bill.

[45].              Clause 58 of the Bill.

[46].              World Trade Organisation, The WTO agreement on the application of sanitary and phytosanitary measures, viewed 14 January 2013, http://www.wto.org/english/tratop_e/sps_e/spsagr_e.htm

[47].              Annex A of the SPS Agreement defines the concept of an ‘appropriate level of protection’.

[48].              World Trade Organisation, The WTO agreement on the application of sanitary and phytosanitary measures, article 2, op. cit.

[49].              Department of Agriculture, Fisheries and Forestry, Import risk analysis, Commonwealth of Australia, 2011, p. 33, viewed 14 January 2013, http://www.daff.gov.au/__data/assets/pdf_file/0012/1897554/import-risk-analysis-handbook-2011.pdf

[50].              R Beale (Chair), One biosecurity: a working partnership, op. cit., p. 86.

[51].              Ibid., p. 88.

[52].              Department of Agriculture, Fisheries and Forestry, Import risk analysis, op. cit., p. 9.

[53].              When interpreting the risk estimation matrix, note the descriptors for each axis are similar (for example low, moderate, high) but the vertical axis refers to likelihood and the horizontal axis refers to consequences.

[54].              Rural and Regional Affairs and Transport Legislation Committee, An appropriate level of protection?—the importation of salmon products: a case study of the administration of Australian quarantine and the impact of international trade arrangements, Senate, Canberra, June 2000, recommendation 10, p. 189, viewed 22 January 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=rrat_ctte/completed_inquiries/1999-02/salmon_final/report/contents.htm ,

[55].              R Beale (Chair), One biosecurity: a working partnership, op. cit., p. 86.

[56].              Ibid., p. 97.

[57].              Ibid.

[58].              Ibid.

[59].              Rural and Regional Affairs and Transport Committee, The effect on Australian pineapple growers of importing fresh pineapple from Malaysia, Interim report, Senate, Canberra, 10 October 2012, p. 2, viewed 22 January 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=rrat_ctte/pineapples_2012/index.htm

[60].              Clause 47 of the Bill.

[61].              The text of the Quarantine Regulations 2000 can be viewed at: http://www.comlaw.gov.au/Details/F2010C00203/Download

[62].              Subregulation 69C(1) of the Quarantine Regulations.

[63].              Subregulation 69C(2) of the Quarantine Regulations.

[64].              Paragraphs 69C(1)(a) and 69C(2)(a) of the Quarantine Regulations.

[65].              Paragraph 69C(2)(b) of the Quarantine Regulations.

[66].              Paragraph 69C(2)(c) of the Quarantine Regulations.

[67].              Paragraphs 69C(1)(b) and 69C(2)(d) of the Quarantine Regulations.

[68].              Paragraphs 69C(1)(c) and 69C(2)(e) of the Quarantine Regulations.

[69].              The eminent Scientists Group is a high level review group, independent from Biosecurity Australia that is tasked with providing external scientific and economic scrutiny of expanded import risk analyses. Paragraph 69C(2)(g) of the Quarantine Regulations.

[70].              Paragraphs 69C(1)(d) and 69C(2)(h) of the Quarantine Regulations.

[71].              This is a non-statutory review administered by the Department of Agriculture, Fisheries and Forestry. The new role of Inspector-General of Biosecurity will take over this function. Information about the Import Risk Analysis Appeals Panel is at Department of Agriculture, Fisheries and Forestry website, ‘Appeal process’, viewed 10 January 2013, http://www.daff.gov.au/about/contactus/governance/import-risk-analysis-appeals-panel/appeal_process

[72].              Rural and Regional Affair and Transport References Committee, Australia’s biosecurity and quarantine arrangements, The Senate, Canberra, April 2012, p. 12, viewed 14 January 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=rrat_ctte/completed_inquiries/2010-13/quarantine_2010/index.htm

[73].              Clause 9 of the Bill.

[74].              Subclauses 10(1) and (2) of the Bill.

[75].              Subclause 10(3) of the Bill.

[76].              Subclauses 63(1) and (2) of the Bill. The delegate must comply with any directions of the Inspector-General under subclause 63(3). An ‘SES employee’ is a Senior Executive Service employee of the Australian Public Service  - see the Public Service Act 1999, available at http://www.comlaw.gov.au/Details/C2012C00319

[77].              For those offences committed after 28 December 2012, section 4AA of the Crimes Act 1914 provides that a penalty unit is equivalent to $170. This means that the maximum penalty amounts to $5100. The text of the Crimes Act 1914 can be viewed at: http://www.comlaw.gov.au/Details/C2013C00031 

[78].              ‘The common law privilege against self-incrimination will protect a natural person complying with a notice to disclose information or documents under a notice to produce or attend, unless the privilege is expressly or impliedly overridden’ by legislation. ‘The privilege is relevant for regulatory schemes because it entitles a person to refuse to answer a question put to him or her by an authorised officer under a regulatory scheme on the basis that he or she may incriminate him or herself: Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328.’ Legislation should clearly specify if the privilege is to be overridden and if it is removed then at a minimum a ‘use’ immunity provision should be included as some form of protection. If a person claims a ‘use’ immunity, no information or evidence given by them can be directly used against them. A ‘derivative use’ immunity is where no disclosures can be used against the person indirectly to gather other evidence against the person. Source: Commonwealth of Australia, ‘A guide to framing Commonwealth offences, Infringement Notices and Enforcement Powers’, September 2011 edition, pp. 94—96, available at http://www.ag.gov.au/Publications/Documents/GuidetoFramingCommonwealthOffencesInfringementNoticesandEnforcementPowers/A%20Guide%20to%20Framing%20Cth%20Offences.pdf. 

              In this case, the ‘use/derivative use’ immunity is contained in subclause 17(2) of the Bill.

[79].              Clause 17 of the Bill.

[80].              Explanatory Memorandum, p. 23.

[81].              Subclause 10(3) of the Bill.

[82].              This is equivalent to $5100.

[83].              Clause 11 of the Bill.

[84].              Subclause 12(1) of the Bill.

[85].              Subclauses 12(2) and (3) of the Bill.

[86].              Subclauses 10(6) and (7) of the Bill.

[87].              Paragraphs 12(3)(a) and (b) of the Bill.

[88].              Subclause 11(3) of the Bill. Under subclause 11(4) of the Bill, if the Inspector-General refuses a person’s request in relation to a submission, the person may require that all or part of a written submission be returned to the person, and all or part of an oral submission be withdrawn.

[89].              Paragraphs 10(6)(b) and 10(7)(b) of the Bill.

[90].              Paragraphs 10(6)(b) and 10(7)(b) of the Bill.

[91].              Subclause 12(2) of the Bill

[92].              Clause 61 of the Bill provides that the Agriculture Minister may give the Inspector-General a certificate stating that disclosure of information would be prejudicial to the public interest.

[93].              Subclause 13(2) of the Bill.

[94].              Subclause 15(1) of the Bill.

[95].              Subclause 15(2) of the Bill.

[96].              Sections 13 and 403 of the Biosecurity Act define a biosecurity industry participant as a person who is the holder of the approval of an approved arrangement under which the person carries out specified activities to manage biosecurity risks associated with specified goods, premises or other things.

[97].              Paragraphs 20(1)(a) and (b) and subclause 20(2) of the Bill.

[98].              Paragraph 20(1)(c) and subclause 20(3) of the Bill.

[99].              Subclauses 63(1) and (2) of the Bill. The delegate must comply with any directions of the Inspector-General under subclause 63(3). See footnote 76 for an explanation of ‘SES employee’.

[100].              Subclause 26(5) of the Bill.

[101].              Clause 60 of the Bill.

[102].              Clause 25 provides that a person assisting the Inspector-General may be a member of staff, a consultant engaged under clause 59 or a person who has the requisite technical expertise.

[103].              Subclause 22(4) provides that the Inspector-General may operate electronic equipment if the Inspector-General believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment. Clause 31 of the Bill provides for the payment of compensation for damage to electronic equipment which has been operated in accordance with the review powers.

[104].              An issuing officer is defined in clause 3 of the Bill as a magistrate or a Judge of the Federal Court or the Federal Circuit Court.

[105].              Clauses 34 and 35 of the Bill.

[106].              Subclauses 63(1) and (2) of the Bill. The delegate must comply with any directions of the Inspector-General under subclause 63(3). See footnote 76 for an explanation of ‘SES employee’.

[107].              Subclause 34(2) of the Bill.

[108].              Subclause 35(2) of the Bill.

[109].              Paragraphs 34(4)(a)–(c) and 35(4)(a)–(c) of the Bill.

[110].              Paragraphs 34(4)(d)–(f) of the Bill.

[111].              Paragraphs 35(4)(d)–(f) of the Bill.

[112].              Subclauses 23(1) and (2) of the Bill.

[113].              Subclause 23(3) of the Bill.

[114].              Subclause 23(5) of the Bill.

[115].              Subclause 23(8) of the Bill.

[116].              Clause 29 of the Bill.

[117].              Clause 32 of the Bill.

[118].              Subclause 33(1) of the Bill.

[119].              The requirement that the occupier of premises is to provide reasonable facilities and assistance where a valid search is being carried out is in accordance with the terms of the Guide to framing Commonwealth offences, Infringement Notices and Enforcement Powers’, p. 78. See footnote 78.

[120].              Explanatory Memorandum, p. 31.

[121].              This is equivalent to $5100.

[122].              Clause 30 of the Bill.

[123].              Explanatory Memorandum, p. 30.

[124]              Subclause 37(5) of the Bill provides that the Inspector-General may also give a copy of the report to the Health Minister or the Director of Biosecurity, or both.

[125].              Division 3 of Part 3 of Chapter 3 of the Biosecurity Act.

[126].              Subclauses 37(3) and (4) of the Bill.

[127].              Department of Agriculture, Fisheries and Forestry website, ‘Summary of submissions received’, op. cit.

[128].              Explanatory Memorandum, p. 33.

[129].              Subclause 38(1) of the Bill.

[130].              Explanatory Memorandum, p. 2.

[131].              Subclause 38(2) of the Bill.

[132].              Subclauses 39(2) and (3) of the Bill.

[133].              Clause 40 of the Bill. Clause 19 of the Bill also ensures that there is no loss of legal professional privilege in relation to information or documents provided under Division 2 of Part 3.

[134].              Subclause 41(2) of the Bill.

[135].              Subclause 41(3) of the Bill.

[136].              Explanatory Memorandum, p. 36.

[137].              Subclause 42(1) of the Bill.

[138].              Explanatory Memorandum, p. 1. Information about the Import Risk Analysis Appeals Panel is at Department of Agriculture, Fisheries and Forestry website, ‘Appeal process’, viewed 10 January 2013, http://www.daff.gov.au/about/contactus/governance/import-risk-analysis-appeals-panel/appeal_process

[139].              Paragraph 42(2)(c) of the Bill.

[140].              Explanatory Memorandum, p. 37.

[141].              Subclause 44(2) of the Bill.

[142].              Subclauses 47(1) and (2) of the Bill.

[143].              Subclauses 47(3) and (4) of the Bill.

[144].              Subclauses 47(5) and (6) of the Bill.

[145].              Explanatory Memorandum, p. 1.

[146].              Subclause 64(7) of the Bill defines court for the purposes of clause 64 as including any tribunal, authority or person having power to require the production of documents or the answering of questions.

[147].              Subclause 64(7) of the Bill defines protected information as information that is disclosed to, or obtained by, a person in the course of, or as a result of, performing functions or exercising powers under the Bill.

[148].              Subclause 64(7) of the Bill defines a protected document as a document that is obtained or made by a person in the course of, or as a result of, performing functions or exercising powers under the Bill.

[149].              Subclause 64(1) of the Bill.

[150].              This is equivalent to $20 400.

[151].              This is equivalent to $34 000.

[152].              Subclause 64(3) of the Bill.