BILLS DIGEST NO. 16, 2018–19              22 August 2018

Biosecurity Legislation Amendment (Miscellaneous Measures) Bill 2018

David Markham
Law and Bills Digest Section

Date introduced: 28 March 2018

House:  House of Representatives

Portfolio: Agriculture and Water Resources

Commencement: Part 1 of Schedule 1 and Schedule 2 on the day after Royal Assent. Part 2 of Schedule 1 on proclamation or six months after Royal Assent, whichever is earlier.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

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

All hyperlinks in this Bills Digest are correct as at August 2018.

Purpose of the Bill

The purpose of the Biosecurity Legislation Amendment (Miscellaneous Measures) Bill 2018 (the Bill) is to make amendments to the Biosecurity Act 2015 (the Act). The Bill proposes a number of measures to strengthen Australia’s biosecurity system. These measures include introducing new information gathering provisions in the Act to improve the capacity to monitor, control and respond to biosecurity risks within Australia.

The Bill also makes a number of other minor amendments that are detailed later in this digest.

Structure of the Bill

The Bill is structured in two Schedules:

•       Schedule 1 contains amendments to the Act. It is further divided into two Parts:

–      Part 1 contains a number of provisions designed to improve the Director of Biosecurity’s capacity to respond to emerging issues and

–      Part 2 amends the definition of ‘human remains’ in the Act.

•       Schedule 2 repeals the Quarantine (Validation of Fees) Act 1985.

Background

On 21 March 2017 the Senate asked the Rural and Regional Affairs and Transport References Committee (the Committee) to inquire into and report on the biosecurity risks associated with the importation of seafood and seafood products (including uncooked prawns and uncooked prawn meat) into Australia.[1] The reference to the Committee included a number of specific requests, including that the Committee examine the management of the emergency response and associated measures implemented to control the outbreak of White Spot Syndrome Virus (WSSV).[2]

WSSV causes White Spot Disease, a highly virulent and quick spreading pathogen of cultured prawns, causing 100 per cent mortality in farmed prawns within two to seven days of infection.[3] WSSV, which was generally understood not to be present in Australia, was detected in the Logan River area of Queensland in December 2016.[4] This caused major disruptions to the prawn industry in the Logan River/Moreton Bay area, with estimates that the outbreak cost the industry $43 million in the 2016–17 year.[5] It was suspected that WSSV had been imported into Australia in uncooked prawn meat. Consequently, such imports were suspended with effect from 6 January 2017. This suspension lasted six months and thus lapsed on 6 July 2017.[6]

While a number of causes for the outbreak were postulated, including upstream fishers using infected prawns as bait, it was not possible to detect a definitive reason.[7] In the House of Representatives on 8 May 2018 the Minister for Agriculture and Water Resources, David Littleproud, said that the cause of the outbreak of WSSV ‘may never be known’, but stressed the need for biosecurity risks to be appropriately managed whatever the cause of the outbreak.[8]

Following the WSSV outbreak, the Inspector-General of Biosecurity investigated and reported on the effectiveness of biosecurity controls concerning the import of uncooked prawns. The recommendations in the report concentrated on policies and actions of the Department of Agriculture and Water Resources.[9] The recommendations largely concentrated on administrative matters. Two recommendations, numbers 12 and 13, suggested stronger powers in the Act.[10] The Department’s response to recommendation 13 notes that the recommendation was taken into account in drafting the Bill.[11]

The Senate Committee’s inquiry had a broader remit, focussing not only on the management of the emergency response to the WSSV, but on wider issues including those relating to the adequacy of biosecurity controls, the adequacy of resourcing of biosecurity measures, and the effectiveness of post-entry surveillance measures and ‘end use’ import conditions.[12] A description of the process followed by the Committee and its report are accessible through the inquiry’s homepage.[13] The Committee received written submissions from 19 parties.[14]

The Committee’s report, tabled in October 2017, made a number of recommendations relating to matters of administration within the Department. Importantly, the Committee also recommended:

…the Minister for Agriculture and Water Resources introduce amendments to the Biosecurity Act 2015, which provide the Director of Biosecurity with appropriate secure and advise powers in relation to specified goods or classes of goods.[15]

So called ‘secure and advise’ powers are needed in order to deal with products already imported into Australia, when it is later realised that those products may pose a risk to Australia’s biosecurity. Such powers would enable the Director of Biosecurity to locate such products, as part of targeting an operational response to restricting their movement and controlling the risk that they pose.[16]

This Bill responds to that recommendation, along with making other minor amendments to the Biosecurity Act.

Committee consideration

Senate Selection of Bills Committee

At its meeting of 20 June 2018 the Committee recommended that the Bill not be referred to a Committee.[17]

Senate Standing Committee for the Scrutiny of Bills

The Committee noted that it had ‘no comment on this Bill’.[18]

Policy position of non-government parties/independents

When the Inspector-General of Biosecurity’s Report was released in December 2017, the Shadow Minister for Agriculture, Joel Fitzgibbon, encouraged the Government to act on this and on the Senate Committee’s Report.[19] His comments indicate that he was supportive of tightening biosecurity provisions.

Mr Fitzgibbon later explicitly stated that he supported the Bill, and that the changes ‘will make a significant difference’, and that ‘the Opposition will be supporting the Bill’.[20]

At the time of writing, other non-government parties and independents do not appear to have commented on the Bill.

Position of major interest groups

As noted above, a number of major interest groups made submissions to the Senate Committee’s review into biosecurity risks.[21] There appears to have been no additional submissions or commentary in relation to this specific legislation.

Generally, the submissions that were made to the Senate Committee were supportive of stronger legislation in relation to biosecurity, and particularly in respect of the need for strengthened provisions relating to post-importation measures.

For example, the NSW Aquaculture Association described the effectiveness of post-importation biosecurity controls as ‘zero’, and noted that the problems that were described in its submission were identified by the general public, rather than any government agency.[22] This view was broadly shared in the submissions to the inquiry.

Financial implications

The Explanatory Memorandum states that the Bill will have no financial impact on the Australian Government Budget.[23]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[24]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights considered that the Bill did not raise any human rights concerns.[25]

Key issues and provisions

Information gathering

The additions to the Act proposed by item 7 represent the most important aspect of the Bill. This item will insert proposed Part 1A into Chapter 6 of the Act, and comprises proposed sections 312A to 312F inclusive.

Proposed Part 1A of Chapter 6 is intended to answer problems that were brought to the attention of the Senate Committee in the course of its 2017 inquiry. This refers to a situation, for example, where a biosecurity risk is identified in a class of products, such as uncooked prawns, where it is known that similar products have already passed through biosecurity controls and are now in the supply chain. Currently the Director of Biosecurity has limited powers in relation to identifying and locating potentially at-risk goods that are already in Australia. Part 1A attempts to ameliorate that problem by giving the Director of Biosecurity and/or the Director of Human Biosecurity increased information gathering powers.

Proposed section 312A provides an outline of Part 1A, setting out the information gathering powers that are outlined in the following sections.

Proposed section 312B deals with goods that have become suspended goods. The Director of Biosecurity can already determine under subsection 182(1) of the Act that the importation of goods, or a class of goods, be suspended because of an unacceptable biosecurity risk. Proposed section 312B allows the Director to require a person who is in charge of goods of the same kind as those suspended in the relevant determination to notify the Director of the location of those goods, as well as any other relevant information specified by the Director. Proposed subsection 312B(3) allows the Director wide discretion in making public this requirement (‘…publishing a notice or in any other way the Director of Biosecurity considers appropriate’). Proposed subsection 312B(5) specifies that a person who is aware of the Director’s notification requirements must comply with that requirement. Persons cannot refuse to answer questions or make relevant notifications claiming privilege against self-incrimination.[26] This is consistent with other provisions in the Act (see item 12 below).

Proposed section 312B contains penalty provisions—non-compliance with a requirement to provide information is a civil matter, with a maximum penalty of 120 penalty units, which currently equates to a maximum fine of $25,200.[27] The provision of false or misleading information may result in a civil penalty under section 532 of the Act, or mean that the person has committed a criminal offence under section 137.1 of the Criminal Code Act 1995.[28]

Proposed section 312C contains similar provisions to proposed section 312B, but in relation to goods prohibited in a determination under subsection 173(1) of the Act (such a determination sets out goods that must not be imported into Australian territory). Proposed section 312C also gives the same information gathering powers to the Director of Human Biosecurity and the Director of Biosecurity, with the same penalties for non-compliance.

Proposed section 312D allows a biosecurity officer to exercise the powers set out in proposed section 312E and 312F, for the purpose of assessing or managing the level of biosecurity risk associated with certain goods. This applies if the goods were, at the time of their importation, suspended or prohibited goods; or in other cases where the officer suspects on reasonable grounds that an import condition in respect of the goods may not have been complied with. A possible example of the last point would be where the importer was meant to be importing cooked seafood, but was instead suspected of importing frozen uncooked seafood.

Proposed section 312E requires an importer, or a person in charge of goods mentioned in proposed section 312D, to answer questions, or provide written information, about those goods as required by a biosecurity officer. The penalty provisions are the same as in proposed section 312B.

Proposed section 312F requires an importer, or a person in charge of goods mentioned in proposed section 312D, to produce documents in respect of those goods to a biosecurity officer on request. This section also allows the biosecurity officer to copy or remove that document. Once again, the same penalty provisions that apply throughout Part 1A apply.

Item 6 proposes to add a new paragraph 311(aa) to section 311 of the Act. This will expand the section which sets out the objects of Chapter 6 of the Act, to include reference to the information gathering powers to be inserted by new Part 1A of that Chapter.[29]

Item 12 amends paragraph 635(1)(e) of the Act, relating to self-incriminating statements, by adding references to new sections 312B to 312F. While a person cannot refuse to provide information on the grounds of self-incrimination, this is tempered by the fact that information thus obtained cannot be used as evidence in either criminal or civil proceedings (other than proceedings relating to provision of false or misleading information).[30] This balances the importance for Australia’s biosecurity of obtaining relevant information with the rights of the person providing the necessary information.

Definition of commercial-in-confidence

Section 15 of the Act defines what is meant by commercial-in-confidence. Item 1 proposes to amend section 15 to give wider discretion to the Director of Biosecurity in relation to information that he/she may consider to be commercial-in-confidence. Commercial-in-confidence provisions are in the Act to balance the need of the Director of Biosecurity to have knowledge in order to fulfil his/her functions, with the fact that if such knowledge becomes public it may cause competitive detriment to one or more parties. Such information, when provided to the Director, becomes protected information and is not publicly released.[31]

Currently the Act imposes the onus on ‘a person’ to demonstrate to the Director of Biosecurity that certain information should be commercial-in-confidence.[32] The proposed amendment will remove the onus on that person, and instead substitute the words ‘the Director of Biosecurity is satisfied’. This does not mean that a person cannot attempt to demonstrate to the Director that information should be commercial-in-confidence; rather it allows the Director to make such a decision on any available information that falls within the parameters of section 15.[33]

Item 10 amends the delegation provisions in subsection 542(3) of the Act to take into account the need for new decisions made under amended section 15 (item 1). The proposed amendment will allow the decision under section 15 as to whether information is commercial-in-confidence to be sub-delegated to departmental officers below Senior Executive Service officer level. Such sub-delegation is currently not allowed; however, not making this amendment would arguably mean that procedural decisions would need to be made at an unnecessarily high level.

Item 2 proposes a consequential amendment to the wording of paragraph 15(a), replacing the words ‘the person’ with ‘a person’. This is consistent with the intent of item 1, as it expands the range of persons whose interests the Director of Biosecurity can take into account.

Incorporation of instruments into determination

Item 4 proposes to insert a provision in the Act which specifies an exemption to a provision in the Legislation Act 2003.

Section 174 of the Act gives the Director of Biosecurity and the Director of Human Biosecurity the power to make determinations that provide that specified classes of goods (referred to as conditionally non-prohibited goods) must not be imported unless certain conditions are complied with.[34] These determinations are legislative instruments, and as such must comply with the provisions of the Legislation Act. Subsection 14(2) of the Legislation Act states that, unless the contrary intention appears, a legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time. The purpose of this provision is generally to prevent confusion about the scope of the legislative instrument at any point in time.

Item 4 proposes to introduce subsection 174(6) into the Act. This sets out the contrary intention envisioned by subsection 14(2) of the Legislation Act in relation to determinations of conditionally non-prohibited goods. This will mean that those determinations will in future be able to refer to other documents as they are amended from time to time; meaning that it will not be necessary to make a new determination every time information published elsewhere is updated. Proposed subsection 174(6) specifies that the document being referred to must be publicly available.

The Bill’s Explanatory Memorandum notes that this information will be readily and freely available on specified websites at any point in time, so that the possibility of confusion about the scope of a determination should be eliminated or at least minimised.[35]

Information sharing with WHO

Item 11 proposes to add a subparagraph to paragraph 580(2)(a) of the Act. Subsection 580(2) currently lists persons who can use protected information for purposes associated with the Act. This amendment adds ‘National Focal Point’ to the list. National Focal Point is already a defined term under section 9 of the Act, and refers to the designated point of contact for the sharing of information with members of the World Health Organization.[36] The Explanatory Memorandum states that this amendment is necessary to enable Australia to fulfil its obligations under the International Health Regulations.[37]

Definition of ‘human remains’

Part 2 of Schedule 1 contains only one item, item 13. This amends the definition of human remains in section 9 of the Biosecurity Act by excluding a cremated person’s ashes, as well as excluding hair, teeth or bones that are separated from the body. These items will still be subject to biosecurity controls, but will be treated as goods, rather than as human remains.[38]

Other provisions

Items 3, 5, 8 and 9 of Schedule 1 are technical amendments to the Act, which simply clarify existing provisions.

Schedule 2 repeals the Quarantine (Validation of Fees) Act 1985. That Act referred to fees paid at a specific period of time in the past and none of those fees are ongoing.[39] Only statutes that have ongoing effect should remain as current statutes; the repeal of this Act is normal procedure to ensure that the current statute book retains only relevant legislation.

Concluding comments

The provisions in this Act appear largely uncontroversial, and support for the measures has been expressed by both major parties.

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[1].              Australia, Senate, Journals, 32, 21 March 2017, pp. 1106–07.

[2].              Senate Rural and Regional Affairs and Transport References Committee, Seafood and seafood products–terms of reference, The Senate, Canberra, 2017.

[3].              Senate Rural and Regional Affairs and Transport References Committee, Biosecurity risks associated with the importation of seafood and seafood products (including uncooked prawns and uncooked prawn meat) into Australia, The Senate, Canberra, October 2017, p. 5.

[4].              Ibid., p. 6.

[5].              H Scott-Orr, B Jones and N Bhatia, Uncooked prawn imports: effectiveness of biosecurity controls, Inspector--General of Biosecurity, Canberra, 2017, p. 39.

[6].              Ibid., p. 44.

[7].              Ibid., p. 40.

[8].              D Littleproud, ‘Answer to question in writing: prawn industries’, [Questioner: R Katter], Question 930, House of Representatives, Debates, 8 May 2018, p. 3377.

[9].              H Scott-Orr and others, op. cit.

[10].              Ibid., p. 26.

[11].              Ibid.

[12].              Senate Rural and Regional Affairs and Transport References Committee, Seafood and seafood products–terms of reference, op. cit.

[13].              Senate Rural and Regional Affairs and Transport References Committee, Seafood and seafood products, The Senate, Canberra, 2017.

[14].              Senate Rural and Regional Affairs and Transport References Committee, Submissions, Seafood and seafood products, The Senate, Canberra, 2017.

[15].              Senate Rural and Regional Affairs and Transport References Committee, Biosecurity Risks, op. cit., p. 81.

[16].              Ibid.

[17].              Senate Standing Committee for the Selection of Bills, Report, 6, 2018, The Senate, Canberra, 21 June 2018.

[18].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 5, 2018, The Senate, Canberra, 9 May 2018, p. 11.

[19].              J Fitzgibbon, Barnaby Joyce must focus on biosecurity, Joel’s blog, 13 December 2017.

[20].              J Fitzgibbon, ‘Second reading speech: Biosecurity Legislation Amendment (Miscellaneous Measures) Bill 2018’, House of Representatives, Debates, 27 June 2018, p. 30.

[21].              Senate Rural and Regional Affairs and Transport References Committee, Submissions, Seafood and seafood products, op. cit.

[22].              NSW Aquaculture Association Inc., Submission to Senate Rural and Regional Affairs and Transport References Committee, Inquiry into seafood and seafood products, [submission no. 4], 11 April 2017.

[23].              Explanatory Memorandum, Biosecurity Legislation Amendment (Miscellaneous Measures) Bill 2018, p. 2.

[24].              The Statement of Compatibility with Human Rights can be found at pages 17–21 of the Explanatory Memorandum to the Bill.

[25].              Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 4, 8 May 2018, p. 96.

[26].              Proposed subsection 312B(2), Note 2.

[27].              A penalty unit is currently $210: Crimes Act 1914, section 4AA.

[28].              Proposed subsection 312B(2), Note 1.

[29].              Chapter 6 is entitled ‘Managing biosecurity risks: monitoring, control and response’.

[30].              Biosecurity Act, subsection 635(2).

[31].              See definition of protected information in section 9 and the provisions dealing with confidentiality of information in Part 2 of Chapter 11 of the Act.

[32].              Section 15 of the Biosecurity Act currently uses the phrase ’… if a person demonstrates…’.

[33].              Explanatory Memorandum, Biosecurity Legislation Amendment (Miscellaneous Measures) Bill 2018, p. 4.

[34].              Biosecurity Act, section 174(1).

[35].              Explanatory Memorandum, Biosecurity Legislation Amendment (Miscellaneous Measures) Bill 2018, pp. 5–6.

[36].              The definition refers back to the definition of National Focal Point in section 9 of the National Health Security Act 2007.

[37].              World Health Organization (WHO), International Health Regulations, WHO website.

[38].              Goods is defined in section 19 of the Biosecurity Act and includes most items other than human remains.

[39].              Explanatory Memorandum, op. cit., p. 16.