The Bills Digest at a glance

The Bill contains four separate and unrelated schedules.

• Schedule 1 amends the human biosecurity framework in response to two separate inquiries into the Ruby Princess incident, strengthening requirements and creating a new power for decision makers to issue human biosecurity group directions (group directions).
• Schedule 2 increases the pecuniary penalty amounts for a substantial number of civil penalty provisions and criminal offences in Chapter 3 of the Biosecurity Act 2015.   
• Schedule 3 reforms the process for the conduct of risk assessments under the Biosecurity Act. The Bill proposes to allow risk assessments to be carried out by a new category of officer, a biosecurity worker.
• Schedule 4 proposes to create a new framework for the making of grants of financial assistance for matters related to the Act.
• The Senate Standing Committee for the Scrutiny of Delegated Legislation has announced its intention to amend the Bill to make the declaration of a human biosecurity emergency, its extension, and the determination of requirements and directions during the emergency period subject to disallowance. These amendments are unrelated to the other schedules of the Bill.

Committee consideration

• The Senate Rural and Regional Affairs and Transport Legislation Committee inquired into the Bill, recommended it be passed and made no further recommendations.[1]
• The Senate Scrutiny of Bills Committee expressed concerns regarding the operation of elements of the group directions framework in Schedule 1, and the financial framework in Schedule 4.[2]
• The Parliamentary Joint Committee on Human Rights (PJCHR) expressed concerns regarding certain elements of the group direction framework in Schedule 1.[3]

Stakeholder positions

• Most stakeholders expressed broad support for the provisions of the Bill. Schedules 2, 3, and 4 were largely uncontroversial.
• The cruise ship industry expressed concern about the extent to which it may be liable for notifying and enforcing group directions.[4]

Key issues and concerns

• The Senate Scrutiny of Bills Committee and the PJCHR both noted a lack of legislative guidance surrounding the exercise of various discretionary powers regarding group directions that require persons to submit to examination, diagnostic procedures, or the wearing of protective clothing or equipment. Concerns were also raised surrounding the lack of guidance as to when diagnostic testing samples were to be destroyed.
• The Maritime Union of Australia expressed concern over the potential scope of the power to issue group directions in relation to people in ‘close proximity’ to a landing place.[5]

Purpose of the Bill

The Bill proposes to amend the Biosecurity Act 2015:

• to introduce a new legislative framework for the making of human biosecurity group directions (group directions) to groups of individuals on a vessel, aircraft, or in a landing place for the purpose of managing the risk of the entry, emergence, spread, establishment or contagion of a listed human disease in Australian Territory or a part of Australian Territory
• to make amendments to pratique[6] and pre-reporting requirements of inbound aircraft and vessels to increase penalties and the scope of powers of officers
• to otherwise increase the pecuniary penalties for various fault-based offences and civil penalty provisions in the Biosecurity Act
• to allow a new category of officer, a biosecurity worker, to make risk assessments of goods
• to empower the Minister for Health and the Minister for Agriculture to authorise expenditure for biosecurity-related programs and activities, to the states or territories or other persons.

Structure of the Bill

The Bill is divided into four schedules, with Schedule 1 further being divided into three parts. All Schedules of the Bill amend the Biosecurity Act.

• Schedule 1 proposes the following amendments:
  • Part 1 amends the legislative scheme of pratique.
  • Part 2 inserts Part 3A into Chapter 2 of the Biosecurity Act (which deals with managing biosecurity risks to human health), creating the group biosecurity directions legislative framework, and makes consequent amendments elsewhere in the Act.
  • Part 3 alters pre-arrival reporting requirements.
• Schedule 2 increases the maximum penalty for thirty separates offences in Chapter 3 of the Biosecurity Act, which deals with managing biosecurity risks related to goods
• Schedule 3 alters the requirements for conducting risk assessments in relation to goods being imported or brought into Australia
• Schedule 4 inserts Part 3A into Chapter 11 (which deals with miscellaneous issues), creating a new power for the Health Minister or the Agriculture Minister to make grants of financial assistance for the management of biosecurity risks and other purposes, and consequential amendments.

Background

Background to the Biosecurity Act 2015

The Biosecurity Act is the Commonwealth’s framework legislation for the management of diseases and pests that may be a threat to human, animal, plant or ecological health, or to the Australian economy, a concept defined under the Act as biosecurity risks.[7] This is in addition to related matters such as the implementation of relevant international legal obligations, management of infectious human diseases, ballast water, and biosecurity and human biosecurity emergencies.[8]

The Biosecurity Act replaced the Quarantine Act 1908 as the ultimate outcome of a series of reviews the Government instituted following the 2007 equine flu outbreak in Queensland and NSW that had originated from a quarantine failure at the Eastern Creek Quarantine Station in Sydney.[9]

The equine flu outbreak had a substantial impact on the Australian economy, with the Commonwealth appropriating $255.7 million for financial aid to the horse industry[10] and a further $97.2 million to reimburse the states and the ACT and NT for costs associated with the national response to eradicating equine influenza.[11]

The Government appointed former High Court justice, Ian Callinan AC, to head a Commission of Inquiry (the Callinan Review) into ‘the circumstances that contributed to the outbreak and the need for any strengthened biosecurity procedures for the quarantine management of imported horses’.[12]

The Callinan Review was critical of existing arrangements, finding:

Fundamental biosecurity measures were not being implemented in the largest government-operated animal quarantine station in Australia. This constituted a serious failure by those within the Department of Agriculture, Fisheries and Forestry and AQIS [Australian Quarantine Investigation Service]…[13]

Shortly before the delivery of the Callinan 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 (the Beale Review).[14]

The report arising from the Beale Review was published on 30 September 2008.[15] It contained 84 recommendations including the development of a new Act—the Biosecurity Act—which would draw on the full range of the Commonwealth’s constitutional powers and provide for modern and effective management of biosecurity risks.[16]

The Government accepted all recommendations in principle and released an exposure draft of the Biosecurity Bill in 2012,[17] before the introduction of the Bill to the Senate on 28 November 2012.[18] The 2012 Bill was not debated and lapsed when the Parliament was prorogued on 5 August 2013 for the Federal election.[19]

The Bill was reintroduced on 27 November 2014, as the Biosecurity Bill 2014.[20] The 2014 Bill was substantially similar to the 2012 Bill, with minor alterations detailed in the 2014 Biosecurity Bills Digest.[21]

The 2014 Bill was referred to the Senate Rural and Regional Affairs and Transport Legislation Committee, which reported on 17 March 2015.[22] The Bill was amended in the Senate to insert Part 6 of Chapter 10, which inserted the office of the Inspector-General of Biosecurity into the Biosecurity Act, and to make other minor amendments.[23] The Bill passed both Houses on 14 May 2015 and the substantive provisions of the Act commenced from 16 June 2016.

The Biosecurity Act is jointly administered by the Department of Agriculture, Water and the Environment (DAWE) (in relation to animals and plants) and the Department of Health (in relation to human health) with a memorandum of understanding between the Departments governing relations.[24]

Consequently, Bills for Acts to amend the Biosecurity Act fall within the Agriculture, Water and the Environment portfolio, and not the Health portfolio, even if they predominantly concern human biosecurity matters.

Amendments since the beginning of the COVID-19 Pandemic

Since its enactment in 2015, the Biosecurity Act has been amended 13 times, six times since the beginning of the COVID-19 pandemic in early 2020.

• Schedule 5 of the Coronavirus Economic Response Package Omnibus Act 2020 inserted section 544A from 24 March 2020 allowing the Director of Human Biosecurity to delegate functions in relation to the making of human biosecurity control orders to SES employees in the Department of Health who are human biosecurity officers[25]
• the Biosecurity Amendment (Traveller Declarations and Other Measures) Act 2020 made amendments to allow the Director of Biosecurity to set amounts payable under an infringement notice to differentiate infringements relating to goods according to their relative biosecurity risk[26]
• the Agriculture Legislation Amendment (Streamlining Administration) Act 2021 inserted section 541A which allows the Director of Biosecurity (Secretary of the Department of Agriculture – section 540) to delegate certain decisions to computer programs[27]
• the Biosecurity Amendment (Clarifying Conditionally Non-Prohibited Goods) Act 2021 inserted section 639A into the Act. This section provides that determinations made under section 174(1) that may have otherwise been invalid due to the Director of Biosecurity or the Director of Human Biosecurity failing to conduct a risk assessment in accordance with requirements in the making of those determinations were to be ‘taken for all purposes to be, and always to have been, valid’
• the Biosecurity Amendment (Strengthening Penalties) Act 2021 increased the penalty units associated with various offences and civil penalties under the Act.[28]

As a substantial framework legislation for a major area of agriculture and health policy, this frequency of amendment is not unusual.

Background to the Amendment Bill

The Bill is divided into four Schedules that have separate impetuses, particularly Schedule 1. While Schedule 1 is largely a response to two separate inquiries into the Ruby Princess incident and concerns human biosecurity, Schedule 2 increases penalties under Chapter 3 and concerns good-related biosecurity, Schedule 3 changes the process for the conduct of risk assessments under Chapter 4, and Schedule 4 concerns the addition of a new framework to make biosecurity-related grants of assistance to the states and territories and others.

Schedule 1

Schedule 1 makes various amendments to Chapter 2 ‘Human Health’, and arises chiefly out of a response to recommendations made by the NSW Special Commission of Inquiry into the Ruby Princess and the Inspector-General of Biosecurity’s subsequent review Confidence Testing for At-Border Delivery of Critical Human Biosecurity Functions – Ruby Princess Cruise Ship Incident (Inspector-General’s Report).

NSW Special Commission of Inquiry into the Ruby Princess

On 15 April 2020, Bret Walker SC was appointed by letters patent under the Special Commissions of Inquiry Act 1983 (NSW) to conduct a Special Commission of Inquiry into the voyage of the Ruby Princess from 8 to 19 March 2020 and subsequent efforts to diagnose, treat, and contain the community transmission of COVID-19 with respect to the Ruby Princess passengers.[29]

The Commission released its report on 14 August 2020. Chapter 11 of the report (‘Analysis and conduct of human biosecurity arrangements’) considered existing human biosecurity arrangements and made the following recommendations:

2.19    That the NSW HBO [Human Biosecurity Officer] Guideline should be reconsidered in light of the criticism made at [11.13], namely that it regards a grant of pratique as the default position, and indicates that pratique should only ever be withheld where there is a compelling reason to deny it, for example, where a HBO has a “genuine belief” that other passengers “were exposed” to a LHD [listed human disease]. The current HBO Guideline does not appear to satisfactorily reflect an appropriately precautionary public health approach

…

2.22    That any future review of the Biosecurity Act consider the utility and possible expansion of human biosecurity control orders so as to be applicable to persons or groups.

2.23    That the Biosecurity Act make explicit a requirement to update superseded human health information.[30]

The Commonwealth did not formally respond to the NSW Special Commission of Inquiry into the Ruby Princess.

Inspector-General’s Report

On 26 August 2020, David Littleproud, Minister for Agriculture, formally requested the Inspector‑General to review relevant matters that arose through the arrival of the Ruby Princess cruise ship in Sydney.[31]

The Inspector-General reported on 21 April 2021, noting the NSW Special Commission of Inquiry’s recommendations concerning the Biosecurity Act as part of the context of the review. The Inspector-General made 42 recommendations, including the following ones that required the amendment of the Biosecurity Act:

Recommendation 18: Agriculture should seek Health’s support to amend the Biosecurity Act 2015 to include provision for biosecurity officers to withhold pratique for vessels that have been assessed to pose higher risk for potential listed human diseases based on the Pre-arrival Report and other intelligence, such as whether vessels have visited high-risk port(s) within the previous 14 days before arrival at an Australian port.

Recommendation 19 The provisions within the Biosecurity Act 2015 relating to pratique should be reviewed to provide greater flexibility in managing pratique based on human biosecurity risk – in particular, to allow for aircraft and vessels to load and unload cargo and stores where this represents an acceptably low level of risk. The loading of provisions for crew onboard commercial cargo vessels and cruise ships in negative pratique should be incorporated in relevant instructional material.

Recommendation 20 The provisions within the Biosecurity Act 2015 should be reviewed with a view to providing biosecurity officers with broader powers that will assist them in managing large numbers of passengers and crew with potential Listed Human Diseases onboard foreign commercial vessels.

Recommendation 21 The Biosecurity Act 2015 should be amended to provide biosecurity officers with greater powers to enforce negative pratique, to provide for penalties to be applied to individuals who breach negative pratique, and to make the ‘person in charge’ (and operator) of a conveyance, defined in section 22 of the Act, also responsible for any noncompliance with negative pratique. This includes provision for issuing Infringement Notices for pratique breaches.

Recommendation 22 The Biosecurity Act 2015 should be amended to provide biosecurity officers with clear powers to revoke pratique, including where either incorrect or inaccurate information is supplied by the vessel operator or there are changes to the vessel’s human biosecurity risk status over time.

Recommendation 24 The Biosecurity Act 2015 should be amended to require vessel operators to report updated biosecurity information, including human biosecurity information, if there are any changes to the information required under section 193 between the time that the Pre-arrival Report was submitted and the time of the vessel’s departure from Australia.[32]

The Secretary of the Department of Agriculture, Water and the Environment responded to the Inspector-General’s Report on 23 April 2021, detailing the Department’s response to the recommendations.

DAWE agreed in principle to all the recommendations that required amendments to the Biosecurity Act, noting:

DAWE and Health are currently reviewing and considering options to amend the Act in relation to:

 • powers to manage groups of passengers

• pratique; and

• pre-arrival reporting obligations.

These reforms to the Act are being developed in consultation with DAWE and with consideration of recommendations from:

• The NSW Government Special Commission of Inquiry into the Ruby Princess;

• A DAWE commissioned independent regulatory design assessment of pratique; and

• Lessons learnt through the pandemic response to COVID-19.

The amendments recommended by the IGB to the Act are consistent with the above. They will be considered by DAWE and be provided to government for consideration, noting that any legislative change is ultimately a matter for parliamentary scrutiny.[33]

Development of the Bill

The Regulatory Impact Statement to the Bill clearly identifies that responding to the Inspector‑General’s Report and the NSW Commission of Inquiry was an impetus for Schedule 1, which was outlined in identifying the problem that the legislation wished to address:

The recommendations from these reviews and the lessons learnt through the pandemic response to COVID-19 have highlighted specific issues with the Biosecurity Act relating to:

• The operation of pratique provisions within the Biosecurity Act

• Pre-arrival reporting obligations and the importance of human health assessments prior to entry to a port

• Powers to manage human health of groups of arriving passengers.[34]

These three elements reflect Part 1, Part 3 and Part 2 of Schedule 1 respectively. The Government did not circulate an Exposure Draft to this Bill or conduct public consultation, as noted in the Regulatory Impact Statement:

Subsequent to those reviews, there has been targeted consultation with industry and with state and territory public health officials, noting that some of the policy problems being addressed had a public airing in the independent reviews. The reforms relate to public health question and their development has been guided by experts at Commonwealth and state and territory level. It is urgently required to support safe resumption of international travel in line with government priorities in short timeframes. Such constraints, along with the need to engage with all states and territories on the framework through the Chief Human Biosecurity Officer (CHBO) Forum, do not support a long public consultation lead time or the preparation of a draft exposure Bill for public consultation.[35]

Consultation was also carried out with Ports Australia and the cruise industry.[36]

Schedule 2

Schedule 2 proposes to increase the maximum penalty for various offences and civil penalty provisions in Chapter 3 of the Act. The Explanatory Memorandum notes:

The proposed amendments relate to key provisions of the Biosecurity Act that, if not complied with, may significantly undermine the integrity of the biosecurity regulatory framework, with potentially devastating consequences for Australia’s agricultural industries, jobs, plant, animal and environmental health, and the confidence of trading partners. Many of the specified provisions apply to the person in charge or operator of an aircraft or vessel bringing goods into Australian territory, and these individuals and bodies corporate should reasonably be aware of their obligations under the Biosecurity Act.

The increases to the civil penalties are intended to deter non-compliance with the Biosecurity Act, and to ensure that the maximum penalties available reflect the gains that individuals and businesses might obtain, or seek to obtain, from engaging in conduct that jeopardises Australia’s biosecurity status. It is important that civil penalties are set at a level that means the penalty is not merely perceived as a cost of doing business. This is particularly the case for bodies corporate.[37]

The Statement of Compatibility with Human Rights states that the government is no longer of the view that the existing penalties are sufficient disincentives given ‘growing biosecurity threats such as African Swine Fever’ and further notes that ‘[t]he integrity of the regulatory framework would be undermined if the civil penalties for a contravention are being calculated into profit margins and seen as a “cost of doing business”’.[38]

While not stated within the explanatory materials, Schedule 2 may be seen as a further implementation of the recommendations of the 2017 Inspector-General’s Report Uncooked Prawn Imports: Effectiveness of Biosecurity Controls (Uncooked Prawn Report) following the outbreak of White Spot Syndrome Virus (WSSV) among prawns in south east Queensland in 2016‑2017.[39]  

As noted in the Biosecurity Amendment (Strengthening Penalties) Bill 2021 Bills Digest,[40] Recommendation 12 of that report stated:

The department should consider seeking stronger powers under the Biosecurity Act 2015 to apply direct penalties for serious non-compliance and impose administrative sanctions or on-the-spot fines for relatively minor non-compliance.[41]

While the Inspector-General noted generally:

… the penalties available and applied were often not commensurate with the potential profits to be made or risks that could be caused by the non-compliant behaviour.[42]

The then Department of Agriculture, Water Resources and the Environment agreed with Recommendation 12 noting:

While the Biosecurity Act already provides powers to apply direct penalties for serious non-compliance and penalties for relatively minor non-compliance in the form of infringement notices, the department will consider whether stronger powers are required.[43]

The Government has already passed legislation this year in response to the Uncooked Prawn Report, namely the Biosecurity Amendment (Strengthening Penalties) Act 2021 (BASPA), which made similar amendments to 28 other offences and civil penalty provisions in the Biosecurity Act. The BASPA’s explanatory materials provide the same rationale for that Act as this Bill provides with respect to Schedule 2.[44]

Schedule 3

Schedule 3 makes amendments to risk assessments. A risk assessment is conducted to ensure the biosecurity risk associated with certain goods or certain classes of goods is appropriately managed for the purposes of making determinations to prohibit, suspend or conditionally prohibit the importation of certain goods, and for the granting of permits to import goods so prohibited or suspended.[45]

The Explanatory Memorandum notes:

The objective of amending these provisions is to increase transparency about the process by which risk assessments are conducted for the purposes of these determinations or decisions to grant permits made under subsection 179(1). Schedule 3 does not alter the requirement that ALOP [the Appropriate Level of Protection for Australia[46]] be applied in conducting a risk assessment, consistent with Australia’s international obligations under the World Trade Organization Agreement on the Application of Sanitary and Phytosanitary Measures 1994. Similarly, the amendments proposed would not change the role of the Director of Biosecurity and Director of Human Biosecurity as decision-makers for these determinations and permits.[47]

The explanatory materials however do not state why the Government is seeking these amendments. It also does not state that any consultation was conducted regarding these amendments. The recently enacted Biosecurity Amendment (Clarifying Conditionally Non‑prohibited Goods) Act 2021 also concerned the making of risk assessments, inserting section 639A of the Act, which provides:

1. This section applies if a determination purportedly made under subsection 174(1) before the commencement of the Biosecurity Amendment (Clarifying Conditionally Non‑prohibited Goods) Act 2021 would, apart from this section, be wholly or partly invalid only because the Director of Biosecurity and the Director of Human Biosecurity, or either of them, did not:
   1. conduct a risk assessment for the purpose of deciding whether to make the determination; or
   2. apply, or correctly apply, the ALOP for Australia in conducting a risk assessment for that purpose.
2. This section also applies if the determination would, apart from this section, be wholly or partly invalid for any other failure to comply with section 174 or subsection 541(4).
3. The determination is taken for all purposes to be, and always to have been, valid.

Neither the explanatory materials for the Bill for the Biosecurity Amendment (Clarifying Conditionally Non‑prohibited Goods) Act 2021, nor the second reading speeches for that Bill identified why the Government proposed the Bill. It appears that there was at least the risk of determinations made under subsection 174(1) being invalid due to non-compliance with existing administrative decision-making requirements. This may also be the impetus behind Schedule 3 to the current Bill.

Schedule 4

Schedule 4 proposes to create a new legislative authority for the Commonwealth to make grants of financial assistance to respond risks posed by diseases or pests. The explanatory materials note that the Commonwealth already makes a variety of grants for these purposes under section 32B of the Financial Framework (Supplementary Powers) Act 1997 (FFSP Act) by inserting new items for each program into the relevant Schedule to the Financial Framework (Supplementary Powers) Regulations 1997 (FFSP Regulations).[48]

The Explanatory Memorandum further notes:

Schedule 4 to the Bill would provide legislative authority for arrangements and grants for dealing with risks posed by diseases or pests, such as the National Citrus Canker Eradication Program which ran in response to the detection of citrus canker in a Darwin retail nursery. Having tailored legislative authority provisions in the Biosecurity Act would assist the Australian Government to respond quickly to fast-changing circumstances where there is a pest or disease threatening the health of the Australian population, the environment or the agricultural sector. Including the authority for expenditure on biosecurity activities and programs in the Biosecurity Act would support a more agile biosecurity system, and ensure transparency and accountability for Commonwealth expenditure on biosecurity activities and programs. Expenditure on biosecurity activities and programs would be reported by the relevant Agriculture or Health portfolio.[49]

It does not appear that any public consultation for Schedule 4 has been conducted. 

Proposed amendments by the Senate Standing Committee for the Scrutiny of Delegated Legislation

The Senate Standing Committee for the Scrutiny of Delegated Legislation has announced its intention to move amendments to the Biosecurity Act via amendments to the Bill.[50] These amendments concern the operation of the human biosecurity emergency powers in Chapter 8, Part 2 of the Act, and not any of the elements of the legislative framework that the current schedules of the Bill propose to amend.

The amendments would make human biosecurity declarations and determinations subject to parliamentary disallowance. Further information on the proposed amendments is provided at Appendix A. Information on the human biosecurity emergency powers and their exercise during the COVID-19 pandemic is provided at Appendix B.

Committee consideration

Rural and Regional Affairs and Transport Legislation Committee

The Bill was referred to the Senate Rural and Regional Affairs and Transport Legislation Committee for inquiry and report by 14 October 2021. Details of the inquiry are on the inquiry homepage.

The Committee reported on 14 October 2021 and recommended that the Bill be passed noting:

The committee supports the intent of the bill to strengthen biosecurity measures through more rigorous pre-reporting requirements, greater penalties for non-compliance with the Biosecurity Act, and the introduction of broader-reaching biosecurity group directions.[51]

Where the Committee made substantive comments on provisions of the Bill it is discussed in the relevant Key provisions section of the digest.

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills considered the Bill in Scrutiny Digests 15 and 16 of 2021. The Committee made substantial comments on the drafting of human biosecurity group directions in Part 2 of Schedule 1, and more limited comments on the financial grants powers within Schedule 4. The Committee requested the Minister’s advice on multiple points regarding both schedules, which the Minister provided on 5 October 2021.[52] After considering that advice, the Committee sought further advice from the Minister. At the time of publishing this digest, the Minister’s further response had been received by the Committee, but not yet published.[53]

The Committee’s comments and the Minister’s response are discussed in the relevant Key Provisions sections of this digest.

Policy position of non-government parties/independents

At the time of writing, non-government parties and independents appear to have not expressed a view on the Bill. Greens and Labor Senators on the Rural and Regional Affairs and Transport Legislation Committee did not make a dissenting report or additional comments to the majority report on the Bill.

Position of major interest groups

In total 14 submissions were made to the Senate Inquiry, containing a mixture of cruise-line industry participants, port authorities, biosecurity industry participants (such as Animal Health Australia), state and federal government entities and private citizens.[54]

The submissions largely focused on the group directions scheme proposed in Schedule 1, Part 2. Concerns were raised about the potential geographic scope of the directions and the notification requirements that may be imposed upon the person operating an aircraft or vessel. These are detailed where relevant in the Key provisions section of this digest.

The other schedules and parts of the Bill were mostly uncontroversial.

Financial implications

The Explanatory Memorandum states that there are no financial implications to the Australian Budget due to the Bill.[55]

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.[56]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights (PJCHR) considered the Bill in Human Rights Scrutiny Reports 11 and 12 of 2021. The PJCHR only commented on the group directions framework in Schedule 1, Part 2 raising broad concerns surrounding rights to life, health, liberty, freedom of movement, privacy and rights of the child and persons with disability.[57] These comments are discussed in the relevant Key provisions sections of this digest.

In particular, the PJCHR raised concerns with some biosecurity measures that may be included in a group direction, requesting amendments to proposed sections 108M (wearing of protective clothing and equipment), 108N (undergoing an examination), 108P (requiring body samples for diagnosis) and others.

These comments are discussed in the relevant Key provisions sections of this digest.

Schedule 1 Key Provisions

Part 1 – Pratique

What is ‘pratique’?

Chapter 2, Part 2, Division 4 of the Biosecurity Act concerns pratique. Pratique is the permission granted by officials to vessels or aircraft that allows those aircraft or vessels to unload or load things and to permit persons to embark or disembark.[58]

Unless pratique is granted, the operator of that vessel or aircraft may not be allowed to load or unload anything.

Pratique currently in the Biosecurity Act

Under the Biosecurity Act, pratique is either positive or negative.

• Positive pratique (section 48)—positive pratique is automatically granted to all aircraft and vessels that do not fall within a class of vessels or aircraft that the Director of Human Biosecurity has specified under subsection 49(1) as requiring negative pratique
• Negative pratique (section 49)
  • the Director of Human Biosecurity may specify, by non‑disallowable legislative instrument, classes of incoming aircraft or vessels for which pratique must be granted by a biosecurity officer (negative pratique)
  • this instrument may also specify the requirements that incoming aircraft or vessels must comply with to be granted pratique by a biosecurity officer. These requirements must be consistent with Articles 28.2 and 43 of the International Health Regulations
  • a Biosecurity Officer may grant pratique, orally or in writing, in relation to an incoming aircraft or vessel that is in a particular class covered by a subsection 49(1) determination if the aircraft or vessel complies with the requirements specified in that determination for that class of aircraft or vessel.

Amendments proposed by the Bill

The Bill proposes to make two amendments to pratique provisions.

• Item 1 proposes to expand the persons to which pratique requirements apply to include “the person in charge of an incoming vessel or aircraft” in addition to the operator of that aircraft or vessel. The Explanatory Memorandum explains:

This amendment is intended to address the disjuncture between the practical and legal responsibility for compliance with pratique requirements under the Biosecurity Act. This was recognised by the Inspector-General, who recommended that the Biosecurity Act should be amended to “[…] make the ‘person in charge’ (and operator) of a conveyance […] also responsible for any noncompliance with negative pratique”. This amendment would strengthen the regulatory framework by providing that both the operator and the person in charge of the incoming aircraft or vessel should be liable to a civil penalty for non-compliance with subsection 48(1).[59]

• Item 2 proposes to increase the existing civil penalty for breach of pratique requirements from the current maximum of 120 penalty units (currently $26,640 for an individual or $133,200 for a body corporate[60]) to 1,000 ($222,000) penalty units for the operator of the aircraft or vessel, and 300 penalty units ($66,600) for a person in charge of the aircraft or vessel. The Explanatory Memorandum notes:

The higher civil penalty proposed by item 2 recognises the serious consequences posed by the potential entry, spread and transmission of a listed human disease in Australian territory. It is appropriate in a commercial context in which a delay in obtaining a grant of pratique is likely to result in significant financial cost and loss of market advantage to an aircraft or vessel, such as a large cruise vessel, that is not permitted to disembark passengers or unload goods. The proposed increase to the civil penalty is intended to be more proportionate to deter those who may consider non-compliance as a cost of doing business.[61]

As noted in the discussion of other amendments to maximum financial penalties for civil offences in Schedule 2 of this Digest, this 1,000 penalty unit is well above the original 120 penalty unit maximum for all civil penalty provisions in the Biosecurity Act as passed.

Committee and Stakeholder views

Port industry participants were the only stakeholders to make substantive comment on this part. Ports Australia supported the provisions, but criticised the retention of the definition of ‘negative pratique’:

…which is inconsistent with international definitions and commercial shipping practice, and poses human health risks to maritime workers. As such, Ports Australia strongly recommends Australia’s alignment with the international definition of pratique.[62]

Ports Australia instead recommended that pratique be granted before entry to a port, to not potentially expose port staff, such as pilots and other workers, as vessels denied pratique are permitted to enter a port but not to unload or disembark.[63]

Fremantle Port Authority agreed with the suggested amendments in this part, but also recommended that amendments be made to require that information regarding the status of pratique on vessels be provided to Port authorities. Fremantle Port Authority also asked for clarity as to whether pratique could be withdrawn from a vessel, and some changes to the language used when granting pratique to not imply that the granting of pratique implied permission to berth at a port – which was to be granted by the relevant Port authority separately from the pratique process.[64]

Part 2- Human biosecurity group directions

Current Human Biosecurity arrangements

Under the Biosecurity Act, the Commonwealth currently has available several methods to prevent the spread, emergence, or establishment of listed human diseases (LHD) within the Commonwealth. These include:

• entry and exit requirements: the Health Minister may determine, by non-disallowable legislative instrument, exit and entry requirements for the purposes of preventing a LHD from entering, establishing itself or spreading in Australian territory or spreading to another country.[65] The determination must not specify as a requirement a ‘biosecurity measure’ that may be included in a human biosecurity control order[66]
• pratique: the power to deny aircraft and vessels permission to unload or load cargo or to disembark or embark persons as described above[67]
• preventative biosecurity measures: the Health Minister may make a determination banning or requiring certain behaviours or practices, requiring the keeping of records or the conduct of tests on goods.[68] This determination is a non-disallowable legislative instrument, and must not include a biosecurity measure that may be imposed in a human biosecurity control order unless the Health Minister is satisfied that the measure is appropriate and adapted to prevent or reduce the risk of the disease entering, or emerging, establishing itself or spreading in Australian territory or a part of Australian territory[69]  
• Human Biosecurity Control Orders: a chief human biosecurity officer, human biosecurity officer, or biosecurity officer may give a human biosecurity control order to an individual if they are satisfied that they are symptomatic with, or have been exposed to an LHD, or have failed to comply with an entry requirement.[70] That human biosecurity control order may include a variety of biosecurity measures, including detention, requiring diagnostic testing, and providing information on people with whom the individual has been in contact[71]
• Human Health Response Zones: the Director of Human Biosecurity may declare a specified area within a state or territory a Human Health Response Zone,[72] determining entry and exit requirements for the zone, which may not include biosecurity measures that may be imposed in a human biosecurity control order[73]
• Human Biosecurity Emergency Powers: the Governor-General may declare that a human biosecurity emergency exists in relation to a LHD.[74] The Health Minister may then set any requirement or give any direction necessary and proportionate to prevent the establishment, emergence or spread of the disease.[75] A requirement or direction may not impose a biosecurity measure that may be imposed in a human biosecurity control order.[76]

Most (but not all) of these powers have proportionality requirements, usually that the decision‑maker must be ‘satisfied that the measure is necessary to prevent the establishment or spread of the disease in Australian territory or a part of Australian territory’ or substantially similar terms. Section 34, which provides general principles for the use of biosecurity powers provides that:

(2) Before the person makes the decision [to exercise a power in relation to, or impose a biosecurity measure on an individual under Chapter 2 of the Act], the person must be satisfied of all of the following:

1. that exercising the power, or imposing the biosecurity measure, is likely to be effective in, or to contribute to, managing the risk;
2. that exercising the power, or imposing the biosecurity measure, is appropriate and adapted to manage the risk;
3. that the circumstances are sufficiently serious to justify exercising the power, or imposing the biosecurity measure;
4. that the power, or the biosecurity measure, is no more restrictive or intrusive than is required in the circumstances;
5. that the manner in which the power is to be exercised, or the biosecurity measure is to be imposed, is no more restrictive or intrusive than is required in the circumstances;
6. if the power is to be exercised or the biosecurity measure imposed during a period—that the period is only as long as is necessary.

A gap in the framework

Both the NSW Special Commission of Inquiry and the Inspector-General’s Report noted that the existing mechanisms were impractical or ineffective in imposing biosecurity requirements on large groups of individuals quickly, for short periods of time. The NSW Special Commission of Inquiry noted:

The administrative processes relating to Control Orders are fairly demanding. Consequently, it is impractical to issue Control Orders to large numbers of individuals. The contents of the Control Order are prescribed by s 61. Those contents are comprehensive in their requirements to notify persons subject to Control Orders about the nature and justification of the Control Order. The Control Order must be given to the individual within 24 hours of it having been made or it is of no effect: s 63.[79]

The Inspector-General’s Report also noted that while the operator of a vessel or aircraft denied pratique had an obligation to prevent passengers from disembarking, the actual passengers themselves would be under no obligation to not disembark the vessel or aircraft:

Theoretically, on advising a vessel that is subject to negative pratique, passengers could refuse to comply by disembarking the vessel to take flights to return to their home country. In that situation, Agriculture would be powerless to prevent this from occurring unless Human Biosecurity Control Orders were issued. Similarly, if passengers (believed to be the carriers of COVID-19 virus), on disembarking the vessel, entered the Australian community, they will not be committing an offence under the Act. It would then be up to the jurisdiction to prevent COVID-19 positive passengers from disembarking the vessel (and entering the Australian community) under local emergency management or human health legislation, as appropriate.[80]

Schedule 1, Part 2 of the Bill attempts to fill this gap by inserting Part 3A into Chapter 2 of the Biosecurity Act, creating the scheme for human biosecurity group directions to be made.[81]  

Who can make human biosecurity group directions?

Under proposed subsection 108B(1) a human biosecurity officer or a chief human biosecurity officer would be empowered to make human biosecurity group directions. While biosecurity officers can make human biosecurity control orders,[82] they will not be able to make human biosecurity group directions.

• Chief Human Biosecurity Officers: chief human biosecurity officers are authorised by the Director of Human Biosecurity (the Commonwealth Chief Medical Officer[83]) under section 562 of the Biosecurity Act. They must be a ‘medical practitioner employed by the State or Territory body responsible for the administration of health services in the State or Territory’, and an arrangement between the Commonwealth and the state or territory must be in place permitting the authorisation.[84] A Chief Human Biosecurity Officer Forum exists which was consulted in the development of the Bill.[85]
• Human Biosecurity Officers: human biosecurity officers are authorised by the Director of Human Biosecurity under section 563 of the Biosecurity Act. They must be an officer or employee of the federal, state or territory Health Department or a member of the Australian Defence Force (ADF), and the Director of Human Biosecurity must be satisfied that they have appropriate clinical expertise.[86] If the human biosecurity officer is an employee of a state or territory then there must be an arrangement in place between the Commonwealth and the state or territory permitting the authorisation.[87]

The Explanatory Memorandum notes the restriction of the power to make group human biosecurity directions to these persons:

This is because the exercise of this function will require clinical expertise or qualifications to make informed public health and medical decisions about the assessment and management of a class of individuals in relation to risks posed by a listed human disease.[88]

It is not immediately clear why the Bill does not empower the Director of Human Biosecurity to make human biosecurity group directions. The Director of Human Biosecurity however must be notified of the making, variation, or revocation of a group direction.[89]

Who can a human biosecurity group direction apply to?

Proposed subsection 108B(1) provides that a human biosecurity group direction:

applies to each individual included in a class of individuals specified in the direction.

Proposed subsections 108B(2) and (3) define ‘class of individuals’ as:

(2) The class of individuals must be all the individuals, or a group of individuals, who:

        (a) are on board an aircraft or a vessel that is in Australian territory; or

        (b) the officer is satisfied are at a landing place or port in Australian territory, or at a place that is in close proximity to a landing place or port in Australian territory, where an aircraft or vessel has arrived at the landing place or port.

(3) Without limiting paragraph (2)(b), the class of individuals for the purposes of that paragraph may be, or may include, all the individuals, or a group of individuals, who were on board the aircraft or vessel.

‘Australian territory’

Australian territory is defined under section 12 of the Biosecurity Act as the terrestrial area of Australia and the other external territories, the coastal sea surrounding those landmasses, and the airspace above both. The ‘coastal sea’ largely consists of the Australian Territorial Sea, which extends 12 nautical miles from the territorial sea baseline,[90] which generally follows the coastline at the lowest astronomical tide.[91] 

Therefore, group biosecurity directions may be issued to a class of individuals who are on board a vessel underway, or an aircraft aloft that are within Australian territory.  

‘Close proximity to a landing place’

The inclusion of ‘close proximity to a landing place or port’ creates some uncertainty as to the scope of individuals that may be included in a ‘class of individuals’ under proposed paragraph 108B(2)(b), who may not have been on the vessel or aircraft. The Explanatory Memorandum confirms that:

The intention is that only individuals who are on board an aircraft or a vessel, or individuals that the officer is satisfied are at a landing place or port (or the close proximity to those locations) could be made the subject of a direction. For example, this may include a class of individuals who are in close proximity to the landing place or port, and who, despite not having been on board the aircraft or vessel concerned, may be at a heighted risk of contagion of a listed human disease, by their exposure to an ill individual who had disembarked from that aircraft or vessel.[92]

However, the Bill does not appear to directly limit the potential scope of classes of individuals under proposed paragraph 108B(2)(b) to just those individuals who may have come into contact with passengers of the aircraft or vessel, or otherwise exposed to the LHD.

Provided that the group direction is otherwise compliant with the proportionality requirements discussed below, it appears within the power for a human biosecurity direction to include all the persons within or in close proximity to a landing place or port within a human biosecurity group direction.

‘Close proximity’ is also undefined in the Bill and therefore has uncertain application. It is unclear when a person is sufficiently far away from a landing place or port to no longer be within a class of individuals to which a group direction could apply. The Explanatory Memorandum provides that:

The intention is that once the officer is satisfied that the individuals have departed from a place that is in close proximity to a landing place or port, the ability to make a human biosecurity group direction would no longer be available.[93]

However, this does not explain what ‘sufficiently far away from a landing place or port’ means. The description ‘close proximity’ could potentially include airport hotels, which would allow group directions to require persons to go and remain at an airport hotel for the purposes of a quarantine period. If the airport hotel is considered to be in ‘close proximity’ to the landing place, then a group direction can be extended or remade in relation to a group of persons that were directed to go and remain at that hotel, under a previous group direction, as they remain in ‘close proximity’ to a landing place and within the scope of proposed section 108B. As discussed below, there is no limit on the number of times that a group direction can be remade in relation to a group of persons provided the decision-maker remains satisfied that the criteria for making such a direction is met.

Committee and stakeholder concerns

The Maritime Union of Australia (MUA) expressed concern with the potential breadth of ‘close proximity to a landing place’:

The MUA therefore seeks clarification from the Committee about the intention and scope of the new Section 108B and further, seeks amendments to this Section to protect port workers from becoming the subject of such a Group Direction when it would be unfair and unreasonable to do so simply because they were present (in whatever capacity and at whatever distance) at a Port where a human biosecurity risk was deemed to exist.

Simply put, it is the MUA’s position that this new power must not be used capriciously or recklessly in such a way as might unnecessarily threaten the freedom or livelihood (however temporary) of a port or maritime worker by unnecessarily subjecting them to a group quarantine direction.[94]

In responding to these concerns in evidence to the Committee Inquiry, officials from DAWE noted that the biosecurity principles in section 34 of the Act would practically address these concerns by requiring that a direction be ‘no more restrictive or intrusive than required’.[95] The Senate Rural Regional Affairs and Transport Legislation Committee noted in its report:

The committee accepts the department's assurances that biosecurity group directions will be proportionate to the risk level.[96]

‘Group of individuals’ and vaccination

Proposed subsection 108B(2) specifies that a ‘class of individuals’ may be all the individuals or a group of individuals that fall within the potential scope of a group direction.  

The ability to limit the class of individuals to only the group of individuals in a landing place or port that have been exposed to the listed human disease is practically necessary to ensure that group directions operate proportionately.[97] Otherwise an officer would have to issue a group biosecurity direction to all of the individuals at a landing place, or none of them, when only a small number of individuals may have been exposed.

However, proposed subsection 108B(2) does not appear to limit the officer to issuing a biosecurity order to a subset of individuals in an aircraft, vessel or landing place just on the basis that those individuals are the only individuals that have been exposed to the disease. It appears to be open to the officer to issue a human biosecurity direction to the individuals on board the vessel or aircraft or at the landing place or port who are not vaccinated against a listed human disease as a ‘group of individuals’, while not applying a group biosecurity direction to those who are vaccinated.

Indeed, the operation of the biosecurity principles in section 34(2) may encourage the officer making the direction to exclude vaccinated individuals from the ‘group of individuals’ that a group direction applies to, on the basis that a group direction regarding vaccinated individuals may be less likely to be proportionate in the same way it is for unvaccinated individuals for certain listed human diseases.

Some listed human diseases have extremely effective vaccines. Yellow Fever, for instance, is a listed human disease to which group biosecurity directions may apply. Vaccination against yellow fever is 99% effective.[98] Consequently, there appears to be at least some circumstances where the differences in human biosecurity risks between vaccinated and unvaccinated persons would be sufficient to allow or require an officer making human biosecurity directions to treat them as different ‘classes of individual’ with different sets of group directions.

Officers would not be empowered to discriminate on non-clinical grounds, however discrimination based on vaccination status is permitted because vaccination status is a relevant, clinical consideration when assessing biosecurity risk. Discrimination on other grounds such as race, gender, or nationality would not appear to be relevant to such clinical assessments and would not be consistent with the biosecurity principles in section 34(2), and therefore may be invalid. Such discrimination would also potentially be challenged under the Administrative Decisions (Judicial Review) Act 1979 as a decision made with irrelevant considerations.[99]

Grounds for making a human biosecurity group direction

In order to make a human biosecurity group direction, the human biosecurity officer or chief human biosecurity officer must be satisfied of grounds set out in proposed subsection 108B(4), that:

(a) one or more individuals who are or were on the aircraft or vessel have one or more signs or symptoms of a listed human disease; or

(b) one or more individuals who are or were on the aircraft or vessel have been exposed to:

(i) a listed human disease; or

(ii) one or more other individuals who have one or more signs or symptoms of a listed human disease.

Furthermore, to impose a biosecurity measure (and hence give the group direction any content), the decision maker must be satisfied that:

…the biosecurity measure contributes to managing the risk of:

(a) contagion of a listed human disease; or

(b) a listed human disease entering, or emerging, establishing itself or spreading in, Australian territory or a part of Australian territory.[100]

Provided the grounds are made out, the decision maker must further consider the biosecurity principles in section 34 of the Biosecurity Act. Items 7 to 9 of Schedule 1 propose to make amendments to sections 34 and 35 to ensure that these principles apply to group directions.

The principles of decision-making provided by subsection 34(2) are the key safeguard limiting the discretion of human biosecurity officers and chief human biosecurity officers in making a group direction. In addition to the hard limits within Part 3A regarding who can be subject to a group direction, how long one can last, and what the group direction can require, section 34 operates to require the decision maker to be satisfied that such group directions are only as expansive, intrusive, or long in duration as is necessary.

As discussed above, the persons that may be included in a class of persons for the purpose of a group direction may be very wide, potentially including all the persons at, or in close proximity to a landing place or port.

However, section 34, particularly the requirement that the decision maker be satisfied that the measure be ‘appropriate and adapted’ to the purpose of preventing the entrance, emergence, or establishment of a listed human disease operate to place limits on the range of people who can be included in the order.[101]

What can a human biosecurity group direction require?

Division 3 of proposed Part 3A of Chapter 2 articulates the biosecurity measures that may be included in a group biosecurity direction. These biosecurity measures are different from the biosecurity measures that may be included in an individual biosecurity control order – those are listed under Division 3 of Part 3 of Chapter 2.

The group direction biosecurity measures are:

• managing information on prior contacts and locations
• managing the location of the group
• requiring protective clothing or equipment
• undergoing examination
• providing body samples for diagnosis
• forbidding the unloading or loading of goods.

In imposing any of these biosecurity measures, the decision-maker must be satisfied of each of the biosecurity principles in section 34 regarding the imposition of that measure individually. Therefore, it is not enough for a decision-maker to be satisfied that the direction as a whole is in compliance with the biosecurity principles, they must be additionally satisfied that every discrete biosecurity measure is itself individually compliant with the section 34 principles.[102]

Managing Information

Proposed section 108K allows for a group direction to include a biosecurity measure that each individual subject to the group direction be required to disclose certain information. This measure requires:

• the individual to disclose
  • ‘contact information’ for any person ‘with whom the relevant individual has been, or will be, in close proximity’ to the extent that the individual is aware of that information[103]
    • The caveat regarding the extent of the individual’s knowledge ensures that an individual does not become liable for a civil penalty for failing to disclose information that the individual is not aware of.
  • and/or, ‘location information’ about the past location of the individual, as prescribed in the regulations.[104]
• that the individual discloses this information to a biosecurity officer, human biosecurity officer, or chief human biosecurity officer prescribed within the group direction and
• that the individual does so in a way and in a period of time specified in the direction.

Item 18 of Schedule 1 amends paragraph 635(1)(a) so that a person required to provide information under proposed section 108K is not excused from providing the information on the ground that the information might tend to incriminate them or make them liable to a penalty. However, in accordance with subsection 635(2), a use and derivative use immunity applies to ensure that the information provided and any information obtained as a direct or indirect consequence of the provision of that information is not admissible in evidence against the individual in any criminal or civil proceedings (other than proceedings related to providing false or misleading information). Proposed section 108K constitutes an authorisation for the purposes of the Privacy Act 1988 .

Neither the Scrutiny of Bills Committee nor the Parliamentary Joint Committee on Human Rights had substantial comment on this provision, except noting its purpose as a contact tracing functions.[105] No stakeholders have noted substantive concerns with this requirement, although Carnival Australia has queried how it will be enforced if a group biosecurity direction is issued to a vessel at sea.[106]

Managing location of individuals

Proposed section 108L allows for a group direction to require each individual included in the class of individuals specified in the direction to remain at, or to go and remain at a specified place for a specified period, and/or not to visit a specified place, or class of place, for a specified period.

This specified period cannot be longer than the period in which the direction is in force, which is limited to 12 hours.[107]

Proposed section 108V requires that the maker of a group direction containing a section 108L measure requiring individuals to remain at a specified place, inform any individuals who are not Australian citizens that they may request that the consular office of the country of which they are a citizen, or which they have a special connection with, be notified of the making of the group direction. The officer must also notify them that they may communicate or attempt to communicate with that consular office and give the individual reasonable opportunity to do so. This must occur ‘as soon as reasonably practicable’ after issuing the group direction containing such a requirement.

Proposed section 108V largely mirrors existing section 102, which makes the same requirements regarding human biosecurity control orders that contain measures imposing detention or isolation requirements. The Explanatory Memorandum states that this section gives effect to elements of the Vienna Convention on Consular Relations.[108]

Proposed section 108V would not engage for dual citizens who are Australian citizens and also foreign nationals. The maker of the direction would not be required to notify such persons of a right to contact a consular office, or to give them reasonable opportunity to do so.

‘Special connection’ is not defined in this Bill, the Biosecurity Act, or the related explanatory materials.

Stakeholders and the scrutiny committees did not have substantial comments on proposed sections 108L or 108V.

Requiring protective clothing or equipment

Proposed section 108M allows for a group direction to require each individual included in the class of individuals specified in the direction to wear specified clothing and equipment. Relevantly:

• the clothing or equipment must be designed to prevent a disease from emerging, establishing itself or spreading
• the direction must specify the circumstances in which each individual is required to wear the clothing or equipment
• the direction must specify the period during which, or the times at which the requirement is in effect
• the direction must specify instructions for wearing the clothing or equipment
• a human biosecurity officer, or chief human biosecurity officer may give an individual an exemption from the requirement. This does not necessarily need to be the same officer who made the group direction. This power to grant exemptions also does not extend to biosecurity officers, and the exemption is not a legislative instrument.

Stakeholder and committee views

The Parliamentary Joint Committee on Human Rights (PJCHR) has noted concern with the operation of the power to grant an exemption:

While this offers flexibility, it provides no guidance as to when this discretionary exemption power will be exercised. The Explanatory Memorandum provides that such exemptions will be provided where appropriate and officers will, drawing on their clinical expertise or qualifications, decide whether to grant an exemption, ‘for example, where the officer considers that the individual has a disability that would prevent the individual from wearing a facemask or gloves’.[109] This may operate to safeguard the rights of persons with disabilities, however, much will depend on whether this discretionary exemption power is exercised in practice. It is not clear why the legislation does not require that if an officer is made aware of a disability that would affect the person’s ability to comply with the direction, that they must consider making an exemption.[110]

The PJCHR considered the Minister’s advice on these matters in the subsequent report, before recommending that the Bill be amended to provide:

that guidelines be developed in relation to the exercise of the power in proposed section 108M that set out circumstances as to when officers should grant exemptions from the requirement to wear specified clothing or equipment, on the basis of disability.[111]

The Scrutiny of Bills Committee had no comment on this provision, and no stakeholders commented on this requirement.

Undergoing examination and providing samples for diagnosis

Proposed section 108N allows for a group direction to require each individual included in the class of individuals specified in the direction to undergo a specified kind of examination. Relevantly:

• the examination must relate to determining the presence of a listed human disease in the individual
• the examination must be carried out in a manner consistent with appropriate medical standards[112]
• if the direction specifies that a kind of examination requires consent, it must specify how that consent is to be given
• if consent is required for an examination, the requirement does not apply unless that consent is given. However, proposed section 108J clarifies that a person who does not give consent may become subject to an individual human biosecurity control order that requires the person to submit to examination without the right to refuse consent.

Proposed section 108P allows for a group direction to require each individual included in the class of individuals specified in the direction who has undergone an examination under section 108N to provide specified body samples. Relevantly:

• the samples must be taken for determining the presence of a listed human disease in the individual
• the taking of samples must be carried out in a manner consistent with appropriate medical standards[113]
• the requirement does not apply unless the individual consents to the giving of samples, and the direction must specify how consent is to be given. However, proposed section 108J clarifies that a person who does not give consent may become subject to an individual human biosecurity control order that requires the person to provide samples without the right to refuse consent
• the Regulations must prescribe requirements for taking, storing, transporting and using body samples
• the Health Minister may give all or part of a sample to the World Health Organization, provided that such an action is done for the purpose of detecting, accessing or responding to a listed human disease.

Stakeholder and committee views

Both the Scrutiny of Bills Committee and the PJCHR expressed some concerns about the operation of proposed sections 108N and 108P. The PJCHR raised concerns over both the inability to issue exemptions to examination requirements, and the lack of legislative guidance as to what kinds of examination would require consent:

While the requirement for examinations to be undertaken in accordance with appropriate medical and other professional standards may operate as an important safeguard, given the potential interference with rights it is not clear why there is not some legislative criteria as to the type of examinations that will require consent (e.g. anything invasive) and a specific requirement that such examinations be undertaken with regard to the dignity, and where necessary, privacy of the person being examined. It is also unclear why there is no flexibility for officers to grant exemptions for some individuals where appropriate from the requirement to undergo certain examinations.[114]

The PJCHR further noted that the legislation is not clear on how long body samples may be retained and if they must be destroyed.[115] The PJCHR also noted a broad concern for how consent may be given for children and incapable persons, noting that consent may be given by a parent, guardian or next of kin without regard to the wishes of the child or ‘incapable person’:

In enabling an accompanying person to give consent on behalf of a child or ‘incapable person’ to undergo certain examinations and give body samples, it does not appear that the obligation to give due weight to the views of the child (according to their age and maturity), or the rights of persons with disabilities to give free and informed consent, has been taken into account in this legislation.[116]

The PJCHR also queried why there is no flexibility for officers to grant exemptions from the requirement to undergo examinations (in similar terms to how they can issue exemptions for protective clothing or equipment measures under proposed section 108M).[117]

The PJCHR considered the Minister’s advice on these matters in the subsequent report, before recommending that the Bill be amended to provide:

• non-exhaustive guidance as to the kind of examinations in proposed section 108N that would require consent to be given before they could be undertaken (for example, where an examination would require inserting something into a person’s nose, throat or other orifice);
• flexibility for officers to grant individual exemptions from the requirement in proposed section 108N for persons to undergo certain examinations;
• that body samples collected pursuant to proposed section 108P must be destroyed once they are no longer required for the purposes for which they were collected
• guidelines be developed to explain officers’ obligations to ensure due weight is given to the views of the child (according to their age and maturity), and to the rights of persons with disabilities to give free and informed consent when seeking consent for examinations and the taking of body samples.[118]

The Scrutiny of Bills Committee also noted concerns with the drafting of these provisions, noting that ‘neither the term ‘examination’ nor ‘body sample’ is defined under the Bill or the Biosecurity Act.’[119]

…it is not clear to the committee why it is not possible to include further high-level requirements relating to proposed sections 108N or 108P within the bill. For example, the bill does not make it clear whether a group direction could require an individual to undergo a procedure that involves breaking through the skin, such as blood test or biopsy.[120]

The Scrutiny of Bills Committee requested the Minister’s advice as to why the Bill did not include ‘at least high‑level guidance in relation to proposed sections 108N (requiring body examinations) and 108P (requiring body samples for diagnosis),’ particularly regarding the scope of the sections, the circumstances in which they could be applied and the definition of consent.[121]

The Scrutiny of Bills Committee considered the Minister’s advice on these matters in the subsequent report, before requesting:

…the minister's further advice as to whether the bill can be amended to include at least high-level guidance in relation to proposed sections 108N (requiring body examinations) and 108P (requiring body samples for diagnosis), including guidance in relation to:

• what examinations or sampling procedures may be included within a human biosecurity group direction;

• in what circumstances it is appropriate to require an examination or body sample;

• when consent must be given and how consent is to be given; and

• what medical and professional standards will, or may, apply when undertaking a procedure under proposed sections 108N or 108P.[122]

The Committee also noted that it ‘would be appropriate if safeguards protecting an individual's right to bodily autonomy and an individual's right to provide and withdraw consent be considered.’[123] The Committee than requested that the minister consider specific suggestions for the following amendments:

• whether an individual can be required to undergo invasive procedures, such as a procedure that involves breaking through the skin, including blood tests or biopsies;

• when and how consent must be given under a group direction, particularly in relation to the circumstances in which a direction to undergo an examination under section 108N does not need to be accompanied by a requirement to give consent;

• when consent is validly given, including that consent is not validly given if the person giving consent does not have capacity; and

• how examinations or sampling procedures must be carried out including, at a minimum, that they be carried out in a way that respects an individual's dignity and privacy.[124]

The Scrutiny of Bills Committee also stated that ‘it would be appropriate to include similar guidance in relation to human biosecurity control orders set out under Part 3 of Chapter 2 of the Biosecurity Act 2015. The committee requests the minister's advice in relation to including this further guidance within the bill.’[125]

Forbidding the loading or unloading of items

Proposed section 108Q provides that a direction may prohibit each individual included in the class of individuals specified in the direction from loading or unloading specified items from the aircraft or vessel concerned unless permission is granted by a CHBO, HBO, or biosecurity officer.

The Explanatory Memorandum explains:

The intention is that new section 108Q would support the management of the risks of a listed human disease, by preventing specified items from being loaded or unloaded from an aircraft or vessel. For example, where a class of individuals who have a listed human disease are on board a vessel, resulting in a risk that certain baggage or bedding may be contaminated by a listed human disease, it may be necessary to prevent the unloading of baggage or bedding from the vessel.[126]

The Explanatory Memorandum further details the loading of fuel or food onto vessels or aircraft as possible examples of the exercise of the power to grant permissions.

Proposed section 108Q provides officials with a more flexible tool than pratique, which is an ‘all or nothing’ tool, where it is not possible for officials to grant condition or partial pratique while retaining a general prohibition on loading or unloading items.

How long can a human biosecurity direction last?

Proposed paragraph 108C(1)(f) provides that a group direction may be in force for up to eight hours. Proposed subsection 108F(3) provides that a variation to group direction may extend this period by up to four hours and that the group direction may only be extended once.

The Explanatory Memorandum provides:

A maximum duration of a human biosecurity group direction of 8 hours has been specified as the direction is only intended to be a preliminary measure to assess and manage the immediate risk of contagion of a listed human disease in a class of individuals, and take steps to prevent the onward spread of that listed human disease to the Australian community more broadly. The direction can only be extended for one further period of 4 hours, as provided for in new subsection 108F(3). If the time of the initial direction (including any extension) expires, and the class of individuals or a group of individuals within the class previously covered by that direction still requires assessment or management, a new human biosecurity group direction can be made.[127]

Proposed subsection 108C(2) reaffirms that a group direction made be remade in identical terms an indefinite number of times. Consequently:

• the maximum cumulative duration of a group direction is 12 hours
• however, if the initial group direction is made for a period less than its maximum 8 hours, a variation may only extend by up to 4 hours. A group direction that is initially made for 4 hours for instance, may only be extended to a maximum duration of 8 hours
• group directions may only be varied to be extended once. If a variation extends a direction for less than the maximum 4 hours, a second variation cannot be made to extend up to the four‑hour variation limit
• there are, however, no limits on the ability of a human biosecurity officer to remake a group biosecurity direction an indefinite number of times provided they remain satisfied of the grounds for making the direction in proposed subsection 108B and the general principles in subsection 34(2) of the Act.

Group directions can be used for indefinite periods

While the Explanatory Memorandum provides that group biosecurity directions are intended to be a ‘preliminary measure’ before a transition to individual human biosecurity control orders or state public health act measures, the provisions do not operate to ensure that group directions only operate on a preliminary basis.

There is nothing preventing human biosecurity officials from using continuously remade group directions to manage an outbreak of a listed human disease aboard a cruise ship for the duration of the outbreak, which may last for weeks or months. A single, continually remade group direction may be considered less cumbersome and administratively complex than issuing, reviewing, and managing up to 5,000 individual human biosecurity directions to all passengers and crew, but the need to remake the direction at least every eight hours would factor into this calculation.

There does not appear to be any reason why a continually remade group direction could not continue to satisfy the biosecurity principles in subsection 34(2), provided that a human biosecurity officer or chief human biosecurity officer continues to be satisfied that the measure is appropriate and adapted to the purpose of mitigating the risk of contagion of the listed human disease, or its establishment or spread within Australian territory.

The group directions framework in proposed Part 3A however is not designed for such long-term use and lacks the safeguards in the individual human biosecurity control order scheme in Part 3, such as provisions in section 75 to 81 of the Biosecurity Act relating to administrative and judicial review of human biosecurity control orders.

Penalties for non-compliance

Proposed section 108T provides for a 30 penalty unit civil penalty for persons who fail to comply with a biosecurity measure that applies to them under an in-force group direction. The person must have been notified of the direction and any relevant variations to that direction in accordance with proposed sections 108E and 108F respectively. Thirty Commonwealth penalty units is currently $6,660.[128]

Proposed section 108S provides that ‘[f]orce must not be used against an individual to require the individual to comply with a biosecurity measure imposed under any of sections 108K to 108Q.’

The Inspector-General’s report recommended the introduction of group biosecurity directions on the basis that:

Theoretically, on advising a vessel that is subject to negative pratique, passengers could refuse to comply by disembarking the vessel to take flights to return to their home country. In that situation, Agriculture would be powerless to prevent this from occurring unless Human Biosecurity Control Orders were issued… It would then be up to the jurisdiction to prevent COVID-19 positive passengers from disembarking the vessel (and entering the Australian community) under local emergency management or human health legislation, as appropriate.[129]  

Under proposed sections 108S and 108T this situation appears to remain largely unchanged, except for the imposition of a $6,660 fine. If a similar situation to the Ruby Princess incident occurred, passengers would still be able to refuse to comply and disembark the aircraft or vessel, and federal biosecurity officials would still be powerless to prevent this from occurring unless individual human biosecurity control orders were issued. No force can be used to ensure compliance with group orders, and individuals cannot be arrested for failures to comply, as non-compliance is not a criminal offence.

For certain individuals, the costs of a prolonged quarantine period or compliance with subsequent state or human biosecurity orders and related costs with rescheduled flights may be higher than the civil penalty, and the civil penalty simply accepted as a ‘cost of doing business’.

Notification and other administrative requirements

Proposed section 108C sets out the required content of a group direction. This includes information about the listed human disease with respect to which the direction is made as well as the grounds on which the direction is made. The direction must also include any biosecurity measures that are to be imposed, why they are required, and explain the existence of the civil penalty provision for non‑compliance.

The direction must also include a unique identifier, the details of a chief human biosecurity officer who can be contacted for information and support in relation to the direction, and any other information that is prescribed by the Regulations.[130]

The Direction must be in the form approved by the Director of Human Biosecurity (the Commonwealth Chief Medical Officer).[131]

Notification of the direction, and of the content of the direction must be given to the class of individuals specified in the direction by a chief human biosecurity officer, human biosecurity officer or biosecurity officer.[132] Alternatively, one of these officers can require a person in charge of an aircraft or vessel to give notification of the direction and the content of the direction, to individuals on board an aircraft or vessel, if the direction is made in relation to those individuals.[133] In such circumstances, notification of any variation or revocation of a direction by the person in charge of the vessel can also be required. The Explanatory Memorandum states:

The intention is to ensure that notice of the direction may be given in circumstances where it may be more efficient and effective for the person in charge to give notification of the direction to the class of individuals on board the aircraft or vessel. For example, if a human biosecurity group direction has been made in relation to a class of individuals on board a vessel in Australian territory but not moored at a port, it may not be reasonably practicable for the officer to board the vessel in the open water to give the notification. In such circumstances, the officer may require the person in charge of the vessel to instead provide the notification of the direction to the class of individuals.[134]

Proposed section 108U provides that a person in charge of an aircraft or vessel that fails to give a notification of the making, variation or revocation when required is liable to a maximum civil penalty of 300 penalty units ($66,600).

Stakeholder views

Some maritime industry stakeholders expressed concern with the imposition of notification requirements on persons in charge of a vessel. Maritime Industry Australia noted in relation to proposed subsection 108E(2) notification requirements:

Discharge of such obligations is a quite different proposition for the captain of an aircraft, with several hundred passengers on board and, for the most part, contained within their seats, as it is for the master of a cruise ship, where the passengers to which a biosecurity group direction might apply can amount to many thousands of people who are not as easily contained or communicated with, without breaching various privacy laws and ethics. In these circumstances, the regulatory burden and potential implications of non-compliance on the master, regardless of master’s intention, is significant.[135]

Carnival Australia also noted the difficulty of providing notification to large cruise ships crews, before stating the drafting of proposed section 108U as a civil penalty provision could expose operators to unreasonable civil penalties to the absence of defences:

…the person in charge would effectively have no defence to a failure to give the notification to all members of the class. What the proposed amendments require is that the class be notified of the direction and its contents. If the notice is not actually delivered to everyone in the class, there is then a contravention of the notification requirements.[136]

Committee views

The Scrutiny of Bills Committee also expressed concerns about the fact that notification requirements were to be set by Regulation as a ‘significant matter in delegated legislation’, noting that ‘[i]n this instance, the committee's concerns are heightened given the impact that a human biosecurity group direction may have on individual rights and liberties’.[137]

The Scrutiny of Bills Committee subsequently requested the Minister’s advice as to whether the Bill could be amended to include requirements that:

• human biosecurity group directions made under proposed section 108B must be published online, and

• information about human biosecurity group directions and human biosecurity control orders imposed under Part 3 of Chapter 2 of the Biosecurity Act 2015, such as the total number of directions made and the total number of orders imposed in a year and high-level details as to the nature and contents of each direction and order, must be set out in the department's annual report prepared under section 46 of the Public Governance, Performance and Accountability Act 2013.[138]

Varying and revoking a group direction

Proposed section 108F allows group directions to be varied and proposed section 108G allows group directions to be revoked. Both a chief human biosecurity officer or a human biosecurity officer may revoke or vary an in-force group direction, with no requirement that they be the officer that originally made the direction.

A variation cannot change the class of individuals specified in the direction and must be in relation to one or more of the matters covered by proposed subsection 108C (discussed above).[139]

In addition to being satisfied of the biosecurity principles in section 34(2), proposed subsections 108F(4) and 108G(2) set out the grounds that the officer must be satisfied of in making a variation or revocation. When varying a direction, the officer must be satisfied that:

• the variation contributes to reducing the risk of contagion of a listed human disease, or the risk of a listed human disease entering, spreading, emerging, or establishing itself in Australian territory or a part thereof[140] or
• the variation removes or varies a provision that no longer contributes to reducing such a risk[141] or
• the variation is of a minor technical nature.[142]

When revoking a direction, the officer must be satisfied that:

• the class of individuals specified in the group direction are not at risk of contagion[143] or
• the direction no longer contributes to reducing the risk of a listed human disease entering, spreading, emerging, or establishing itself in Australian territory or a part thereof or[144]
• in all the circumstances it is appropriate to revoke the direction.[145]

The revocation or variation must be in writing and must be notified by a chief human biosecurity officer, human biosecurity officer or biosecurity officer, or the person in charge of the vessel or aircraft in the same terms as for the initial making of the direction described above.

Grounds for variation and revocation not harmonised with biosecurity principles

These grounds for revocation and variation are not entirely harmonised with the Biosecurity Principles in subsection 34(2), which consider a broader range of factors than effectiveness to reducing risk.

For example, paragraph 34(2)(d) (as amended by item 7 of Schedule 1), provides that when making a decision to exercise a power in relation to, or impose a biosecurity measure on, an individual or a class of individuals, an officer must be satisfied that the power or biosecurity measure is ‘no more restrictive or intrusive than required in the circumstances’.[146] However, it does not appear open to an officer to vary a group direction solely on the basis that they are no longer satisfied that the group direction is no more intrusive or restrictive than required, or is no longer ‘appropriate and adapted’ to the purpose.

Instead, they must be satisfied that the variation contributes to reducing the risk or removes or varies a provision that no longer contributes to managing the risk.[147] There are possible scenarios where a provision continues to contribute to managing the risk, but changing circumstances have made it excessively intrusive or restrictive, or otherwise no longer proportionate to managing the risks.

In such cases it does not appear that the officer would be able to vary the direction. They would have to revoke the determination on the ground that it is ‘in all circumstances appropriate to revoke the direction’[148] and then make a fresh direction in revised terms.

Part 3 – Pre-Arrival Reporting Requirements

Pre-Arrival Reporting Requirements currently

Chapter 4, Part 2, Division 3 of the Biosecurity Act concerns the pre-arrival reporting obligations of the operators of aircraft or vessels that enter or intend to enter Australian territory.[149] The Division requires that the operator of an aircraft or vessel provide a pre-arrival report, with the required information, required timing, manner and form of the report determined by the Regulations.[150]

If the operator becomes aware that the information provided is incomplete or incorrect, they are required to update it as soon as practicable.[151] Biosecurity officers have additional powers to obtain extra information, including the production of documents for the purpose of assessing biosecurity risk.[152]

Failure to provide a pre-arrival report, providing a misleading or incomplete pre-arrival report, or failing to update a report that has become incomplete or incorrect are all subject to both fault‑based offences with maximum penalties of 120 penalty units and/or two years’ imprisonment,[153] and a civil penalty provision with a maximum penalty of 120 penalty units.[154]

Amendments proposed by the Bill

The Bill makes two substantial changes to the pre-arrival requirements within the Act:

• introducing a new power for the Regulations to require additional pre-arrival reports beyond the first one, rather than just requiring that the operator update an incomplete or incorrect report of which they become aware[155]
• increasing the maximum criminal and civil penalties for failing to comply with reporting requirements under sections 193 or 194 from 120 penalty units ($26,640) to 1,000 penalty units ($222,000).[156] Where a body corporate is convicted of the criminal offence, a court may impose a pecuniary penalty equal to five times the maximum standard penalty, or 5,000 penalty units ($1,110,000).[157] Civil penalty orders may also be made equal to five times the maximum standard penalty for body corporates.[158]

The Explanatory Memorandum states that the reason for the insertion of the new power for the Regulations to require subsequent reports is to allow biosecurity risks to be ‘assessed and managed in an accurate and timely manner’:  

For example, if there are a large number of passengers and crew members on board a cruise vessel, it is possible for there to be significant increases in the number of individuals with a listed human disease or significant changes in the reported signs or symptoms of a listed human disease, after the time at which an initial report was given and before the vessel moors at a port. In such circumstances, the ability for the regulations to prescribe additional circumstances in which other reports must be given by the operator provides a further mechanism for the management of biosecurity risks.[159]

On the increased penalties, the Explanatory Memorandum notes the potential ‘harmful consequences’ of failures to provide accurate reports, before stating:

The proposed maximum pecuniary penalty departs from the standard fine to imprisonment ratio in the Guide.[160] However, this is necessary as the current penalty does not adequately reflect the seriousness of the offending conduct in this regulatory context where offences may be committed by a natural person or bodies corporate. The potential consequences of failing to provide reports in accordance with the requirements in subsection 193(2), are such that it is appropriate to set a higher maximum penalty to punish non-compliance.[161]

Civil penalty provisions have a lower standard of proof than criminal offences (on the balance of probabilities, rather than beyond reasonable doubt) and do not require there be established any mental state for a contravention to be established.[162]

Committee and stakeholder views

The MUA is supportive of changes to pre-arrival reporting requirements but noted the need for more enforcement.[163] Shipping Australia was of the view that pre-arrival reporting can be burdensome, and that duplication of such reporting requirements should be avoided where possible, advocating for a ‘single window’ approach in which all necessary information is shared from a single government point across all necessary areas.[164]

The Senate Rural and Regional Affairs and Transport Legislation Committee noted both views and DAWE’s evidence in its report and concluded:[165]

The committee also believes that increased pre-reporting requirements are not overly burdensome and are a necessary measure to ensure the most up-to-date information is available to federal, state and territory officials when assessing potential biosecurity risks.[166]

Schedule 2 Provisions

Schedule 2 consists of 31 items, with 30 items increasing the maximum financial penalties, both civil and criminal, for both fault-based offences and civil penalty provisions in Chapter 3 of the Biosecurity Act, which deals with managing the biosecurity risks of goods.

A Commonwealth penalty unit is currently $222[167] and generally these changes fall into four categories:

• increases of civil penalty provision penalty amounts from 120 penalty units ($26,660) to 300 penalty units ($66,600)[168]
• increases of fault-based offence penalty amounts from 120 penalty units ($26,660) to 300 penalty units ($66,600).[169] These fault-based offences may also carry a term of imprisonment of up to two years
• increases of fault-based offence penalty amounts from 300 penalty units ($66,600) to 1,000 penalty units ($222,000).[170] These fault-based offences may also carry a term of imprisonment of up to five years
• increases of fault-based offence penalty amounts from 120 penalty units ($26,660) to 1,000 penalty units ($222,000).[171] These fault-based offences may also carry a term of imprisonment of up to two years. The Bill does not propose to increase the term of imprisonment from two to five years to be consistent with the other 1,000 penalty unit fault‑based offences.  

These changes expand upon the earlier changes in the Biosecurity Amendment (Strengthening Penalties) Act 2021 which made similar amendments to financial penalties in Chapter 3 of the Biosecurity Act and other provisions related to goods. Existing and proposed penalty amounts are compared in Table 1: Table of Provisions on pages 39‑42of this Digest.

How penalties are expressed

Financial penalties in the Biosecurity Act, and indeed in legislation generally, are set in the form of penalty units. Each penalty unit equates to a dollar value, currently $222.[172] The reason for setting penalties this way is that penalties can be adjusted from time to time, for example to take account of inflation with the Minister issuing a notifiable instrument specifying the new amount under the Crimes Act 1914—that sets the new value of a penalty unit, rather than having to amend every piece of legislation that contains penalty provisions.

How penalties are enforced

Civil financial penalties in the Biosecurity Act are enforceable on the balance of probabilities and in line with the provisions of the Regulatory Powers (Standard Provisions) Act 2014.[173] Division 2 of Part 4 of that Act sets out the provisions for obtaining a civil penalty order. The number of penalty units expressed in the Biosecurity Act provide the maximum penalty that can be imposed on an individual. If the penalty applies to a body corporate, the maximum financial penalty is five times the penalty set out in the Biosecurity Act.[174]

Criminal penalties for fault-based offences are enforced consistent with the provisions of Chapter 2 of the Criminal Code Act 1995, which sets out the principles of criminal responsibility that apply to Commonwealth offences. A criminal offence must be proved beyond reasonable doubt.[175] A fault-based offence requires proof of one or more fault elements: intention, knowledge, recklessness or negligence.[176] Once again, the maximum financial penalty that can apply to a body corporate is five times that which is set out in a penalty provision of an Act.[177]

Fine to imprisonment ratios

The Library has noted in previous Digests on Bills to amend the Biosecurity Act that proposed penalty unit amounts for offences exceed the suggested penalties in the Attorney-General’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.[178]

Relevantly, the Guide recommends a fine imprisonment ratio of five penalty units to a month of imprisonment.[179] The offences proposed to be amended by this Bill currently follow this ratio, imposing 120 penalty unit maximum penalty units on offences also punishable by two years of imprisonment, and a 300 penalty unit maximum on offences punishable by five years of imprisonment.

The Bill proposes to alter this ratio to 12.5 penalty units per month of imprisonment for most of the fault-based offences listed, and to 41.6 penalty units per month of imprisonment for two offences in subsections 155(2) and 156(2).

After stating that the increases to civil pecuniary penalties have been set by references to the Guide, the Statement of Compatibility with Human Rights notes:

They [the penalty increases] seek to reflect the seriousness of the contravening conduct and the risk that the conduct may pose to Australia’s trading reputation, the integrity of the biosecurity management system, animal or plant life or health and the environment. Consistent with the original setting of penalty amounts, the upper range of civil penalty amounts in this Bill are proposed for contraventions involving aggravated circumstances.[180]

Committee and stakeholder views

Several stakeholders noted their support for the increase in penalties in the Bill broadly, with Integrity Systems Company (a wholly owned subsidiary of Meat and Livestock Australia) submitting:

ISC is fully supportive of the proposed increases to penalties as stated for the Biosecurity Amendment (Strengthening Penalties) Bill 2021, given the profound significance of biosecurity risks to the red meat and livestock industries. The proposed increases to penalties made by the Bill are critically substantial, however there is a potential argument to go even further given the considered risks and possible significant impact to agricultural industries that could occur due to biosecurity infringements.[181]

Animal Health Australia further noted support for the increased penalties as ‘means to improve both awareness of the importance of biosecurity as well as contributing to improved compliance’,[182] while the Maritime Union of Australia welcomed the increased penalties but argued for a need for increased enforcement.[183]

Shipping Australia however was of the view that the shipping industry should not be held liable for biosecurity risks, noting:

Biosecurity risks are created by us, the general public, and by Australian businesses placing orders for goods / commodities or fulfilling overseas orders for goods / commodities. The spread of that risk then happens because of the actions of various parties in the supply chain endeavouring to fulfill the goods / commodities orders. The ship and the ship operating company are little control in this process – they merely carry the goods in a container and carry the container. They have little to no control over what happens at the stuffing stage inside the container. And, when thousands of containers are stacked deep and high inside a ship's hull, have absolutely no ability to control what is happening inside the container during a voyage.[184]

Table 1: Table of Provisions

Item	Provision	Offence/penalty of provisions	Current pecuniary penalty	Proposed pecuniary penalty
1	120(6)	Failure to give compliant notice of goods to be unloaded in Australian territory where required to do so. (Fault-based offence)	120	300
2	120(7)	Failure to give compliant notice of goods to be unloaded in Australian territory where required to do so. (Civil penalty provision)	120	300
3	121(3)	Failure to update notice of goods to be unloaded in Australian territory if notice is incorrect or incomplete. (Fault-based offence)	120	300
4	121(4)	Failure to update notice of goods to be unloaded in Australian territory if notice is incorrect or incomplete. (Civil penalty provision)	120	300
5	122(6)	Failure to comply with a requirement to answer questions, give information or produce documents related to goods to be unloaded in Australian territory. (Fault‑based offence)	120	300
6	122(7)	Failure to comply with a requirement to answer questions, give information or produce documents related to goods to be unloaded in Australian territory. (Civil penalty provision)	120	300
7	143(5)	Failure to comply with a direction relating to the unloading of goods from an aircraft or vessel. (Fault-based offence)	300	1,000
8	143(6)	Failure to comply with a direction relating to the unloading of goods from an aircraft or vessel. (Civil penalty provision)	120	300
9	144(6)	Failure to comply with a direction relating to the unloading of goods from an aircraft or vessel. (Fault-based offence)	300	1,000
10	144(7)	Failure to comply with a direction relating to the unloading of goods from an aircraft or vessel. (Civil penalty provision)	120	300
11	145(2)	Failure to comply with the requirement that goods only be unloaded from aircraft or vessels at the first point of entry for the vessel or aircraft, unless permission has been given to unload elsewhere. (Fault-based offence)	300	1,000
12	145(3)	Failure to comply with the requirement that goods only be unloaded from aircraft or vessels at the first point of entry for the vessel or aircraft, unless permission has been given to unload elsewhere. (Civil penalty provision)	120	300
13	146(4)	Failure to comply with conditions on permission to unload goods from an aircraft or vessel at a point other than the first point of entry for the vessel or aircraft. (Fault-based offence)	300	1,000
14	146(5)	Failure to comply with conditions on permission to unload goods from an aircraft or vessel at a point other than the first point of entry for the vessel or aircraft. (Fault-based offence)	300	1,000
15	146(6)	Failure to comply with conditions on permission to unload goods from an aircraft or vessel at a point other than the first point of entry for the vessel or aircraft. (Fault-based offence)	300	1,000
16	146(7)	Failure to comply with conditions on permission to unload goods from an aircraft or vessel at a point other than the first point of entry for the vessel or aircraft. (Civil penalty provision)	120	300
17	147(2)	Failure to bring unloaded goods to a biosecurity entry point. (Civil penalty provision)	120	300
18	147(4)	Engaging in conduct that contravenes a direction to bring unloaded goods to a biosecurity entry point. (Fault-based offence)	300	1,000
19	147(5)	Failure to comply with a direction to bring unloaded goods to a biosecurity entry point. (Fault-based offence)	300	1,000
20	147(6)	Failure to comply with a direction to bring unloaded goods to a biosecurity entry point. (Fault-based offence)	300	1,000
21	147(7)	Failure to comply with a direction to bring unloaded goods to a biosecurity entry point. (Civil penalty provision)	120	300
22	148(4)	Engaging in conduct that contravenes conditions on a permission to bring unloaded goods to an alternative biosecurity entry point. (Fault-based offence)	300	1,000
23	148(5)	Engaging in conduct that contravenes conditions on a permission to bring unloaded goods to an alternative biosecurity entry point. (Fault-based offence)	300	1,000
24	148(6)	Engaging in conduct that contravenes conditions on a permission to bring unloaded goods to an alternative biosecurity entry point. (Fault-based offence)	300	1,000
25	148(7)	Engaging in conduct that contravenes conditions on a permission to bring unloaded goods to an alternative biosecurity entry point. (Civil penalty provision)	120	300
26	149(1)	Receiving or possessing goods unloaded from an aircraft or vessel in contravention of biosecurity entry point requirements. (Civil penalty provision)	120	300
27	155(2)	Failing to report a reportable biosecurity incident in relation to goods aboard an aircraft or vessel. (Fault-based offence)	120	1,000
28	155(3)	Failing to report a reportable biosecurity incident in relation to goods aboard an aircraft or vessel. (Civil penalty provision)	120	300
29	156(2)	Failing to report a reportable biosecurity incident regarding goods for which a person is in charge. (Fault-based offence)	120	1,000
30	156(3)	Failing to report a reportable biosecurity incident regarding goods for which a person is in charge. (Civil penalty provision)	120	300

Schedule 3 Provisions

Schedule 3 makes amendments to the conduct of risk assessments for the purposes of determining prohibited goods and conditionally non-prohibited goods. A risk assessment is conducted to ensure the biosecurity risk associated with certain goods or certain classes of goods is appropriately managed for the purposes of making determinations to prohibit, suspend or conditionally prohibit the importation of certain goods, and for the granting of permits to import goods so prohibited or suspended.

Risk assessments currently

Currently risk assessments are required for:

• the conduct of a Biosecurity Import Risk Analysis (BIRA) under section 167
• the making of a determination that a good or class of good is a ‘prohibited good’ under section 173
• the making of a determination that a good or class of good is a ‘conditionally non-prohibited good’ (that is that specified conditions must be complied with for the good to be brought or imported into Australian territory) under section 174
• the granting of a permit to import conditionally non-prohibited goods under section 179
• the temporary suspension of bringing or importing goods into Australian territory under section 182.

Determinations under sections 173 and 174 are jointly made by the Director of Biosecurity (Agriculture Secretary) and the Director of Human Biosecurity (Commonwealth Chief Medical Officer), while the conduct of BIRAs under section 167, the granting of permits under section179 and temporary suspensions under section 182 are made by the Director of Biosecurity alone.

In each case there is a clause that provides that:

The Director of Biosecurity and the Director of Human Biosecurity must apply the ALOP for Australia in conducting a risk assessment for the purpose of [making the relevant decision] …

ALOP is the ‘appropriate level of protection’ as defined under section 5 of the Act:

The Appropriate Level of Protection (or ALOP) for Australia is a high level of sanitary and phytosanitary protection aimed at reducing biosecurity risks to a very low level, but not to zero.

Section 542 provides that the Director of Biosecurity may delegate their functions, including in conducting risk assessments under sections 174, 175 and 179, but only to SES employees within the Department of Agriculture. The SES employee to whom the function or power is delegated may (with some exceptions) subdelegate the function or power to a biosecurity officer, a biosecurity enforcement officer or an Executive Level 1 or 2 employee in the Agriculture Department.[185] Of the provisions discussed above, the powers under sections 167 and 179 may be sub-delegated. The powers under subsections 173(1), 174(1) and 182(1) to make determinations may not.[186] In 2020-21, there were 187 SES employees within the Department to which the Secretary could have delegated their power to make risk assessments under these sections.[187]

There is therefore a small number of employees (who all hold senior executive roles) who are able to conduct the risk assessment.

Proposed amendments

Schedule 3 amends the relevant sections so that the risk assessments under sections 173, 174, 179, and 182 must instead be conducted by a ‘biosecurity worker’ rather than the Director of Biosecurity and Director of Human Biosecurity (or their delegates).[188] It is proposed that the Director of Human Biosecurity and the Director of Biosecurity as relevant would still make the actual determinations under these sections.

In making these determinations, the Directors would need to be satisfied that the ALOP has been applied in the risk assessment prepared by the biosecurity worker and would need to consider the risk assessment (along with any other considerations they regard as relevant).[189]

The Bill does not propose to amend the requirement under section 167(2) that the Director of Biosecurity apply the ALOP when conducting a BIRA under that section.

‘Biosecurity worker’ is defined by proposed section 14A at item 3 of Schedule 3. A Biosecurity worker may be any employee of the Department of Agriculture or Department of Health, or an employee of another Commonwealth agency whose services have been made available to those Departments.

The Directors of Human Biosecurity and Director of Biosecurity may also specify (by written determination) consultants and contractors of the Departments (or their employees or subcontractors) who are ‘biosecurity workers’ for the purpose of this section.[190] These determinations are not legislative instruments.[191]

The Explanatory Memorandum provides:

The intention is that a biosecurity worker who conducts a risk assessment under new paragraphs 173(4)(a), 174(3)(a), 179(1A)(a) and 182(4)(a) would do so with specialised knowledge and skills that would enable them to make an accurate scientific assessment of the relevant biosecurity risks posed by particular goods or a class of goods.[192]

Committee and stakeholder views

Animal Health Australia and Fremantle Port Authorities noted their support for these changes.[193] Neither the Scrutiny Committee or the PJCHR noted concerns with this Schedule, and the Senate Rural and Regional Affairs and Transport Legislation Committee inquiry did not discuss it in detail.

Schedule 4 Provisions

Schedule 4 proposes to insert a new Part 3A into Chapter 11 of the Act (comprised of proposed sections 614A to 614H), creating a new framework for financial grants of assistance for the purpose of dealing with risks posed by diseases or pests.

Grants of financial assistance currently

The Explanatory Memorandum notes that the Commonwealth already makes a variety of grants for these purposes under section 32B of the Financial Framework (Supplementary Powers) Act 1997 (FFSP Act) by inserting new items for each program into the relevant Schedule to the Financial Framework (Supplementary Powers) Regulations 1997 (FFSP Regulations).[194]

Amendments proposed by the Bill

The Bill proposes to create a standalone power for the Agriculture Minister or Health Minister to make, vary or administer arrangements or grants for dealing with risks posed by diseases or pests on behalf of the Commonwealth, including with states and territories.

Activities in relation to which a grant or arrangement may be made

Proposed subsection 614B(1) lists the activities in relation to which a payment arrangement or grant of financial assistance may be made:

• activities or research relating to identifying, preventing, preparing for or managing biosecurity risks (proposed paragraph 614B(1)(a))
• activities in or outside of Australian territory relating to dealing with the risk covered by proposed subsection 614B(2) (discussed below), including, but not limited to, improving the capacity of foreign countries to respond to or manage that risk (proposed paragraph 614B(1)(b))
• activities relating to communicating information in or outside Australian territory about the identification, prevention, or management of, or preparation for, biosecurity risks or the risk covered by proposed subsection 614B(2) (proposed paragraph 614B(1)(c))
• activities relating to supporting or enhancing state or territory or industry led biosecurity incident response programs, or biosecurity incident recovery programs, dealing with biosecurity risks (proposed paragraph 614B(1)(d))
• activities relating to identifying or managing established pests or established diseases to stop the spread of such pests or diseases (proposed paragraph 614B(1)(e))
• activities relating to furthering the objects of the Biosecurity Act (proposed paragraph 614B(1)(f))
•  a matter that is incidental or ancillary to an activity covered by the above paragraphs (proposed paragraph 614B(1)(g)).

The ‘biosecurity risk’ covered by proposed subsection 614B(2) is:

• the likelihood of a disease or pest, entering, emerging, establishing itself, or spreading in a foreign country and
• the potential for:
  • the disease or pest to cause harm to human, animal, or plant health or to the environment in that foreign country
  • economic consequences in that foreign country associated with the entry, emergence, establishment or spread of the disease or pest.

Proposed section 614C requires that grants to states or territories be set out in a written agreement between the Commonwealth and the state or territory, which sets out the terms and conditions on which the financial assistance is granted. The Health Minister or the Agriculture Minister may enter into such arrangements on behalf of the Commonwealth.

Delegation

Proposed subsection 614H(1) provides that the Health Minister may delegate any or all of their powers under section 614B to the Health Secretary, or an SES employee or acting SES employee in any Department of State of the Commonwealth.

Proposed subsection 614H(2) provides that the Health Minister’s powers under section 614C to enter into arrangements of financial assistance to states and territories may only be delegated to the Health Secretary or an SES or acting SES employee in the Department of Health. This is narrower than the power to delegate 614B powers.

Section 643 of the Biosecurity Act already provides for wide powers for the Agriculture Minister to delegate their functions or powers under the Act to the Agriculture Secretary or an SES employee, or acting SES employee in the Agriculture Department. Item 7 proposes to insert subsection 634(1A) which would further broaden the powers to delegate the Agriculture Minister’s powers under proposed section 614B to any SES employee or acting SES employee in a Department of State of the Commonwealth, mirroring the Health Minister’s powers under proposed subsection 614(H)(1).

Other Provisions

Proposed section 614D provides further constitutional grounds of operation of the grant-making power beyond the grounds already listed in section 24 of the Act (which sets out the 10 existing heads of power upon which the Biosecurity Act relies). The three additional heads are to make a grant of assistance with respect to states or territories, the territories power and with respect to people to whom subsection 51(xxvi) applies (that is, the people of any race for whom it is deemed necessary to make special laws).

This would for instance allow grants to be made to Aboriginal or Torres Strait Islander bodies for the purposes described in proposed section 614B without the requirement that the grant be able to be characterised as one with respect to the grounds listed in section 24.

Proposed sections 614E and 614F provide that the operation of this part does not by implication limit the operation of the Financial Framework (Supplementary Powers) Act or the Executive power of the Commonwealth respectively. Proposed section 614F is a standard provision in legislative schemes creating powers to make grants or enter arrangements, with section 41 of the Financial Framework (Supplementary Powers) Act being another example of its use.

Proposed section 614G provides that the Agriculture Secretary and the Health Secretary must include the total number of grants, and total amounts paid under section 614B by the Agriculture or Health Ministers, respectively, in their departmental annual reports.

Senate Select Committee for the Scrutiny of Bills Concerns

The Committee raised concerns with the broad discretionary power given to the Ministers by Schedule 4 of the Bill in Scrutiny Digest 15, noting:

• the lack of Parliamentary Scrutiny of grants or arrangements with states or territories
• the lack of guidance as to how the power might be exercised
• the lack of information as to the terms or conditions on which financial assistance may be granted (other than that they be in writing)
• the lack of a requirement to table the written agreement between the Commonwealth and the state or territory in the Senate. ^[195]

The Committee requested that the Minister advise the Committee:

• why the broad grant of discretionary power to make grants and arrangements under section 614B is necessary and appropriate
• whether the Bill can be amended to include at least high-level guidance as to the terms and conditions on which financial assistance may be granted
• whether the Bill can be amended to require that written agreements with states and territories about grants of financial assistance under proposed section 614C are tabled in the Parliament within 15 sitting days after being made and published online within 30 days after being made.

Beyond noting the existence of the recommendation, the Rural and Regional Affairs and Transport Legislation Committee did not substantively comment on this element of the Bill, and neither did any stakeholders to that Senate inquiry.[196]

Concluding comments

The objectives of the Bill are uncontroversial among stakeholders. The introduction of a group human biosecurity direction framework as recommended by both the NSW Ruby Princess Commission of Inquiry and the Inspector-General of Biosecurity’s Report is universally acknowledged as a necessary innovation on Australia’s human biosecurity framework. The other amendments were largely uncontroversial.

However, the Biosecurity Amendment (Enhanced Risk Management) Bill 2021 has been the subject of relatively limited consultation and examination, with no Exposure Draft released prior to its introduction, and a relatively brief inquiry by the Senate Rural and Regional Affairs and Transport Legislation Committee.

Both the PJCHR and the Senate Standing Committee for the Scrutiny of Bills have substantial scrutiny concerns with aspects of the Bill, particularly the implementation of the group human biosecurity directions framework.[197]

While the Bill appears to envision that group directions would be used as a temporary, interim measure prior to the issuing of individual human biosecurity control orders, as mentioned earlier in this Digest, there is no mechanism in the Bill that requires this to happen.

The human biosecurity emergency powers currently confer very broad legislative power on the Minister for Health. Exercises of these powers are not subject to disallowance by the Parliament and displace any inconsistent Australian law.[198]

The Constitution vests legislative power in the Parliament.[199] While legislative power can be delegated, it is a principle of constitutional law that Parliament cannot abdicate its responsibility to legislate.[200] During the COVID-19 pandemic, federal courts have reaffirmed that ‘[t]he Executive Government is the arm of government capable of and empowered to respond to a crisis’[201] in upholding the validity of both State and Commonwealth COVID-19 emergency power schemes.[202] This is consistent with the High Court’s acceptance of wide delegations of legislative power during war-time.[203]

Crises however pass, and submissions to the Senate Scrutiny of Delegated Legislation Committee Inquiry into the exemption of delegated legislation from parliamentary oversight raised concerns that the wide delegation and non-disallowable nature of the human biosecurity emergency powers made them a ‘potentially unconstitutional abdication of responsibility by the Parliament for supervision of delegations’.[204]

Appendix A: Scrutiny of Delegated Committee Inquiry

On 30 April 2020, the Senate Scrutiny of Delegated Legislation Committee resolved to ‘inquire into and report on the exemption of delegated legislation from parliamentary oversight’, with the terms of reference including particular regard to:

the appropriateness of exempting delegated legislation made in times of emergency, including in response to the COVID-19 pandemic, from parliamentary oversight.[205]

The Committee received 30 submissions and held three public hearings, before making an interim report on 2 December 2020 and a final report on 16 March 2021.[206] Recommendations 2, 4, 5, 6, 7, 8, 9, and 18 of the interim report directly related to the operation of the Biosecurity Act, with Recommendations 8 and 9 providing: 

The committee recommends that the government propose amendments to the Biosecurity Act 2015 to provide that declarations of human biosecurity emergency periods and associated extensions made under sections 475 and 476 of the Act are subject to disallowance.

The committee recommends that the government propose amendments to the Biosecurity Act 2015 to provide that human biosecurity emergency requirements and directions made under sections 477 and 478 of the Act are subject to disallowance.[207]

At the time of writing, the Government has not formally responded to either the interim or final report and on 21 October 2021 the Senate made an order for the production of documents relating to the Government’s response to the reports no later than 6PM Monday 22 November,[208] which the Government guaranteed would be met.[209]

Delegated Legislation Monitors 14 and 15 of 2021

In Delegated Legislation Monitor 14 and 15 of 2021, the Committee reiterated these concerns in relation to various non-disallowable HBE requirement determinations. In Delegated Legislation Monitor No 14, the Committee sought the Minister’s detailed advice as to:

• why it is considered necessary and appropriate for the instrument to be exempt from disallowance; and

• whether the government will consider moving amendments to the Biosecurity Amendment (Enhanced Risk Management) Bill 2021 to amend section 477 of the Biosecurity Act to provide that any determinations setting out emergency requirements in the future will be subject to disallowance.[210]

The Committee then noted ‘that if the government is not amenable to moving such an amendment it may consider moving its own amendment to [the] bill’.[211]

Following the most recent extension of the HBE period in the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No. 3) Instrument 2021, the Committee again repeated its earlier concerns in Monitor 15:

…. the committee requests the minister's detailed advice as to why it is considered necessary and appropriate for the instrument to be exempt from disallowance. The advice should specifically address the considerations as to why it is appropriate for emergency related delegated legislation to be subject to disallowance outlined at paragraphs 4.48 to 4.54 of the committee's interim report of its inquiry into the exemption of delegated legislation from parliamentary oversight.

The committee also reiterates its strong view, expressed in Delegated Legislation Monitor 14 of 2021, that amendments should be moved to the Biosecurity Amendment (Enhanced Risk Management) Bill 2021 to amend section 476 of the Biosecurity Act to provide that any future variations to extend a human biosecurity emergency period will be subject to disallowance.[212]

The Minister for Health, Greg Hunt, responded on 19 October 2021. The Minister advised that he would not support amendments to this Bill to make the Human Biosecurity Emergency powers disallowable:

As we have seen throughout the pandemic, emergency determinations have been critical in managing human biosecurity risks. Subjecting these determinations to disallowance would undermine the decision-making and risk management processes. The possibility of disallowance would create considerable uncertainty for government, industry and individuals. Disallowance would also undermine the urgent response required to effectively manage emerging biosecurity risks. It is necessary and appropriate that these instruments be exempt from disallowance and not vulnerable to political considerations[213].

On 21 October 2021, in tabling the Delegated Legislation Monitor 15, the Chair of the Committee, Senator Fierravanti-Wells, noted the Minister’s reply:

Yesterday, Minister Hunt advised that he considers that such amendments are not necessary. For these reasons, not only will the committee be seeking the minister's advice about this instrument's exemption from disallowance, but the committee also intends to move amendments to the Biosecurity Amendment (Enhanced Risk Management) Bill 2021, which is currently before the parliament, to reflect the committee's unanimous view that any future determinations and extensions should be subject to disallowance.[214]

Text of the amendments

At the time of writing, the text of the amendments has not yet been circulated. However, to implement the relevant recommendations of the Interim Report, the following amendments would be necessary:

• an amendment to subsection 475(2) to remove the words ‘but section 42 (disallowance) of the Legislation Act 2003 does not apply to the declaration’ to make the declaration of a human biosecurity emergency disallowable (Recommendation 8)
• an amendment to subsection 476(2) to remove the words ‘but section 42 (disallowance) of the Legislation Act 2003 does not apply to the variation’ to make the extension of a human biosecurity emergency period disallowable (Recommendation 8)
• an amendment to subsection 477(2) to remove the words ‘but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination’, to make determinations of human biosecurity requirements disallowable (Recommendation 9)
• an amendment to section 478 to provide that HBE directions are subject to disallowance. This may require a restructuring of this section, as currently HBE directions are not legislative instruments.[215]

Appendix B: Human biosecurity emergency powers

Chapter 8, Part 2 of the Biosecurity Act concerns the human biosecurity emergency powers. Under these powers, the Governor-General may declare a ‘human biosecurity emergency’ on the advice of the Minister for Health, if the Minister is satisfied that:

• a listed human disease is posing a severe and immediate threat, or is causing harm, to human health on a nationally significant scale[216] and
• the declaration is necessary to prevent or control the entry of the listed human disease into Australia or the emergence, establishment or spread of the listed human disease in Australia.[217]

Declarations are legislative instruments but are not subject to disallowance.[218] A declaration lasts for a maximum of three months,[219] however it may be extended an indefinite number of times in increments of up to three months provided the Health Minister remains satisfied that the criteria for declaring a human biosecurity emergency continue to apply.[220] Extensions of a declaration are also not subject to disallowance.[221]

During the human biosecurity emergency period, the Health Minister may:

• issue any direction to any person[222]
• determine any requirement[223]

that the Minister considers is necessary to:

• prevent or control the entry to, emergence, establishment, or spread of the declared listed human disease in Australia
• prevent or control the spread of the declared listed human disease to another country or
• implement a World Health Organization (WHO) Recommendation under the International Health Regulations.[224]

The Minister must also be satisfied that the direction/requirement is:

• likely to be effective in, or contribute to, achieving the purpose for which it is to be given
• appropriate and adapted to achieve the purpose for which it is to be given
• no more restrictive or intrusive than is required in the circumstances
• if a requirement, that the manner in which the requirement is to be applied is no more restrictive or intrusive than required in the circumstances and
• if the direction/requirement is to apply during a period—that period is only as long as is necessary.[225]

A requirement is a non-disallowable legislative instrument and must be lodged for registration on the Federal Register of Legislation.[226] Directions are not required to be published.

These requirements and directions may be given ‘despite any provision of any other Australian law’.[227] This is known as a ‘Henry VIII’ clause as it allows human biosecurity directions to suspend or override the operation of inconsistent state or Commonwealth law and reverses the usual relationship where delegated legislation is required to be consistent with primary legislation passed by Parliament.[228]

Failure to comply with a human biosecurity emergency (HBE) direction or requirement that applies to that person is a criminal offence punishable by five years imprisonment, 300 penalty units or both.[229]

Limitations

The Minister must exercise the human biosecurity emergency powers personally, they cannot be delegated.[230] However, there is nothing preventing the Health Minister from making a human biosecurity requirement that itself delegates substantial decision-making power to others, as provided for in the Overseas Travel Ban Determination.[231]

Formally a determination or requirement must not require an individual to be subject to a biosecurity measure that could be included in a human biosecurity control order, such as detention, vaccination, or examination. ^[232]

In LibertyWorks Inc v Commonwealth of Australia however, the Full Court of the Federal Court read down this provision, holding that the restriction only applied if it concerned a single ‘specified individual’:

In our view, the purpose of s 477(6) (and its analogues elsewhere in the Act) is to ensure that the powers to make determinations or directions or to give notices of general application are not used to impose biosecurity measures on an individual that could, instead, be imposed on him or her by means of a human biosecurity control order. By “individual” we mean someone answering the description in s 60(2). That is a specific individual. Section 477(6) does not preclude the making of a determination during a human biosecurity emergency which is not directed at a particular individual. As the Commonwealth submitted, it is apparent that the scheme established by Pt 3 of Ch 2, which requires a human biosecurity control order to be imposed on a case-by-case basis by reference to a particular individual, evinces an intention contrary to the presumption in s 23(b) of the Acts Interpretation Act that a reference to the singular includes a reference to the plural.[233] [emphasis added]

HBE directions under section 478 cannot be given to an officer or employee of a state, territory or state or territory body unless the direction is in accordance with an agreement between the Commonwealth and the state, territory, or body.[234] This is a constitutional safeguard to ensure that a direction does not risk being invalid because it would contravene the inter-governmental immunities doctrine.

Use during the COVID-19 Pandemic

The Governor-General declared a human biosecurity emergency in response to the COVID-19 pandemic on 18 March 2020, in the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020.

This Declaration has now been extended six times, most recently by the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No. 3) Instrument 2021 and remains in force.[235]

During the COVID-19 Pandemic, the HBE powers have been used to make eight different lineages of HBE requirements under section 477, of which three remain in force. As HBE Directions under section 478 of the Act are not legislative instruments, it is uncertain if any such directions have been made, or if they remain in force.

Cruise ships determination

SEE ALSO: COVID-19 Legislative response—Human Biosecurity Emergency Declaration Explainer

The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Cruise Ships) Determination 2020 (cruise ships determination) was the first HBE requirement made by the Health Minister, and was originally titled the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements) Determination 2020.

The cruise ships determination places various requirements on cruise ships, preventing cruise ships from entering Australian territory or Australian ports, and requiring foreign cruise ships to leave Australian territory, subject to specified exemptions, including where the ship has received permission from the Comptroller-General of Customs to enter Australian territory or an Australian port.

Overseas travel ban determination

SEE ALSO: COVID-19 Legislative response—Human Biosecurity Emergency Declaration Explainer

The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (overseas travel ban determination) was the second emergency determination made by the Health Minister.

It bans Australian citizens and permanent residents from leaving Australian territory without an exemption, which may be general or granted to individuals by the Australian Border Force (ABF) Commissioner or ABF employees in exceptional circumstances.

The overseas travel ban determination has been revised numerous times since its introduction on 25 March 2020, mostly recently on 26 October 2021, which inserted a general exemption for fully vaccinated persons.

The overseas travel ban was the subject of judicial challenge in LibertyWorks Inc v Commonwealth of Australia which upheld the determination.[236]

Remote communities determination

SEE ALSO: COVID-19 Legislative response—Human Biosecurity Emergency Declaration—Remote Communities

On 26 March 2020, the Health Minister made the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Remote Communities) Determination 2020.

The determination controlled access to certain remote Aboriginal communities and was amended numerous times before being repealed in July 2020.

Retail outlet determination

The Health Minister made the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Retail Outlets at International Airports) Determination 2020 on 28 March 2020.

The original determination generally required that retail outlets in the international area of a ‘designated international airport’ (a set of 14 airports defined under the determination), cease trading outside a narrow set of exemptions.

The Determination was amended on 30 July 2020 to broaden the scheme of general and discretionary exemptions,[237] and was repealed on 12 of November 2021.[238]

Essential goods determination

SEE ALSO: COVID-19 Legislative response—Human Biosecurity Emergency Declaration—Essential Goods

The Health Minister made the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Essential Goods) Determination 2020 on 30 March 2020.

The determination primarily prohibited price gouging of personal protection equipment, hand sanitiser and alcohol wipes, criminalising reselling such goods at more than 120% of the price that the goods were bought for.

The Essential goods determination was repealed on 25 January 2021.[239]

COVIDSafe determination

SEE ALSO: Privacy Amendment (Public Health Contact Information) Bill Digest 2020

On 25 April 2020, the Health Minister made the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Public Health Contact Information) Determination 2020.

This determination included the legal protections for the COVIDSafe App before the passage of the Privacy Amendment (Public Health Contact Information) Act 2020 which repealed the determination as it translated those protections directly into the Privacy Act itself.

Incoming international flights determination

The Health Minister made the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Incoming International Flights) Determination 2021 on 21 January 2021, which remains in force.

The Incoming international flights determination places various requirements on inbound international flight operators and passengers, including requiring that passengers demonstrate proof of a negative PCR COVID-19 test within three days prior to flight departure.

India travel determination

SEE ALSO: COVID-19 Human Biosecurity Emergency Declaration—India Travel Pause

The Health Minister made the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021 on 30 April 2021, commencing from 3 May 2021.

The determination prevented passengers (including Australian citizens) who had been in India in the previous 14 days from returning to Australia, unless an exemption applied.

The India travel determination was the subject a judicial challenge in Newman v Minister for Health and Aged Care, which upheld the determination.[240] The determination was repealed on 15 May 2021 in accordance with its internal sunset clause.[241]