Key points

The Bill amends the Biosecurity Act 2015 to:

• create new powers for the Agriculture Minister to, by non-disallowable legislative instrument, determine entry requirements and preventative biosecurity measures in relation to non‑human biosecurity risks (such as foot and mouth disease)
• make amendments to pratique and pre-arrival reporting requirements of inbound aircraft and vessels, and to increase penalties and the scope of powers of officers
• otherwise increase the pecuniary penalties for various fault-based offences and civil penalty provisions in the Biosecurity Act
• allow a new category of officer, a biosecurity worker, to make risk assessments of goods
• 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
• repeal and replace provisions related to management of information under the Biosecurity Act, to apply to a broader scope of information and allow for a broader range of authorised uses, including the power to define both by regulation
• reform provisions relating to ‘approved arrangements’ to increase the discretion and powers of officials in managing these arrangements, and alterations to the compensation scheme for damaged or destroyed goods, conveyances or premises.

Introductory Info

Date introduced: 28 September 2022
House: Senate
Portfolio: Agriculture, Fisheries and Forestry
Commencement:  Schedules 1, 4, 5, 6, 7 commence on the day after Royal Assent.
Schedules 2 and 3 commence on the earlier of proclamation or 6 months after Royal Assent.

Purpose of the Bill

The Biosecurity Amendment (Strengthening Biosecurity) Bill 2022 (the Bill or BASB Bill) amends the Biosecurity Act 2015 (the Biosecurity Act) to:

• create new powers for the Agriculture Minister to, by non-disallowable legislative instrument, determine entry requirements and preventative biosecurity measures in relation to non‑human biosecurity risks (such as foot and mouth disease (FMD))
• make amendments to pratique[1] and pre-arrival reporting requirements of inbound aircraft and vessels, and increase penalties and the scope of powers of officers
• otherwise increase the pecuniary penalties for various fault-based offences and civil penalty provisions in the Biosecurity Act
• allow a new category of officer, a biosecurity worker, to make risk assessments of goods
• 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
• repeal and replace provisions related to management of information under the Biosecurity Act, to apply to a broader scope of information and allow for a broader range of authorised uses, including the power to define both by regulation
• to reform provisions relating to ‘approved arrangements’[2] to increase the discretion and powers of officials in managing these arrangements, and alterations to the compensation scheme for damaged or destroyed goods, conveyances or premises.

Structure of the Bill

This Bill has seven schedules. Some schedules are very similar or identical to schedules of the Biosecurity Amendment (Enhanced Risk Management) Bill 2021 (the BAERM Bill), which was before Parliament prior to the 2022 election and lapsed at the dissolution of the 46th Parliament. All schedules of the Bill amend the Biosecurity Act.

• Schedule 1 consists of two parts:
  • Part 1 proposes a new power for the Agriculture Minister to determine entry requirements in relation to non-human biosecurity risks (such as FMD), on similar terms to the existing power the Health Minister has to determine entry requirements in relation to listed human diseases (such as COVID-19)
  • Part 2 proposes a new power for the Agriculture Minister to determine preventative biosecurity measures in relation to non-human biosecurity risks, on similar terms to the existing power the Health Minister has to determine preventative biosecurity measures in relation to listed human diseases
• Schedule 2 consist of two parts:
  • Part 1 amends the legislative scheme of pratique
  • Part 2 alters pre-arrival reporting requirements
• Schedule 3 largely repeals and replaces the existing scheme of information management in Part 2 of Chapter 11 of the Biosecurity Act
• Schedule 4 increases the maximum penalty for 80 separate offences within the Biosecurity Act, in two parts:
  • Part 1 increases the maximum penalty for 17 offences and 13 civil penalty provisions in Chapter 3 of the Biosecurity Act, which deals with managing biosecurity risks related to goods
  • Part 2 increases the maximum penalty for 29 offences and 21 civil penalty provisions in Chapter 4 of the Biosecurity Act, which deals with managing biosecurity risks related to conveyances
• Schedule 5 alters the requirements for conducting risk assessments in relation to goods being imported or brought into Australia
• Schedule 6 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
• Schedule 7 makes various changes to the approved arrangement and compensation provisions.

Comparison with the Biosecurity Amendment (Enhanced Risk Management) Bill 2021

Some Schedules of the Bill are very similar or identical to the BAERM Bill as introduced by the previous Government in 2021. Table 1 compares the schedules of the two Bills.

Table 1:     Comparison of schedules of the two biosecurity Bills

BAERM Bill	BASB Bill	Notes
No equivalent	Schedule 1 – Increasing Protection from Diseases and Pests	New Schedule.
Schedule 1, Part 1 – Pratique	Schedule 2, Part 1 – Pratique	Identical.
Schedule 1, Part 2 – Human Biosecurity Group Directions	No equivalent	Schedule omitted.
Schedule 1, Part 3 – Pre‑arrival Reporting	Schedule 2, Part 2 – Pre-arrival Reporting	Minor technical drafting changes, otherwise identical.
No equivalent	Schedule 3 – Information Management	New Schedule.
Schedule 2 – Strengthening Penalties	Schedule 4 – Strengthening Penalties	Part 1 is identical to BAERM Schedule 2. Part 2 is entirely new.
Schedule 3 – Risk Assessment	Schedule 5 – Risk Assessment	Minor, non-substantial technical drafting changes, otherwise identical.
Schedule 4 – Arrangements and Grants for Dealing with Risks Posed by Diseases or Pests	Schedule 6 – Arrangements and Grants for Dealing with Risks Posed by Diseases or Pests	Minor technical drafting changes, otherwise identical.
No equivalent	Schedule 7 – Approved Arrangements and Compensation	New Schedule.

Source: Parliamentary Library research.

The Human Biosecurity Group Directions framework in Schedule 1, Part 2 of the BAERM Bill was the centrepiece of that Bill. Its omission is discussed later in this Digest.

Background

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.[3] 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.[4]

This Bill’s seven different schedules have different backgrounds and origins.

Schedule 1

On 9 May 2022, the Department of Agriculture, Fisheries and Forestry stated that FMD had been detected in Indonesia.[5] The Secretary of the Department, Andrew Metcalfe AO has stated that an outbreak of FMD would be ’utterly devastating for Australian farmers, and could cost up to $80 billion to the agricultural sector over ten years’.[6]

In response, the Department of Agriculture took several measures under the Biosecurity Act, including establishing a biosecurity response zone under section 365 of the Act, through the Biosecurity (Foot and Mouth Disease Biosecurity Response Zone) Determination 2022.

On 28 July 2022, the Senate referred an inquiry to the Rural and Regional Affairs and Transport References Committee on the Adequacy of Australia’s Biosecurity Measures and Response Preparedness, in Particular with Respect to Foot-and-Mouth Disease and Varroa Mite. This inquiry is ongoing, with a reporting date of 24 November 2022.

It does not appear that this inquiry directly prompted the amendments in Schedule 1. The Department in its submission to the inquiry did not foreshadow Schedule 1,[7] and it does not appear that any other stakeholder called for these powers explicitly.

Nor are these amendments foreshadowed or described in the recent National Biosecurity Strategy, which otherwise discusses the threat of FMD. The new powers in this Schedule do not appear to be externally prompted, however, the Explanatory Memorandum does describe these powers as ‘vital’ stating: 

To this end, the measures in Schedule 1 would significantly enhance the biosecurity framework by creating new, vital powers aimed at preventing, or reducing the risk that, these diseases enter Australia, and to combat the devastating effect that these diseases would pose to plant and animal health, the environment, and the economy. These measures are a crucial new tool to maintain Australia’s unique biosecurity status and to protect the nation’s animals, plants, environment and related industries.[8]

Schedule 2

Schedule 2 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).

The background to these reports was discussed in detail in the BAERM Bill Digest.[9] Both reports had recommended reforming pratique provisions to make it easier for human biosecurity officers to withhold pratique in circumstances where they suspected that a vessel had been exposed to a listed human disease.

Both reports also recommended revised pre-arrival report requirements to make explicit a requirement to update superseded health information. The NSW Commission recommended:  

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.

…

2.23 That the Biosecurity Act make explicit a requirement to update superseded human health information.[10]

The Inspector-General made 42 recommendations, including 6 that required amendment to the Biosecurity Act, which relevantly included:

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 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.[11]

The Department of Agriculture and Water Resources ((DAWE), now the Department of Agriculture, Fisheries and Forestry (DAFF)) agreed in principle to these recommendations,[12] and subsequently introduced them in Schedule 1, Parts 1 and 3 of the BAERM Bill. The provisions have been reintroduced in a virtually identical way in Schedule 2 of this Bill.

Schedule 3

Schedule 3 proposes to effectively repeal and replace the entirety of Part 2 of Chapter 11 of the Act, which concerns the management of information under the Act. The new Part differs substantially from the existing ‘confidentiality of information’ provisions, replacing and expanding definitions, reconceptualising offences, and reconceptualising and expanding permissible disclosures.

It is unclear what exactly prompted Schedule 3, or why in the Government’s view the existing provisions are inadequate. The Explanatory Memorandum states that this Schedule exists to ‘enable more effective sharing of information with government agencies and other bodies’,[13] noting:

To support the management of biosecurity risks and the effective administration of the Biosecurity Act, it is also necessary to improve the operation of the information management provisions. These amendments would provide for specific authorisations for the use and disclosure of relevant information, while ensuring that protected information is afforded appropriate safeguards.[14]

This Schedule does not appear to be in response to recommendations of any inquiry or report, a call by the industry, or any other public concern, and it does not appear that any public consultation with industry was done or these amendments foreshadowed.

Schedule 4

Schedule 4 proposes to increase the maximum penalty for various offences and civil penalty provisions in Chapters 3 and 4 of the Act.

While not stated within the explanatory materials, Schedule 4 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.[15] The Inspector-General noted:

… 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.[16]

This Bill, as well as both the BAERM Bill and the Biosecurity Amendment (Strengthening Penalties) Act 2021 (BASPA), contain provisions increasing penalties.[17] The explanatory materials to all three justified these changes on the basis that stronger penalties were required to prevent the penalties being seen as just a ‘cost of business’.[18] The Explanatory Memorandum to this Bill for instance notes:

A stronger penalty regime is necessary to address the evolving biosecurity risk environment and to ensure that Australia has in place an effective deterrent against non-compliance, particularly in a regulatory environment where non-compliance with current penalties may be seen as ‘a cost of doing business’. Increases to penalty amounts in this Bill would ensure that the civil and criminal penalty units more appropriately reflect the impact the contraventions may have on Australia’s biosecurity status, market access and economy than is currently the case.[19]

This Bill proposes to increase penalties in relation to Chapter 4 of the Act in addition to the increases in Chapter 3 of the Act previously proposed by the BAERM Bill.

Schedule 5

Schedule 5 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.

This Schedule is identical to the previous Schedule 3 in the BAERM Bill, and was discussed in the Bills Digest to that Bill.[20]

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.

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 be the impetus behind Schedule 3 to the BAERM Bill, and Schedule 5 to this Bill.

Schedule 6

Schedule 6 proposes to create a new legislative authority for the Commonwealth to make grants of financial assistance to respond to risks posed by diseases or pests. It is substantially the same as Schedule 4 to the BAERM Bill.

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).[21]

The Explanatory Memorandum further notes:

Schedule 6 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.[22]

Schedule 7

Schedule 7 makes various changes to provisions relating to approved arrangements and compensation in the Biosecurity Act. These changes increase the flexibility of various administrative processes and increase the discretionary powers of the Director of Human Biosecurity and Director of Biosecurity in relation to approved arrangements and compensation.  

Schedule 7 is a schedule new to this version of the Bill, there are no analogous provisions in the BAERM Bill.

An ‘approved arrangement’ is an arrangement where a biosecurity industry participant may carry out certain biosecurity activities to manage biosecurity risks associated with goods, premises or other things. A biosecurity industry participant covered by an approved arrangement is authorised and required to carry out biosecurity activities in accordance with the approved arrangement.[23]

The Explanatory Memorandum does not state what the impetus for this Schedule is. It does not appear to be in response to any inquiry or recommendation or other external pressure. The Explanatory Memorandum does note, however:

The policy intention is that these measures will provide clarity, streamline the administration of approved arrangements, reduce compliance costs and support more efficient movement of goods into Australian territory.[24]

As discussed in provisions section of this Digest, the revised compensation provisions may be intended to limit the ability of biosecurity industry participants to claim compensation for damage they themselves cause.[25]

Committee consideration

On 26 October 2022 the Senate Committee for the Selection of Bills decided not to refer this Bill for Committee Inquiry.[26]

The BAERM Bill had been referred to the Rural and Regional Affairs and Transport Legislation Committee. The Committee had previously recommended that the BAERM Bill be passed in their its inquiry into that Bill in 2021.[27]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills considered this Bill in Scrutiny Digest No. 6 of 2022, published on 26 October 2022 on pages 1–11. [28]

The Committee expressed considerable scrutiny concerns with elements of Schedule 1 of the Bill, but also elements of Schedules 6 and 7. These concerns are discussed in the relevant provisions parts of this Digest.

Policy position of non-government parties/independents

At the time of writing, no non-government parties or independents have commented on this Bill.

Position of major interest groups

At the time of writing, no major interest groups had commented on the Bill explicitly. The submissions to the ongoing Rural and Regional Affairs and Transport References Committee on the Adequacy of Australia’s Biosecurity Measures and Response Preparedness, in Particular With Respect to Foot-And-Mouth Disease and Varroa Mite may assist.

The position of stakeholder groups to the previous Bill was discussed in the BAERM Bills Digest.[29]

Financial implications

The Explanatory Memorandum states that there are no financial implications to the Australian Government Budget due to the Bill.[30]

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.[31]

Parliamentary Joint Committee on Human Rights

At the time of writing, the PJCHR had not commented on this Bill, deferring consideration of this Bill in the Human Rights Scrutiny Report No. 5 on 20 October 2022.[32]

Key Issue: Entry Requirements and preventative biosecurity measures

Schedule 1 proposes to create new powers for the Agriculture Minister to determine entry requirements and preventative biosecurity measures in relation to a ‘disease or pest that is considered to pose an unacceptable level of biosecurity risk’ on substantially similar terms as to the current powers that the Health Minister has to determine entry requirements and preventable biosecurity in relation to listed human diseases, under Part 2 of Chapter 2 to the Act.

The provisions of proposed sections 196A, 196B and 196C (entry requirements, at item 5 of Schedule 1) and proposed sections 393B and 393C (preventative biosecurity measures, at item 11 of Schedule 1) are largely satisfactorily described in the Explanatory Memorandum. There are, however, a few key issues that Parliamentarians should be aware of.

Entry requirements and preventative biosecurity measures are not disallowable by Parliament

Proposed subsections 196A(4) (entry requirements) and 393B(4) (preventative biosecurity measures) both provide that:

(4)   A determination made under subsection (2) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the instrument

This makes both entry requirements and preventative biosecurity measures legislative instruments that Parliament cannot disallow.

During the COVID-19 Pandemic, both the Senate Standing Committee for the Scrutiny of Delegated Legislation (SSCSDL) and Senate Standing Committee for the Scrutiny of Bills (SSCSB) have been critical of the large number of powers in the Biosecurity Act that were not disallowable by Parliament.

The SSCSDL launched an Inquiry into the Exemption of Delegated Legislation from Parliamentary Oversight which made explicit recommendations relating to the Biosecurity Act in its interim report.[33] The SSCSB also conducted a Review of exemption from disallowance provisions in the Biosecurity Act 2015.[34] Both reports were critical of existing Biosecurity Act provisions that exempted various instruments from disallowance.

Senator Fierravanti-Wells, the then Chair of the SSCSDL, moved an amendment to the BAERM Bill that would have made many currently non-disallowable legislative instruments disallowable, including entry requirements under section 44 and preventative biosecurity measures under section 51.[35] This included amendments to the Health Minister’s existing power to determine entry requirements and preventative biosecurity measures.[36]

The SSCSB in its Scrutiny Digest No. 6 of 2022 raised scrutiny concerns about the exemption of disallowance of these new powers in the Bill, reiterating the Senate’s position that legislative instruments should only be exempted from disallowance in ’exceptional circumstances’. The Committee noted the Explanatory Memorandum’s argument that these powers should be exempted due to a ‘significant impact on technical and scientifically based decision-making’,[37] and noted:

1.19    However, the committee notes that whether a matter is scientific or technical is not, of itself, directly relevant to considering whether that matter should be exempt from parliamentary disallowance. Neither is it directly relevant that the impacts of disallowing an instrument may be significant. Simply stating that a matter is technically complex, or has significant policy implications, is not an adequate justification for removing democratic oversight over a law of the Commonwealth. As discussed above, this is particularly so if that law may impact on personal rights or liberties. The committee also notes that there is nothing in the bill limiting decisions made under proposed sections 196A, 196B or 393B to exclusively technical or scientific matters.

1.20    The committee has made extensive comments on scientific and technical matters and on the risk that disallowance of an instrument may lead to significant consequences in the context of the Biosecurity Act, most recently in Scrutiny Digest 1 of 2022 The committee reiterates those comments here.

1.21    In particular, the committee reiterates that it is not clear why parliamentarians would be incapable of taking into account scientific and technical evidence when considering the appropriateness of an instrument. The committee notes that parliamentarians are accountable to their electors in relation to how they exercise their law-making functions, including the power to disallow a legislative instrument and any resulting outcomes that flow from that disallowance. [Footnotes omitted][38]

Chapter 2 safeguards do not apply

Chapter 2 of the Biosecurity Act is a regulatory scheme of non-emergency human biosecurity powers. It includes the power to determine entry requirements under section 44 and preventative biosecurity measures under section 51 in relation to listed human diseases.

However, the exercise of all powers in Chapter 2 is limited by general protections set out in Part 2 of that Chapter. Relevantly:

• Section 35 provides that an entry requirement or preventative biosecurity measure must not interfere with urgent or life-threatening medical needs.
• Sections 36–41 provide for special provisions for children and incapable persons subject to entry requirements or preventative biosecurity measures. Section 37, for instance, requires that relevant officers contact a parent, guardian or next of kin before applying a requirement.

Because the new powers to set non-human biosecurity entry requirements and preventative biosecurity measures are not within Chapter 2, these safeguards do not apply.

Scope of diseases and pests to which powers apply

The existing power to determine entry requirements and preventative biosecurity measures in relation to human health apply only in relation to listed human diseases.

The new entry requirements and preventative biosecurity measures powers proposed in this Bill engage upon ‘a disease or pest that is considered to pose an unacceptable level of biosecurity risk’. Proposed subsection 196A(5) (at item 5 of Schedule 1), for instance, provides:

5. A requirement must not be specified in a determination unless the Agriculture Minister is satisfied that:
   1. the disease or pest poses an unacceptable level of biosecurity risk; and
   2. the requirement is appropriate and adapted to prevent, or reduce the risk of, the disease or pest entering, or establishing itself or spreading in, Australian territory or a part of Australian territory.

’Unacceptable level of biosecurity risk‘ is an existing concept in the Biosecurity Act.[43] What constitutes an ‘unacceptable’ level is not defined within the Act, or articulated within the explanatory materials to the original Bill. It does not appear to have been considered in judicial reasoning since the introduction of the concept. ‘Biosecurity risk’ is defined in the Act.[44]

In comparison to the human health entry requirements and preventative biosecurity measures, these proposed powers then:

• may be engaged against any disease or pest, without the need for them to be listed in a legislative instrument or otherwise identified before time (as it is with human biosecurity powers, and biosecurity emergency powers)
• appear to give the Agriculture Minister more discretion in determining what constitutes an ‘unacceptable’ level of risk than the Director of Human Biosecurity has when deciding whether or not to list a human disease to which other powers may apply.

‘No-invalidity’ clause

Before making an entry requirement or a preventative biosecurity measure under the proposed amendments, the Agriculture Minister must consult with the Director of Biosecurity, the Director of Human Biosecurity, and the head of the state or territory body that is responsible for the administration of matters relating to biosecurity in that state or territory.[45]

These consultation requirements largely mirror the existing powers of the Health Minister to determine preventative biosecurity measures.[46] Unlike the Health Minister’s powers however, the proposed Agriculture Minister’s powers include a ‘no-invalidity’ clause:

A failure by the Agriculture Minister to comply with subsection (9) does not affect the validity of the determination.[47]

The Senate Committee for the Scrutiny of Bills drew attention to this issue, noting:

There are significant scrutiny concerns with no-invalidity clauses, as these clauses may limit the practical efficacy of judicial review to provide a remedy for legal errors. For example, as the conclusion that a decision is not invalid means that the decision-maker had the power (i.e. jurisdiction) to make it, review of the decision on the grounds of jurisdictional error is unlikely to be available. The result is that some of judicial review's standard remedies will not be available. Consequently, the committee expects a sound justification for the use of a no-invalidity clause to be provided in the explanatory memorandum.[48]

The Committee further noted the Explanatory Memorandum does not contain a rationale for the inclusion of this clause. In light of this, the Committee requested the Minister’s detailed advice as to:

• why it is both necessary and appropriate to include no-invalidity clauses in proposed sections 196A and 393B and
• whether the Bill could be amended to provide that determinations made under proposed sections 196A, 196B or 393B are subject to disallowance to ensure that they receive appropriate parliamentary oversight.[49]

At the time of writing this Digest, the Minister’s response had been received but not yet made available by the Committee.[50]

Issue: Omission of human biosecurity group directions

A key recommendation of both the NSW Special Commission of Inquiry and the Inspector-General of Biosecurity’s respective inquiries into the Ruby Princess incident was that the existing mechanism of human biosecurity control orders were impractical or ineffective in imposing human 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.[51]

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.[52]

In response, Schedule 1, Part 2 of the BAERM Bill proposed to insert a new human biosecurity group direction framework. This framework was discussed in detail in pages 17 to 34 of the Digest to that Bill.[53]

This Bill does not include a revised version of the human biosecurity group directions framework. It is the only element of the BAERM Bill which has not been included as a schedule to the current Bill. The Explanatory Memorandum and related material do not state why the human biosecurity group directions framework has not been included in the current Bill, even as other responses to the recommendations of the report (surrounding the Schedule 2 amendments to Pratique and pre‑arrival reporting) are retained. Of course, it is possible that the framework is intended to be included in a future Bill.

Key Issue: Schedule 3

Schedule 3 proposes to substantially alter the way that information is treated under the Act. It proposes to change the definition of protected information, the nature of offences for disclosing or using it, and the authorisations for using protected information.

Definition of ‘Protected information’

The current ‘confidentiality of information’ provisions in Part 2 of Chapter 11 of the Biosecurity Act apply to personal information or commercial-in-confidence information exclusively. Item 7 proposes to repeal and replace the definition of protected information in section 9 to apply to  information of any of the following kinds obtained or generated by a person:

1. sensitive information (within the meaning of the Privacy Act 1988)[54];
2. information (including commercially sensitive information) the disclosure of which could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence;
3. information the disclosure of which could reasonably be expected to prejudice the prevention, detection, investigation, prosecution or punishment of one or more offences;
4. information the disclosure of which could reasonably be expected to prejudice the protection of public safety, human health or the environment;
5. information the disclosure of which could reasonably be expected to prejudice Australia’s security, defence or international relations of Australia;
6. information of a kind prescribed by the regulations.

This definition is expansive, and the power of the regulations to prescribe additional kinds of information as protected information is broad. The Agriculture or Health Minister need only be satisfied that the disclosure of the information would or could reasonably be expected to ‘prejudice the effective working of the Agriculture Department or the Health Department’ or ‘otherwise harm the public interest’.[55]

Disclosure Offences

The current section 585 ‘offence relating to protected information’ provides that a person commits an offence if they disclose, use or make a record of protected information, in a way that is not a permissible use or otherwise authorised in other elements of the scheme.

The maximum penalty for this offence is imprisonment for 2 years or 120 penalty units, or both.[56] Item 27 of Schedule 3 proposes the repeal of section 585 and Item 18 proposes the repeal and replacement of section 580 to provide a new offence provision. This new offence has several important differences from the existing one:

• The offence now only applies to people who are ‘entrusted persons’[57] – Commonwealth public servants and persons specified in proposed subsection 580(2) who are engaged in functions under the Act. This means that other persons who disclose protected information no longer commit an offence.
• The offence only applies to protected information that the entrusted or specified person obtains or generates in the course of, or for the purposes of, performing functions or duties, or exercising powers under the Act, or assisting another person in the same.[58]
• The provision now includes an offence of strict liability, at a reduced maximum penalty of 60 penalty units, with no term of imprisonment.[59]
• The provision now includes a civil penalty provision with a maximum penalty of 120 penalty units and retains a fault-based offence provision with a maximum penalty of two years imprisonment and/or 120 penalty units.[60]

Authorisations for disclosure

Schedule 3 of the Bill proposes to substantially broaden the grounds on which protected information can be disclosed, creating broad additional policy grounds for disclosure:  

• use or disclosure for the purposes of managing human health risks[61]
• use or disclosure for the purposes of a state or territory, or foreign government managing risks[62]
• use or disclosure for the purposes of the Act, or another Act administered by the Agriculture Minister or Health Minister[63]
• disclosure to another Commonwealth entity to assist that entity to perform its functions or duties or exercise its powers[64]
• disclosure for the purposes of a court, tribunal et cetera or law enforcement. Existing section 582 provides an authorisation for disclosure to a court or tribunal or coronial inquiry, but not to law enforcement[65]
• disclosure for the purpose of research, policy development, or data analysis. This must not be done with a body that is not a Commonwealth entity, or a person who is not employed or engaged by the Commonwealth, unless that other body or person has undertaken to not use the information except in accordance with an agreement in force between the Commonwealth and the person or body[66]
• disclosure of statistics where the information is not likely to enable the identification of a person[67]
• disclosure by the Director of Biosecurity or the Director of Human Biosecurity to manage severe and immediate threats that have the potential to cause harm on a nationally significant scale[68]
• use or disclosure authorised by the regulations.[69]

Other existing exceptions and reasons for disclosure (such as disclosure to the person that the information relates to) have been retained in the new framework.

The ability to prescribe additional authorised uses and reasons for disclosure by regulation under proposed section 590H, is not limited by reference to any criteria, but such regulations must ‘specify the legislative power or powers of the Parliament in respect of which the regulations are made’. The Explanatory Memorandum states:

The authorisation in new section 590H is necessary to allow the regulations to prescribe the use or disclosure of relevant information in other circumstances which may arise in the future, and which may require expedient authorisation to effectively manage biosecurity risks or other risks. For example, a situation may arise in the future where a new partnership is formed between the Commonwealth, industry bodies and local community groups to assess the impacts of climate change, and relevant information about certain diseases or pests is required to assess those impacts, but no other authorisation for the use or disclosure of that information under the Biosecurity Act is available or considered to be appropriate. In such a case, it may be considered necessary to prescribe regulations under new section 590H to allow for the use or disclosure of relevant information by the partnership in certain circumstances.[70]

The combined effect of the power to prescribe information as protected information under the regulations under proposed paragraph (f) of the definition in Item 7 and to authorise any disclosure or use under the regulations made under proposed section 590H is that the operation of the new information management system may be significantly influenced by regulation. The regulations can make a broad range of ‘relevant information’ under the Act protected information (subject to the requirements of proposed subsection 9(2) of the Act, at Item 10 of Schedule 3) and create any permissible purpose for its disclosure.

However, under current subsection 580(3) of the Act, the Director of Human Biosecurity and the Director of Biosecurity may authorise the use or disclosure of protected information by issuing individual authorisations. The Explanatory Memorandum states:

Under the new information management framework proposed by this Schedule, it is considered more appropriate for the Governor-General to make regulations to prescribe any additional authorisations under new section 590H, instead of the Director of Biosecurity or the Director of Human Biosecurity providing ad-hoc authorisations. This would allow greater transparency and parliamentary oversight of any regulations made under new section 590H, noting that they would also be subject to the usual disallowance process outlined in the Legislation Act 2003.[71]

Other provisions

Schedule 2

As previously stated, Schedule 2 is virtually identical to previously introduced parts of the BAERM Bill and is covered in more detail in the Bills Digest for that Bill.[72]

Part 1 concerns amendments to pratique,[73] making two changes:

• 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
• 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[74]) 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.

Part 2 concerns amendments to the pre-arrival reporting requirements of aircraft or vessels that intend to enter Australian territory, proposing two changes:

• 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[75]
• 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).[76] 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).[77] Civil penalty orders may also be made equal to five times the maximum standard penalty for a body corporate.[78]

Schedule 4

Schedule 4 consists of two parts. Part 1 consists of 2 items, including a table that amends 30 provisions, 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. This Part is identical to Schedule 2 of the BAERM Bill.

Part 2 consists of 3 items, including a table that amends 50 provisions, increasing the maximum financial penalties, both civil and criminal, for both fault-based offences and civil penalty provisions in Chapter 4 of the Biosecurity Act, which deals with managing the biosecurity risks of conveyances. This part is new to this Bill.  

A Commonwealth penalty unit is currently $222[79] 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)
• increases of fault-based offence penalty amounts from 120 penalty units ($26,660) to 300 penalty units ($66,600). These fault-based offences may also carry a term of imprisonment of up to two years
• increases of some fault-based offence penalty amounts from 300 penalty units ($66,600) to 1,000 penalty units ($222,000). These fault-based offences may also carry a term of imprisonment of up to five years
• increases of other fault-based offence penalty amounts from 120 penalty units ($26,660) to 1,000 penalty units ($222,000). 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. 

Fine to imprisonment ratio

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.[80]

Relevantly, the Guide recommends a fine-to-imprisonment ratio of five penalty units to a month of imprisonment.[81] The offences proposed to be amended by this Bill currently follow this ratio, imposing a maximum of 120 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).

The Explanatory Memorandum addresses this issue:

The proposed maximum pecuniary penalty departs from the standard fine to imprisonment ratio in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide). 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. The increased pecuniary penalty also aligns with similar offences in the Biosecurity Act relating to the contravention of importation requirements under sections 185 to 187.[82]

Schedule 5

Schedule 5 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.

Schedule 5 is functionally identical to Schedule 3 in the BAERM Bill, and is discussed at more length in the Digest to that Bill.[83]

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.

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.

As detailed in the BAERM Digest, the fact that the Director (or their delegate) must themselves apply the ALOP, and the limitation of delegation to only senior executive service (or acting senior executive service) employees practically limits the ability to conduct risk assessments to a small number of employees who all hold senior executive roles.[84]

Proposed amendments

Schedule 5 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).[85] 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.

‘Biosecurity worker’ is defined by proposed section 14A at item 3 of Schedule 5. 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.[86] These determinations are not legislative instruments.[87]

Schedule 6

Schedule 6 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. It is substantially identical to Schedule 4 of the BAERM Bill.

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 FFSP Act by inserting new items for each program into the relevant Schedule to the FFSP Regulations.[88]

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.

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

The Senate Select Committee for the Scrutiny of Bills (SSCSB) had noted its concern with the lack of parliamentary scrutiny of grants or arrangements, guidance as to how the power might be exercised, and other matters in its consideration of the BAERM Bill.[89]  

Senate Standing Committee for the Scrutiny of Bills Concerns

As with its analogous schedule in the BAERM Bill, the SSCSB drew attention to the broad discretionary power given to the Ministers by Schedule 6.[90] As with the previous Bill, the Committee raised the following issues:

• 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.[91]

The Committee requested the Minister’s advice as to:

• 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 and
• whether the Bill can be amended to include a requirement that written agreements with the states and territories about grants of financial assistance made under proposed section 614C are:
  • tabled in the Parliament within 15 sitting days after being made and
  • published on the internet within 30 days after being made.[92]

At the time of writing this Digest, the Minister’s response had been received but not yet made available by the Committee.[93]

Schedule 7

Schedule 7 consists of 5 parts. The Explanatory Memorandum adequately explains these measures, summarising that the Schedule would provide for the following measures:

Allowing a biosecurity industry participant[94] to make a written declaration to release goods from biosecurity control, where the biosecurity industry participant is also the person in charge of the goods; [Part 1]

Providing the relevant Director[95] with the option of allowing an approved arrangement to remain in force indefinitely, unless it is revoked; [Part 2]

Extending the power of the relevant Director to give a direction to a former biosecurity industry participant, to circumstances where the approved arrangement has expired; [Part 3]

Providing additional powers for an auditor who is carrying out an audit of an approved or proposed arrangement under section 436 of the Biosecurity Act; [Part 4] and

Improving the operation of the compensation scheme for damaged goods or destroyed goods, conveyances or other premises [Part 5].[96]

The Explanatory Memorandum suggests that the amendments in Part 5 are due in part to the potential for biosecurity industry participants to claim compensation for damage that they themselves cause:

The amendments proposed by Part 5 of this Schedule to the Bill seek to assist individuals and businesses to better understand the circumstances in which compensation may be payable under sections 632 and 633. For example, it is not intended that sections 632 and 633 would provide compensation for damage or destruction that is caused by a biosecurity industry participant who acts in a manner that is not specifically required by a direction under the Biosecurity Act or by a condition of the approved arrangement. In such cases, it would be more appropriate for the biosecurity industry participant to bear responsibility for their own actions.[97]

Part 5 correspondingly proposes to reform the compensation provisions to increase the discretion of the Director in deciding whether or not compensation should be paid, and the considerations they may have regard to in making this decision.

Senate Standing Committee for the Scrutiny of Bills concerns

The SSCSB raised concerns with the new discretionary powers in Part 5 of Schedule 7 of the Bill (the Compensation Scheme), noting that there was no provision within the Bill that provided that exercises of these proposed new discretionary powers under proposed sections 632 and 633 would be subject to independent merits review:

The committee considers that, generally, administrative decisions that will, or are likely to, affect the interests of a person should be subject to independent merits review unless a sound justification is provided. It appears that decisions made by the Director of Biosecurity under section 632 or section 633 of the Biosecurity Act will, or are likely to, affect individual interests. However, there is nothing on the face of the Act, the bill, or within the explanatory memorandum, stating that either decision is subject to independent merits review.[98]

The Committee further noted the Explanatory Memorandum did not state why decisions made under proposed sections 632 and 633 are not subject to merits review.[99]

Accordingly, the Committee requested the Minister’s advice as to:

why it is necessary and appropriate not to provide that independent merits review will be available in relation to a decision made under either section 632 or section 633 of the Biosecurity Act 2015.[100]

At the time of writing this Digest, the Minister’s response had been received but not yet made available by the Committee.[101]