Key points
- The Biosecurity Amendment (Advanced Compliance Measures) Bill 2023 (the Bill) amends the Biosecurity Act 2015 to enable the Director of Biosecurity to require each person within a class of persons who intend to enter, or enters, Australian territory on an incoming aircraft or vessel to provide information and/or produce a passport or other travel document in order to assess the level of biosecurity risk of the person and any goods that the person has with them, and for the future profiling, or future assessment, of biosecurity risks.
- New civil penalty provisions are inserted into the Biosecurity Act which apply to persons who fail to comply with that requirement.
- Where the Director of Biosecurity or the Director of Human Biosecurity gives notice to a biosecurity industry participant of a proposed variation to an approved arrangement, new procedural fairness provisions will apply to the industry participant.
- The Bill increases the maximum penalty for a number of civil penalty provisions, some quite significantly.
- The Bill also creates a number of strict liability offences which will be subject to the infringement notice framework which currently operates in the Biosecurity Act.
- The Bill has been referred to the Senate Standing Committee on Rural and Regional Affairs and Transport for inquiry and report by 27 July 2023.
Introductory Info
Date introduced: 21 June 2023
House: House of Representatives
Portfolio: Agriculture, Fisheries and Forestry
Commencement: The day after Royal Assent
Purpose of
the Bill
The purpose of the Biosecurity
Amendment (Advanced Compliance Measures) Bill 2023 (the Bill) is to update existing
compliance measures in the Biosecurity Act
2015 to improve their operation in the evolving biosecurity
environment.
Structure
of the Bill
The Bill comprises 4 Schedules:
- Schedule
1 amends Part 2 of Chapter 4 of the Biosecurity Act to improve assessment
of the biosecurity risk of persons on incoming aircraft or vessels.
- Schedule
2 amends Chapter 7 of the Biosecurity Act to insert new procedural fairness
requirements in circumstances where it is proposed to vary an existing approved
arrangement.
- Schedule
3 increases existing civil penalties for failures to comply with certain
requirements, directions or measures; and for giving false or misleading information
or documents.
- Schedule
4 creates a number of strict liability offences which will be subject to the
existing infringement notice framework.
Background
Australia’s
approach to biosecurity risks
Australia’s response to biosecurity issues is based upon
the requirements of the World Trade Organisation Agreement on the Application
of Sanitary and Phytosanitary Measures (SPS Agreement)[1]
and the World
Health Organisation’s International Health Regulations 2005. The SPS
Agreement requires countries to adopt the least trade restrictive quarantine
barriers possible, but gives member countries the right to take sanitary and
phytosanitary measures necessary to protect human, plant and animal life or
health in their jurisdiction. Each Member country is entitled to set its appropriate
level of protection (ALOP) as it sees fit, taking into
account the full range of national interest considerations.[2]
However, the SPS Agreement requires that those measures are scientifically
based, non-discriminatory and consistently applied.[3]
The Biosecurity Act provides that the 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.[4]
Compliance
tools
The Biosecurity Act contains a number of
requirements that entities travelling or bringing goods to Australia must
comply with. These include:
- entering
Australia through designated areas[5]
- providing
accurate information about goods entering Australia[6]
- not
bringing prohibited goods to Australia[7]
and
- complying
with specified conditions when importing goods or undertaking approved
biosecurity risk management activities.[8]
Figure 1 Compliance
Posture
Source: Department of Agriculture, Fisheries and Forestry (DAFF),
Compliance
Posture, DAFF website, last updated 7 October 2021.
National
Biosecurity Strategy
According to the Inspector-General of Biosecurity:
Australia’s biosecurity system relies on various government
programs that ensure the safe international movement of people and goods. These
programs are mainly delivered by Agriculture in cooperation with industry. They
minimise the risk of the entry, establishment and spread of exotic pests and
diseases that could cause significant harm to people, animals, plants and
Australia’s unique environment.[9]
The biosecurity
system is multilayered with prevention, management and response activities
undertaken overseas, at and within Australia’s borders.[10]
Under the National
Biosecurity Strategy, the activities which take place include:
- pre-border
(offshore): the Australian Government and importers work with overseas counterparts
to identify and mitigate biosecurity risks before they reach the border. Officials
facilitate trade in line with Australia’s international obligations, apply
import conditions and controls, and engage in risk and intelligence gathering,
analysis and horizon scanning[11]
- at
border: the Australian Government operates border controls, including
screening, assessment, inspections and quarantine processes. Travellers
must declare goods if required. Industry also helps by having systems in
place to proactively manage risks, applying treatments where needed and
participating in surveillance activities[12]
- post-border
(within Australia): industry, governments, Natural Resource Management
organisations, environmental groups, landowners and managers and the wider
community work at regional and local levels to prevent, plan for, detect and
respond to outbreaks.[13]
For instance, in 2022 the Australian Government established the One
Health Surveillance Initiative to better protect wildlife, and to
strengthen the capacity of Australia’s biosecurity system to identify and
mitigate risks to human, animal and environmental health.
Evolving
biosecurity environment
Importantly, ‘biosecurity risks are constantly evolving’.[14]
For instance, it has been reported that over the last year Foot
and Mouth Disease (FMD) and Lumpy Skin Disease (LSD) have moved closer to
Australian shores.[15]
The Senate Rural and Regional Affairs and Transport References
Committee (References Committee) published its report entitled: Adequacy
of Australia’s biosecurity measures and response preparedness, in particular
with respect to foot-and-mouth disease and
varroa mite in December 2022 highlighting the changing or
increasing biosecurity risks to Australia posed by:
- climate
change
- changing
trade and travel patterns
- changing
land use and decreasing biodiversity
- major
global disruptions
- illegal
activities[16]
and
- the
increasing presence of significant exotic plant, environment and animal pests
and diseases in the region.[17]
The References Committee stated:
The economic value of Australia's biosecurity system is significant.
In 2020 it was valued at around $314 billion, with the total flow of
benefits from assets vulnerable to biosecurity hazards estimated at $251.5
billion per annum, or A$5.7 trillion over 50 years. In contrast, the absence of
a biosecurity system was estimated to result in around $671.9 billion in
damages attributable to newly introduced pests and diseases over 50 years.
Highlighting the benefits of investment in the system, a robust biosecurity
system is estimated to reduce damages due to pests and diseases by close to
$345 billion, at a cost of $10.4 billion.[18]
[emphasis added]
Committee
consideration
Senate Standing
Committee on Rural and Regional Affairs and Transport
The Bill has been referred to the Senate
Standing Committee on Rural and Regional Affairs and Transport (RRAT Committee)
for inquiry and report by 27 July 2023.[19]
At the time of writing this Bills Digest, the RRAT Committee had received 8
submissions from stakeholders. Comments by stakeholders which are specific
to measures in the Schedules to the Bill are canvassed under the heading ‘Key issues
and provisions’ below.
Senate
Standing Committee for the Scrutiny of Bills
At the time of writing this Bills Digest, the Senate
Standing Committee for the Scrutiny of Bills had not commented on the Bill.
Position of
major interest groups
Submitters to the inquiry by the RRAT Committee were
generally in favour of the increased civil penalties set out in Schedule 3 to
the Bill ‘as a means to enhance the biosecurity system and incentivise greater
compliance with Australia's laws and regulations’.[20]
Financial
implications
According to the Explanatory Memorandum, ‘the Bill would
have no impact on the Australia Government Budget’.[21]
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.[22]
Parliamentary
Joint Committee on Human Rights
At the time of writing this Bills Digest, the
Parliamentary Joint Committee on Human Rights had not commented on the Bill.
Key issues
and provisions
Schedule 1—assessing
biosecurity risk for persons
Chapter 4 of the Biosecurity Act deals with
conveyances—being aircraft or vessels—that enter, or intend to enter,
Australian territory from outside Australian territory. Those conveyances are
subject to biosecurity control when they enter Australian territory.
Currently, section 196 of the Biosecurity Act applies
to a person who intends to enter, or enters, Australian territory on an
incoming aircraft or vessel and is included in a prescribed class of persons.
Section 53 of the Biosecurity
Regulation 2016 specifies the classes of person as:
- persons
who were, are, or will be, passengers on an incoming aircraft or vessel
- persons
who were, are, or will be, members of the crew of an incoming aircraft
or vessel
- the
person who was, is, or will be, the person in charge of an incoming
aircraft or vessel.
Under existing subsection 196(2) of the Biosecurity Act
the Director of Biosecurity may require the person to provide information
(including by answering questions) for the purpose of assessing the level of
biosecurity risk associated with the person and any goods that the person has
with him or her. In practical terms, this means that a person
entering Australia must have a valid passport and a completed incoming
passenger card. However, neither of those requirements is specified in
either the Biosecurity Act or the Biosecurity Regulation.[23]
As set out in the Explanatory Memorandum to the Bill, the
effect of subsection 196(2) is that:
the Director can only require the provision of information
from an individual traveller, member of a crew or the person in charge of
an aircraft or vessel. Put another way, the requirement to produce
information and the provision of such information may only occur in a
one-to-one interaction between a biosecurity officer and an individual
(emphasis added).[24]
What the
Bill does
Item 6 in Schedule 1 to the Bill amends existing
subsection 196(2) so that the Director of Biosecurity may require any
person covered by subsection 196(1), or each person included in a class
of persons covered by subsection 196(1) to provide information.
Item 7 in Schedule 1 to the Bill inserts proposed
subsections 196(3A) and (3B) into the Biosecurity Act. Proposed
subsection 196(3A) gives the Director of Biosecurity a number of broad
powers. First the Director of Biosecurity may require any person covered
by subsection 196(1) to produce the person’s Australian travel document (within
the meaning of the Australian
Passports Act 2005) or a passport, or other travel document, issued to
the person by or on behalf of the government of a foreign country, for the
following purposes:
- assessing
the level of biosecurity risk associated with the person and any goods that the
person has with them
- the
future profiling, or future assessment, of biosecurity risks: proposed paragraph
196(3A)(a).
The Explanatory Memorandum to the Bill provides the
following rationale for the amendment:
… these proposed measures would allow the Director to include
each person on a flight or a vessel (including a cruise ship) in a class and
then require every person in that class to provide information so the Director
can assess the level of biosecurity risk associated with them and the goods
they have with them, rather than having to require the provision of information
from each person individually. This would be an effective addition to the
current biosecurity management options for incoming travellers, particularly
where flights or vessels are arriving in Australian territory from a country or
region where there is a heightened risk posed by a disease or pest … [25]
Second the Director of Biosecurity may scan any
document so produced for either or both of those purposes: proposed
paragraph 196(3A)(b). The Department states:
Dependent on the nature and scope of the relevant
information, including a person’s history of compliance with biosecurity laws,
this would enable a biosecurity officer to then undertake more targeted
intervention and investigation if appropriate.[26]
Third, the Director of Biosecurity may collect and
retain personal information obtained as part of that production or scanning for
either or both of the purposes set out above: proposed paragraph 196(3A)(c).
Item 9 in Schedule 1 to the Bill inserts proposed
subsection 196(5) into the Biosecurity Act so that a person must
comply with a requirement to produce the person’s Australian travel document or
passport, or other travel document. A failure to comply attracts a maximum civil
penalty of 120 penalty units, being equivalent to $37,560.[27]
Stakeholder
comments
The National Farmers Federation (NFF) provided in
principle support for increased information gathering provisions for border
officials as it relates to biosecurity stating:
The sector supports official having access to accurate and
comprehensive information about travellers and goods, as a means to enhance our
capacity to most accurately assess and manage relevant risks pathways.[28]
Australian Pork Limited (APL) concurred with that view.[29]
Key issue—future
profiling of biosecurity risks
Under section 590 of the Biosecurity Act an entrusted
person[30]
may:
- use
relevant information
- disclose
relevant information to an entrusted person or
- disclose
relevant information to another person or body
for the purposes of the person or body undertaking
research, policy development or data analysis to assist the Agriculture
Department or the Health Department with the administration of the Biosecurity
Act.
In June 2021 the Australian National Audit Office (ANAO)
published its report entitled: Responding to non-compliance
with biosecurity requirements.[31]
That report states:
Manual risk identification procedures are undertaken at
airports to target high risk travellers. Travellers are referred for screening
if the biosecurity officer considers that their incoming passenger card,
response to questioning, or other characteristics indicate they may be carrying
biosecurity risk material. Screening may occur through detector dog, x-ray or
full baggage inspection, at the judgement of the biosecurity officer. The
department has implemented guidance to support these decisions.
Automated profiles, implemented in 2018, automatically refer
travellers who match identified risk characteristics for full baggage
inspection. Previous manual processes limited the complexity of profiling
options and the number of travellers that could be profiled. While automated
profiling represents an opportunity for improvement on manual systems … [there
are] limitations [which] restrict its ability to effectively target detection
activities.[32]
Essentially, then, profiling of biosecurity risks is
already being undertaken in accordance with the existing provisions of section 590
of the Biosecurity Act. The terms of proposed subsection 196(3A)
are consistent with section 590 to allow for the future profiling, or future
assessment, of biosecurity risks and put beyond doubt that incoming passenger
information can be used for the purpose of risk profiling and risk analysis.
Key issue—retaining
personal information
Part 2 of Chapter 11 of the Biosecurity Act deals
with information management. It provides that entrusted persons
can use or disclose information obtained or generated under the Act. In
addition, it provides for criminal offences and civil penalties in
circumstances where protected information is the subject of unauthorised use or
disclosure.[33]
In relation to the Bill it is unclear how long the
information that is collected under amended section 196 of the Biosecurity
Act is to be retained by the government for risk analysis purposes.
Schedule 2—approved
arrangements
Chapter 7 of the Biosecurity Act provides for the
approval,[34]
variation,[35]
suspension[36]
and revocation[37]
of approved arrangements as well as the penalties arising from non-compliance
with the terms of an approved arrangement.[38]
According to the Department
of Agriculture, Water and the Environment:
An approved arrangement can cover all of the biosecurity
activities involving the physical handling of goods at one or more approved
arrangement sites. An approved arrangement can also cover biosecurity
activities that don’t involve the physical handling of goods, such as
documentary assessment for goods subject to biosecurity control by accredited
persons or performing disinsection treatments on aircraft. Both physical and
non-physical biosecurity activities can be grouped together under the same approved
arrangement.[39]
These arrangements allow
operators to manage biosecurity risks and/or perform the documentary
assessment of goods in accordance with departmental requirements, using their
own sites, facilities, equipment and people, and without constant supervision
by the department and with occasional compliance monitoring or auditing.
Variation,
suspension or revocation of an approved arrangement
Section 413 of the Biosecurity Act empowers the
Director to give a written notice to a biosecurity industry participant varying
the conditions of an approved arrangement or requiring the participant
to vary the arrangement in the following circumstances:
- the
arrangement, or the part of the arrangement, no longer meets the requirements
on the basis of which approval was given
- the
biosecurity industry participant is no longer a fit
and proper person
- a
condition of the arrangement has been contravened
- the
level of biosecurity risk associated with the operation of the arrangement has
changed
- a
change needs to be made to the arrangement to correct a minor or technical
error or
- the
arrangement needs to be varied for any other reason.
Currently, a notice stating that the conditions are varied
takes effect from the day the notice is given or a later day set out in the notice.[40]
Although the decision is a reviewable decision[41]—allowing
both internal review[42]
and external review by the Administrative Appeals Tribunal (AAT)[43]—the
Biosecurity Act does not currently allow for the subject of the decision
to have a say about it before the decision to vary an approved arrangement
takes effect.
Sections 418 and 423 of the Biosecurity Act empower
the Director to give a notice to a biosecurity industry participant that an
approved arrangement is suspended (either wholly or in part) or revoked
respectively and the reasons for that decision. The circumstances listed under
paragraphs (a) to (d) above which could bring about a variation in an approved
arrangement are in equivalent terms to those relating to the suspension or
revocation of an approved arrangement. However, paragraphs (e) and (f) are substituted
as follows:
- the
biosecurity industry participant is liable to pay a cost-recovery charge that
is due and payable or
- the
biosecurity industry participant is an associate of a person who has been
refused approval of a proposed arrangement or a person who was a biosecurity
industry participant covered by an approved arrangement that has been revoked.
In either case, the notice must include a request that the
biosecurity industry participant give the relevant Director, within 14 days
after the noticed is given, a written statement showing cause why the
arrangement, or the part of the arrangement, should not be suspended or
revoked.[44]
What the
Bill does
Item 11 of Schedule 2 to the Bill inserts proposed
section 435A into the Biosecurity Act so that the notice
requirements for all three actions (that is variation, suspension and
revocation) are in equivalent terms. Proposed subsection 435A(2) sets
out the matters to be included in a notice to vary, suspend or revoke an
approved arrangement including an invitation to the biosecurity industry
recipient to give the Director, within 14 days after the notice is given, a
written submission in relation to the matters set out in the notice. An exception
to this general rule lies in proposed subsection 435A(3) which provides that
such an invitation need not be given in circumstances where the Director is
satisfied that the need to vary, suspend or revoke the approved arrangement is
serious and urgent.
Items 3–10 of Schedule 2 to the Bill make
consequential amendments to sections 415, 418 and 425 of the Biosecurity Act
to reflect the new notice requirements.
Once the notice has been given to a biosecurity industry
participant and the relevant response provided to the Director, the Director
may proceed to vary, suspend or revoke the relevant approved arrangement as proposed.
Each of those decisions is a reviewable decision and the biosecurity industry
participant may avail themselves of their review rights. However, where the
Director decides not to proceed, proposed subsection 435A(5) empowers him,
or her, to send the biosecurity industry participant a notice of reprimand.
Schedule 3—civil
penalty provisions
The Biosecurity Act contains a number of civil
penalty provisions which are expressed in terms of penalty units. Under the Crimes (Amount of
Penalty Unit) Instrument 2023 a penalty unit is equivalent to $313.
The amendments in Schedule 3 to the Bill propose increases
to existing penalties as set out in the table below.
Table 1: increases to civil penalties
| Provision |
Current penalty |
New Penalty |
Applies to |
| Subsection 46(1) |
30 |
150 |
An individual who fails to comply with an entry
requirement. |
| Subsection 46(2) |
30 |
1,000 |
An operator of an outgoing passenger aircraft or vessel who
fails to comply with a requirement to treat the aircraft or vessel in a
specified manner. |
| Subsection 46(3) |
30 |
150 |
An individual who fails to comply with an exit requirement. |
| Section 52 |
120 |
150 |
A person who fails to comply with a preventative
biosecurity measure. |
| Subsection 110(6) |
30 |
120 |
A person who fails to comply with the requirements
specified by the Director of Human Biosecurity about bringing human remains
into Australian territory; or managing human remains after bringing them into
Australian territory. |
| Subsection 111(3) |
30 |
120 |
A person who fails to comply with a direction from a
biosecurity officer, human biosecurity officer, or chief human biosecurity
officer, about managing specified human remains. |
| Subsection 112(4) |
30 |
120 |
A person who fails to comply with the requirements
specified by the Director of Human Biosecurity about the management of the
bodies of deceased individuals who die in transit before arriving in
Australian territory or on arrival in Australian territory. |
| Section 116 |
30 |
120 |
A person who fails to comply with a requirement in a
determination that a specified area within a state or territory is a human
health response zone. |
| Subsection 438(1) |
120 |
600 |
A person who gives information to a biosecurity industry
participant, knowing that the information is false or misleading, or omits
any matter or thing without which the information is misleading, where the information
is given in connection with biosecurity activities that are carried out in
accordance with an approved arrangement. |
| Subsection 439(1) |
120 |
600 |
A person who produces a document to a biosecurity industry
participant knowing that the document is false or misleading, where the
information is given in connection with biosecurity activities that are
carried out in accordance with an approved arrangement. |
| Subsection 532(1) |
60 |
600 |
A person who gives information in compliance or purported
compliance with the Biosecurity Act where the person does so knowing
that the information is false or misleading, or omits any matter or thing
without which the information is misleading. |
| Subsection 533(1) |
60 |
600 |
A person who produces a document to another person knowing
that the document is false or misleading, where the document is produced in
compliance or purported compliance with the Biosecurity Act. |
Source: Schedule 3, Biosecurity
Amendment (Advanced Compliance Measures) Bill 2023.
Stakeholder
comments
Submitters to the RRAT inquiry into the Bill were
supportive of the increases in the amounts of civil penalties. The National
Farmers Federation (NFF) expressed the view:
… we continue to see individuals and entities seeking to
contravene biosecurity rules and regulations. While our system works to ensure
such instances are kept to a minimum, we know that even a single contravention
event can lead to severe biosecurity consequences.
For this reason, the NFF supports the increased civil
penalties contained in the Bill. We see these as a means to enhance the
biosecurity system and incentivise greater compliance with Australia's laws and
regulations.[45]
Australian Pork Limited concurred with that view, stating
that ‘penalty options should reflect the significant long term economic, social
and agricultural industry impact of contravention of Australia’s biosecurity
rules’.[46]
Schedule 4—strict
liability offences and infringement notices
Strict
liability offences
The Criminal Code Act
1995 (which contains the Criminal Code) codifies the general principles
of criminal responsibility under laws of the Commonwealth. The Criminal Code
provides that offences consist of physical and fault elements.[47]
The physical element of an offence may be conduct,
a result of conduct, or a circumstance in which conduct, or a result of
conduct, occurs.[48]
A fault element for a particular physical element may be intention,
knowledge, recklessness or negligence.[49]
A strict liability offence—such as those created by
Schedule 4 to the Bill—is one where strict liability is applied to all physical
elements of the offence. While such an offence negates the requirement to prove
fault, defences, including a defence of mistake of fact, are available for
strict liability offences.[50]
This means that the offence will not criminalise honest errors and a person
cannot be held liable if he, or she, had an honest and reasonable belief that
they were complying with relevant obligations.
An infringement
notice scheme should generally only apply to civil penalty provisions,[51]
or strict or absolute liability offences.[52]
What the
Bill does
The strict liability offences that are proposed in the
Bill are set out in table 2, below.
Table 2: Proposed strict liability offences
| Proposed subsection |
Terms of the strict
liability offence |
|
140(2A)
|
A person commits an offence of strict liability if a biosecurity
officer directs a person in charge of goods to arrange for the goods to be
exported from Australian territory; or directs a person in charge of the
goods to carry out a biosecurity measure (for instance, moving,
treating or destroying the goods) and the person engages in conduct that
contravenes the direction.
|
|
185(2A)
|
A person commits an offence of strict liability if the
person brings or imports goods into Australian territory and those goods are prohibited
goods[53]
or suspended goods.[54]
|
|
187(1A)
|
A person may apply to the Director of Biosecurity for a
permit authorising the person to bring or import particular goods into
Australian territory.[55]
A person who is the holder of such a permit commits an
offence of strict liability if the person engages in conduct which contravenes
a condition of the permit.
|
|
187(3A)
|
A person who was the holder of a permit commits an offence
of strict liability if the permit has been suspended or revoked[56]
but a condition of the permit continues to apply and the person engages in
conduct which contravenes that condition.
|
|
243(2A)
|
A chief human biosecurity officer or a human biosecurity
officer may give the person in charge or the operator of an aircraft that
intends to land at a landing place in Australian territory a direction
requiring the aircraft to land at a specified landing place in Australian
territory or a direction requiring the aircraft not to land at one or more
specified landing places in Australian territory.[57]
A person commits an offence of strict liability if the
person is given such a direction and the person engages in conduct that
contravenes the direction.
|
|
251(2A)
|
A biosecurity officer may give the person in charge or the
operator of a vessel that intends to be moored at a port in Australian
territory a direction requiring the vessel to be moored at a specified port
or not to be moored at one or more specified ports in Australian territory.[58]
A person commits an offence of strict liability if the
person is given such a direction and the person engages in conduct that
contravenes the direction.
|
|
350(2A)
|
Where a biosecurity officer requires a biosecurity measure
to be taken in relation to goods, a conveyance or premises, the biosecurity officer
may do the following:
- in relation to goods—direct a person in charge of the goods to
carry out the biosecurity measure
- in relation to a conveyance:
- direct the person in charge or the operator of the conveyance
to carry out the biosecurity measure, unless it is destruction of the
conveyance or
- if the measure is destruction of the conveyance—direct the
operator or the owner of the conveyance to carry out the measure
- in relation to premises—direct the owner of the premises to
carry out the biosecurity measure.[59]
A person commits an offence of strict liability if the
person is given such a direction and the person engages in conduct that
contravenes the direction.
|
|
428(2A)
|
If a biosecurity industry participant is authorised to
carry out biosecurity activities in accordance with an approved arrangement
covering the biosecurity industry participant and they fail to carry out
biosecurity activities in accordance with the arrangement, or fail to comply
with any requirements or conditions they commit an offence of strict
liability.
|
|
429(5A)
|
A biosecurity officer may give a direction to a biosecurity
industry participant covered by an approved arrangement, if satisfied that
the direction is necessary to manage biosecurity risks associated with the
operation of the approved arrangement.[60]
A person commits an offence of strict liability if the
person engages in conduct that contravenes the direction.
|
Source: Schedule 4, Biosecurity
Amendment (Advanced Compliance Measures) Bill 2023.
Stakeholder comments
Submissions to the RRAT Committee from both the Federal
Chamber of Automotive Industries[61]
and Shipping Australia[62]
expressed concerns about the introduction of strict liability offences in
Schedule 4 to the Bill.
The main concern for the Federal Chamber of Automotive
Industries was the perceived difficulty for a member who had been directed by a
biosecurity officer to arrange for the goods to be exported from Australian
territory or to move them stating:
… our members do not have any ability to compel a shipping
line to load cargo and take it offshore. Vessels that deliver our members’
vehicles are programmed for a particular voyage. Once the vehicles are unloaded
the vessel is committed to travel to another place. They cannot simply head
back to the Australia port and load up the affected vehicles.[63]
Shipping Australia opined that ‘the biosecurity
responsibilities and penalties should not be placed upon shipping companies
because they do not have biosecurity control over cargo’.[64]