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On 2 September 2021 the Senate referred the Biosecurity Amendment (Enhanced Risk Management) Bill 2021 (the bill) to the Rural and Regional Affairs and Transport Legislation Committee (the committee) for inquiry and report by 14 October 2021.
Conduct of this inquiry
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Details of the inquiry were advertised on the committee's webpage. The committee also invited a number of organisations and individuals to submit to the inquiry by 27 September 2021. The committee received 14 submissions, which are listed at Appendix 1. Public submissions were published on the committee's inquiry webpage.
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The committee held a public hearing in Canberra on 7 October 2021. The witnesses who appeared at that hearing are listed at Appendix 2.
Acknowledgements
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The committee thanks all submitters and witnesses for their contribution to this inquiry.
Structure of this report
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This report consists of two chapters:
Chapter 1 provides administrative details relating to the inquiry and outlines the key purpose of the bill; and
Chapter 2 examines the key issues raised in the evidence and provides the committee's view.
Purpose of the bill
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The Biosecurity Act 2015 (Biosecurity Act) provides the regulatory framework for managing the risk of pests and diseases entering Australia. The bill would amend the Biosecurity Act to enhance this ability. It would 'strengthen the management of biosecurity risks posed by maritime and aviation arrivals, improve the efficiency and effectiveness of the administration of the Biosecurity Act, and increase a range of civil and criminal penalties to deter non-compliance and provide proportionate penalties.'
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In particular, the bill would amend the Biosecurity Act to:
strengthen pratique and human health requirements for aircraft and vessels;
increase penalties (both civil and criminal) for contraventions of the Biosecurity Act relating to goods;
streamline the process for making determinations specifying prohibited, conditionally non-prohibited, and suspended goods;
streamline the process for granting permits based on risk assessments; and
increase efficiency and ensure transparency of expenditure on biosecurity-related activities by permitting the Agriculture Minister and Health Minister to authorise expenditure directly through the Biosecurity Act.
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International vessels are a key risk pathway for infectious diseases entering Australia. This risk was highlighted by the spread of COVID-19 on-board the Ruby Princess cruise ship. The ability to effectively respond to biosecurity risks entering Australia through maritime and aviation pathways will be a significant consideration in reopening Australia's borders. This Bill would strengthen the legislative framework for international arrivals via these pathways and contribute to greater preparedness at the border.
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The spread of COVID-19, detections of Khapra beetle, and the emergence of a new variant of African Swine Fever have shown that the number of biosecurity threats and the speed at which they spread continues to increase. These threats will be emphasised as travel and trade increase during the continuing
COVID-19 economic recovery. The increase to penalty amounts contained in this Bill will ensure that penalty units appropriately reflect the impact that biosecurity contraventions may have on Australia's biosecurity status and that they are not merely seen as a 'cost of doing business'.
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The bill would increase transparency around the biosecurity risk assessment process when determining to prohibit or restrict the importation of goods. These processes play a central role in enabling the Australian Government to manage biosecurity risks. The amendments to the Biosecurity Act would identify the matters that must be considered in the risk assessment process while still applying the Appropriate Level of Protection for Australia to manage risk.
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The bill would also ensure that expenditure for biosecurity-related activities would fall within the Biosecurity Act. This amendment is designed to create a more efficient process to provide timely responses to biosecurity threats as they occur to effectively protect Australia's environment and economy.
Background
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Following the incident involving the Ruby Princess cruise ship at the
Port of Sydney on 19 March 2020, independent reviews – including the
New South Wales Special Commission of Inquiry into the Ruby Princess and the Inspector-General of Biosecurity Review Confidence testing for at-border delivery of critical human biosecurity functions - Ruby Princess cruise ship incident – have identified areas in need of reform for better management of human biosecurity risks onboard vessels and aircraft entering Australia. Both reviews recommended changes to the Biosecurity Act for managing human health risks for incoming passengers. Specific issues highlighted by the response to the COVID-19 pandemic and identified by the reports include:
the operation of pratique provisions within the Biosecurity Act;
pre-arrival reporting obligations and the importance of human health assessments prior to entry to a port; and
powers to manage human health of groups of arriving passengers.
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These two reviews raised concerns that the issues identified in the Ruby Princess incident could apply in similar circumstances to other cruise ships, in other ports, or for other biosecurity risk pathways. Of particular concern are circumstances where the probability of risk occurrence may be assessed to be low, but the consequences of biosecurity failure are potentially large.
New South Wales Special Commission report
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On 14 August 2020, the New South Wales Special Commission of Inquiry into the Ruby Princess was published. Key findings of the report concluded that serious errors were made in choosing not to test all passengers despite them being identified as 'suspect cases', not updating the acute respiratory diseases log on 18 and 19 March 2020, and the decision to assess the risk level of the cruise ship as 'low'. Recommendations made in the report include:
reconsideration of the NSW Human Biosecurity Officer guideline that 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;
Human Biosecurity Officers, the Commonwealth Department of Agriculture, Water and the Environment (DAWE), the Commonwealth Department of Health, and NSW Health develop more formal protocols for their interaction and communication, including in the granting of pratique;
that any future review of the Biosecurity Act considers the utility and possible expansion of human biosecurity control orders so as to be applicable to persons or groups; and that
the Biosecurity Act make explicit a requirement to update superseded human health information.
Inspector-General for Biosecurity report
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On 29 April 2021, the Inspector-General for Biosecurity released a report titled Confidence testing for at-border delivery of critical human biosecurity functions – Ruby Princess cruise ship incident. The report made 42 recommendations for reform, of which five were specifically targeted at amending the primary legislation:
Recommendation 19 – 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;
Recommendation 20 – to provide biosecurity officers with broader powers that will assist them in managing large numbers of passengers and crew with potential Listed Human Diseases on-board foreign commercial vessels;
Recommendation 21 – to provide biosecurity officers with greater powers to enforce negative pratique and to penalise individuals who breach negative pratique;
Recommendation 22 – to provide biosecurity officers with clear powers to revoke pratique, including where incorrect or inaccurate information is supplied by the vessel operator or there are changes to the vessel’s human biosecurity risk status over time; and
Recommendation 24 – to require vessel operators to report updated biosecurity information, including human biosecurity information, if there are any changes after the Pre-arrival Report.
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In his submission, the Inspector-General, Mr Rob Delane, commended the government for progressing legislation addressing these recommendations and believes these amendments satisfactorily deal with the human biosecurity risks associated with international passengers.
Consideration by other committees
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The bill has also been considered by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) and the Parliamentary Joint Committee on Human Rights (PJCHR).
Senate Standing Committee for the Scrutiny of Bills
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The bill was considered by the Scrutiny Committee in September 2021. The Scrutiny Committee expressed concern about a number of details in the bill, in particular that some of the amendments would not be subject to the usual parliamentary scrutiny processes.
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In considering proposed sections 108N (requiring body examinations) and 108P (requiring body samples for diagnosis) the Scrutiny Committee expressed concern that a group direction is not a legislative instrument and, therefore, will not be subject to parliamentary scrutiny. The Scrutiny Committee also questioned why there is no high-level guidance in the bill in relation to the measures provided for under these sections, including:
what examinations or sampling procedures may be included within a direction;
in what circumstances it is appropriate to require an examination or body sample;
when consent must be given;
how consent is to be given; and
what medical and professional standards will apply.
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As such, the Scrutiny Committee requested further advice from the Minister as to whether the bill can be amended to include high-level guidance in relation to proposed sections 108N and 108P, and have requested whether the bill can be amended to include requirements for group directions to be made public via publishing online and in DAWE's annual report.
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The Scrutiny Committee also expressed concern with the taking and storage of bodily samples. While acknowledging that proposed section 108R provides that a procedure to take a body sample must be carried out in a manner consistent with appropriate medical and professional standards, the
Scrutiny Committee was unclear as to why the bill cannot provide that samples must only be stored for as long as is strictly necessary and may only be used for the purpose for which the sample was taken. The
Scrutiny Committee requested further advice from the Minister to address these concerns.
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Finally, the Scrutiny Committee believes there is insufficient guidance in the primary legislation as to how the broad discretionary power to make agreements or grants will be exercised. The Scrutiny Committee's view is that, where it is proposed to allow the expenditure of a significant amount of public money, the expenditure should be subject to appropriate parliamentary scrutiny and oversight. The Scrutiny Committee therefore made the following requests for advice to the Minister:
why it is considered necessary and appropriate to confer on the
Agriculture Minister and the Health Minister a broad power to make arrangements and grants in circumstances where there is limited guidance on the face of the bill as to how that power is to be exercised;
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.
Parliamentary Joint Committee on Human Rights
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The PJCHR considered the bill in its Report 11 of 2021 and was yet to form a concluded view in relation to it. Instead, the PJCHR has requested further information from the Minister in order to assess the human rights implications of the bill.
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The PJCHR noted that the bill is designed to prevent the spread of potentially communicable diseases and, as such, considers that the bill promotes the rights to life and health. However, the PJCHR also considers that the coercive powers enabled by the bill potentially infringe on a number of other rights, including those of liberty, freedom of movement, right to a private life, the rights of children, and the rights of the disabled. The PJCHR questioned whether the measures are proportional to the desired outcome and whether they have been properly considered in preparing the bill:
While the bill may limit these rights, most of these rights may be permissibly limited where it is demonstrated that the limitation pursues a legitimate objective, is rationally connected to (that is, effective to achieve) that objective and is proportionate to that objective.
The statement of compatibility recognises that the directions power promotes the right to health, and limits the right to liberty and privacy, but does not acknowledge that the measure may limit the right to freedom of movement or the rights of the child or persons with disabilities.
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In order to assess the human rights compatibility of the bill the PJCHR requested the following information from the Minister:
(a) why the legislation does not require that if an officer is made aware of a disability that would affect a person’s ability to comply with the direction, that they must consider making an exemption;
(b) why there is no legislative criteria as to the type of examinations that will require consent (e.g. anything invasive) and a specific requirement that such examinations be undertaken with regard to the dignity, and where necessary, privacy, of the person being examined;
(c) why there is no flexibility for officers to grant exemptions from the requirement to undergo certain examinations;
(d) why the bill provides no guidance as to when body samples must be destroyed (for example, once testing has been completed), noting that body samples can contain sensitive personal information; and
(e) how empowering an accompanying person of a ‘child or incapable person’ to give consent on their behalf to undergo examinations and provide body samples, without requiring any consideration as to the wishes of the child or incapable person, is compatible with the rights of the child and the rights of persons with disabilities.
Notes on references
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In this report, references to Committee Hansard are to proof transcripts. Page numbers may vary between proof and official transcripts.