Key issues raised in submissions
2.1
Submitters to this inquiry were unanimous in their support for the bill, and particular emphasis was given to the importance of protecting Australia's biosecurity environment from serious threats such as African Swine Fever (ASF). The issues raised in submissions are outlined below.
The risk posed to Australia's biosecurity
2.2
Submitters noted the importance of the Australian biosecurity system in protecting local flora and fauna, and the need for a strong and effective deterrence system. For example, the National Farmers' Federation (NFF) put forward the view that Australia's biosecurity system is fundamental to the success of Australia's agricultural industries, the health of the natural environment, and the economy.
2.3
The NFF further noted that Australia's biosecurity system supports market access and international competitiveness, as it underpins Australia's favourable pest and disease status. Further, it is central to on‑farm productivity, profitability and sustainability. Strong biosecurity also assists in minimising the damaging impact of invasive species and the associated costs of management. The NFF concluded that:
without a strong biosecurity system, our $60 billion agriculture industry is at risk, and we will be further from achieving our goal of $100 billion in farm gate output by 2030.
2.4
Despite the requirement for incoming passengers and crew (including persons in charge of an aircraft or vessel) to declare certain goods on their IPC and Crew Declarations, the department noted that biosecurity officers continue to detect undeclared goods which pose a biosecurity risk.
2.5
The department provided a range of examples where undeclared pork and pork products were detected in passengers' luggage, and when later tested were found to be infected with ASF. For example, in January 2020 a passenger failed to declare over three kilograms of pork (including two whole pig's ears, pork sausages and pork knuckle), in addition to large amounts of millet, ginger, garlic, pepper and cherry tomatoes. These items were detected by Biosecurity Dog Yula at Sydney Airport, and all pork products, with the exception of the pig's ears, tested positive for ASF virus fragments.
2.6
The department submitted that the threat to Australia's pork industry from an outbreak of ASF would be significant. The department explained that:
ASF is a contagious viral disease of domestic and wild pigs which has established in Asia and parts of Europe and continues to spread. There is no vaccine, and ASF kills about 80 per cent of the pigs it infects. While Australia is currently free of ASF, its changing distribution means it is a significant biosecurity threat to our country. An outbreak would be devastating for Australia’s $1.2 billion pork industry, and would damage our trading reputation and the economy.
2.7
The department noted that it has implemented a number of initiatives to counter the possible incursion of ASF into Australia. For example, in 2018 it introduced an ASF sampling and testing program for goods surrendered or seized at international airports. This program has been run three times to highlight the risk associated with raw and processed pork products, and each time it has detected ASF positive goods.
2.8
Further, the department advised that there have been extensive education and awareness campaigns, which have included brochures in airline seat pockets and tray mats on inbound flights; banners in airports; and brochures handed out at airports explaining the risks posed by failing to declare pork and pork products. This information has also been made available in a number of languages.
2.9
Despite these efforts, 'in 2018-19 biosecurity officers issued an average of approximately 410 infringement notices per month at Australian international airports'. The department explained that:
the number of infringement notices issued was projected to double in 2019-20 before COVID-19 related travel restrictions closed Australian borders to all travellers except Australian citizens, residents and their immediate families on 20 March 2020…for the period July 2019 to March 2020, an average of 887 infringement notices per month were issued, with 1139 infringement notices issued in January 2020 alone.
Infringement notices and penalty amounts
2.10
Submitters voiced their support for the amended infringement regime, and for increased penalties.
2.11
The department explained the benefits of higher infringement amounts, stating that:
the introduction of higher infringement notice amounts for failing to declare high level biosecurity risk goods will emphasise the biosecurity risks posed by the goods listed in the legislative instrument, and will encourage travellers to take greater care in completing their incoming traveller declarations. This approach will serve as a useful compliance tool in the department’s efforts to address priority biosecurity risks.
2.12
The department concluded that the amendments contained in the bill would deter non-compliance by enabling a proportionate approach to infringement notice amounts, via the regulations. This recognises that some goods or classes of goods 'pose a higher level of relative biosecurity risk from time to time and are a priority for the department to deal with immediately at the border'.
2.13
The NFF offered its support of the bill, and submitted that it:
strongly supports the intent of the bill to deter non-compliance with the Biosecurity Act 2015 and mitigate against biosecurity risk. Ongoing issues with incoming passengers failing to declare goods are of great concern to Australia's farm sector, and it is clear that existing compliance and enforcement tools are inadequate.
2.14
The NFF did, however, also argue that any deliberate failure to declare goods on an IPC should be treated as a serious contravention, regardless of the level of risk posed by the product. As such, the NFF called for transparency regarding the categorising of the different kinds or classes of goods which would occur as a result of the bill. The NFF asked that advice be provided to stakeholders on the proposed risk assessment and decision-making process which would be utilised, including any opportunities for stakeholder input.
2.15
The proposal to allow different penalties for specific infringements based on the biosecurity risk was also supported by the Tasmanian Farmers and Graziers Association (TFGA) which submitted that:
Threats and biosecurity risks can vary, and we believe this is a sensible approach to ensure the protection of industries that are most under threat, based on the risk of an incoming pest or disease.
2.16
Similarly, Australian Pork Limited (APL), the peak national representative body for Australian pork producers, stated that it was supportive of the proposal to issue infringement notices with increasing penalties based on the biosecurity risk. It went on to state that:
an effective infringement system must constantly evaluate the effectiveness of the interventions. A combination of penalties, as well as notifications on airlines/vessels, and at check in, would greatly assist in reducing the volume of biosecurity risks arriving at, and potentially passing through, Australian ports and airports. APL urges the government to look at all options to prevent biosecurity risk, and continually monitor their effectiveness in doing so.
2.17
The TFGA submitted that passengers should be made aware of the proposed changes, and the reason for the changes. It stated:
We believe with this change in infringements for selected biosecurity risks, it will be vital to ensure passengers are aware of the changes and the risk posed to our agricultural systems. Any education on biosecurity for passengers entering Australia is beneficial and it is also important passengers have a chance to understand the changes and why they are in place. It is also important that they understand the seriousness of the biosecurity risks and why the penalties have increased.
2.18
The NFF submitted that it was important that the department implement a method to assess and report on the effectiveness of the measures proposed by the bill. It suggested that this information should then be used to inform any future amendments, and related communication and awareness initiatives targeting travellers.
ICT and training
2.19
The department submitted evidence in relation to the implementation of the proposed amendments contained in the bill, including training of biosecurity and Australian Border Force (ABF) officers, and required changes to ICT systems.
2.20
The department advised that prior to the commencement of the proposed amendments, it would deliver coordinated training to biosecurity officers and ABF officers. It noted that as infringement notices would only be issued by biosecurity officers, the training delivered to ABF officers would be for their awareness only.
2.21
The department explained that training would be delivered by a small team of subject matter experts, experienced in the delivery of compliance-related training. Further, following an initial training period, ongoing training would be embedded in business as usual training activities.
2.22
The department submitted that while enforcement and payment systems for the issuing of infringement notices are already in use, some minor changes to the department's ICT systems would be required to support the implementation of the bill's proposed amendments.
Legislative instrument not subject to parliamentary disallowance
2.23
As noted prior, the bill proposes the creation of a new power to permit the Director of Biosecurity to make a legislative instrument, specifying the goods or classes of goods that attract a higher infringement notice amount. The legislative instrument would be exempt from the parliamentary disallowance requirements under section 42 of the Legislation Act 2003.
2.24
The department noted that while disallowance should only be excluded in exceptional circumstances where compelling policy justification exists, it was recognised that there are instances where an exemption from disallowance may be justified. The department explained that the 2008 Review of Legislative Instruments Act 2003 noted a range of established grounds for exemptions to parliamentary disallowance requirements, including where:
the rule-making process should or needs to be separated from the political process; or
the instrument is critical to ensuring that urgent and decisive action can be taken in situations of emergency or where circumstances are rapidly evolving.
2.25
The department submitted that in accordance with the Legislation Handbook it consulted with the Office of Parliamentary Counsel, and the Administrative Law Section of the Attorney-General's Department regarding the proposal of a non-disallowable legislative instrument. It explained that the justifications for establishing a non-disallowable instrument were that:
the proposed legislative instrument would be prepared on the basis of a scientific and technical assessment of risk undertaken within the objects of the Biosecurity Act; and
the disallowance of the proposed legislative instrument could potentially have a negative impact on decision-making, risk management processes, and the broader management of biosecurity threats.
2.26
The department went on to observe that:
Emerging pests and diseases can pose a serious and immediate threat to Australia’s biosecurity system. It is critical that the department, informed by scientific risk assessments, has the ability to take immediate action in response to these emerging risks.
2.27
The department also noted that the proposed disallowance exemption of the legislative instrument would be:
similar in character to other instruments already existing in the Biosecurity Act that reference the technical and scientific nature of the decision in question. For example those made under section 182 of the Biosecurity Act suspending the bringing or importing of specified goods into Australian territory for a specified period of time.
2.28
The department highlighted that the bill would establish a number of safeguards to ensure that the power to make the legislative instrument was exercised appropriately. These measures would include:
clear parameters for the exercise of the power, requiring that the Director of Biosecurity must be reasonably satisfied that there is a high level of biosecurity risk associated with the goods or class of goods before listing them in the legislative instrument;
the legislative instrument would only be in force for up to 12 months, ensuring the regular review of the goods and classes of goods listed to confirm the assessment of the biosecurity risk these pose; and
a proposed amendment to subsection 542(3) to prevent the sub‑delegation of the Director of Biosecurity's power to determine a list of goods or class of goods for the purposes of creating the differential infringement notice regime, to a departmental employee below the level of Senior Executive Staff (SES) or acting SES.
2.29
The department also submitted that the legislative instrument would be registered on the Federal Register of Legislation and published on the department's website, to ensure that it is easily accessible and open to public scrutiny. Further, this would provide transparency and certainty to incoming travellers.
2.30
In noting the 12‑month limit on the currency of the instrument, the NFF submitted that:
While the 12-month period provides a useful review mechanism, it would be unlikely that the determination would change materially within a 12‑month period, and the NFF would not be inclined to support a reduction in the infringement amounts associated with any goods or classes of goods. This would be difficult to justify, and may create an unhelpful impression that contraventions associated with these classes of goods are being taken less seriously.
Other issues
2.31
Submitters argued that any increased revenue arising from the penalties issued under the amended infringement notice framework should be 'invested directly into biosecurity'. For example, the TFGA stated:
We believe it is important that any funds are used to help protect Australia from the introduction of pests and diseases and any revenue generated must be used for this purpose.
2.32
Additionally the TFGA submitted that extensive consultation with stakeholders, including industry representatives, should occur to determine amended penalties on the basis of science. It stated:
This consultation and scientific analysis will help ensure that the correct areas are targeted to gain the most effective protection against the most serious pests and disease threats.
2.33
WoolProducers Australia recommended an appropriate recording system for the non-payment of infringement notices, which identified incoming passengers with outstanding infringement notices. Such passengers should then be 'made to pay any outstanding infringement notice amounts, or else be denied entry into Australia'. Further, Australian residents and citizens who did not pay infringement amounts within the 28 day period should 'attract more serious penalties for their non-compliance and non-payment under relevant Australian law'.
Committee views and recommendation
2.34
Australia's biosecurity system is a critically important national asset. It protects Australia's diverse and pristine natural wonders, and underpins agricultural production and export. As such, it is critical that vigilance is maintained in protecting Australia from an ever-increasing number of pests and diseases that threaten an array of industries, and Australia's unique flora and fauna.
2.35
Despite extensive information campaigns, and a simple process where incoming passengers and crew can easily declare goods for assessment by biosecurity officers, hundreds of undeclared high risk items are detected every year.
2.36
The risk to Australia must be mitigated. The proposed measures included in this bill will highlight to incoming travellers how serious biosecurity is and would introduce sensible and important changes to help protect Australia from biosecurity risks.
2.37
The committee supports the bill and its important purpose. The implementation of a proportionate compliance response to serious biosecurity risks will also help to act as a deterrent to future possible breaches.
2.38
The committee is also of the view that the non-disallowance of the instrument is appropriate given the circumstances, and in light of the fact that the instrument will be developed against scientific and technical assessments of risk. The 12‑month periods under which the instrument will operate is an effective safeguard to the instrument's operation, and will allow for an annual review and assessment of risk for specific goods.
2.39
For these reasons, the committee recommends that the bill be passed.
2.40
The committee recommends that the Biosecurity Amendment (Traveller Declarations and Other Measures) Bill 2020 be passed.
Chair