Biofouling is the attachment of an organism or organisms
to a surface in contact with water for a period of time. One of the most common
biofouling sites is on the hulls of ships.[309]
Research suggests that biofouling has been responsible for more foreign marine
introductions than ballast water.[310]
The Beale Review acknowledged that ‘international
standards for biofouling management have not yet
been established’ and recommended that:
In relation to biofouling, the Commonwealth’s legislative
reach should be restricted to international vessels arriving in Australia, with
the states and territories retaining responsibility for domestic biofouling
requirements. The Commonwealth should promote the development of an
international convention covering biofouling through the International Maritime
Organization.[311]
According to the Invasive Species Council, the absence of
a regulatory regime for biofouling is Australia ‘is a major gap in biosecurity
and environmental law’.[312]
The Department of Agriculture has developed biofouling
management guidelines but these are only utilised on a voluntary basis.[313]
Importantly, the term biosecurity risk is given an
expanded meaning if the pest is suspected of being, or is known to be an invasive
pest.[316]
In that case the relevant biosecurity risk is the likelihood of
the invasive pest entering Australian territory or a part of Australian
territory or emerging, establishing itself or spreading in Australian territory
or a part of Australian territory and the potential for the invasive
pest to cause harm to ecosystems, habitats or species.[317]
The powers of a biosecurity officer include the power to require
goods or conveyances to be secured,[320]
inspect and take samples of goods or premises,[321]
ask questions or require documents,[322]
give directions to move or not to move goods or conveyances,[323]
operate electronic equipment on the premises, to put relevant data in
documentary form and to remove the documents so produced from the premises.[324]
Once a biosecurity officer has undertaken the assessment
of the biosecurity risk, as outlined above, the Director of Biosecurity may
make a biosecurity control order if he, or she, is satisfied that
biosecurity measures need to be taken in relation to the goods
or premises for the purpose of managing the biosecurity risk
posed by the disease or pest.[325]
In making the order the Director of Biosecurity has a suite of powers which can
be invoked depending on the nature and extent of the biosecurity risk. Subclause
354(2) of the Bill requires that the biosecurity control order
specifies the following:
Once a biosecurity response zone determination is in
force, a range of powers may be exercised within the relevant zone for the
purpose of managing the biosecurity risk posed by the disease or pest to which
the determination relates. These powers are to be exercised having regard to
the decision-making principles which are expressed in clause 32 of the
Bill.[337]
The offence is a criminal offence with a maximum penalty
of imprisonment for five years of 300 penalty units, or both.[342]
The other offences created under these clauses provide for equivalent penalties
for the contravention of a requirement to answer questions (under subclause
319(1)), the contravention of a requirement to produce documents (under subclause
320(1)) and the unauthorised movement of goods or a conveyance to which a
notice has been affixed.
These clauses are in similar terms to those which empower
the Director or Biosecurity to make a biosecurity control order—that is, the
content of the relevant determination, the powers which can be exercised by a
biosecurity officer within the temporary biosecurity monitoring zone
and the civil penalty provisions which relate to conduct by unauthorised person
within the temporary biosecurity monitoring zone. In addition, clause 387
of the Bill requires the Director of Biosecurity to consult the head of the
State or Territory body that is responsible for the administration of matters
relating to biosecurity in each state or territory in which the temporary
biosecurity monitoring zone is located.[345]
Essentially, Chapter 6 deals with post-border activities
which will come into operation once a disease or pest has already entered
Australian territory and has emerged, established itself or spread giving rise
to some harm to human, animal or plant health or to the environment. As the
Explanatory Memorandum states:
Australia has experienced a number of serious incursions
of invasive alien species.[351]
For instance, fire ants were discovered in Brisbane in February 2001 after
being brought in on a ship. By August 2001, the ants had been found at 733
sites across 23,000 hectares and were believed to be occupying more than 2000
sites.[352]
It has been reported that more than a decade after an eradication plan was
initiated, fire ants remain a problem.[353]
The small hive beetle was accidentally introduced from
Africa in 2002. It has been reported that ‘the beetle has the potential to
devastate the commercial honey bee population as well as widespread populations
of wild bee’.[354]
The Queensland Primary Industries Department surveyed
1,400 beekeepers across Queensland who ‘reported the loss of more than 3,000
hives at a cost of $400 each—the price of clean-up,
control and restoration’.[355]
Citrus canker, an exotic bacterial disease of citrus and
other related plants, was detected at Emerald in Central Queensland in June
2004.[356]
In response to the outbreak, ‘a pest quarantine area was established to prevent
further spread and facilitate eradication of the disease’[357]
and some 500,000 citrus trees were destroyed.[358]
In May 2007, a nest of Asian honey bees was discovered in
the mast of a yacht in dry dock at Cairns, in north Queensland. Over the 18
months after the Cairns nest was discovered, 16 nests and two swarms were found
in the region.[359]
Asian honey bees are a natural host for varroa mites which pose a serious
threat to the honey bee industry and crops dependant on European honey bees for
pollution.[360]
Unfortunately the Asian Honey Bee National Management Group formed the view in
January 2011 that eradication of the Asian honey bee was no longer technically
feasible.[361]
Once authorised, biosecurity industry participants must
carry out biosecurity activities in accordance with an approved arrangement. Clause
428 of the Bill creates a fault based offence if a person contravenes the
requirement. The maximum penalty for the offence is imprisonment for five years
or 300 penalty units, or both.[373]
In addition there is a civil penalty provision so that breach of the
requirement attracts a maximum civil penalty of 120 penalty units.[374]
The Director of Biosecurity or the Director of Human
Biosecurity may apply to a court for a cost order requiring a biosecurity
industry participant to pay to the Commonwealth the whole, or a part, of the
costs incurred by the Commonwealth in relation to a biosecurity incident.[377]
The Explanatory Memorandum provides the rationale for the
auditing arrangements.
This should go some way to assuaging the concerns of
stakeholders such as the National Farmers Federation (NFF) which has pointed
out that approved arrangements are ‘a critical area for the farming and
agribusiness sectors in that it represents the point of highest exposure to
risk of incursions’ and therefore should be subject to stringent regulation.[381]
A person is liable to a civil penalty if the person gives
information to a biosecurity industry participant which the person knows is
false or misleading (or which the person knows omits any matter or thing
without which the information is misleading) where the information relates to biosecurity
activities that are being, or are to be, carried out in accordance with an approved
arrangement.[382]
An equivalent penalty arises in relation to the giving of a document which the
person knows is false and misleading.[383]
Importantly, in relation to the giving of information, it
is the responsibility of a biosecurity industry participant (that
is—the holder of an approval in relation to an arrangement to carry out
biosecurity activities) to take reasonable steps to inform a person giving
information that he or she may be liable to a civil penalty where the
information is false or misleading.[384]
There is a broad protection in respect of civil proceedings
against the Commonwealth, or a person who
is, or was a biosecurity industry participant, in relation to anything done, or
omitted to be done, in good faith in carrying out biosecurity activities as a
biosecurity industry participant in accordance with an approved arrangement.[385]
- that
apply to persons, goods or conveyances when
entering or leaving specified places
- that
restrict or prevent the movement of persons, goods or conveyances in or between
specified places
-
that specified places are evacuated
-
that goods or conveyances are removed from specified places or
- that
goods are treated or destroyed[389]
• during
the biosecurity emergency period, the Agriculture Minister may give
directions or take action to prevent or control the establishment or spread
of the disease or pest[390]
including:
- a
direction requiring a person to treat or destroy good
- a
direction requiring a person to secure goods or a conveyance
-
a direction not to move, deal with or interfere with goods or a
conveyance
-
any direction relating to the movement of goods or a conveyance
-
a direction requiring a person leaving specified premises to
leave the premises only at a specified place or places
-
a direction to a person who is in a position to close specified
premises, or prevent access to them to do so
- a
direction of a general or specific nature to the Director of Biosecurity, an
officer or employee of the Commonwealth (including a biosecurity officer or a
biosecurity enforcement officer) about the performance of his or her functions
or the exercise of his or her powers.[391]
The concentration of power in the Minister for Agriculture
during a biosecurity emergency period is to ‘ensure that the Minister is the
sole person in charge of coordinating the national biosecurity emergency
response. Otherwise conflicting directions or actions might be undertaken
during a declared biosecurity emergency, limiting the effectiveness of the
response’.[392]
A person must comply with the requirements and directions
set out above. A person who does not do so commits a fault-based offence, the maximum
penalty for which is imprisonment for five years or 300 penalty units or both.[393]
Alternatively, the person may be liable to a maximum civil penalty of 120
penalty units.[394]
National response agency
Clauses 452–455 of the Bill empower the Agriculture
Minister to declare that the Australian Defence Force, a Commonwealth body, or
part of a Commonwealth body, is a national response agency for
the purposes of dealing with a biosecurity emergency of national significance.
Importantly the definition of national response agency in clause
9 of the Bill includes the Agriculture Department so that it will
automatically become a national response agency. According to the
Explanatory Memorandum, ‘the Australian Defence Force has been listed in this
clause as its personnel have specific training and expertise that can be
utilised to assist with a biosecurity emergency response’.[395]
Clauses 458–469 of the Bill provide for the exercising
some of the powers in other Parts of the Bill in a modified way during a
biosecurity emergency. These are detailed provisions which will need to be
interpreted given the nature and extent of the relevant biosecurity emergency. Clause
470 provides biosecurity enforcement officers and biosecurity officers with
the power to enter premises without a warrant or consent in certain
circumstances during a biosecurity emergency period.
Human biosecurity emergency
Clause 475 of the Bill empowers the Governor-General
to declare that a human biosecurity emergency exists if the
Health Minister is satisfied that a listed human disease is
posing a severe and immediate threat, or
is causing harm, to human health on a nationally significant
scale and the declaration is necessary to prevent or control the entry or the
emergence, establishment or spread of the listed human disease in Australian
territory or a part of Australian territory. The declaration must specify the
nature of the human biosecurity emergency and the period for which the
declaration is in force. Although the declaration is a legislative instrument,
it is not subject to disallowance.[396]
As with the powers of the Agriculture Minister outlined
above, the Health Minister may determine the emergency requirements to
prevent or control the entry, emergence, establishment or spread of the listed
human disease.[397]
The Health Minister may also give directions to prevent or control the entry,
emergence, establishment or spread of the disease.[398]
A person must comply with the requirements and directions
set out above. A person who does not do so commits a fault-based offence, the
maximum penalty for which is imprisonment for five years or 300 penalty units
or both.[399]
Key issue—biosecurity emergency
powers
The Scrutiny of Bills Committee drew attention to a number
of provisions in Chapter 8, including clauses 443 and 470, and subclauses
445(4) and 446(4) which relate to biosecurity emergencies and subclauses
477(5) and 478(4) which relate to human biosecurity emergencies.[400]
Clauses 443 and 475 of the Bill relate to the powers to declare a
biosecurity emergency or human biosecurity emergency respectively. The Scrutiny
of Bills Committee drew attention to these powers on the grounds that they may make
rights and liberties unduly dependent on an insufficiently defined
administrative power. In particular, the Scrutiny of Bills Committee noted that
these clauses authorise ‘the exercise of a number of ‘potentially invasive’
powers during the period of the emergency declaration’, including the power to
enter premises without a warrant or consent.[401]
According to the Explanatory Memorandum, ‘these powers are necessary for the
legitimate objective of managing biosecurity risks during a biosecurity
emergency period’.[402]
Clause 470 of the Bill provides biosecurity
enforcement officers and biosecurity officers with the power to enter premises
without a warrant or consent in certain circumstances during a biosecurity
emergency period. The Scrutiny of Bills Committee noted the potential for this
clause to trespass on personal rights and liberties, but left the general issue
of whether entry without consent or warrant is justifiable in the context of a
biosecurity emergency ‘to the consideration of the Senate as a whole’.[403]
Under clauses 445 and 446 the Agriculture Minister
may determine certain requirements, directions and actions if he or she is satisfied
that the measure is appropriate and adapted to the prevention or control of the
establishment or spread of the specified disease or pest. Clauses 477 and
478 of the Bill are in similar terms although they relate to the prevention
or control of the establishment or spread of a listed human disease.
The nominated subclauses provide that they are to have
effect ‘despite any provision of any other Australian law’. However, that is
not precisely how the subclauses operate. According to the Explanatory
Memorandum:
A biosecurity emergency requirement determined by the
Minister will have effect despite any provision of any other Australian law.
This ensures that during a biosecurity emergency period any person who acts in
accordance with a requirement from the Agriculture Minister (or a delegate as
provided for in this Act) will not be liable for an offence under that
Australian law in circumstances where their actions would ordinarily be in
contravention of that law. However, this clause does not override any other
Australian law, which means that unless a person‘s compliance with the
requirement conflicts with another law, that law will continue to be in force.[404]
|
Quick guide to Chapter 9
- The
provisions of Chapter 9 of the Bill are substantially different from those in
the 2012 Bill. In particular the provisions enliven Part 2 of the Regulatory
Powers Act 2014 which had not been enacted when the 2012 Bill was drafted
and introduced into the Parliament.
- The
Regulatory Powers Act provides for a framework of standard regulatory
powers exercised by agencies across the Commonwealth. It reflects the Guide
to Framing Commonwealth Offences, Infringements Notices and Enforcement
Powers[405]
and applies to regulatory schemes which trigger its provisions through
primary legislation—as the Biosecurity Bill does.[406]
- Chapter
9 contains monitoring, investigation and warrant powers which enliven the Regulatory
Powers Act.
- In
addition to criminal sanctions, Chapter 9 also canvasses other enforcement options
such as civil penalties, infringement notices, enforceable undertakings and
injunctions.
|
Chapter 9 (clauses 480–538) of the Bill contains compliance
and enforcement powers.
Monitoring
Nature of monitoring powers
Clause 481 of the Bill provides that the Biosecurity
Act and information given in compliance with its provisions are subject to
monitoring under Part 2 of the Regulatory Powers Act.[407]
The clause also ensures that a biosecurity enforcement officer under
the Biosecurity Act is an authorised applicant and an
authorised person for the purposes of Part 2 of the Regulatory
Powers Act (which provides a framework for monitoring compliance with
relevant legislation).[408]
The monitoring powers (set out at section 19
of the Regulatory Powers Act) which may be exercised on premises that an
authorised person has entered under warrant or consent, include the power to:
- search
the premises and any thing on the premises
- examine
or observe any activity conducted on the premises
- inspect,
examine, take measurements of or conduct tests on any thing on the premises
- make
any still or moving image or any recording of the premises or any thing on the
premises
- inspect
any document on the premises
- take
extracts from, or make copies of, any such document
- take
onto the premises such equipment and materials as the biosecurity
enforcement officer requires in order to exercise powers in relation to
the premises
- operate
electronic equipment on the premises, to put relevant data in documentary form
and remove those documents from the premises[409]
- secure
electronic equipment where an authorised person enters premises under a
monitoring warrant[410]
- secure
a thing for a period of 24 hours in circumstances where the thing is found
during the exercise of monitoring powers on the premises and a biosecurity
enforcement officer believes on reasonable grounds that it relates to
the contravention of a related provision.[411]
These powers may only be exercised to:
- determine
whether the Biosecurity Act is being complied with and/or
- determine
whether information supplied under the Biosecurity Act is correct.[412]
Clause 482 of the Bill provides additional monitoring
powers, being the power to sample any thing on the premises and for a biosecurity
enforcement officer to be accompanied by, and use, an animal to assist him
or her in executing a monitoring warrant or when they have entered premises by
consent.[413]
A biosecurity enforcement officer may use such force as is
reasonable and necessary in the circumstances against things. However, this
does not extend to the use of force against a person.[414]
Issuing a monitoring warrant
A monitoring warrant may be issued if the issuing
officer[415]
is satisfied that it is reasonably necessary for one or more biosecurity
enforcement officers to have access to premises for the purpose of
determining whether a provision that is subject to monitoring has been, or is
being, complied with or that information subject to monitoring is correct.[416]
(All the provisions of the Biosecurity Act, and all information given in
compliance with that Act, are subject to monitoring).[417]
In that case the relevant warrant must do all of the following:
- describe
the premises to which the warrant relates
- state
that the warrant is issued under section 32 of the Regulatory Powers Act
- state
the purpose for which the warrant is issued
- authorise
one or more biosecurity enforcement officers (whether or not
named in the warrant) from time to time while the warrant remains in force to
enter the premises and to exercise the monitoring powers
- state
whether entry is authorised to be made at any time of the day or during
specified hours of the day and
- specify
the day (not more than three months after the issue of the warrant) on which
the warrant ceases to be in force.[418]
A biosecurity enforcement officer may enter
premises and exercise the monitoring powers only if the occupier of the
premises has consented to the entry, or the entry is made under a monitoring
warrant.[419]
Investigating
Nature of investigation powers
Clause 484 of the Bill sets out the provisions that
are subject to investigation under Part 3 of the Regulatory Powers Act.
They are:
- an
offence against the Biosecurity Act
- a
civil penalty provision under the Biosecurity Act or
- an
offence against the Crimes Act or the Criminal Code that relates
to the Biosecurity Act.
Part 3 of the Regulatory Powers Act applies to the evidential
material in respect of the above.[420]
Evidential material is material relevant to criminal
offences and civil penalty provisions under the Biosecurity Act.[421]
Subclause 484(2) of the Bill aligns the designated positions in both
statutes as above and also provides that the Director of Biosecurity
is equivalent to the relevant chief executive under the Regulatory
Powers Act.
The investigation powers (set out at section
49 of the Regulatory Powers Act) which may be exercised on premises that
an authorised person has entered under warrant or consent, include the power to:
- where
the occupier consents to entry—search the premises and any thing on the
premises for the evidential material the biosecurity enforcement officer
suspects on reasonable grounds may be on the premises
- where
the entry is under warrant—search the premises and any thing on the premises
for the kind of evidential material specified in the warrant and to seize
evidential material of that kind if the biosecurity enforcement officer
finds it on the premises
- inspect,
examine, take measurements of, or conduct tests on, the evidential material
- make
any still or moving image or any recording of the premises or evidential
material
- take
onto the premises such equipment and materials as the biosecurity
enforcement officer requires for the purpose of exercising powers in
relation to the premises
- operate
electronic equipment on the premises, to put relevant data in documentary form
and remove those documents from the premises[422]
- secure
electronic equipment where an authorised person enters premises under an investigation
warrant[423]
- seize
a thing that is not evidential material specified in a warrant if other evidential
material is found in the execution of an investigation warrant which a biosecurity
enforcement officer believes on reasonable grounds is evidence of the
contravention of a related provision.[424]
(A ‘related provision’ is an offence under the Biosecurity Act or the Quarantine
Act; a civil penalty provision of the Biosecurity Act; or an offence
under the Crimes Act or the Criminal Code that relates to the Biosecurity
Act or the Quarantine Act).[425]
Similar to the provisions about monitoring powers, clause
485 of the Bill provides for additional investigation powers—being the
power to sample any thing on the premises and for a biosecurity
enforcement officer to be accompanied by, and use, an animal to assist him
or her in exercising an investigation power.[426]
A biosecurity enforcement officer may use such force as is reasonable and
necessary in the circumstances against things. However, this does not extend to
the use of force against a person.[427]
Issuing an investigation warrant
Where a biosecurity enforcement officer suspects on reasonable
grounds that there may be evidential material on any premises, he, or she, may
enter the premises and use investigation powers so long as the occupier
consents or the biosecurity enforcement officer has an investigation
warrant.[428]
The provisions in Part 3 of the Regulatory Powers Act set out the
requirements for applying for an investigation warrant and its contents.[429]
Other warrants
Clause 487 of the Bill lists the other types of
warrants (that is, warrants other than monitoring or investigation warrants) for
which a biosecurity enforcement officer may apply, being:
- a
biosecurity risk assessment warrant authorising entry to premises
and the exercise of the powers in clauses 313–326 which relate to the
assessment of a biosecurity risk[430]
- a
biosecurity control order warrant authorising entry to premises
and the exercise of the powers that are available to be exercised under a
biosecurity control order in accordance with clause 360[431]
- a
biosecurity response zone warrant authorising entry to premises
and the exercise of the powers that are available to be exercised in a
biosecurity response zone in accordance with clause 370[432]
- a
biosecurity monitoring zone warrant authorising entry to premises
and the exercise of the powers that are available to be exercised in a
permanent biosecurity monitoring zone in accordance with subclauses 379(1)
and (2) or in a temporary biosecurity monitoring zone in accordance with clause
389[433]
- an
adjacent premises warrant authorising entry to premises and
remaining on premises for such period as is reasonably necessary to gain access
to other premises[434]
- a
conveyance possession warrant authorising the taking of
possession of a conveyance for the purpose of allowing it to be dealt with or
destroyed in accordance with subclauses 209(5) or 338(5)[435]
- a
premises possession warrant authorising the taking of possession
of premises (other than a conveyance) for the purpose of allowing the premises
to be dealt with or destroyed in accordance with subclause 341(3) or clause 344.[436]
Clause 489 of the Bill sets out in table form the
threshold tests which must be met before any of the above warrants is issued by
an issuing officer. [437] Generally the maximum
length of a warrant is one month from the day the warrant is issued.[438]
General rules—obligations and
powers relating to warrants
Clauses 501–505 of the Bill set out general
obligations and powers in respect warrants that are not monitoring and
investigation warrants. Essentially those provisions require a biosecurity
enforcement officer or a biosecurity officer to announce his or her authority
to enter the premises and show his or her identify card to an appropriate
person.[439]
In addition, a biosecurity enforcement officer must be in
possession of the warrant (or a copy of the warrant) and provide a copy of the
warrant to the appropriate person. A biosecurity enforcement officer who is
executing a warrant (or a person assisting the biosecurity enforcement officer)
may use such force against things (but not persons) as is necessary and
reasonable in the circumstances—for instance ‘the opening of doors or the
movement of things’.[440]
General rules—appropriate person
Clauses 507 and 508 of the Bill set out the rights
and responsibilities of appropriate persons in relation to warrants
other than monitoring and investigation warrants. These are:
- the
appropriate person for premises is entitled to observe the
execution of an entry warrant if the person is present at the premises while
the warrant is being executed
- the
appropriate person for a conveyance is entitled to observe the execution of a
conveyance possession warrant if the person is on board the conveyance while
the warrant is being executed
- the
right to observe ceases if the appropriate person impedes the execution of the
relevant warrant
- an
appropriate person for premises or a conveyance to which a warrant relates is
required to provide a biosecurity enforcement officer, a biosecurity officer or
a person assisting those officers with all reasonable facilities and assistance
for the effective exercise of their powers.
Entering without a warrant or
consent
Clauses 509–517 of the Bill permit a biosecurity
officer or biosecurity enforcement officer to enter relevant premises
without a warrant or valid consent. For the purposes of those clauses, relevant
premises are those where a biosecurity industry participant is covered
by an approved arrangement and landing places or ports which are first
points of entry.[441]
‘Entry to a premise in these circumstances recognises that the nature of the
unique activities at these premises may require entry for a biosecurity
enforcement officer without a warrant or consent to manage biosecurity risks.’[442]
A biosecurity enforcement officer may enter relevant
premises without a warrant for the purpose of exercising monitoring or
investigation powers (as set out in Parts 2 and 3 of the Regulatory Powers
Act)—as if the officer had a warrant.
In particular, clause 511 of the Bill operates to
allow a biosecurity enforcement officer to stop and detain a conveyance for the
purpose of exercising the monitoring powers.
Despite the absence of a warrant or consent, a biosecurity
enforcement officer or a biosecurity officer must announce their entry and show
their identity card to the appropriate person and explain their reasons for
entering the premises.[443]
Occupiers of premises which are entered without warrant, and their
representatives, may observe the exercise of powers there.[444]
Civil penalties
Clause 519 of the Bill provides that each civil
penalty provision under the Biosecurity Act is enforceable under Part 4
of the Regulatory Powers Act.[445]
The clause also provides that the Director of Biosecurity and the
Director of Human Biosecurity are authorised applicants for the
purposes of the Regulatory Powers Act.
Part 4 of the Regulatory Powers Act operates so
that a provision of the Biosecurity Act will be an enforceable civil
penalty provision[446]
and the Director of Biosecurity and the Director of Human
Biosecurity may apply to a relevant court[447]—within
four years of the alleged contravention—for an order that a person pay the
Commonwealth a pecuniary penalty.[448]
Where the court is satisfied that the person has contravened the civil penalty
provision, it may order the person to pay to the Commonwealth a pecuniary
penalty.[449]
A pecuniary penalty is a debt payable to the Commonwealth and is recoverable as
a judgement debt.[450]
However, clause 520 of the Bill operates to modify
the effect of other provisions in Part 4 of the Regulatory Powers Act. The
rationale for the modification is that ‘there are similar offences at
Commonwealth and state and territory law’.[451]
By way of example, a person is not liable under Part 4 of the Regulatory
Powers Act to have a civil penalty order made against him, or her, if the
person has been convicted of an offence under an Australian law or has been
found by a court to have contravened a civil penalty provision under an
Australian law that is the same, or substantially the same, as constituting the
contravention under the Biosecurity Act.[452]
Infringement notices
Clause 523 of the Bill provides a list of each
provision in the Biosecurity Act that is subject to an infringement
notice under Part 5 of the Regulatory Powers Act.[453]
The clause also provides that the Director of Biosecurity is an
infringement officer for the purposes of the Regulatory Powers Act as
well as the relevant chief executive.[454]
Part 5 of the Regulatory Powers Act operates so
that an infringement notice may be given if the Director of Biosecurity believes
on reasonable grounds that a person has contravened a provision subject to an
infringement notice. An infringement notice must be given within 12 months
after the day on which the contravention is alleged to have taken place.[455]
The contents of an infringement notice are set out in detail in section 104 of the Regulatory
Powers Act including amongst other
things:
- the
day on which, and the name of the person to whom, the notice is given
- the
name and contact details of the person who gave the notice and brief details of
the alleged contravention
- the
amount that is payable under the notice and how payment may be made
- the
requirement to pay the amount specified within 28 days after the day the notice
is given and the consequences of a failure to do so—including the possibility
of prosecution for a contravention of a civil penalty provision.
Clause 524 of the Bill operates to modify the
effect of some provisions in Part 5 of the Regulatory Powers Act. In
particular, the period for paying an infringement notice may be reduced from 28
days to some lesser period by regulations.[456]
Enforceable undertakings
Clause 526 of the Bill provides that provisions of
the Biosecurity Act are enforceable under Part 6 of the Regulatory
Powers Act.[457]
The clause also provides that the Director of Biosecurity is an
authorised person in relation to those provisions.[458]
The Regulatory Powers Act will operate so that the
Director of Biosecurity may accept undertakings that a person will take
specified action or refrain from taking specified action. The person who gives
the undertaking may withdraw, or vary, it at any time with the written consent
of the Director of Biosecurity. Similarly, the Director of Biosecurity may, by
written notice given to the person, cancel the undertaking.[459]
In addition, the Director of Biosecurity may apply to a relevant court for an
order where he or she believes that a person has breached their undertaking.[460]
Injunctions
Similarly clause 528 of the Bill provides that
provisions of the Biosecurity Act are enforceable under Part 7 of the Regulatory
Powers Act.[461]
The clause also provides that the Director of Biosecurity and the
Director of Human Biosecurity are authorised persons in relation
to those provisions.[462]
The Regulatory Powers Act will operate so that the
Director of Biosecurity or the Director of Human Biosecurity may apply to a
relevant court for the grant of an injunction to restrain a person from engaging
in specified conduct or requiring the person to do a thing.[463]
False and misleading information or
documents
Clause 532 of the Bill provides that a person is
liable to a civil penalty if the person gives information in compliance with
the Biosecurity Act and that person does so, knowing that the
information is false and misleading. The civil penalty also arises if the
person omits any matter or thing without which the information is misleading.
Similarly clause 533 provides that a person is liable to a civil penalty
if the person produces a document in purported compliance with the Biosecurity
Act and that person does so, knowing that the document is false and
misleading.
In either case the civil penalty will not apply unless the
information given, or the document produced, is false and misleading in a
material particular.[464]
In addition, the civil penalty in relation to the giving of false and
misleading information does not apply if, before the person gave the
information, he or she was not informed by the officer requesting it of his or
her possible liability to the civil penalty.
These clauses were of concern to the Customs Brokers and
Forwarders Council of Australia because of the possibility of a cargo owner
providing false documentation or information to a licensed customs
broker/brokerage. In that case, the Customs Brokers and Forwarders Council of
Australia considered that the responsible person for compliance failure is the
cargo owner, rather than the customs broker who is acting in good faith based
on the information and documentation provided by the cargo owner to facilitate
biosecurity border clearance. The Customs Brokers and Forwarders Council of
Australia expressed the view that the Regulations or Departmental policy on
this aspect should clearly define the responsible parties.[465]
However, the Department of Agriculture provided the
following explanation in answer to a written question on notice:
A person providing information to the department should
ensure that the information they are providing is true and accurate. Clauses
532-533 provide that a person is liable to a maximum civil penalty of 60
penalty units if a person knowingly provides false and misleading
information or documents in compliance or purported compliance with the Biosecurity
Act.
These clauses are intended to dissuade persons from providing
false or misleading information to an official for the purposes of complying
with the Biosecurity Act, thereby ensuring that officials have access to
information that is relevant, reliable and correct. If an official relies upon
false or misleading information it has the potential to reduce the official‘s
ability to assess or manage biosecurity risk.
Section 95 of the Regulatory Powers Act provides for a
defence of mistake of fact. A person is not liable to have a civil penalty
order made against the person for a contravention of a civil penalty provision
if: at or before the time of the conduct constituting the contravention, the
person: (i) considered whether or not facts existed; and (ii) was under a
mistaken but reasonable belief about those facts; and had those facts existed,
the conduct would not have constituted a contravention of the civil penalty
provision.[466]
|
Quick guide to Chapter 10
- Chapter
10 of this Bill is in similar terms to Chapter 12 of the 2012 Bill. The
exception is the inclusion in this Bill of a new Part 6 which authorises the
Agriculture Minister to review the performance of functions and the exercise
of powers by biosecurity officials.
- Such
reviews may be undertaken by the Inspector-General of Biosecurity, which
remains an administrative office rather than a statutory one. (See the
discussion about the Inspector-General of Biosecurity above.)
- The
Chapter sets out the hierarchy of officials and the persons to whom powers
may be delegated. It includes the arrangements for state or territory
officers or employees to be biosecurity officers or biosecurity enforcement
officers.
|
Chapter 10 (clauses 539–572) of the Bill sets out
the functions and powers of the following officials:
- the
Director of Biosecurity[467]—who
is also the Agriculture Secretary[468]
- the
Director of Human Biosecurity—who is also the Commonwealth Chief Medical
Officer[469]
- biosecurity
officers[470]
and biosecurity enforcement officers[471]
- chief
human biosecurity officers and human biosecurity officers.[472]
Biosecurity officers
The powers of the Director of Biosecurity are capable of
delegation to, and further subdelegation by, an SES employee, or acting SES
employee in the Agriculture Department.[473]
Some powers are not capable of being delegated.[474]
Some powers are not capable of being subdelegated. These are set out in the
table in subclause 542(3) of the Bill. In any other case the power may
be subdelegated to a biosecurity officer or a biosecurity enforcement officer.
The Director of Biosecurity may authorise a person to be a biosecurity officer
if, amongst other things, the person satisfies pre-determined training and
qualification requirements.[475]
Appointment as a biosecurity enforcement officer requires
that the person is already a biosecurity officer and has satisfied additional
training and qualification requirements.[476]
According to the Explanatory Memorandum for the Bill:
This ensures that biosecurity enforcement officers have
adequate training and qualifications to conduct biosecurity operations
effectively and respond to incidents where necessary. Additional qualification
and training requirements for biosecurity enforcement officers will likely be
based on enforcement experience, to ensure that enforcement and compliance
powers across the Bill are exercised safely and effectively.[477]
As has already been outlined elsewhere in this Digest, biosecurity
officers and biosecurity enforcement officers have a range of functions and
powers under the Biosecurity Act. Clauses 550–561 of the Bill confirm
these general powers and also authorise biosecurity officers and biosecurity
enforcement officers to undertake various activities in relation to goods and
conveyances including carrying out tests on samples.[478]
Key issue—level of training
Although the Bill indicates that a biosecurity officer
must satisfy pre-determined training and qualification requirements the nature
of those requirements is not specified. In answers to questions on notice, the
Department of Agriculture and the Department of Health stated that:
Biosecurity officers currently undertake general departmental
staff training and formalised on the job training which includes competency
based assessments, for example:
-
Certificate III in Government
-
on-the-job assessments
-
competency based assessments.
A number of biosecurity officers are scientists who use their
expertise to provide high-quality and timely science to support the Department
of Agriculture’s business.[479]
The Australian Veterinary Association argues that private
practitioners and veterinary specialists in disciplines like epidemiology, microbiology
and pathology have roles to play in surveillance and early detection of disease—particularly
emergency animal diseases.
Biosecurity operations must be able to address low levels of
risk of contamination or infection of goods. It must be made clear that the
probability of the animals or plants being contaminated or infected does not
have to be assessed objectively or quantitatively, but can be assessed by
examination of the circumstances under which they come under suspicion.[480]
Decontamination
Importantly a biosecurity officer may request an
individual to be decontaminated if the officer suspects, on reasonable grounds,
that the person may have been exposed to a disease or pest and the officer is
satisfied, on reasonable grounds, that decontaminating the individual is likely
to be effective in, or to contribute to, managing the level of biosecurity risk
of the disease or pest.[481]
This is a decision which is to be made using the decision‑making
principles in clause 32 of the Bill which are explained above.
Once the biosecurity officer has explained to the person
how, where and when the decontamination will take place, and who would conduct
the decontamination, the person may consent and the decontamination will be
undertaken.
However, if the person refuses consent the biosecurity
officer may request the Director of Biosecurity to give a direction to the
person that he or she undergoes decontamination. In that case, the Director of
Biosecurity must consider whether to give that direction. Subclause 559(3) sets
out the relevant test which is in the same terms as the original test applied
by the biosecurity officer. The Director must give a notice to the person within
72 hours of receiving the request from the biosecurity officer, either
directing the person to be decontaminated or advising that decontamination is
not required.[482]
A biosecurity officer may also require an individual to
permit his or her clothing or personal effects, including baggage, to be
decontaminated. Where clothing is to be decontaminated, the person must be
taken to a place that affords adequate personal privacy to him or her, and
suitable alternative clothing provided if the person does not have any.[483]
Human biosecurity officers
The Director of Human Biosecurity
may authorise a person to be a chief human biosecurity officer for a state or territory
body provided that the person is a medical practitioner employed by the State
or Territory body for the administration of health services.[484]
Clause 563 of the Bill empowers the Director of Human Biosecurity to authorise
a person to be a human biosecurity officer if:
-
the person is an officer or employee of the Health Department or
an officer or employee of the State or Territory body responsible for the
administration of health services in a State or Territory; or a member of the
Australian Defence Force and
-
the Director of Human Biosecurity is satisfied that the person
has appropriate clinical expertise.
The Director of Human Biosecurity may, in writing, vary or
revoke an authorisation at any time. It is for the Director or Human
Biosecurity to determine, in writing, the training and qualification
requirements for human biosecurity officers.[485]
Clause 564 of the Bill provides for the partnership
arrangements between the Commonwealth, states and territories which will
operate across the biosecurity continuum.
A human biosecurity officer has functions and powers which
are conferred by the Biosecurity Act, subject to any restrictions which
are specified in the instrument of authorisation.[486]
Ministerial reviews
As stated above (see the discussion about the
Inspector-General of Biosecurity in relation to Chapter 3 of the Bill) the role
of undertaking reviews of the performance of functions or exercise of powers by
biosecurity officials under the Biosecurity Act will not sit formally
with an Inspector-General of Biosecurity as was proposed under the 2012 Bill.
The review power in this Bill permits the Agriculture Minister
to give written notice to a person to answer questions, to give information in
writing, or to produce specified documents, to the Minister within the time
specified in the notice—being at least 14 days after the notice is given.[487]
According to the current Agriculture Minister, ‘it is intended that these
powers will be used by the Inspector-General of Biosecurity’.[488]
This would be made possible by the terms of subclause
643(4) of the Bill which allows the Agriculture Minister to delegate all or
any of the Agriculture Minister’s
functions or powers to conduct a review (under clause 567) or to require
information to be provided in respect of a review (under clause 568) to
an individual (the Minister’s
delegate) who the Minister considers has appropriate qualifications or expertise to perform the
delegated functions or exercise the delegated powers. However, it should be
noted that the Minister’s delegate must comply with any directions of the Agriculture Minister.[489]
The Minister’s delegate may, in writing, sub-delegate
the function or power to another individual who will be responsible to the
Minister’s delegate.[490]
However, it should be noted that a subdelegate must
also comply with any directions of the Agriculture Minister.[491]
Key issue—need for independence and reporting
The Invasive Species Council has summed up many of the
concerns of stakeholders in relation to the Minister’s review powers:
Minister Joyce indicated in his second reading speech for the
Bill that he intends to use these powers to delegate an ongoing review role to
the current interim Inspector-General of Biosecurity, which will now be a
non-statutory position.
This is a backward step from the arrangement proposed in
2012: the loss of an independent review process.
The Minister for Agriculture has a clear conflict of interest
as both Minister administering biosecurity legislation and person responsible
for reviewing biosecurity performance. The areas subject to review are likely
to be influenced by political considerations, and matters that could embarrass
the government of the day are likely to be avoided. The risk of this would be
substantially reduced and the public would have greater trust in the reviews if
they were initiated and conducted by an independent statutory officer.
Further, the nature of any review is undescribed and totally
discretionary. There is no requirement to publicly release terms of reference
of any review or to release the results. Without input from the Minister for
the Environment reviews are likely to focus primarily on agricultural
biosecurity and neglect environmental biosecurity. The Inspector-General of
Biosecurity Bill 2012 provided for independent powers of review and detailed
transparency provisions including Parliamentary reporting.
At the minimum, there needs to be an independent review
process with requirements for public release of the terms of reference, the
capacity for submission by the public and tabling in Parliament of the results
of all reviews.[492]
The Tasmanian Salmonid Growers Association agreed, stating
that the Ministerial review powers are:
... useful, but [it] is entirely discretionary and does not
have transparency and independence provisions—no systematic method for
determining when to conduct a review, reviews would be unlikely to reveal
issues critical of the current government and there is no requirement to
publish the results. TSGA considers this is a backward step compared to the
2012 proposal that included an Inspector-General of Biosecurity Bill.[493]
Another stakeholder AUSVEG was also critical:
... there is no provision for a review of process, science, or
any other operational aspects of the Department.
As it stands the Department is not subject to any form of
mandated review. This is a retrograde step and only serves to reinforce the
impression that the Department does not want any meaningful dialogue with
industry unless it is on their terms.[494]
Quick guide to Chapter 11
- Chapter
11 of the Bill contains a range of matters which were formerly set out in
Chapter 13 of the 2012 Bill.
- Matters
covered include review of decisions, confidentiality of information, cost
recovery measures, provisions to deal with goods or conveyances that are
abandoned or forfeited as well as goods that are damaged or destroyed. In
each case these provisions are substantially equivalent to those provisions
in the 2012 Bill.
- The
provisions which modify the operation of the Biosecurity Act in
relation to declared movements between parts of Australian territory were not
included in the 2012 Bill.
|
Chapter 11 (clauses 573–645) contains miscellaneous
provisions.
Review of decisions
Clauses 574–578 of the Bill set out the process by
which certain decisions under the Biosecurity Act will be subject to
internal review and external review by the Administrative Appeals Tribunal
(AAT). Importantly the decisions to which Chapter 11 relates and the Minister’s
review which is undertaken under Chapter 10 of the Bill (see above) are
entirely separate.
General rule
Each of the decisions which may be subject to review is set
out in table form.[495]
These are called reviewable decisions. When a reviewable decision
has been made, the decision-maker must give written notice of the decision and
the reason for that decision to the relevant person. Once the written reasons
have been received, the relevant person may apply to the Director of
Biosecurity for a review of that decision.
The process to be followed is:
- the
relevant person must lodge an application for review within 30 days after the
day that the reviewable decision first came to the notice of the
applicant—although the Director of Biosecurity may extend the 30 day
period[496]
- the
application must be in writing and set out the reasons for the application[497]
- when
the application is received the Director of Biosecurity must either review the
decision personally or ensure that it is reviewed by an internal reviewer
who was not involved in making the decision[498]
-
the Director of Biosecurity or the internal reviewer may affirm,
vary or set aside the reviewable decision[499]
-
if the reviewable decision is set aside the Director of
Biosecurity or the internal reviewer may substitute another decision as he or
she thinks appropriate[500]
-
the decision on review takes effect on a day
specified in the decision or on the day the decision on review was made[501]
- the
person who made the decision must give the applicant written notice of the
review decision[502]
and
- a
person who has received notice of the outcome of an internal review of a
reviewable decision may make an application for further review by the AAT.[503]
Exception
The only stated exception to that general procedure is where
the decision maker was the Director of Biosecurity or the Director of Human
Biosecurity.[504]
In that case the person may make an application for review directly to the AAT.[505]
Confidentiality of information
Clauses 579–590 of the Bill provide that personal
and commercial-in-confidence information may be collected under the Biosecurity
Act. There are two definitions which are relevant to these clauses.
Protected information means personal information,
or information that is commercial-in-confidence, that:
- is
obtained under, or in accordance with, the Biosecurity Act
-
is derived from a record of personal information, or information
that is commercial-in-confidence, that was made under, or in accordance with,
the Biosecurity Act or
- is
derived from a disclosure or use of personal information, or information that
is commercial-in-confidence, that was made under, or in accordance with, the Biosecurity
Act.[506]
Information is commercial-in-confidence if a
person demonstrates to the Director of Biosecurity that:
- release of the information would cause competitive detriment to
the person
-
the information is not in the public domain
-
the information is not required to be disclosed under another Australian
law and
- the
information is not readily discoverable.[507]
Clause 580 of the Bill authorises a person to make a
record of, disclose or otherwise use protected information in
certain circumstances, being:
-
that a record is made, or information is disclosed or used, for a
permissible purpose in performing the person’s functions or duties under the Biosecurity
Act and
- the
disclosure is to any of the following:
- an
officer or employee of the Commonwealth, a state, the Australian Capital
Territory or the Northern Territory or a Commonwealth body, or a state or territory
body
-
a person engaged by the Commonwealth, a Commonwealth body, a state,
the Australian Capital Territory, the Northern Territory or a state or territory
body, to perform public health work or to manage biosecurity risks in relation
to plant or animal health
- a
biosecurity industry participant or a survey authority, or an officer or
employee of a biosecurity industry participant or a survey authority[508]
- the
person makes the record, or discloses or otherwise uses, the information in
carrying out his or her functions or duties, or exercising his or her powers
for the purpose of promoting the objects of the Biosecurity Act.
In addition, the Bill also sets out three specific circumstances
in which a person may make a record of, disclose or otherwise use protected
information, being first to a court or tribunal, or the coroner, by order, for
the purpose of proceedings; second where the information is received from
another source and used by a prescribed agency; and third where the use is
authorised by another law.[509]
A person commits an offence if he or she obtains protected
information, makes a record of or discloses or uses the information, and that
record, disclosure or use is not authorised.[510]
Cost recovery
Charges
The Australian Government Cost Recovery Guidelines
provide that ‘Australian Government
entities should generally set charges to recover the full cost of providing
specific activities’.[511]
Consistent with those guidelines, the Quarantine Charges (Collection)
Act 2014[512]
which commenced on 1 July 2014 enables the Commonwealth to recover costs for
the provision of key biosecurity and quarantine services.[513]
The relevant charges are imposed by:
- Quarantine Charges (Imposition—General) Act 2014[514]
- Quarantine Charges (Imposition—Customs) Act 2014[515]
and
- Quarantine Charges (Imposition—Excise) Act 2014.[516]
Under the Quarantine Charges (Collection) Act,
amongst other things:
-
unpaid quarantine charges and late payment fees are debts to the
Commonwealth and may be recovered by action in a relevant court
-
the Commonwealth has enforcement powers to deal with goods and
vessels to recover unpaid charges and late payment fees
-
the Commonwealth may create a charge on a good or vessel and
withhold goods that are subject to a charge
- the
Commonwealth has the power to sell goods and vessels to recover outstanding
debts.[517]
The Biosecurity (Consequential Amendments and Transitional
Provisions) Bill 2014 repeals the Quarantine Charges (Collection) Act. The
cost recovery provisions which are currently in that Act are set out in
equivalent terms, with some exceptions, in Part 3 of Chapter 11 of the Bill.
Fees
In addition to the charges discussed above, which are
collected as taxes (in accordance with section 55 of the Constitution) the Bill
proposes to collect fees for fee bearing activities. Clause
592 of the Bill provides that regulations may prescribe fees that may be
charged for fee bearing activities which are carried out by, or
on behalf of, the Commonwealth in performing functions and exercising powers
under the Biosecurity Act—for example, fumigation.
Where legislation provides for the rate of a fee or levy
to be set by regulation, there is a risk that the fee may, in fact, become a
tax. The vice to be avoided is delegating an unfettered power to impose fees.
Whilst subclause 592(3) provides that the fee must not be such as
to amount to taxation, it should be noted that subclause 592(4)
provides that regulations may prescribe rules relating to deposits to be paid in
relation to fee‑bearing activities and amounts to be paid in respect of
application fees.
Cost recovery charges
Clause 9 of the Bill provides the definition of cost
recovery charges. Essentially these are comprised of:
- a fee arising from a fee-bearing activity
- a
charge imposed as a tax by the Charges Impositions Acts listed above or
- a
late payment fee relating to either an above fee or charge.
Clause 593 of the Bill allows for regulations to
prescribe:
- when
a cost recovery charge is due and payable
- that
one or more persons are liable to pay a cost recovery charge (that is, joint
and several liability) and
- rules
about the liability of an agent to pay cost recovery charges on behalf of a
person which would then have to be recovered by the agent from the person.
What happens when cost recovery
charges are not paid
A cost recovery charge that is due and payable to the
Commonwealth under the Biosecurity Act may be recovered as a debt due to
the Commonwealth in a relevant court.[518]
Importantly, clauses 598–599 empower the Commonwealth to create a charge
over certain goods whilst clauses 604–605 empower the Commonwealth to create
a charge over a conveyance (which has priority over other interests in the
goods or conveyance in accordance with subsection 73(2) of the Personal
Property Securities Act 2009[519])
in order to recover a fee that is payable. In that case, the goods or the
conveyance may be sold in order to recover unpaid cost recovery charges.[520]
Stakeholder comments
Some stakeholders expressed concern about the cost
recovery provisions. According to the Customs Brokers and Forwarders Council of
Australia:
... [cost recovery arrangements] must be equitable,
transparent, cost efficient and cost effective. The failure of regulatory
agencies to enter into, or seek consultation with industry, as to cost recovery
to benefit all parties, either business or regulatory is well documented. The
recent Joint Review of Border Fees, Charges and Taxes 17 September 2014 is
an example of a review which does not give effect to the [Cost Recovery Guidelines].
To determine whether activities and services provided by the
Department should be a cost recovered or deemed community service obligation,
the issue which needs identification is what service(s) is to be cost recovered
in accordance with Government policy. What constitutes the service and its
respective component(s) needs to be determined by way of a matrix of
service/positions/costs. Such transparency and information provided by the
Department should give effect to collaboration with industry to develop a sustainable
financial model.[521]
Similarly, the submission by Tasmanian Salmonid Growers
Association is to the effect that the cost recovery provisions cause
considerable concern for industry for several reasons:
Firstly, the delivery of biosecurity services is to the
advantage of the general population (public good), especially in a country
which has a strong reliance on primary industry across all states and
territories. Strong biosecurity protects ecosystems, world heritage forests,
tourism, public health and a range of other categories – it is not just there
to protect growers, farmers, harvesters and producers.
Secondly, breaches to biosecurity are rarely due to the
action of commercial operators who risk their own potential livelihood.
Biosecurity breaches may be due to tourists, recreational users who do not
adhere to farm hygiene policies or codes of practice to ensure that best
practice is implemented. Past Biosecurity incursions have been the result of
home gardeners, backpackers, bushwalkers (to name a few) who have inadvertently
spread pests and diseases which have caused considerable costs and disruption
to commercial industries.
TSGA recognises that some fee for service activities should
occur but primary industry should not be responsible for covering the costs due
to the demonstrated public good that biosecurity has to the Australian public.[522]
Detention of conveyances
The Director of Biosecurity may detain a conveyance in
Australian territory if it is subject to a charge because a cost recovery
charge has not been paid by the owner or operator of the conveyance.[523]
In that case the Director of Biosecurity must take the following action:
- give written notice to the owner and the operator of the
conveyance that the conveyance is detained and warning the owner of the
conveyance that it may be sold if the cost-recovery
charge has not been paid by the end of the day specified in the notice—being at
least 30 days after the day the notice is given
- in addition, the Director of Biosecurity may give the person in
charge of the conveyance a direction relating to the movement of the conveyance,
requiring it to be left at a specified place or requiring goods on board to be
unloaded at a specified place in a specified manner.
A civil penalty applies where a person has been given such
a direction and the person moves, deals with or interferes with the conveyance.[524]
Where the Director of Biosecurity has exercised his or her right to sell
withheld goods or a detained conveyance, the proceeds of sale are to be applied
against the relevant cost recovery charge and then any other cost recovery
charge that is due and payable by the owner. The remainder of the proceeds must
then be paid to the owner of the goods or conveyance.[525]
Modification of the Act
Clauses 618 to 624 of the Bill set up a scheme to
enable the management of specific areas of Australian territory which have a
different risk status than the rest of Australian territory, and would not be
effectively managed through the general provisions of the Bill. For example, if
there are different biosecurity risks between the mainland and an external
territory then different import conditions could be set to manage that
difference.
Areas intended to be regulated under this scheme include
Christmas Island, the Cocos (Keeling) Islands, and the Torres Strait region.[526]
Miscellaneous
The Bill provides for dealing with abandoned or forfeited
goods and conveyances and the authority of the Director of Biosecurity to cause
them to be sold, destroyed or otherwise disposed of.[527]
In addition it sets out the powers of the Director of Biosecurity to approve
payment of compensation in respect of goods, conveyances or premises which have
been destroyed under a provision of the Biosecurity Act.[528]
Finally, the Bill provides the Governor-General with a broad
power to make regulations prescribing matters required or permitted to be
prescribed by the Biosecurity Act, or necessary or convenient for giving
effect to the Biosecurity Act.[529]
Consequential Amendments Bill
Items 1 and 2 of Schedule 1 of the Consequential
Amendments Bill repeal the Quarantine Act and the Quarantine Charges
(Collection) Act. These items will take effect when the substantive
provisions of the Biosecurity Act commence.
The items in Schedule 2 of the Consequential Amendment
Bill make consequential amendments to a number of statutes to replace
references to the Quarantine Act with references to the Biosecurity
Act. The items will commence when the substantive provisions of the Biosecurity
Act commence.
Schedule 3 contains transitional provisions in relation to
first points of entry which commence on Royal Assent. (See the
discussion about the transitional provisions under Chapter 4 above.)
Schedule 4 contains application, saving and transitional
provisions to manage the transition from the Quarantine Act to the
biosecurity framework contained in the principal Bill. Those provisions will
commence when the substantive provisions of the Biosecurity Act
commence. Some of the measures are outlined under the relevant Chapter headings
above.
The Biosecurity Bill has been the subject of considerable
consultation in both its current and earlier incarnation as the 2012 Bill. For
that reason many stakeholders have welcomed the Bill on the grounds that the Quarantine
Act, which it will replace, is cumbersome to administer, difficult to
interpret and incompatible with current business needs.
However, despite its length, the Biosecurity Bill contains
many provisions which delegate the detail of how the biosecurity regime will
operate to subordinate legislation. At the time of writing this Bills Digest
draft versions of those regulations were not available. That being the case, it
is not possible to say with any degree of certainty how successful the Biosecurity
Act will be in meeting the needs of business and adapting to the fluid
nature of biosecurity risk.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Parliament
of Australia, ‘Biosecurity
Bill 2012 [2013] homepage’,
Australian Parliament website, accessed 2 January 2015.
[2]. Commonwealth
of Australia, Proclamation—Prorogue
of the Parliament and Dissolution of the House of Representatives, Gazette,
Government notices, C2013G01196, 5 August 2013, accessed 2 April 2015.
[3]. Details
of the terms of reference, submissions to the Committee and interim report are
contained on the Senate Standing Committee on Rural and Regional Affairs and
Transport Legislation Committee, Inquiry into Biosecurity Bill 2012 and
Inspector-General of Biosecurity Bill 2012, inquiry
homepage, accessed 2 January 2015.
[4]. Parliament
of Australia, ‘Biosecurity
Bill 2014 homepage’,
Australian Parliament website, accessed 2 January 2015.
[5]. Parliament
of Australia, ‘Biosecurity
(Consequential Amendments and Transitional Provisions) Bill 2014 homepage’,
Australian Parliament website, accessed 2 January 2015.
[6]. Parliament
of Australia, ‘Quarantine
Charges (Imposition—General) Amendment Bill 2014 homepage’, Australian
Parliament website, accessed 2 January 2015.
[7]. Parliament
of Australia, ‘Quarantine
Charges (Imposition—Customs) Amendment Bill 2014 homepage’, Australian
Parliament website, accessed 2 January 2015.
[8]. Parliament
of Australia, ’Quarantine
Charges (Imposition—Excise) Amendment Bill 2014 homepage’, Australian
Parliament website, accessed 2 January 2015.
[9]. Quarantine Act
1908, accessed 5 January 2015.
[10]. Regulatory
Powers (Standard Provisions) Act 2014, accessed 2 January 2015.
[11]. Quarantine
Charges (Collection) Act 2014, accessed 5 January 2015.
[12]. Quarantine
and Biosecurity Review Panel, One
biosecurity: a working partnership, (Beale Review), The Panel, Canberra,
2008, p. xvii, accessed 2 January 2015.
[13]. S
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is order, and good law is good order: the role of governance in the regulation
of invasive alien species’, Environmental
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[14]. Ibid.
[15]. Quarantine
Regulations 2000, accessed 2 January 2015.
[16]. S
Riley, ‘Law
is order, and good law is good order: the role of governance in the regulation
of invasive alien species’, op. cit., p. 28; Quarantine
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[17]. B
Joyce (Minister for Agriculture), ‘Second
reading speech: Biosecurity Bill 2014’,
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p. 13425, accessed 2 January 2015.
[18]. Quarantine
and Biosecurity Review Panel, One
biosecurity: a working partnership, (Beale Review), op. cit., p. 1.
[19]. Ibid.,
p. xvii.
[20]. Department
of Agriculture, Fisheries and Forestry, Reform
of Australia’s biosecurity system—an update since the publication of One
Biosecurity: a working partnership, Commonwealth of Australia,
Canberra, March 2012, p. 6, accessed 2 January 2015.
[21]. Ibid.
[22]. Ibid.
[23]. Australian
Quarantine Review Committee, Australian
quarantine: a shared responsibility, (Nairn Report), Department of
Primary Industries and Energy, Canberra, 1996, recommendation 1, p. 7, accessed
2 January 2015.
[24]. Ibid.,
pp. 27–28.
[25]. Department
of Agriculture, Fisheries and Forestry, ‘Australian
quarantine a shared responsibility: the government response’, Department of
Agriculture website, accessed 2 January 2015.
[26]. M
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retrospective of the 1996 review of quarantine in Australia’, Farm
Policy Journal, 5(1), February 2008, accessed 2 January 2015.
[27]. P
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for Australia’s top horse studs, media release, 22 August 2007,
accessed 2 January 2015.
[28]. Further
detail about the outbreak of equine influenza and the Government response to
it, is contained in M Coombs and B Hinton, Horse
Disease Response Levy Bill 2008, Bills digest, 78–80, 2007–08,
Parliamentary Library, Canberra, 2008, accessed 2 January 2015.
[29]. P
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influenza inquiry commences, media release, 27 September 2007, accessed
2 January 2015.
[30]. I
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[31]. L
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reading speech: Appropriation Bill (No. 3) 2007–08’, House of Representatives,
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[32]. J
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reading speech: Appropriation (Drought and Equine Influenza Assistance) Bill
(No. 2) 2007–08’, Senate, Debates,
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was to be recovered from the horse industry.
[33]. T
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19 February 2008, accessed 2 January 2015.
[34]. Quarantine
and Biosecurity Review Panel, One
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27 February 2015.
[35]. Ibid.,
pp. xxix and pp. xxxix, see especially recommendation 43.
[36]. Ibid.,
p. xxxii.
[37]. Council
of Australian Governments (COAG), ‘Intergovernmental
Agreement on Biosecurity’, COAG website, accessed 2 January 2015.
[38]. Details
of the terms of reference, submissions to the Committee and the Committee’s
final report are contained in the inquiry
homepage, accessed 13 April 2015.
[39]. Senate
Rural and Regional Affairs and Transport Legislation Committee, Biosecurity
Bill 2014 and related Bills, The Senate, Canberra, March 2015, p. viii,
accessed 9 April 2015.
[40]. Senate
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accessed 17 March 2015.
[41]. Parliamentary
Joint Committee on Human Rights, Eighteenth
report of the 44th Parliament, The Senate, Canberra, 10 February 2015,
pp. 31–33, accessed 23 February 2015.
[42]. Ibid.,
p. 33.
[43]. Ibid.
[44]. Ibid.
[45]. The
Statement of Compatibility with Human Rights can be found at pages 19–56 of the
Explanatory
Memorandum to the Bill.
[46]. Ibid.,
p. 56.
[47]. ‘Second
reading speeches: Biosecurity Bill 2014, Biosecurity (Consequential Amendment
and Transitional Provisions) Bill 2014, Quarantine Charges (Imposition—General)
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2014 and Quarantine Charges (Imposition—Excise) Amendment Bill 2014’, House
of Representatives, Debates, 9 February 2015, pp. 61–96, accessed
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[48]. Senate
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Bill 2014 and related Bills, op. cit., p. 45.
[49]. Ibid.,
p. 46.
[50]. Ibid.,
p. 49.
[51]. Ibid.
[52]. Ibid.,
p. 50.
[53]. Ibid.,
p. 51.
[54]. Ibid.,
p. 54.
[55]. Ibid.,
p. 55.
[56]. Explanatory
Memorandum, Biosecurity
Bill 2014, p. 18, accessed 2 January 2015.
[57]. Quarantine
and Biosecurity Review Panel, One
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accessed 25 February 2015.
[58]. Parliament
of Australia, ‘Inspector-General
of Biosecurity Bill 2012 [2013] homepage’,
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[59]. P
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of Biosecurity Bill 2012, Bills digest, 60, 2012–13, Parliamentary
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[60]. T
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continues on reforms to strengthen Australia’s biosecurity, media
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[61]. Inspector-General
of Biosecurity (IGB), ‘Background
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[62]. B
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accessed 25 February 2015.
[63]. B
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[64]. This
is the maximum penalty on conviction for bringing or importing prohibited or
suspended goods into Australian territory to obtain commercial advantage under subclause
185(4) of the Bill. It is also the maximum penalty for bringing or
importing conditionally non‑prohibited goods otherwise than in accordance
with requirements under subclause 186(4) of the Bill. Section 4AA of the
Crimes Act 1914
provides that a penalty unit is equivalent to $170.
[65]. See,
for example: clauses 38(4), 107, 148 and 327 of the Bill.
[66]. See,
for example: clauses 508, 517 and 612 of the Bill.
[67]. See,
for example: clauses 47, 100, 120, 201, 319, 421, 555 and 606 of the
Bill.
[68]. See,
for example: clauses 120, 185, 216, 267, 351, 375, 403 and 440 of the
Bill.
[69]. Criminal Code Act 1995,
accessed 15 April 2015.
[70]. Criminal
Code, section 3.1.
[71]. Criminal
Code, section 5.1.
[72]. Criminal
Code, section 4.1.
[73]. Criminal
Code, section 5.6.
[74]. Criminal
Code, Division 6 of Part 2.2.
[75]. Criminal
Code, section 6.1.
[76]. Crimes Act 1914,
section 4D.
[77]. Attorney-General’s
Department, Guide
to framing Commonwealth offences, infringement notices and enforcement powers,
Canberra, 2011, accessed 23 February 2015.
[78]. Ibid.,
p. 23.
[79]. See,
for example clause 301 (80 penalty units); clauses 292–294 (200
penalty units); clauses 270, 284 and 298 (500 penalty units); and clause 305
(2,000 penalty units).
[80]. Clause
305 of the Bill.
[81]. Clauses
270, 284 and 298 of the Bill.
[82]. Explanatory
Memorandum, Biosecurity Bill 2014, p. 217, accessed 23 February 2015.
[83]. Commonwealth of
Australia Constitution Act, accessed 2 January 2015.
[84]. R
Garran, Commentaries
on the Constitution of the Commonwealth of Australia, University
of Sydney Library website, paragraph 172, accessed 2 January 2015.
[85]. Beale
Review, op. cit., p. xxix.
[86]. Beale
Review, op. cit., p. 18.
[87]. Biosecurity
Bill, clauses 5 and 9.
[88]. International
Convention for the Control and Management of Ships’ Ballast Water and Sediments,
done at London on 13 February 2004, [2005] ATNIF 18, (not yet in force),
accessed 2 January 2015.
[89]. International
Health Regulations (2005), done in Geneva on 23 May 2005, [2007] ATS
29, (entered into force 15 June 2007), accessed 2 January 2015.
[90]. United
Nations Convention on the Law of the Sea, done in Montego Bay on
10 December 1982, [1994] ATS 31 (entered into force 16 November 1994).
[91]. Subclause
544(1) of the Bill provides that the Director of Human Biosecurity is the
person who occupies the position of Commonwealth Chief Medical Officer.
[92]. Dr
Baggoley (Chief Medical Officer, Department of Health and
Ageing), Evidence
to the Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Biosecurity Bill 2012 [2013] and Inspector-General of Biosecurity Bill
2012 [2013], 8 February 2013, p. 15, accessed 2 January 2015.
[93]. Under
clause 12 of the Bill a reference to Australian territory
in the Biosecurity Act means Australia, Christmas Island, Cocos
(Keeling) Islands and any external territory to which that provision extends
(and the airspace over it), the coastal sea of Australia, of Christmas Island,
of Cocos (Keeling) Islands and of any other external territory to which that
provision extends. The definition of coastal sea of Australia or
an external territory in subsection 15B(4) of the Acts Interpretation Act
1901 includes the airspace over Australia or the external
territory.
[94]. Clause
9 defines a landing place in relation to an aircraft as any
place where the aircraft can land including an area of land or water; and an
area on a building or a vessel.
[95]. Clause
9 provides that a port includes a harbour.
[96]. Clause
9 defines the term outgoing passenger aircraft or vessel as
an outgoing aircraft or vessel that is a passenger aircraft or a passenger
vessel.
[97]. Subclauses
44(5) and 45(5) respectively of the Bill.
[98]. Subclauses
44(6) and 45(6) respectively of the Bill.
[99]. Subclauses
44(3) and 45(3) respectively of the Bill. See also Legislative
Instruments Act 2003, accessed 24 February 2015.
[100]. Note
also that subclauses 60(2) and (3) of the Bill provide that an
individual who fails to comply with an entry requirement may also be the
subject of a human biosecurity control order.
[101]. Section
4AA of the Crimes Act
1914 provides that a penalty unit is equivalent to $170. This means
that the maximum penalty is $5,100.
[102]. Department
of Agriculture, ‘Vessel
pratique’, Department of Agriculture website, accessed 18 March
2015.
[103]. Macquarie
dictionary, fifth edn, Macquarie Dictionary Publishers, Sydney, 2009, p.
1306.
[104]. Clause
49 sets out the circumstances in which negative pratique operates.
[105]. Clause
9 provides that biosecurity measures are measures to manage biosecurity
risks; the risk of contagion of a listed human disease; the risk of listed
human diseases entering Australian territory or a part of Australian territory
or emerging, establishing themselves or spreading in Australian territory or a
part of Australian territory; and biosecurity emergencies and human biosecurity
emergencies.
[106]. Subclause
51(6) of the Bill.
[107]. Explanatory
Memorandum, Biosecurity
Bill 2014, p. 103.
[108]. Clause
52 of the Bill.
[109]. This
means that the maximum penalty is equivalent to $20,400.
[110]. Subclause
60(1) provides that a chief human biosecurity officer, a human biosecurity
officer or a biosecurity officer may impose a human biosecurity order on an
individual.
[111]. Subclause
60(2) of the Bill.
[112]. Paragraphs
61(1)(b) and (c) of the Bill.
[113]. Paragraph
61(1)(f) of the Bill.
[114]. Paragraph
61(1)(h) of the Bill.
[115]. Subparagraph
61(1)(i)(iii) of the Bill.
[116]. Paragraph
61(1)(j) of the Bill.
[117]. Clauses
64 and 66 of the Bill respectively.
[118]. Clause
107 of the Bill.
[119]. This
means that the maximum pecuniary penalty is equivalent to $51,000.
[120]. Note
that a non-Australian citizen who is required to remain at a place is entitled
to consular assistance under clause 102 of the Bill.
[121]. Clause
87 of the Bill.
[122]. Clause
89 of the Bill.
[123]. Clause
91 of the Bill
[124]. Clause
92 of the Bill.
[125]. Clause
97 of the Bill.
[126]. Subclause
71(2) of the Bill.
[127]. Subclause
71(3) of the Bill.
[128]. Clause
72 sets out different ways of calculating the 72 hours period depending on
the nature of the biosecurity measure to be imposed.
[129]. Subclause
72(4) of the Bill.
[130]. Clause
76 of the Bill.
[131]. Clause
75 of the Bill.
[132]. Administrative Appeals
Tribunal Act 1975, accessed 24 February 2015.
[133]. Subclause
76(2) of the Bill.
[134]. Subclause
77(1) of the Bill.
[135]. Clause
78 of the Bill. The AAT may extend the period for making a decision if it
considers that would be reasonable in all the circumstances, but may only do so
once.
[136]. Subclause
78(4) of the Bill.
[137]. Administrative Decisions
(Judicial Review) Act 1977, accessed 24 February 2015.
However, note under clause 80 that an application must be made within
seven business days from the day the decision is made, unless the court allows
a longer period.
[138]. Paragraph
113(3)(b) of the Bill.
[139]. Paragraph
113(3)(c) of the Bill.
[140]. Subclause
113(6) of the Bill.
[141]. Subclause
113(7) of the Bill.
[142]. Clause
116 of the Bill. This means that the maximum penalty is equivalent to
$5,100.
[143]. Australian
Federal Police Act 1979, accessed 24 February 2015.
[144]. Subclause
56(2) of the Bill.
[145]. Senate
Standing Committee for the Scrutiny of Bills, Alert
Digest No. 2 of 2015, op. cit., p. 16.
[146]. Explanatory
Memorandum, Biosecurity
Bill 2014, p. 106.
[147]. Clause
35 of the Bill.
[148]. This
is defined in clause 9 of the Bill.
[149]. Clause
37 of the Bill.
[150]. Clause
38 of the Bill. This means the maximum pecuniary penalty is equivalent to
$51,000.
[151]. Parliamentary
Joint Committee on Human Rights, Eighteenth
report of the 44th Parliament, op. cit., p. 33.
[152]. Ibid.
[153]. The
term biosecurity measures is defined in clause 9 of the
Bill as being measures to manage any of the following: (a) biosecurity risks;
(b) the risk of contagion of a listed human disease; (c) the risk of listed
human diseases entering Australian territory or part of Australian territory or
emerging, establishing themselves or spreading in Australian territory or a
part of Australian territory; (d) biosecurity emergencies and human biosecurity
emergencies.
[154]. Under
clause 9 of the Bill, a disease agent includes but is not
limited to, a microorganism, an infectious agent and a parasite.
[155]. Under
clause 9 of the Bill, pest means a species, strain or
biotype of a plant or animal, or a disease agent, that has the potential to
cause, either directly or indirectly, harm to human, animal or plant health; or
the environment.
[156]. Clause
19 of the Bill. Note that the term goods does not include
ballast water or human remains as these are covered elsewhere in the Bill.
[157]. World
Trade Organisation (WTO), The WTO
agreement on the application of sanitary and phytosanitary measures,
WTO website, accessed 2 January 2015.
[158]. Ibid.,
Annex A of the SPS Agreement defines the concept of an ‘appropriate level of
protection’.
[159]. Ibid.,
Article 2.
[160]. AUSVEG,
Submission
to the Rural and Regional Affairs and Transport Committee, Inquiry into
the Biosecurity Bill 2014 and related bills, 16 January 2015, p. 3,
accessed 24 February 2015.
[161]. R
Beale (Chair), One Biosecurity: a working partnership, op. cit., p. 104.
[162]. Rural
and Regional Affairs and Transport Legislation Committee, An
appropriate level of protection? The importation of salmon products: a case
study of the administration of Australian quarantine and the impact of international
trade arrangements, Senate, Canberra, June 2000, accessed 2 January
2015; see also R Beale (Chair), One biosecurity: a working partnership,
op. cit., p. 86.
[163]. Clause
166 of the Bill.
[164]. Under
clause 540 of the Bill, the Director Biosecurity is the Secretary of the
Department of Agriculture.
[165]. R
Beale (Chair), One biosecurity: a working partnership, op. cit., p. 97.
[166]. Ibid.
[167]. Ibid.
[168]. Ibid.,
p. xix–xx.
[169]. Clause
168 of the Bill.
[170]. Clause
169 of the Bill.
[171]. Rural
and Regional Affairs and Transport Legislation Committee, An
appropriate level of protection? The importation of salmon products: a case
study of the administration of Australian quarantine and the impact of international
trade arrangements, op. cit., pp. 178–188; Rural and Regional Affairs
and Transport References Committee, Effect
on Australian pineapple growers of importing fresh pineapple from Malaysia;
Effect on Australian ginger growers of importing fresh ginger from Fiji;
Proposed importation of potatoes from New Zealand: final report, Senate, Canberra, 2014, accessed
8 January 2015.
[172]. Rural
and Regional Affairs and Transport Committee, ‘Review
of DAFF’s matrix’, Committee website, accessed 9 January
2015.
[173]. Rural
and Regional Affairs and Transport Committee, Effect
on Australian pineapple growers of importing fresh pineapple from Malaysia;
Effect on Australian ginger growers of importing fresh ginger from Fiji;
Proposed importation of potatoes from New Zealand: final report,
op. cit., p. 43.
[174]. Department
of Agriculture, ‘Examination
of the Import Risk Analysis Process’, Department of
Agriculture website, accessed 9 January 2015.
[175]. Quarantine
Regulations 2000, accessed 24 February 2015.
[176]. Quarantine
Regulations 2000, subsection 69C(1).
[177]. Quarantine
Regulations 2000, subsection 69C(2).
[178]. Subclauses
169(3) and (4) of the Bill.
[179]. Explanatory
Memorandum, Biosecurity
Bill 2014, p. 338.
[180]. Tasmanian
Salmonid Growers Association Ltd, Submission
to the Rural and Regional Affairs and Transport Committee, Inquiry into
the Biosecurity Bill 2014 and related Bills, January 2015, p. 3, accessed
21 January 2015.
[181]. Cherry
Growers Australia Inc., Submission
to the Rural and Regional Affairs and Transport Committee, Inquiry into
the Biosecurity Bill 2014 and related Bills, 15 January 2015, p. 3,
accessed 21 January 2015.
[182]. Department
of Agriculture and Department of Health, Joint
Submission to the Rural and Regional Affairs and Transport Committee, Inquiry
into the Biosecurity Bill 2014 and related Bills, January 2015, p. 15,
accessed 21 January 2015.
[183]. Explanatory
Memorandum, Biosecurity
Bill 2014, p. 9.
[184]. Rural
and Regional Affairs and Transport Legislation Committee, Biosecurity
Bill 2014 and related Bills, op. cit., p. 25.
[185]. Tasmanian
Salmonid Growers Association Ltd, Submission
to the Rural and Regional Affairs and Transport Committee, Inquiry into
the Biosecurity Bill 2014 and related Bills, January 2015, p. 5, accessed
21 January 2015.
[186]. Australian
Chicken Meat Federation, Submission
to the Rural and Regional Affairs and Transport Committee, Inquiry into
the Biosecurity Bill 2014 and related Bills, 18 December 2014, p. 3,
accessed 23 February 2015.
[187]. Department
of Agriculture and Department of Health, Joint
submission to the Rural and Regional Affairs and Transport Committee, Inquiry
into the Biosecurity Bill 2014 and related Bills, January 2014 [sic], p.
10, accessed 25 February 2015.
[188]. AUSVEG,
Submission
to the Rural and Regional Affairs and Transport Committee, Inquiry into
the Biosecurity Bill 2014 and related Bills, 16 January 2015, p. 4,
accessed 23 February 2015.
[189]. Rural
and Regional Affairs and Transport Legislation Committee, Biosecurity
Bill 2014 and related Bills, op. cit., p. 21.
[190]. Greens
Senators, Additional
Comments, Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry into the Biosecurity Bill 2014 and related Bills,
The Senate, Canberra, March 2015, p. 51, accessed 9 April 2015.
[191]. Subclause
119(3) and clause 162 of the Bill.
[192]. Allowing
the requirements of the notice to be prescribed in regulations gives the
Commonwealth more flexibility because the information required may change over
time, as the nature and levels of biosecurity risk changes. Explanatory
Memorandum, Biosecurity Bill 2014, p. 127.
[193]. Standing
Committee for the Scrutiny of Bills, Alert
Digest No. 2 of 2015, op. cit., p. 20.
[194]. Ibid.
[195]. Clause
124 of the Bill.
[196]. Clause
125 of the Bill.
[197]. Clauses
126 and 127 of the Bill.
[198]. Clause
129 of the Bill.
[199]. This
means that the maximum amount of the penalty is $20,400.
[200]. Clause
132 of the Bill.
[201]. Clause
133 of the Bill.
[202]. Clause
136 of the Bill.
[203]. Although
they do have a provision relating to low-value goods, which is
goods not exceeding a value of $1000: Quarantine Regulations 2000, regulation
51.
[204]. Clause
138 of the Bill.
[205]. Clause
140 of the Bill. The maximum penalty is equivalent to $20,400.
[206]. Clause
131 of the Bill.
[207]. Queensland
Bacon Ltd v Rees (1966) 155 CLR 266, at
303; [1966] HCA 21, accessed 22 January 2015.
[208]. Greiner
v Independent Commission Against Corruption (1992) 28 NSWLR 125, at 167.
[209]. Minister for
Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR
259, 275–6; [1996] HCA 6, accessed 22 January 2015.
[210]. Clause
143 of the Bill.
[211]. Clauses
143–146 of the Bill.
[212]. Clause
13 of the Bill defines the biosecurity entry point for an
aircraft, a vessel and for goods for the purpose of the Biosecurity Act.
[213]. Subclause
221(2) of the Bill provides that regulations must prescribe the quarantine
signal, the circumstances and the manner in which the quarantine signal must be
displayed.
[214]. Clauses
151–152 of the Bill.
[215]. That
is, a person who is in charge of the goods, or in charge of an aircraft or
vessel on which the goods are on board.
[216]. Clauses
155 and 156 of the Bill.
[217]. Clause
173 of the Bill.
[218]. Clause
174 of the Bill. Clauses 176–181 of the Bill set out how a person
may apply for a permit (I the event that one is required) and the conditions
under which a permit may be granted. These are discussed in further detail
below.
[219]. Clause
175 of the Bill.
[220]. Clauses
182 and 183 of the Bill.
[221]. Clause
628 of the Bill.
[222]. Subclause
174(4) of the Bill.
[223]. Subclause
178(3) of the Bill.
[224]. AUSVEG,
Submission
to the Rural and Regional Affairs and Transport Committee, Inquiry into
the Biosecurity Bill 2014 and related Bills, 16 January 2015, p. 7,
accessed 25 February 2015.
[225]. Explanatory
Memorandum, Biosecurity Bill 2014, p. 153.
[226]. Subclause
179(4) and clause 530 of the Bill.
[227]. Customs Act 1901,
accessed 17 April 2015.
[228]. Criminal Code Act
1995, accessed 17 April 2015.
[229]. Crimes Act 1914,
accessed 17 April 2015.
[230]. Subclause
530(2) of the Bill.
[231]. Explanatory
Memorandum, Biosecurity
Bill 2014, p. 88.
[232]. Subclauses
180(2) and (3) of the Bill.
[233]. This
means the maximum penalty in this case is $10,200.
[234]. Clause
189 of the Bill.
[235]. Clause
16 and subclause 19(2) of the Bill.
[236]. Clause
21 of the Bill.
[237]. Subclause
22(2) of the Bill.
[238]. Subclause
191(2) of the Bill.
[239]. Subclause
191(4) of the Bill.
[240]. Clause
192 of the Bill.
[241]. Subclause
191(3) and clause 218 of the Bill.
[242]. Clause
198 of the Bill.
[243]. Clause
199 of the Bill.
[244]. Clauses
200 and 201 of the Bill.
[245]. Clause
203 of the Bill.
[246]. This
means that the maximum amount of the penalty is $20,400.
[247]. Clause
206 of the Bill.
[248]. Clause
208 of the Bill.
[249]. Clause
210 of the Bill.
[250]. Clause
213 of the Bill.
[251]. Clause
215 of the Bill. The maximum penalty is equivalent to $51,000.
[252]. Australian
Shipowners Association, Submission
to the Rural and Regional Affairs and Transport Committee, Inquiry into
the Biosecurity Bill 2014 and related Bills, 16 January 2015,
paragraphs 3.1–3.5, accessed 4 March 2015.
[253]. Ibid.,
paragraph 3.7.
[254]. Department
of Agriculture and Department of Health, Submission
to the Rural and Regional Affairs and Transport Committee, op. cit., p. 19;
and see also Department of Agriculture, Answers
to written questions taken on notice on 11 February 2015, Canberra,
accessed 25 March 2015.
[255]. Explanatory
Memorandum, Biosecurity
Bill 2014, p. 181, accessed 29 January 2015.
[256]. Clause
13 of the Bill defines the term biosecurity entry point.
[257]. According
to clause 9 of the Bill, port includes a harbour.
[258]. Clause
18 of the Bill.
[259]. Subclauses
223(2) and 229(2) of the Bill.
[260]. Clauses
225 and 231 of the Bill.
[261]. Clauses
226 and 232 of the Bill
[262]. Clauses
227 and 233 of the Bill.
[263]. Clauses
224 and 230 of the Bill.
[264]. Explanatory
Memorandum, Biosecurity
Bill 2014, p. 182, accessed 29 January 2015.
[265]. Subclauses
237(2) and 245(2) of the Bill.
[266]. Clause
239 of the Bill. See also clause 247 in relation to permission for a
vessel to moor at a landing place which is not a first point of entry.
[267]. Clause
240 of the Bill.
[268]. Clause
241 of the Bill.
[269]. Human
health risk is defined in clause 9 of the Bill as (a) the
likelihood of a disease or pest entering Australian territory or a part of
Australian territory or emerging, establishing itself or spreading in
Australian territory or a part of Australian territory; and (b) the potential
for the disease or pest to cause harm to human health, or economic consequences
associated with the entry, emergence, establishment or spread of the disease or
pest, to the extent that the disease or pest has the potential to cause harm to
human health.
[270]. Clause
242 of the Bill.
[271]. Clauses
247, 249 and 250 of the Bill.
[272]. Ports
Australia, Submission
to the Rural and Regional Affairs and Transport Committee, Inquiry into
the Biosecurity Bill 2014 and related Bills, 8 December 2014, p. 2,
accessed 27 February 2015.
[273]. Ibid.
[274]. States
Parties to the IHR must strengthen public health capacities at
designated airports, ports and ground crossings in both routine circumstances
and when responding to events that may constitute a public health emergency of
international concern.
[275]. World
Health Organisation (WHO), ‘International
Health Regulations enter into force’, WHO website, 14 June 2007, accessed 22 January 2015.
[276]. International Health
Regulations (2005), accessed 22 January
2015.
[277]. Clause
9 of the Bill.
[278]. Transport
Canada, ‘Ballast
water defined’,
Transport Canada website, accessed 30 January 2015.
[279]. Department
of Agriculture (DA), 'Ballast
water’, DA website, accessed 26 March 2015.
[280]. Ibid.
[281]. Department
of Agriculture, National
Seaports Program: Australian ballast water management requirements,
version 5, Commonwealth of Australia, Canberra, 2013, p. 3, accessed 30 January
2015.
[282]. International
Convention for the Control and Management of Ships’ Ballast Water and Sediments,
2004, accessed 30 January 2015. Australia signed the Convention,
subject to ratification, in May 2005 and as a signatory is obliged to refrain
from actions that would defeat the object and purpose of the Convention.
The Convention will enter into
force 12 months after it is adopted by 30 states, representing at least 35 per cent
of world merchant shipping tonnage. It is expected to come into force in 2015
or 2016: Department of Agriculture, Biosecurity
Bulletin Edition 6, 2014, Department of Agriculture
website, accessed 26 March 2015.
[283]. Department
of Agriculture, National
Seaports Program: Australian ballast water management requirements, op.
cit., p. 4. For example, Victoria has additional requirements for the
management of Australian sourced domestic ballast water which are enforced by
the Victorian State Government Environment Protection Authority (EPA) under the
Environment
Protection Act 1970 (Vic), accessed 30 January 2015.
[284]. Quarantine
and Biosecurity Review Panel, One
biosecurity: a working partnership, (Beale Review), op. cit., p. 17.
[285]. Ibid.,
recommendation 4.
[286]. Protection of the Sea
(Prevention of Pollution from Ships) Act 1983, accessed 17 April
2015.
[287]. Protection of
the Sea (Harmful Anti-fouling Systems) Act 2006, accessed 3 March 2015.
[288]. Explanatory
Memorandum, Biosecurity
Bill 2014, p. 198.
[289]. Ibid.
[290]. Clauses
267 and 268 of the Bill.
[291]. This
is equivalent to $340,000.
[292]. Strict
liability offences are discussed earlier in this Bills Digest.
[293]. This
is equivalent to $85,000.
[294]. Clauses
271–274 of the Bill; Department of Agriculture, Australian
Ballast Water Management Requirements, version 5, Commonwealth of
Australia, Canberra, 2013, p. 4, accessed 4 March 2015.
[295]. Clause
276 of the Bill.
[296]. Clause
277 of the Bill.
[297]. Clauses
279 and 280 of the Bill.
[298]. Clause
282 of the Bill.
[299]. Clause
283 of the Bill.
[300]. Protection of the Sea
(Prevention of Pollution from Ships) Act 1983, accessed 17 April
2015.
[301]. Scrutiny
of Bills Committee, op. cit., p. 21.
[302]. Under
clause 9 of the Bill a sediment reception facility is a
facility in Australian territory for receiving sediment from vessels for
treatment or disposal in a way authorised under a law of the Commonwealth or,
if the facility is in a state or territory—a law of the state or territory.
[303]. This
is equivalent to $340,000.
[304]. Strict
liability offences are discussed earlier in this Bills Digest.
[305]. This
is equivalent to $85,000.
[306]. Subclause
299(1) of the Bill.
[307]. Subclause
299(2) of the Bill.
[308]. Subclause
299(3) of the Bill.
[309]. Department
of Agriculture (DA), 'Biofouling’,
DA website, accessed 26 March 2015; see also Commonwealth of Australia, ‘What is marine biofouling?',
The National System for the Prevention and Management of Marine Pest Incursions
website, accessed 26 March 2015.
[310]. C
Hewitt and M Campbell, Assessment
of relative contribution of vectors to the introduction and translocation of
marine invasive species, report for the Department of
Agriculture, Fisheries and Forestry and the National Centre for Marine
Conservation and Resource Sustainability Australian Maritime College, 2010,
accessed 26 March 2015.
[311]. Quarantine
and Biosecurity Review Panel, One
biosecurity: a working partnership, (Beale Review), op. cit., recommendation
5.
[312]. Invasive
Species Council, Submission
to the Rural and Regional Affairs and Transport Committee, Inquiry into
the Biosecurity Bill 2014 and related Bills, 21 January 2015, p. 56,
accessed 25 February 2015.
[313]. Department
of Agriculture (DA), 'National
system for the prevention and management of marine pest incursions',
DA website, accessed 27 February 2015.
[314]. Clauses
285–296 of the Bill set out the requirements for ballast water management
plans and ballast water management certificates, including the relevant rules
for how vessels are to keep records of the ballast water operations.
[315]. Subclause
310(1) of the Bill.
[316]. Clause
9 of the Bill defines the term invasive pest as a pest that
is an alien species within the meaning of the Biodiversity Convention,
but is not capable of infesting humans, animals or plants; or acting as a
vector for a disease; or causing disease in any other way.
[317]. Subclause
310(2) of the Bill.
[318]. Clause
314 of the Bill.
[319]. The
maximum amount of the penalty is $20,400.
[320]. Clause
317 of the Bill.
[321]. Clause
318 of the Bill.
[322]. Clauses
319 and 320 of the Bill.
[323]. Clause
321 of the Bill.
[324]. Clause
324 of the Bill. Note that clause 326 of the Bill provides for
compensation to be paid in the event that electronic equipment being operated
in accordance with clause 324 is damaged.
[325]. Clause
353 of the Bill.
[326]. These
powers range from power to impose restrictions or requirements on people, goods
or conveyances entering or exiting from premises, treatment of goods,
conveyances and premises and destruction of goods, conveyances and premises.
Under subclause 354(4), the exercise of the power specified must be
appropriate and adapted for the purpose of managing the biosecurity risk posed
by the disease or pest.
[327]. An
example of an additional biosecurity measures that may be prescribed in a
regulation is the power to impose movement restrictions in relation to animals
during an outbreak of disease such as equine influenza. Source:
Explanatory Memorandum, p. 235.
[328]. These
are the biosecurity risk assessment powers. They can be used on
an ongoing basis so that the nature and extent of the risk is continually
reassessed during the time that the biosecurity control order is in place.
Under subclause 354(4), the exercise of the power specified must be
appropriate and adapted for the purpose of managing the biosecurity risk posed
by the disease or pest.
[329]. Subclause
354(3) of the Bill.
[330]. Clause
347 of the Bill.
[331]. Clause
348 of the Bill.
[332]. The
maximum amount of the penalty is $20,400.
[333]. Clause
365 of the Bill.
[334]. A
failure to consult does not affect the validity of the temporary biosecurity
monitoring zone determination: subclause 368(2) of the Bill.
[335]. Subclause
365(4) of the Bill. Legislative
Instruments Act 2003, accessed 17 February 2015.
[336]. Subclause
366(5) of the Bill.
[337]. Note
4 to clause 370 of the Bill.
[338]. The
maximum amount of the penalty is $51,000.
[339]. Subclause
317(1) or (2) of the Bill.
[340]. Paragraph
318(2)(b) of the Bill.
[341]. Paragraph
321(1)(a) of the Bill.
[342]. The
maximum amount of the penalty is $51,000.
[343]. The
term permissible distance is defined in clause 9 of the
Bill as 400 metres or such greater distances as is prescribed by regulations.
[344]. Explanatory
Memorandum, Biosecurity
Bill 2014, p. 251.
[345]. A
failure to consult does not affect the validity of the temporary biosecurity
monitoring zone determination: subclause 387(2) of the Bill.
[346]. Clause
395 of the Bill.
[347]. Explanatory
Memorandum, Biosecurity
Bill 2014, p. 257, accessed 17 February 2015.
[348]. The
maximum amount of the penalty is $51,000.
[349]. The
maximum amount of the penalty is $20,400.
[350]. Explanatory
Memorandum, Biosecurity
Bill 2014, p. 8.
[351]. Convention
on Biological Diversity (CBD), ‘What are invasive alien
species?’, CBD website, accessed 27 February 2015.
[352]. G
Roberts, ‘Experts
warn of fire ant disaster’,
The Age, 24 August 2001 and ‘Fire
ants may have crossed the border’, The Courier Mail, 21 November 2001, accessed 12
February 2015.
[353]. General
news, ‘Fire
ants unvanquished 10 years on’, Australian
Associated Press, 22 June 2011, accessed 12 February 2015.
[354]. C
Jay, ‘Bees
down on their knees’, Australian Financial Review, 11 September
2009, p. 49, accessed 27 February 2015.
[355]. P
Morley, ‘Bug
killing beehives’, The Courier Mail, 8 September 2009, p. 13,
accessed 27 February 2015.
[356]. C
Trevor, ‘Private
Member’s business: foot and mouth disease’, House of Representatives,
Hansard, 15 June 2009, p. 6035, accessed 12 February 2015.
[357]. Ibid.
[358]. A
Fraser, ‘Senate
blasts lack of citrus canker action’, The Australian, 21 June 2006,
p. 7, accessed 12 February 2015; see also Rural and Regional Affairs and
Transport Legislation Committee, The
Administration by the Department of Agriculture, Fisheries and Forestry of the
citrus canker outbreak, The Senate, Canberra, June 2006, accessed 26
March 2015.
[359]. R
Beeby, ‘The
plight of the honey bee’, The Canberra Times, 19 February 2011, p.
1, accessed 9 February 2015.
[360]. Queensland
Government Department of Agriculture and Fisheries (Qld DAF), ‘Asian
honey bees in Queensland’, Qld DAF website, accessed 26 March
2015.
[361]. Department
of Agriculture (DA), ‘The
Asian honey bee in Australia’, DA website,
accessed 9 April 2015.
[362]. Explanatory
Memorandum, Biosecurity
Bill 2014, p. 218.
[363]. Explanatory
Memorandum, Biosecurity
Bill 2014, p. 12. The approved arrangements will replace quarantine
approved premise and compliance agreement schemes in the Quarantine Act: Department
of Agriculture, Answers
to written questions taken on notice on 11 February 2015, Canberra,
p. 10, accessed 25 March 2015.
[364]. Clause
14 of the Bill sets out the meaning of the terms biosecurity industry
participant and covered by so that a person who is the
holder of the approval of an approved arrangement (including a
person to whom an approved arrangement has been transferred in
circumstances prescribed by regulations made under section 411) is a biosecurity
industry participant and is covered by the approved arrangement.
[365]. The
term approved arrangement is defined in clause 10 of the
Bill as an arrangement for which an approval is in force under
paragraph 406(1)(a) (including a varied arrangement for which an approval
is in force under that paragraph as it applies because of
subsection 412(3)).
[366]. Department
of Agriculture (DA), ‘Onshore
treatment providers’, DA website, accessed 9 February 2015.
[367]. Clauses
433–435 of the Bill deal with the manner and form of an application and the
time for dealing with applications.
[368]. Clause
405 of the Bill.
[369]. Clauses
406 and 407 of the Bill.
[370]. Clauses
413–416 of the Bill.
[371]. Clauses
417–420 of the Bill.
[372]. Clauses
422–425 of the Bill.
[373]. This is equivalent to
$51,000.
[374]. This
is equivalent to $20,400.
[375]. Clause
431 of the Bill.
[376]. Paragraphs
418(1)(c) and 423(1)(c) of the Bill.
[377]. Clause
432 of the Bill.
[378]. Clause
436 of the Bill.
[379]. This
is equivalent to $5,100.
[380]. Explanatory
Memorandum, Biosecurity Bill 2014, p. 270.
[381]. National
Farmers’ Federation, Submission
to the Rural and Regional Affairs and Transport Committee, Inquiry into
the Biosecurity Bill 2014 and related Bills, 21 January 2015, p. 3,
accessed 2 March 2015.
[382]. Clause
438 of the Bill.
[383]. Clause
439 of the Bill.
[384]. Subclause
438(4) of the Bill.
[385]. Clause
441 of the Bill.
[386]. Clause
443 of the Bill. Note, however, that this Chapter does not apply in
relation to invasive pests: see subclause 25(2).
[387]. Under
subclause 443(4), the period must not be longer than three months.
However, this may be extended under clause 444.
[388]. Subclause
443(2) of the Bill.
[389]. Subclause
445(3) of the Bill.
[390]. Clause
446 of the Bill.
[391]. Subclause
446(2) of the Bill.
[392]. Explanatory
Memorandum, p. 277.
[393]. Clause
449 of the Bill. The maximum monetary penalty for the offence is equivalent
to $51,000.
[394]. The
maximum civil penalty is equivalent to $20,400.
[395]. Explanatory
Memorandum, Biosecurity
Bill 2014, p. 282.
[396]. Subclause
475(2) of the Bill.
[397]. Clause
477 of the Bill.
[398]. Clause
478 of the Bill.
[399]. Clause
479 of the Bill. The maximum monetary penalty for the offence is equivalent
to $51,000.
[400]. Standing
Committee for the Scrutiny of Bills, Alert
Digest No. 2 of 2015, op. cit.,
pp. 22–24.
[401]. Ibid.,
p. 22.
[402]. Explanatory
Memorandum, Biosecurity
Bill 2014, pp. 44–45 and see also p. 290.
[403]. Standing
Committee for the Scrutiny of Bills, Alert
Digest No. 2 of 2015, op. cit.,
p. 25.
[404]. Explanatory
Memorandum, Biosecurity
Bill 2014, p. 276.
[405]. Attorney-General’s
Department (AG), Guide
to framing Commonwealth offences, infringement notices and enforcement powers,
AG website, accessed 17 February 2015.
[406]. Replacement
Explanatory Memorandum, Regulatory
Powers (Standard Provisions) Bill 2014, p. 2, accessed 17 February 2015.
[407]. Regulatory Powers
(Standard Provisions) Act 2014 , accessed 2 May 2015. Clause 481
of the Bill, together with sections 8 and 9 of the Regulatory Powers
(Standard Provisions) Act operate to apply Part 2 of that Act to the Biosecurity
Act and information given in compliance with the Biosecurity Act.
[408]. See
sections 11 and 12 of the Regulatory Powers
(Standard Provisions) Act 2014.
[409]. Regulatory
Powers (Standard Provisions) Act, subsections 20(1) and (4).
[410]. Regulatory
Powers (Standard Provisions) Act, subsection 21(2).
[411]. Regulatory
Powers (Standard Provisions) Act, subsection 22(1).
[412]. Regulatory
Powers (Standard Provisions) Act, subsection 18(1).
[413]. Subclause
482(2) of the Bill.
[414]. Subclause
482(8) of the Bill; and see also Explanatory Memorandum, Biosecurity Bill
2014, p. 297.
[415]. Under
clause 9 of the Bill, issuing officer means a magistrate
or a judge of a state or territory court, the Federal Court or the Federal
Circuit Court.
[416]. Regulatory
Powers (Standard Provisions) Act, section 32.
[417]. Subclauses
481(1) and (2) of the Bill.
[418]. Regulatory
Powers (Standard Provisions) Act, subsection 32(4).
[419]. Regulatory
Powers (Standard Provisions) Act, section 18.
[420]. Clause
484 of the Bill, together with section 38 the Regulatory Powers
(Standard Provisions) Act operate to apply Part 3 of that Act to the Biosecurity
Act.
[421]. Section
39 of the Regulatory Powers (Standard Provisions) Act contains the
definition of evidential material.
[422]. Regulatory
Powers (Standard Provisions) Act, subsections 50(1) and (2).
[423]. Regulatory
Powers (Standard Provisions) Act, subsection 51(2).
[424]. Regulatory
Powers (Standard Provisions) Act, section 52.
[425]. See:
definition of ‘related provision’ in clause 9 of the Bill, paragraph
484(2)(a) of the Bill, and section 40 of the Regulatory Powers (Standard
Provisions) Act.
[426]. Subclause
485(2) of the Bill.
[427]. Subclause
485(8) of the Bill; and see also Explanatory Memorandum, Biosecurity Bill,
p. 299.
[428]. Regulatory
Powers (Standard Provisions) Act, section 48.
[429]. Regulatory
Powers (Standard Provisions) Act, section 70.
[430]. Item
1 in the table contained in subclause 490(4) of the Bill.
[431]. Item
2 in the table contained in subclause 490(4) of the Bill.
[432]. Item
3 in the table contained in subclause 490(4) of the Bill.
[433]. Item
4 in the table contained in subclause 490(4) of the Bill.
[434]. Item
5 in the table contained in subclause 490(4) of the Bill. Under subclause
490(2) an adjacent premises warrant must cease to be in force no later than
14 days after the day of issue. Clause 499 of the Bill requires a
biosecurity officer who enters premises under such a warrant to take all
reasonable steps to ensure that they cause as little inconvenience to the
occupier of the premises as is practicable.
[435]. Item
6 in the table contained in subclause 490(4) of the Bill. Under subclause 490(2) a possession
warrant must cease to be in force no later than 14 days after the day of issue.
[436]. Item
7 in the table contained in subclause 490(4) of the Bill. Under subclause
490(2) a possession warrant must cease to be in force no later than 14 days
after the day of issue.
[437]. Under
clause 9 of the Bill, issuing officer means a magistrate
or a judge of a state or territory court, the Federal Court or the Federal
Circuit Court.
[438]. Subclause 490(3)
of the Bill.
[439]. Clause
9 of the Bill defines the term appropriate person in relation
to an entry warrant as the occupier of the premises or another person who
apparently represents the occupier. Where the warrant is a conveyance
possession warrant, the appropriate person is the person
responsible for the conveyance or another person who apparently represents the
person responsible for the conveyance.
[440]. Explanatory
Memorandum, Biosecurity
Bill 2014, p. 309. See also clause 505 of the Bill.
[441]. Clause
510 of the Bill.
[442]. Explanatory
Memorandum, Biosecurity
Bill 2014, p. 310.
[443]. Clause
514 of the Bill.
[444]. Clause
516 of the Bill.
[445]. Subclause
519(1) of the Bill, together with sections 78 and 79 of the Regulatory
Powers (Standard Provisions) Act operate to apply Part 4 of that Act to the
Biosecurity Act.
[446]. Subclause
519(1) of the Bill and section 79 of
the Regulatory Powers (Standard Provisions) Act.
[447]. Subclause
519(3) of the Bill.
[448]. Regulatory
Powers (Standard Provisions) Act, subsections 82(1) and (2).
[449]. Regulatory
Powers (Standard Provisions) Act, subsection 82(3).
[450]. Regulatory
Powers (Standard Provisions) Act, section 83.
[451]. Explanatory
Memorandum, Biosecurity
Bill 2014, p. 314.
[452]. Subclause
520(1) of the Bill.
[453]. Clause
523 of the Bill, together with subsection 99(2) and section 100 of the Regulatory
Powers (Standard Provisions) Act operate to apply Part 5 of that Act to the
Biosecurity Act.
[454]. Subclause
523(2) of the Bill.
[455]. Regulatory
Powers (Standard Provisions) Act, subsection 103(2).
[456]. Paragraph
524(1)(b) and subclauses 524(2) and (3) of the Bill.
[457]. Clause
526 of the Bill, together with section 111 of the Regulatory Powers
(Standard Provisions) Act operate to apply Part 6 of that Act to the Biosecurity
Act.
[458]. Subclause
526(2) of the Bill.
[459]. Regulatory
Powers (Standard Provisions) Act, section 114.
[460]. Regulatory
Powers (Standard Provisions) Act, section 115.
[461]. Clause
528 of the Bill, together with section 118 of the Regulatory Powers
(Standard Provisions) Act operates to apply Part 7 of that Act to the Biosecurity
Act.
[462]. Subclause
528(2) of the Bill.
[463]. Regulatory
Powers (Standard Provisions) Act, section 121.
[464]. Subclauses
532(2) and 533(2) of the Bill.
[465]. Customs
Brokers and Forwarders Council of Australia, Submission
to the Rural and Regional Affairs and Transport Committee, Inquiry into
the Biosecurity Bill 2014 and related Bills, January 2015, p. 5, accessed 2
March 2015.
[466]. Senate
Rural and Regional Affairs and Transport Legislation Committee, Answers
to Questions on Notice, Department of Agriculture, Inquiry into the
Biosecurity Bill 2014 and related Bills, Question 15, accessed 9 April 2015.
[467]. Clauses
540 and 541 of the Bill.
[468]. The
term Agriculture Secretary is defined in clause 9 of the Bill as the
Secretary of the Agriculture Department.
[469]. Clause
544 of the Bill.
[470]. Clause
545 of the Bill.
[471]. Clause
546 of the Bill.
[472]. Clauses
562 and 563 of the Bill.
[473]. Clause
542 of the Bill.
[474]. Paragraph
542(1)(b) of the Bill.
[475]. Paragraph
545(1)(b) and subclause 545(5) of the Bill.
[476]. Subclause
546(1) of the Bill.
[477]. Explanatory
Memorandum, Biosecurity
Bill 2014, p. 326.
[478]. Clause
554 of the Bill.
[479]. Department
of Agriculture and Department of Health, Answers
to written questions taken on notice by the Senate Rural and Regional Affairs
and Transport Legislation committee: question 13, 27 February 2015,
accessed 4 March 2015.
[480]. Australian
Veterinary Association, Submission
to the Rural and Regional Affairs and Transport Committee, Inquiry into
the Biosecurity Bill 2014 and related Bills, 15 January 2015,
Attachment 1, p. 3, accessed 27 February 2015.
[481]. Clause
558 of the Bill.
[482]. Subclause
559(4) of the Bill.
[483]. Clause
560 of the Bill.
[484]. Clause
562 of the Bill.
[485]. Subclauses
563(4) and (5) of the Bill.
[486]. Clause
566 of the Bill.
[487]. Clauses
567 and 568 of the Bill.
[488]. B
Joyce (Agriculture Minister), ‘Second
reading speech: Biosecurity Bill 2014 and related Bills’, House of
Representatives, Debates, 27 November 2014, p. 13427, accessed 2
March 2015.
[489]. Subclause
643(6) of the Bill.
[490]. Subclause
643(5) of the Bill.
[491]. Subclause
643(6) of the Bill.
[492]. Invasive
Species Council, Submission
to the Rural and Regional Affairs and Transport Committee, Inquiry into
the Biosecurity Bill 2014 and related Bills, 21 January 2015, p. 3,
accessed 3 March 2015.
[493]. Tasmanian
Salmonid Growers Association Ltd, Submission
to the Rural and Regional Affairs and Transport Committee, Inquiry into
the Biosecurity Bill 2014 and related Bills, undated, p. 6, accessed 3
March 2015.
[494]. AUSVEG,
Submission
to the Rural and Regional Affairs and Transport Committee, Inquiry into
the Biosecurity Bill 2014 and related Bills, 16 January 2015, p. 9,
accessed 3 March 2015.
[495]. Clause
574 of the Bill.
[496]. Paragraph
576(2)(c) of the Bill.
[497]. Paragraphs
576(2)(a) and (b) of the Bill.
[498]. Subclause
576(3) of the Bill.
[499]. Paragraph
576(4)(a) of the Bill.
[500]. Paragraph
576(4)(b) of the Bill.
[501]. Subclause
576(5) of the Bill.
[502]. Subclause
576(6) of the Bill.
[503]. Paragraph
578(1)(b) of the Bill.
[504]. Subclause
576(1) of the Bill.
[505]. Subclause
578(1) of the Bill.
[506]. Clause
9 of the Bill.
[507]. Clause
15 of the Bill.
[508]. See
clause 289 of the Bill for ‘survey authority’.
[509]. Clauses
582–584 of the Bill.
[510]. Clause
585 of the Bill. Note that a number of exceptions to this offence are set
out in clauses 586–589 of the Bill.
[511]. Department
of Finance, Australian
Government Cost Recovery Guidelines, Commonwealth of Australia, 2014,
p. 6, accessed 8 January 2015.
[512]. Quarantine
Charges (Collection) Act 2014, accessed 8 January 2015.
[513]. Further
information about the operation of the Quarantine Charges Collection Act
2014 is contained in the R Dossor and P Pyburne, Quarantine
Charges (Collection) Bill 2014 [and] Quarantine Charges (Imposition—General)
Bill 2014 [and] Quarantine Charges (Imposition—Excise) Bill 2014 [and]
Quarantine Charges (Imposition—Customs) Bill 2014, Bills digest, 53,
2013–14, Parliamentary Library, Canberra, 2014, accessed 8 January 2015.
[514]. Quarantine
Charges (Imposition—General) Act 2014, accessed 8 January 2015.
[515]. Quarantine
Charges (Imposition—Customs) Act 2014, accessed 8 January 2015.
[516]. Quarantine
Charges (Imposition—Excise) Act 2014, accessed 8 January 2015.
[517]. Explanatory
Memorandum, Quarantine
Charges (Collection) Bill 2014, pp. 3–4, accessed 8 January 2015.
[518]. Clause
596 of the Bill.
[519]. Personal Property
Securities Act 2009, accessed 2 May 2015.
[520]. Clauses
603 and 609 of the Bill.
[521]. Customs
Brokers and Forwarders Council of Australia, Submission
to the Rural and Regional Affairs and Transport Committee, Inquiry into
the Biosecurity Bill 2014 and related Bills, January 2015, p. 6, accessed 4
March 2015.
[522]. Tasmanian
Salmonid Growers Association Ltd, Submission
to the Rural and Regional Affairs and Transport Committee, Inquiry into
the Biosecurity Bill 2014 and related Bills, undated, p. 6, accessed 4
March 2015.
[523]. Clause
606 of the Bill.
[524]. Clause
607 of the Bill.
[525]. Clause
611 of the Bill.
[526]. Department
of Agriculture and Department of Health, Joint
Submission to the Rural and Regional Affairs and Transport Committee, Inquiry
into the Biosecurity Bill 2014 and related Bills, January 2015, p. 16,
accessed 4 March 2015. However, it should be noted that clause 617
allows for exemptions for the Torres Strait Treaty area.
[527]. Clauses
625-630 of the Bill.
[528]. Clauses
632–634 of the Bill.
[529]. Clause
645 of the Bill.
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