Bills Digest No. 16,
2018–19
PDF version [242KB]
David Markham
Law and Bills Digest Section
22
August 2018
Contents
Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Other provisions
Concluding comments
Date introduced: 28
March 2018
House: House of
Representatives
Portfolio: Agriculture
and Water Resources
Commencement: Part
1 of Schedule 1 and Schedule 2 on the day after Royal Assent. Part 2 of Schedule
1 on proclamation or six months after Royal Assent, whichever is earlier.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at August 2018.
Purpose of
the Bill
The purpose of the Biosecurity Legislation Amendment
(Miscellaneous Measures) Bill 2018 (the Bill) is to make amendments to the Biosecurity Act
2015 (the Act). The Bill proposes a number of measures to strengthen
Australia’s biosecurity system. These measures include introducing new
information gathering provisions in the Act to improve the capacity to monitor,
control and respond to biosecurity risks within Australia.
The Bill also makes a number of other minor amendments
that are detailed later in this digest.
Structure
of the Bill
The Bill is structured in two Schedules:
- Schedule
1 contains amendments to the Act. It is further divided into two Parts:
- Part
1 contains a number of provisions designed to improve the Director of
Biosecurity’s capacity to respond to emerging issues and
- Part
2 amends the definition of ‘human remains’ in the Act.
- Schedule
2 repeals the Quarantine
(Validation of Fees) Act 1985.
Background
On 21 March 2017 the Senate asked the Rural and Regional
Affairs and Transport References Committee (the Committee) to inquire into and
report on the biosecurity risks associated with the importation of seafood and seafood
products (including uncooked prawns and uncooked prawn meat) into Australia.[1]
The reference to the Committee included a number of specific requests,
including that the Committee examine the management of the emergency response
and associated measures implemented to control the outbreak of White Spot
Syndrome Virus (WSSV).[2]
WSSV causes White Spot Disease, a highly virulent and
quick spreading pathogen of cultured prawns, causing 100 per cent mortality in
farmed prawns within two to seven days of infection.[3]
WSSV, which was generally understood not to be present in Australia, was
detected in the Logan River area of Queensland in December 2016.[4]
This caused major disruptions to the prawn industry in the Logan River/Moreton
Bay area, with estimates that the outbreak cost the industry $43 million
in the 2016–17 year.[5]
It was suspected that WSSV had been imported into Australia in uncooked prawn
meat. Consequently, such imports were suspended with effect from 6 January
2017. This suspension lasted six months and thus lapsed on 6 July 2017.[6]
While a number of causes for the outbreak were postulated,
including upstream fishers using infected prawns as bait, it was not possible
to detect a definitive reason.[7]
In the House of Representatives on 8 May 2018 the Minister for Agriculture and
Water Resources, David Littleproud, said that the cause of the outbreak of WSSV
‘may never be known’, but stressed the need for biosecurity risks to be
appropriately managed whatever the cause of the outbreak.[8]
Following the WSSV outbreak, the Inspector-General of
Biosecurity investigated and reported on the effectiveness of biosecurity
controls concerning the import of uncooked prawns. The recommendations in the report
concentrated on policies and actions of the Department of Agriculture and Water
Resources.[9]
The recommendations largely concentrated on administrative matters. Two
recommendations, numbers 12 and 13, suggested stronger powers in the Act.[10]
The Department’s response to recommendation 13 notes that the recommendation was
taken into account in drafting the Bill.[11]
The Senate Committee’s inquiry had a broader remit,
focussing not only on the management of the emergency response to the WSSV, but
on wider issues including those relating to the adequacy of biosecurity
controls, the adequacy of resourcing of biosecurity measures, and the
effectiveness of post-entry surveillance measures and ‘end use’ import conditions.[12]
A description of the process followed by the Committee and its report are
accessible through the inquiry’s homepage.[13]
The Committee received written submissions from 19 parties.[14]
The Committee’s report, tabled in October 2017, made a
number of recommendations relating to matters of administration within the
Department. Importantly, the Committee also recommended:
...the Minister for Agriculture and Water Resources introduce
amendments to the Biosecurity Act 2015, which provide the Director of
Biosecurity with appropriate secure and advise powers in relation to specified
goods or classes of goods.[15]
So called ‘secure and advise’ powers are needed in order
to deal with products already imported into Australia, when it is later
realised that those products may pose a risk to Australia’s biosecurity. Such
powers would enable the Director of Biosecurity to locate such products, as
part of targeting an operational response to restricting their movement and
controlling the risk that they pose.[16]
This Bill responds to that recommendation, along with
making other minor amendments to the Biosecurity Act.
Committee
consideration
Senate
Selection of Bills Committee
At its meeting of 20 June 2018 the Committee recommended
that the Bill not be referred to a Committee.[17]
Senate
Standing Committee for the Scrutiny of Bills
The Committee noted that it had ‘no comment on this Bill’.[18]
Policy
position of non-government parties/independents
When the Inspector-General of Biosecurity’s Report was
released in December 2017, the Shadow Minister for Agriculture, Joel
Fitzgibbon, encouraged the Government to act on this and on the Senate
Committee’s Report.[19]
His comments indicate that he was supportive of tightening biosecurity
provisions.
Mr Fitzgibbon later explicitly stated that he supported
the Bill, and that the changes ‘will make a significant difference’, and that
‘the Opposition will be supporting the Bill’.[20]
At the time of writing, other non-government parties and
independents do not appear to have commented on the Bill.
Position of
major interest groups
As noted above, a number of major interest groups made
submissions to the Senate Committee’s review into biosecurity risks.[21]
There appears to have been no additional submissions or commentary in relation
to this specific legislation.
Generally, the submissions that were made to the Senate
Committee were supportive of stronger legislation in relation to biosecurity,
and particularly in respect of the need for strengthened provisions relating to
post-importation measures.
For example, the NSW Aquaculture Association described the
effectiveness of post-importation biosecurity controls as ‘zero’, and noted
that the problems that were described in its submission were identified by the
general public, rather than any government agency.[22]
This view was broadly shared in the submissions to the inquiry.
Financial
implications
The Explanatory Memorandum states that the Bill will have
no financial impact on the Australian Government Budget.[23]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[24]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights considered
that the Bill did not raise any human rights concerns.[25]
Key issues
and provisions
Information
gathering
The additions to the Act proposed by item 7
represent the most important aspect of the Bill. This item will insert proposed
Part 1A into Chapter 6 of the Act, and comprises proposed sections 312A to
312F inclusive.
Proposed Part 1A of Chapter 6 is intended to answer
problems that were brought to the attention of the Senate Committee in the
course of its 2017 inquiry. This refers to a situation, for example, where a
biosecurity risk is identified in a class of products, such as uncooked prawns,
where it is known that similar products have already passed through biosecurity
controls and are now in the supply chain. Currently the Director of Biosecurity
has limited powers in relation to identifying and locating potentially at-risk
goods that are already in Australia. Part 1A attempts to ameliorate that
problem by giving the Director of Biosecurity and/or the Director of Human
Biosecurity increased information gathering powers.
Proposed section 312A provides an outline of Part
1A, setting out the information gathering powers that are outlined in the
following sections.
Proposed section 312B deals with goods that have
become suspended goods. The Director of Biosecurity can already determine under
subsection 182(1) of the Act that the importation of goods, or a class of
goods, be suspended because of an unacceptable biosecurity risk. Proposed section
312B allows the Director to require a person who is in charge of goods of
the same kind as those suspended in the relevant determination to notify the
Director of the location of those goods, as well as any other relevant
information specified by the Director. Proposed subsection 312B(3)
allows the Director wide discretion in making public this requirement
(‘...publishing a notice or in any other way the Director of Biosecurity
considers appropriate’). Proposed subsection 312B(5) specifies that a
person who is aware of the Director’s notification requirements must comply
with that requirement. Persons cannot refuse to answer questions or make
relevant notifications claiming privilege against self-incrimination.[26]
This is consistent with other provisions in the Act (see item 12 below).
Proposed section 312B contains penalty
provisions—non-compliance with a requirement to provide information is a civil
matter, with a maximum penalty of 120 penalty units, which currently equates to
a maximum fine of $25,200.[27]
The provision of false or misleading information may result in a civil penalty
under section 532 of the Act, or mean that the person has committed a criminal
offence under section 137.1 of the Criminal Code Act
1995.[28]
Proposed section 312C contains similar provisions
to proposed section 312B, but in relation to goods prohibited in a
determination under subsection 173(1) of the Act (such a determination sets out
goods that must not be imported into Australian territory). Proposed section
312C also gives the same information gathering powers to the Director of
Human Biosecurity and the Director of Biosecurity, with the same penalties for
non-compliance.
Proposed section 312D allows a biosecurity officer
to exercise the powers set out in proposed section 312E and 312F,
for the purpose of assessing or managing the level of biosecurity risk
associated with certain goods. This applies if the goods were, at the time of
their importation, suspended or prohibited goods; or in other cases where the
officer suspects on reasonable grounds that an import condition in respect of
the goods may not have been complied with. A possible example of the last point
would be where the importer was meant to be importing cooked seafood, but was
instead suspected of importing frozen uncooked seafood.
Proposed section 312E requires an importer, or a
person in charge of goods mentioned in proposed section 312D, to answer
questions, or provide written information, about those goods as required by a
biosecurity officer. The penalty provisions are the same as in proposed
section 312B.
Proposed section 312F requires an importer, or a
person in charge of goods mentioned in proposed section 312D, to produce
documents in respect of those goods to a biosecurity officer on request. This
section also allows the biosecurity officer to copy or remove that document.
Once again, the same penalty provisions that apply throughout Part 1A apply.
Item 6 proposes to add a new paragraph 311(aa) to
section 311 of the Act. This will expand the section which sets out the objects
of Chapter 6 of the Act, to include reference to the information gathering
powers to be inserted by new Part 1A of that Chapter.[29]
Item 12 amends paragraph 635(1)(e) of the Act,
relating to self-incriminating statements, by adding references to new sections
312B to 312F. While a person cannot refuse to provide information on the
grounds of self-incrimination, this is tempered by the fact that information
thus obtained cannot be used as evidence in either criminal or civil
proceedings (other than proceedings relating to provision of false or
misleading information).[30]
This balances the importance for Australia’s biosecurity of obtaining relevant
information with the rights of the person providing the necessary information.
Definition
of commercial-in-confidence
Section 15 of the Act defines what is meant by commercial-in-confidence.
Item 1 proposes to amend section 15 to give wider discretion to the
Director of Biosecurity in relation to information that he/she may consider to be
commercial-in-confidence. Commercial-in-confidence provisions are in the Act to
balance the need of the Director of Biosecurity to have knowledge in order to
fulfil his/her functions, with the fact that if such knowledge becomes public
it may cause competitive detriment to one or more parties. Such information,
when provided to the Director, becomes protected information and is not
publicly released.[31]
Currently the Act imposes the onus on ‘a person’ to
demonstrate to the Director of Biosecurity that certain information should be
commercial-in-confidence.[32]
The proposed amendment will remove the onus on that person, and instead substitute
the words ‘the Director of Biosecurity is satisfied’. This does not mean that a
person cannot attempt to demonstrate to the Director that information should be
commercial-in-confidence; rather it allows the Director to make such a decision
on any available information that falls within the parameters of section 15.[33]
Item 10 amends the delegation provisions in
subsection 542(3) of the Act to take into account the need for new decisions
made under amended section 15 (item 1). The proposed amendment will
allow the decision under section 15 as to whether information is
commercial-in-confidence to be sub-delegated to departmental officers below
Senior Executive Service officer level. Such sub-delegation is currently not
allowed; however, not making this amendment would arguably mean that procedural
decisions would need to be made at an unnecessarily high level.
Item 2 proposes a consequential amendment to the
wording of paragraph 15(a), replacing the words ‘the person’ with ‘a person’.
This is consistent with the intent of item 1, as it expands the range of
persons whose interests the Director of Biosecurity can take into account.
Incorporation
of instruments into determination
Item 4 proposes to insert a provision in the Act
which specifies an exemption to a provision in the Legislation Act
2003.
Section 174 of the Act gives the Director of Biosecurity
and the Director of Human Biosecurity the power to make determinations that
provide that specified classes of goods (referred to as conditionally
non-prohibited goods) must not be imported unless certain conditions
are complied with.[34]
These determinations are legislative instruments, and as such must comply with
the provisions of the Legislation Act. Subsection 14(2) of the Legislation
Act states that, unless the contrary intention appears, a legislative
instrument may not make provision in relation to a matter by applying, adopting
or incorporating any matter contained in an instrument or other writing as in
force or existing from time to time. The purpose of this provision is generally
to prevent confusion about the scope of the legislative instrument at any point
in time.
Item 4 proposes to introduce subsection 174(6)
into the Act. This sets out the contrary intention envisioned by subsection
14(2) of the Legislation Act in relation to determinations of conditionally
non-prohibited goods. This will mean that those determinations will in future
be able to refer to other documents as they are amended from time to time;
meaning that it will not be necessary to make a new determination every time
information published elsewhere is updated. Proposed subsection 174(6)
specifies that the document being referred to must be publicly available.
The Bill’s Explanatory Memorandum notes that this
information will be readily and freely available on specified websites at any
point in time, so that the possibility of confusion about the scope of a
determination should be eliminated or at least minimised.[35]
Information
sharing with WHO
Item 11 proposes to add a subparagraph to paragraph
580(2)(a) of the Act. Subsection 580(2) currently lists persons who can use
protected information for purposes associated with the Act. This amendment adds
‘National Focal Point’ to the list. National Focal Point is already a defined
term under section 9 of the Act, and refers to the designated point of contact
for the sharing of information with members of the World Health Organization.[36]
The Explanatory Memorandum states that this amendment is necessary to enable
Australia to fulfil its obligations under the International Health Regulations.[37]
Definition
of ‘human remains’
Part 2 of Schedule 1 contains only one item,
item 13. This amends the definition of human remains in
section 9 of the Biosecurity Act by excluding a cremated person’s ashes,
as well as excluding hair, teeth or bones that are separated from the body. These
items will still be subject to biosecurity controls, but will be treated as
goods, rather than as human remains.[38]
Other provisions
Items 3, 5, 8 and 9 of
Schedule 1 are technical amendments to the Act, which simply clarify existing
provisions.
Schedule 2 repeals the Quarantine
(Validation of Fees) Act 1985. That Act referred to fees paid at a
specific period of time in the past and none of those fees are ongoing.[39]
Only statutes that have ongoing effect should remain as current statutes; the
repeal of this Act is normal procedure to ensure that the current statute book
retains only relevant legislation.
Concluding comments
The provisions in this Act appear largely uncontroversial,
and support for the measures has been expressed by both major parties.
[1]. Australia,
Senate, Journals,
32, 21 March 2017, pp. 1106–07.
[2]. Senate
Rural and Regional Affairs and Transport References Committee, Seafood
and seafood products–terms of reference, The Senate, Canberra, 2017.
[3]. Senate
Rural and Regional Affairs and Transport References Committee, Biosecurity
risks associated with the importation of seafood and seafood products
(including uncooked prawns and uncooked prawn meat) into Australia, The
Senate, Canberra, October 2017, p. 5.
[4]. Ibid.,
p. 6.
[5]. H
Scott-Orr, B Jones and N Bhatia, Uncooked
prawn imports: effectiveness of biosecurity controls, Inspector-‑General
of Biosecurity, Canberra, 2017, p. 39.
[6]. Ibid.,
p. 44.
[7]. Ibid.,
p. 40.
[8]. D
Littleproud, ‘Answer
to question in writing: prawn industries’, [Questioner: R Katter], Question
930, House of Representatives, Debates, 8 May 2018, p. 3377.
[9]. H
Scott-Orr and others, op. cit.
[10]. Ibid.,
p. 26.
[11]. Ibid.
[12]. Senate
Rural and Regional Affairs and Transport References Committee, Seafood
and seafood products–terms of reference, op. cit.
[13]. Senate
Rural and Regional Affairs and Transport References Committee, Seafood
and seafood products, The Senate, Canberra, 2017.
[14]. Senate
Rural and Regional Affairs and Transport References Committee, Submissions,
Seafood and seafood products, The Senate, Canberra, 2017.
[15]. Senate
Rural and Regional Affairs and Transport References Committee, Biosecurity
Risks, op. cit., p. 81.
[16]. Ibid.
[17]. Senate
Standing Committee for the Selection of Bills, Report,
6, 2018, The Senate, Canberra, 21 June 2018.
[18]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 5, 2018, The Senate, Canberra, 9 May 2018, p. 11.
[19]. J
Fitzgibbon, Barnaby
Joyce must focus on biosecurity, Joel’s blog, 13 December 2017.
[20]. J
Fitzgibbon, ‘Second
reading speech: Biosecurity Legislation Amendment (Miscellaneous Measures) Bill
2018’, House of Representatives, Debates, 27 June 2018, p. 30.
[21]. Senate
Rural and Regional Affairs and Transport References Committee, Submissions,
Seafood and seafood products, op. cit.
[22]. NSW
Aquaculture Association Inc., Submission
to Senate Rural and Regional Affairs and Transport References Committee, Inquiry
into seafood and seafood products, [submission no. 4], 11 April 2017.
[23]. Explanatory
Memorandum, Biosecurity Legislation Amendment (Miscellaneous Measures) Bill
2018, p. 2.
[24]. The
Statement of Compatibility with Human Rights can be found at pages 17–21 of the
Explanatory Memorandum to the Bill.
[25]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 4, 8 May 2018, p. 96.
[26]. Proposed
subsection 312B(2), Note 2.
[27]. A
penalty unit is currently $210: Crimes Act 1914,
section 4AA.
[28]. Proposed
subsection 312B(2), Note 1.
[29]. Chapter
6 is entitled ‘Managing biosecurity risks: monitoring, control and response’.
[30]. Biosecurity
Act, subsection 635(2).
[31]. See
definition of protected information in section 9 and the
provisions dealing with confidentiality of information in Part 2 of Chapter 11
of the Act.
[32]. Section
15 of the Biosecurity Act currently uses the phrase ’... if a person
demonstrates...’.
[33]. Explanatory
Memorandum, Biosecurity Legislation Amendment (Miscellaneous Measures) Bill
2018, p. 4.
[34]. Biosecurity
Act, section 174(1).
[35]. Explanatory
Memorandum, Biosecurity Legislation Amendment (Miscellaneous Measures) Bill
2018, pp. 5–6.
[36]. The
definition refers back to the definition of National Focal Point in section 9
of the National
Health Security Act 2007.
[37]. World
Health Organization (WHO), International
Health Regulations, WHO website.
[38]. Goods
is defined in section 19 of the Biosecurity Act and includes most items
other than human remains.
[39]. Explanatory
Memorandum, op. cit., p. 16.
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