Purpose of the Bill

The purpose of the Biosecurity Amendment (Strengthening Penalties) Bill 2021 (the Bill) is to amend the Biosecurity Act 2015 (the Act) to increase the maximum financial penalties, both civil and criminal, for a number of offences that are already subject to penalties under the Act.

Structure of the Bill

The Bill has a single Schedule containing a table listing 28 separate provisions of the Act for which the maximum penalties are intended to be increased.

Background

The Biosecurity Act

The Biosecurity Act was passed in 2015, representing a major rewrite of the Quarantine Act 1908. In the Bills Digest prepared by the Parliamentary Library at that time, it was noted that a large number of penalties were set out in the Bill and that many, particularly in relation to criminal penalties, were set at levels considerably higher than the suggested penalties in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (published by the Attorney-General’s Department).[1]

The Explanatory Memorandum to the Biosecurity Bill at the time acknowledged the severity of some proposed penalties, but noted that the highest penalties of 2,000 penalty units were consistent with the penalties in subsection 27A(5) of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983; were consistent with the Australian Government’s international obligations to protect the marine environment; and reflected the severity of the potential consequences of an offence.[2]

The Bills Digest also noted that the maximum civil penalty for any offence in the Act was 120 penalty units, and that numerous provisions allowed for either criminal or civil penalties for the same conduct.[3] Since the passage of the Act, the penalties in it, as expressed as penalty units, have not prior to this Bill been amended to any substantial extent.[4]

A recent example of a biosecurity breach

Possibly the most serious breach of Australia’s biosecurity in recent times was that caused by the importation of uncooked prawns and prawn products infected with White Spot Syndrome Virus (WSSV) in 2016–17. This importation ultimately led to widespread destruction of the prawn industry in the Logan River/Moreton Bay area of Queensland.[5]

Following the WSSV outbreak then Inspector-General of Biosecurity Helen Scott-Orr, with two colleagues, investigated and reported on the effectiveness of biosecurity controls.[6] While many of the report’s recommendations were of an administrative nature, two recommendations, numbers 12 and 13, suggested stronger legislative powers.[7]

Recommendation 13 recommended recall powers in the Act in relation to products that had already been imported but were later found to be problematic. This recommendation led to legislative amendment implemented in the Biosecurity Legislation Amendment (Miscellaneous Measures) Act 2018, which enabled the Director of Biosecurity, together in some cases with the Director of Human Biosecurity, to require importers to reveal the location of such products. While this may not actually allow recall, it allows the Director(s) to assess or manage the level of biosecurity risk associated with the goods.[8]

Recommendation 12 stated:

The department should consider seeking stronger powers under the Biosecurity Act 2015 to apply direct penalties for serious non-compliance and impose administrative sanctions or on-the-spot fines for relatively minor non-compliance.

In their summary of the report’s findings, the authors commented:

In practice, the penalties available and applied were often not commensurate with the potential profits to be made or risks that could be caused by the non-compliant behaviour.[9]

The then Department of Agriculture, Water Resources and the Environment agreed with Recommendation 12 noting:

While the Biosecurity Act already provides powers to apply direct penalties for serious non-compliance and penalties for relatively minor non-compliance in the form of infringement notices, the department will consider whether stronger powers are required.[10]

How penalties are expressed

Financial penalties in the Act, and indeed in legislation generally, are set in the form of penalty units. Each penalty unit equates to a dollar value, currently $222.[11] The reason for setting penalties this way is simple. Penalties can be adjusted from time to time, for example to take account of inflation by the Minister issuing a notifiable instrument specifying the new amount under the Crimes Act 1914— that sets the new value of a penalty unit, rather than having to amend every piece of legislation that contains penalty provisions.

How penalties are enforced

In general, civil financial penalties are enforceable on the balance of probabilities and in line with the provisions of the Regulatory Powers (Standard Provisions) Act 2014. Division 2 of Part 4 of that Act sets out the provisions for obtaining a civil penalty order. The number of penalty units expressed in the Biosecurity Act (or other Act) relate to the maximum penalties that can be imposed on an individual. If the penalty applies to a body corporate, the maximum financial penalty is five times the penalty set out in the relevant Act.[12]

Criminal penalties for fault-based offences are enforced consistent with the provisions of Chapter 2 of the Criminal Code Act 1995, which sets out the principles of criminal responsibility that apply to Commonwealth offences. A criminal offence must be proved beyond reasonable doubt.[13] A fault-based offence requires proof of one or more fault elements: intention, knowledge, recklessness or negligence.[14] Once again, the maximum financial penalty that can apply to a body corporate is five times that which is set out in a penalty provision of an Act.[15]

Committee consideration

Senate Selection of Bills Committee

In its most recent report, the Committee noted that consideration of the Bill would be deferred until its next meeting.[16]

Senate Standing Committee for the Scrutiny of Bills

The Committee had no comment on the Bill.[17]

Policy position of non-government parties/independents

No comments on this Bill from non-government parties or independents were apparent at the time of writing this Bills Digest.

Position of major interest groups

Interest groups such as Australian Pork and NSW Farmers have expressed their support for the proposed increased penalties.

Australian Pork said:

APL welcomes proposed amendments to the Biosecurity Act 2015 to strengthen biosecurity penalties.[18]

NSW Farmers said:

NSW Farmers has welcomed a crackdown on biosecurity breaches, as the Australian Government acts to further bolster protection from growing pest and disease threats.

In a move that reflects the seriousness of biosecurity to industries such as agriculture, the maximum penalty for non-compliance with our biosecurity laws has been increased to $1.11 million.[19]

Financial implications

The Government notes the Bill will have no financial impact on the Australian Government Budget.[20]

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.[21]

Parliamentary Joint Committee on Human Rights

In its Report of 24 February 2021, the Committee sought further information about the increased penalties in the Bill — namely, whether the new provisions could apply to individuals (‘members of the general public’) as well as business importers or exporters; and whether the civil penalties had risen to such a level that they may be more properly regarded as criminal penalties. If that was the case, the committee suggested that criminal process rights might be engaged and that criminal process guarantees should be set out in the Bill.[22]

The Committee stated it would give its final view on the Bill when it received further advice in response to these points.[23] Following the receipt of this advice on 10 March 2021, the Committee concluded that two of the civil penalty provisions (relating to contraventions in relation to prohibited or suspended goods, and conditionally non-prohibited goods) might be more appropriately considered as criminal penalties, given they could apply to the general public.[24] The Committee noted that these penalties may not comply with criminal process rights given the lower standard of proof for civil penalties. The Committee draws these human rights concerns to the attention of the Minister and the Parliament.[25]

Key issues and provisions

The only substantive provisions in the Bill are the proposed increases to maximum penalties. The increases can be divided into five categories, with the provisions of each category representing the same numerical increase in penalty units. It should be noted again that the penalties set out in the Act relate to individuals. The maximum penalty relating to a body corporate will be five times the figure set out in the Bill.

It should also be stressed that these are maximum penalties, which would probably only be applied for serious or repeated offences. Nevertheless, an increase in the maximum penalty also gives a decision-maker or court a broader range of financial penalties that can be applied for other less serious or one-off offences.

It might also be noted that not every penalty in the Act has been increased—there remain a large number that have not. In his second reading speech Mr Littleproud noted that this Bill ‘targets key provisions of the Biosecurity Act where non-compliance has the potential to cause a significant and unacceptable risk for Australia’s biosecurity status’.[26]

The fact that some penalties in the Act are to be increased while others are not will mean that pre‑existing internal correlations in the Act between the penalties for certain offences will be significantly varied.

Category 1 – Maximum penalty increased from 120 units to 300 (10 instances)

Each of the 10 penalties proposed to be increased from maximum 120 to 300 penalty units is a civil penalty offence provision. Eight of the provisions (sections 124 to 130 inclusive and section 139) only contain civil penalty provisions – no fault-based (criminal) provisions apply. Two provisions, contained in sections 140 and 141 of the Act, also contain fault-based (criminal) penalties – these penalties will also be increased and are discussed under the Category 3 subheading below.

The proposed increases in Category 1 apply to breaches such as:

• not complying with the direction of a biosecurity officer to secure goods[27]
• not complying with a requirement of a biosecurity officer to provide information about goods[28]
• moving, dealing with or interfering with goods contrary to a legal direction[29]
• engaging in conduct contrary to a direction to take biosecurity measures.[30]

The other offences in this Category are similar in nature and seriousness.

Category 2 – Maximum penalty increased from 120 units to 1,000 (six instances)

In numerical terms these are the most significant proposed increases. The new maximum penalty is over eight times what the current penalty is. For a body corporate this would mean that the maximum penalty could increase from $133,200 to $1.11 million. Again, the increases proposed that fall into Category 2 are, in each instance, in relation to civil penalty provisions.

In each Category 2 case the breaches to which these penalties refer can also attract fault-based (criminal) penalties. The financial penalty for these criminal offences will also be increased and these are set out in the following Category (Category 3). The proposed new maximum figures in Category 2 and Category 3 are the same, meaning that the maximum financial penalties for civil and criminal offences will be aligned (noting that the criminal offences can also attract a term of imprisonment and the stigma of a criminal conviction).

The offences in Category 2 relate to:

• importing prohibited or suspended goods[31]
• not complying with a condition relating to the import of conditionally non-prohibited goods[32]
• contravening a condition of a permit granted under section 179 of the Act (that is a permit granted by the Director of Biosecurity authorising the import of particular goods)[33]
• contravening a condition of a suspended or revoked permit that was granted under section 179, where that condition continues to apply[34]
• a biosecurity industry participant (rather than a member of the public) acting contrary to an approved arrangement[35] and
• a biosecurity industry participant acting contrary to a direction given by a biosecurity officer in relation to an approved arrangement.[36]

Category 3 – Maximum penalty increased from 300 units to 1,000 (eight instances)

All of the instances in this Category relate to the maximum penalty for fault-based (criminal) offences. In each case, a term of imprisonment can also apply. The maximum terms of imprisonment set out in the Act have not been increased — the increases only apply to the financial aspect of a potential penalty.

As noted in the previous section, six instances of this increase are in relation to fault-based offences corresponding to the civil penalty offences that are described in Category 2 above.

The other two instances relate to fault-based offences where the corresponding maximum civil penalty will increase from 120 to 300 penalty units (Category 1). These two provisions relate to a person acting:

• contrary to a biosecurity direction[37] or
• moving, dealing with or interfering with goods to which a notice (setting out required biosecurity measures) has been affixed.[38]

Category 4 – Maximum penalty increased from 600 units to 2,000 (two instances)

These two increases relate to serious fault-based offences, for which a maximum term of imprisonment for 10 years also applies (and which is not increased by the Bill). These offences are also mentioned in Categories 2 and 3, but the increased penalties in Category 4 apply where there are additional elements to the offence.

The first relevant offence is bringing or importing into Australia prohibited or suspended goods, where such an action has caused or has the potential to cause environmental harm or economic consequences.[39]

The second is similar to the previous offence as regards environmental harm or economic consequences, but where the basic offence is a person breaching a condition in relation to conditionally prohibited goods.[40]

Category 5 – Maximum penalty increased from 2,000 units to 5,000 (two instances)

These two increases also relate to serious fault-based offences for which maximum terms of imprisonment for 10 years apply. These offences are for the same offences as those in Category 4, but with the additional aggravating element that they relate to biosecurity breaches for the purpose of, or which have the effect of, providing a person with a commercial advantage over law abiding competitors in the market.[41]

Concluding comments

The increases to penalties made by the Bill are undoubtedly substantial—the new maximum financial penalties will range between 2.5 times and 8.33 times the current maximum penalty. The Explanatory Memorandum to the Bill and the Minister’s second reading speech both set out, in general terms, the reasoning behind the increased penalties in the Act. In his second reading speech the Minister said:

This Bill ensures that penalties are set at a level that means that they are not merely a cost of doing business. These maximum penalties, in some cases up to $1.1 million, reflect the potential gains someone might obtain or seek to obtain through non-compliance with our biosecurity laws, as well as the devastating impact that contraventions may have on Australia’s biosecurity status, market access and economy.[42]

It is self-evident that for financial penalties to have a deterrent effect they must be set at a level which actually deters people from offending. However, there is only a broad, and not a specific, explanation of how the new penalty figures have been arrived at. That is not to imply that they are wrong or excessive, but simply to note that there is no detailed justification in the explanatory materials as to the specific level of increases set out in the Bill.

It is a matter worth noting again that the increases to maximum civil penalties from 120 to 1,000 penalty units set out in Category 2 above will align the maximum civil financial penalty with the maximum criminal financial penalty for essentially the same conduct; whereas currently the maximum criminal financial penalty (300 units) is 2.5 times the maximum civil penalty (120 units). In effect, this will mean that a financial penalty equivalent to the maximum criminal financial penalty will be able to be applied on the civil rather than the criminal standard of proof. Whether this is a desirable outcome is open to question.