Purpose of the Bill

The purpose of the Biosecurity Amendment (Advanced Compliance Measures) Bill 2023 (the Bill) is to update existing compliance measures in the Biosecurity Act 2015 to improve their operation in the evolving biosecurity environment.

Structure of the Bill

The Bill comprises 4 Schedules:

• Schedule 1 amends Part 2 of Chapter 4 of the Biosecurity Act to improve assessment of the biosecurity risk of persons on incoming aircraft or vessels.
• Schedule 2 amends Chapter 7 of the Biosecurity Act to insert new procedural fairness requirements in circumstances where it is proposed to vary an existing approved arrangement.
• Schedule 3 increases existing civil penalties for failures to comply with certain requirements, directions or measures; and for giving false or misleading information or documents.
• Schedule 4 creates a number of strict liability offences which will be subject to the existing infringement notice framework.

Background

Australia’s approach to biosecurity risks

Australia’s response to biosecurity issues is based upon the requirements of the World Trade Organisation Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement)[1] and the World Health Organisation’s International Health Regulations 2005. The SPS Agreement requires countries to adopt the least trade restrictive quarantine barriers possible, but gives member countries the right to take sanitary and phytosanitary measures necessary to protect human, plant and animal life or health in their jurisdiction. Each Member country is entitled to set its appropriate level of protection (ALOP) as it sees fit, taking into account the full range of national interest considerations.[2] However, the SPS Agreement requires that those measures are scientifically based, non-discriminatory and consistently applied.[3]

The Biosecurity Act provides that the ALOP for Australia is a high level of sanitary and phytosanitary protection aimed at reducing biosecurity risks to a very low level, but not to zero.[4]

Compliance tools

The Biosecurity Act contains a number of requirements that entities travelling or bringing goods to Australia must comply with. These include:

• entering Australia through designated areas[5]
• providing accurate information about goods entering Australia[6]
• not bringing prohibited goods to Australia[7] and
• complying with specified conditions when importing goods or undertaking approved biosecurity risk management activities.[8]

Figure 1 Compliance Posture

Source: Department of Agriculture, Fisheries and Forestry (DAFF), Compliance Posture, DAFF website, last updated
7 October 2021.

National Biosecurity Strategy

According to the Inspector-General of Biosecurity:

Australia’s biosecurity system relies on various government programs that ensure the safe international movement of people and goods. These programs are mainly delivered by Agriculture in cooperation with industry. They minimise the risk of the entry, establishment and spread of exotic pests and diseases that could cause significant harm to people, animals, plants and Australia’s unique environment.[9]

The biosecurity system is multilayered with prevention, management and response activities undertaken overseas, at and within Australia’s borders.[10] Under the National Biosecurity Strategy, the activities which take place include:

• pre-border (offshore): the Australian Government and importers work with overseas counterparts to identify and mitigate biosecurity risks before they reach the border. Officials facilitate trade in line with Australia’s international obligations, apply import conditions and controls, and engage in risk and intelligence gathering, analysis and horizon scanning[11]
• at border: the Australian Government operates border controls, including screening, assessment, inspections and quarantine processes. Travellers must declare goods if required. Industry also helps by having systems in place to proactively manage risks, applying treatments where needed and participating in surveillance activities[12]
• post-border (within Australia): industry, governments, Natural Resource Management organisations, environmental groups, landowners and managers and the wider community work at regional and local levels to prevent, plan for, detect and respond to outbreaks.[13] For instance, in 2022 the Australian Government established the One Health Surveillance Initiative to better protect wildlife, and to strengthen the capacity of Australia’s biosecurity system to identify and mitigate risks to human, animal and environmental health.

Evolving biosecurity environment

Importantly, ‘biosecurity risks are constantly evolving’.[14] For instance, it has been reported that over the last year Foot and Mouth Disease (FMD) and Lumpy Skin Disease (LSD) have moved closer to Australian shores.[15]

The Senate Rural and Regional Affairs and Transport References Committee (References Committee) published its report entitled: Adequacy of Australia’s biosecurity measures and response preparedness, in particular with respect to foot-and-mouth disease and varroa mite in December 2022 highlighting the changing or increasing biosecurity risks to Australia posed by:

• climate change
• changing trade and travel patterns
• changing land use and decreasing biodiversity
• major global disruptions
• illegal activities[16] and
• the increasing presence of significant exotic plant, environment and animal pests and diseases in the region.[17]

The References Committee stated:

The economic value of Australia's biosecurity system is significant. In 2020 it was valued at around $314 billion, with the total flow of benefits from assets vulnerable to biosecurity hazards estimated at $251.5 billion per annum, or A$5.7 trillion over 50 years. In contrast, the absence of a biosecurity system was estimated to result in around $671.9 billion in damages attributable to newly introduced pests and diseases over 50 years. Highlighting the benefits of investment in the system, a robust biosecurity system is estimated to reduce damages due to pests and diseases by close to $345 billion, at a cost of $10.4 billion.[18] [emphasis added]

Committee consideration

Senate Standing Committee on Rural and Regional Affairs and Transport

The Bill has been referred to the Senate Standing Committee on Rural and Regional Affairs and Transport (RRAT Committee) for inquiry and report by 27 July 2023.[19] At the time of writing this Bills Digest, the RRAT Committee had received 8 submissions from stakeholders. Comments by stakeholders which are specific to measures in the Schedules to the Bill are canvassed under the heading ‘Key issues and provisions’ below.

Senate Standing Committee for the Scrutiny of Bills

At the time of writing this Bills Digest, the Senate Standing Committee for the Scrutiny of Bills had not commented on the Bill.

Position of major interest groups

Submitters to the inquiry by the RRAT Committee were generally in favour of the increased civil penalties set out in Schedule 3 to the Bill ‘as a means to enhance the biosecurity system and incentivise greater compliance with Australia's laws and regulations’.[20]

Financial implications

According to the Explanatory Memorandum, ‘the Bill would have no impact on the Australia Government Budget’.[21]

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.[22]

Parliamentary Joint Committee on Human Rights

At the time of writing this Bills Digest, the Parliamentary Joint Committee on Human Rights had not commented on the Bill.

Key issues and provisions

Schedule 1—assessing biosecurity risk for persons

Chapter 4 of the Biosecurity Act deals with conveyances—being aircraft or vessels—that enter, or intend to enter, Australian territory from outside Australian territory. Those conveyances are subject to biosecurity control when they enter Australian territory.

Currently, section 196 of the Biosecurity Act applies to a person who intends to enter, or enters, Australian territory on an incoming aircraft or vessel and is included in a prescribed class of persons. Section 53 of the Biosecurity Regulation 2016 specifies the classes of person as:

• persons who were, are, or will be, passengers on an incoming aircraft or vessel
• persons who were, are, or will be, members of the crew of an incoming aircraft or vessel
• the person who was, is, or will be, the person in charge of an incoming aircraft or vessel.

Under existing subsection 196(2) of the Biosecurity Act the Director of Biosecurity may require the person to provide information (including by answering questions) for the purpose of assessing the level of biosecurity risk associated with the person and any goods that the person has with him or her. In practical terms, this means that a person entering Australia must have a valid passport and a completed incoming passenger card. However, neither of those requirements is specified in either the Biosecurity Act or the Biosecurity Regulation.[23]

As set out in the Explanatory Memorandum to the Bill, the effect of subsection 196(2) is that:

the Director can only require the provision of information from an individual traveller, member of a crew or the person in charge of an aircraft or vessel. Put another way, the requirement to produce information and the provision of such information may only occur in a one-to-one interaction between a biosecurity officer and an individual (emphasis added).[24]

What the Bill does

Item 6 in Schedule 1 to the Bill amends existing subsection 196(2) so that the Director of Biosecurity may require any person covered by subsection 196(1), or each person included in a class of persons covered by subsection 196(1) to provide information.

Item 7 in Schedule 1 to the Bill inserts proposed subsections 196(3A) and (3B) into the Biosecurity Act. Proposed subsection 196(3A) gives the Director of Biosecurity a number of broad powers. First the Director of Biosecurity may require any person covered by subsection 196(1) to produce the person’s Australian travel document (within the meaning of the Australian Passports Act 2005) or a passport, or other travel document, issued to the person by or on behalf of the government of a foreign country, for the following purposes:

• assessing the level of biosecurity risk associated with the person and any goods that the person has with them
• the future profiling, or future assessment, of biosecurity risks: proposed paragraph 196(3A)(a).

The Explanatory Memorandum to the Bill provides the following rationale for the amendment:

… these proposed measures would allow the Director to include each person on a flight or a vessel (including a cruise ship) in a class and then require every person in that class to provide information so the Director can assess the level of biosecurity risk associated with them and the goods they have with them, rather than having to require the provision of information from each person individually. This would be an effective addition to the current biosecurity management options for incoming travellers, particularly where flights or vessels are arriving in Australian territory from a country or region where there is a heightened risk posed by a disease or pest … [25]

Second the Director of Biosecurity may scan any document so produced for either or both of those purposes: proposed paragraph 196(3A)(b). The Department states:

Dependent on the nature and scope of the relevant information, including a person’s history of compliance with biosecurity laws, this would enable a biosecurity officer to then undertake more targeted intervention and investigation if appropriate.[26]

Third, the Director of Biosecurity may collect and retain personal information obtained as part of that production or scanning for either or both of the purposes set out above: proposed paragraph 196(3A)(c).

Item 9 in Schedule 1 to the Bill inserts proposed subsection 196(5) into the Biosecurity Act so that a person must comply with a requirement to produce the person’s Australian travel document or passport, or other travel document. A failure to comply attracts a maximum civil penalty of 120 penalty units, being equivalent to $37,560.[27]

Stakeholder comments

The National Farmers Federation (NFF) provided in principle support for increased information gathering provisions for border officials as it relates to biosecurity stating:

The sector supports official having access to accurate and comprehensive information about travellers and goods, as a means to enhance our capacity to most accurately assess and manage relevant risks pathways.[28]

Australian Pork Limited (APL) concurred with that view.[29]

Key issue—future profiling of biosecurity risks

Under section 590 of the Biosecurity Act an entrusted person[30] may:

• use relevant information
• disclose relevant information to an entrusted person or
• disclose relevant information to another person or body

for the purposes of the person or body undertaking research, policy development or data analysis to assist the Agriculture Department or the Health Department with the administration of the Biosecurity Act.

In June 2021 the Australian National Audit Office (ANAO) published its report entitled: Responding to non-compliance with biosecurity requirements.[31] That report states:

Manual risk identification procedures are undertaken at airports to target high risk travellers. Travellers are referred for screening if the biosecurity officer considers that their incoming passenger card, response to questioning, or other characteristics indicate they may be carrying biosecurity risk material. Screening may occur through detector dog, x-ray or full baggage inspection, at the judgement of the biosecurity officer. The department has implemented guidance to support these decisions.

Automated profiles, implemented in 2018, automatically refer travellers who match identified risk characteristics for full baggage inspection. Previous manual processes limited the complexity of profiling options and the number of travellers that could be profiled. While automated profiling represents an opportunity for improvement on manual systems … [there are] limitations [which] restrict its ability to effectively target detection activities.[32]

Essentially, then, profiling of biosecurity risks is already being undertaken in accordance with the existing provisions of section 590 of the Biosecurity Act. The terms of proposed subsection 196(3A) are consistent with section 590 to allow for the future profiling, or future assessment, of biosecurity risks and put beyond doubt that incoming passenger information can be used for the purpose of risk profiling and risk analysis.

Key issue—retaining personal information

Part 2 of Chapter 11 of the Biosecurity Act deals with information management. It provides that entrusted persons can use or disclose information obtained or generated under the Act. In addition, it provides for criminal offences and civil penalties in circumstances where protected information is the subject of unauthorised use or disclosure.[33]

In relation to the Bill it is unclear how long the information that is collected under amended section 196 of the Biosecurity Act is to be retained by the government for risk analysis purposes.

Schedule 2—approved arrangements

Chapter 7 of the Biosecurity Act provides for the approval,[34] variation,[35] suspension[36] and revocation[37] of approved arrangements as well as the penalties arising from non-compliance with the terms of an approved arrangement.[38]

According to the Department of Agriculture, Water and the Environment:

An approved arrangement can cover all of the biosecurity activities involving the physical handling of goods at one or more approved arrangement sites. An approved arrangement can also cover biosecurity activities that don’t involve the physical handling of goods, such as documentary assessment for goods subject to biosecurity control by accredited persons or performing disinsection treatments on aircraft. Both physical and non-physical biosecurity activities can be grouped together under the same approved arrangement.[39]

These arrangements allow operators to manage biosecurity risks and/or perform the documentary assessment of goods in accordance with departmental requirements, using their own sites, facilities, equipment and people, and without constant supervision by the department and with occasional compliance monitoring or auditing.

Variation, suspension or revocation of an approved arrangement

Section 413 of the Biosecurity Act empowers the Director to give a written notice to a biosecurity industry participant varying the conditions of an approved arrangement or requiring the participant to vary the arrangement in the following circumstances:

1. the arrangement, or the part of the arrangement, no longer meets the requirements on the basis of which approval was given
2. the biosecurity industry participant is no longer a fit and proper person
3. a condition of the arrangement has been contravened
4. the level of biosecurity risk associated with the operation of the arrangement has changed
5. a change needs to be made to the arrangement to correct a minor or technical error or
6. the arrangement needs to be varied for any other reason.

Currently, a notice stating that the conditions are varied takes effect from the day the notice is given or a later day set out in the notice.[40] Although the decision is a reviewable decision[41]—allowing both internal review[42] and external review by the Administrative Appeals Tribunal (AAT)[43]—the Biosecurity Act does not currently allow for the subject of the decision to have a say about it before the decision to vary an approved arrangement takes effect.

Sections 418 and 423 of the Biosecurity Act empower the Director to give a notice to a biosecurity industry participant that an approved arrangement is suspended (either wholly or in part) or revoked respectively and the reasons for that decision. The circumstances listed under paragraphs (a) to (d) above which could bring about a variation in an approved arrangement are in equivalent terms to those relating to the suspension or revocation of an approved arrangement. However, paragraphs (e) and (f) are substituted as follows:

e) the biosecurity industry participant is liable to pay a cost-recovery charge that is due and payable or

f) the biosecurity industry participant is an associate of a person who has been refused approval of a proposed arrangement or a person who was a biosecurity industry participant covered by an approved arrangement that has been revoked.

In either case, the notice must include a request that the biosecurity industry participant give the relevant Director, within 14 days after the noticed is given, a written statement showing cause why the arrangement, or the part of the arrangement, should not be suspended or revoked.[44]

What the Bill does

Item 11 of Schedule 2 to the Bill inserts proposed section 435A into the Biosecurity Act so that the notice requirements for all three actions (that is variation, suspension and revocation) are in equivalent terms. Proposed subsection 435A(2) sets out the matters to be included in a notice to vary, suspend or revoke an approved arrangement including an invitation to the biosecurity industry recipient to give the Director, within 14 days after the notice is given, a written submission in relation to the matters set out in the notice. An exception to this general rule lies in proposed subsection 435A(3) which provides that such an invitation need not be given in circumstances where the Director is satisfied that the need to vary, suspend or revoke the approved arrangement is serious and urgent.

Items 3–10 of Schedule 2 to the Bill make consequential amendments to sections 415, 418 and 425 of the Biosecurity Act to reflect the new notice requirements.

Once the notice has been given to a biosecurity industry participant and the relevant response provided to the Director, the Director may proceed to vary, suspend or revoke the relevant approved arrangement as proposed. Each of those decisions is a reviewable decision and the biosecurity industry participant may avail themselves of their review rights. However, where the Director decides not to proceed, proposed subsection 435A(5) empowers him, or her, to send the biosecurity industry participant a notice of reprimand.

Schedule 3—civil penalty provisions

The Biosecurity Act contains a number of civil penalty provisions which are expressed in terms of penalty units. Under the Crimes (Amount of Penalty Unit) Instrument 2023 a penalty unit is equivalent to $313.

The amendments in Schedule 3 to the Bill propose increases to existing penalties as set out in the table below.

Table 1: increases to civil penalties

Source: Schedule 3, Biosecurity Amendment (Advanced Compliance Measures) Bill 2023.

Stakeholder comments

Submitters to the RRAT inquiry into the Bill were supportive of the increases in the amounts of civil penalties. The National Farmers Federation (NFF) expressed the view:

… we continue to see individuals and entities seeking to contravene biosecurity rules and regulations. While our system works to ensure such instances are kept to a minimum, we know that even a single contravention event can lead to severe biosecurity consequences.

For this reason, the NFF supports the increased civil penalties contained in the Bill. We see these as a means to enhance the biosecurity system and incentivise greater compliance with Australia's laws and regulations.[45]

Australian Pork Limited concurred with that view, stating that ‘penalty options should reflect the significant long term economic, social and agricultural industry impact of contravention of Australia’s biosecurity rules’.[46]

Schedule 4—strict liability offences and infringement notices

Strict liability offences

The Criminal Code Act 1995 (which contains the Criminal Code) codifies the general principles of criminal responsibility under laws of the Commonwealth. The Criminal Code provides that offences consist of physical and fault elements.[47]

The physical element of an offence may be conduct, a result of conduct, or a circumstance in which conduct, or a result of conduct, occurs.[48] A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.[49]

A strict liability offence—such as those created by Schedule 4 to the Bill—is one where strict liability is applied to all physical elements of the offence. While such an offence negates the requirement to prove fault, defences, including a defence of mistake of fact, are available for strict liability offences.[50] This means that the offence will not criminalise honest errors and a person cannot be held liable if he, or she, had an honest and reasonable belief that they were complying with relevant obligations.

An infringement notice scheme should generally only apply to civil penalty provisions,[51] or strict or absolute liability offences.[52]

What the Bill does

The strict liability offences that are proposed in the Bill are set out in table 2, below.

Table 2: Proposed strict liability offences

Source: Schedule 4, Biosecurity Amendment (Advanced Compliance Measures) Bill 2023.

Stakeholder comments

Submissions to the RRAT Committee from both the Federal Chamber of Automotive Industries[61] and Shipping Australia[62] expressed concerns about the introduction of strict liability offences in Schedule 4 to the Bill.

The main concern for the Federal Chamber of Automotive Industries was the perceived difficulty for a member who had been directed by a biosecurity officer to arrange for the goods to be exported from Australian territory or to move them stating:

… our members do not have any ability to compel a shipping line to load cargo and take it offshore. Vessels that deliver our members’ vehicles are programmed for a particular voyage. Once the vehicles are unloaded the vessel is committed to travel to another place. They cannot simply head back to the Australia port and load up the affected vehicles.[63]

Shipping Australia opined that ‘the biosecurity responsibilities and penalties should not be placed upon shipping companies because they do not have biosecurity control over cargo’.[64]