Chapter 1Introduction and background
Referral and conduct of the inquiry
1.1On 22 June 2023, the Senate referred the provisions of the Biosecurity Amendment (Advanced Compliance Measures) Bill 2023 (the bill) to the Rural and Regional Affairs and Transport Legislation Committee (the committee), for inquiry and report by 27 July 2023.
1.2The bill would amend the Biosecurity Act 2015 (the Act) by increasing surveillance powers of the Director of Biosecurity and introducing new civil penalties for failure to comply with instructions or provide relevant information or documents. According to the bill’s Explanatory Memorandum (EM), these new powers and penalties would enable Australia’s biosecurity system to better detect threats, and prevent incursions. The EM states:
Access to accurate and complete information relating to travellers, goods and conveyances is key to assessing and managing biosecurity and human biosecurity risk. Those that knowingly provide false or misleading information or documents are putting Australia’s human, plant and animal health at significant risk.
1.3The committee called for submissions by advertising the inquiry on its website and writing to a number of relevant stakeholders to invite them to make a submission.
1.4Submissions closed on 7 July 2023. However, the committee received some late submissions. In total, 8 submissions and a letter were received and published on the committee's website. This material is outlined at Appendix 1. The committee did not conduct any public hearings for the inquiry.
1.5The committee thanks all those who contributed to the inquiry.
Structure of the report
1.6This report has two chapters. The first chapter covers referral and conduct of the inquiry, provides background to the bill and the Biosecurity Act, and summarises the functions and provisions of the bill. It also includes a summary of consideration of the bill by the Senate’s scrutiny committees.
1.7Chapter 2 outlines support for the substantive amendments contained in the bill and discuses key issues raised by submitters. The chapter ends with the committee’s view and recommendation.
Background
1.8The Biosecurity Act is co-administered by the Minister responsible for Agriculture and the Minister responsible for Health. The Department of Agriculture, Fisheries and Forestry (DAFF) also administers the Export Control Act 2020, Imported Food Control Act 1992, and other related Acts. Together, this legislation protects Australia’s ‘animal, plant and human health status and …maintain[s] market access for Australian food and other agricultural exports’.
1.9Commencing in June 2016, the Biosecurity Act was designed to modernise Australia’s biosecurity system to enable it to handle increasing threats. According to DAFF, risks to Australia’s biosecurity are increasing as a result of:
growing movement of passengers and trade between countries;
regional development;
expansion of the population; and
the emergence of new pests and diseases.
1.10Since its commencement, the Biosecurity Act has been amended a number of times—mostly to strengthen its protections and increase penalties for contraventions. Most recently, the Biosecurity Amendment (Strengthening Biosecurity) Act 2022 responded to the threats of Foot and Mouth and Lumpy Skin Disease by:
introducing measures to manage biosecurity risks posed by travellers;
facilitating better information-sharing between government agencies;
streamlining prohibited goods determinations, based on risk;
authorising the Agriculture and Health Ministers to spend funds under the Biosecurity Act; and
improving provisions relating to compensation and ‘approved arrangements’.
1.11The current bill seeks to build upon these changes, and is focussed on addressing biosecurity risks posed by travellers and importers at the border. The bill would enable the Director of Biosecurity (the Director) to collect information from individuals or ‘classes of persons’—such as travellers from a specific location—in order to assess and mitigate biosecurity risks. While maintaining procedural fairness, the amendments would facilitate access to passports and other travel documents, and also expedite the process for issuing notices to importers whose activities pose a biosecurity threat. In line with this, the bill would also increase civil penalties, and ensure they are ‘high enough to act as a deterrent in a public health environment where non‑compliance with current penalties may be seen as a cost of doing business or otherwise worth the risk’.
1.12Significantly, the bill would introduce ‘new strict liability offences’, and infringement notices, to ‘significantly increase deterrence’. According to the EM, the changes are:
…necessary to ensure that regulated entities are significantly less likely to contravene requirements, thus preventing the incursion and establishment of pests and diseases with potentially significant negative impact on Australia’s economy, agricultural sector, animal, plant and human health and the environment.
Functions and provisions of the bill
Schedule 1—Surveillance powers
1.13Schedule 1 of the bill deals with assessing biosecurity risk for persons on incoming aircraft or vessels. Current legislation only allows biosecurity officers to question individual people in relation to biosecurity risks they, or goods they carry, may pose to Australia. Items 2–6 of Schedule 1 to the bill would amend section 196 of the Act to allow the Director to require that a wholegroup, or class of persons, provides information, such as passports or travel documents, to allow the Director to assess and mitigate risks:
For example, 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.
1.14The new measures would allow a biosecurity officer to scan the travel documents of travellers and importers to access relevant DAFF information about that person’s ‘risk profile from a biosecurity perspective’, including their ‘history of compliance with biosecurity laws’. Access to this information would enable biosecurity officers to ‘undertake more targeted intervention and investigation where appropriate’, and increase effective management of risks associated with 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’.
1.15In a joint submission to the inquiry, the Department of Agriculture, Fisheries and Forestry, and the Department of Health and Aged Care (DAFF and DHAC) clarified:
These amendments do not enable the collection of additional personal information beyond what is already permitted under the Biosecurity Act; rather they simply allow the collection of that information from classes of persons as well as individuals.
1.16A number of consequential amendments manage the collection, storage and disclosure of this information. These amendments would give officials the ability to ‘retain a complete dataset to inform future profiling and future assessment and management of biosecurity risk and targeted interventions for non-compliance’.
1.17In addition, Schedule 1 seeks to create a new civil penalty—with a maximum fine of 120penalty units—for failure to comply with a lawful direction to provide this information. In practice, this means a person who fails to produce a passport or other travel document when asked to can be fined a maximum of $37560.
Schedule 2—Approved arrangements
1.18The Act currently allows for the Director of Biosecurity or the Director of Human Biosecurity to approve, vary, suspend or revoke ‘proposed arrangements that [require] biosecurity industry participant[s] to carry out certain biosecurity activities to manage biosecurity risks associated with specified goods, premises or other things’. These are called ‘approved arrangements’, and the Act outlines how they must function, including the requirement to provide notice.
1.19Schedule 2 of the bill would:
streamline existing notice requirements for suspending or revoking an Approved Arrangement;
introduce new ‘procedural fairness requirements’, which provide an opportunity for industry participants to respond in writing within 14 days to any proposed suspension, revocation or variation; and
introduce a ‘reprimand’ provision, which could apply when biosecurity officers determine that revoking the Approved Arrangement is not necessary or appropriate.
1.20According to DAFF and DHAC, these amendments are the result of recommendations made by the Inspector-General of Biosecurity in its 2019 report, Effectiveness of approved arrangements in managing biosecurity risks in Australia.
Schedule 3—Civil penalty provisions
1.21The Act currently provides for the enforcement of civil penalties (or fines) for biosecurity breaches, with Chapter 2 outlining penalties for breaches that risk human health. Schedule 3 of the bill would increase the maximum civil penalties applicable for contraventions of orders relating to:
the prevention of ‘listed human diseases’;
managing deceased individuals and human remains; and
requirements that apply in ‘human health response zones’.
1.22Specifically, the bill would increase the maximum penalties for relevant contraventions from ’30 penalty units’ to ‘120 penalty units’. In practice, this means that conduct which currently attracts a maximum penalty of $9390—failure to comply with an entry requirement determined under section 44 of the Biosecurity Act—could now attract a penalty of up to $46950. The most serious contraventions, such as ‘knowingly giv[ing] false or misleading information to a biosecurity industry participant covered by an approved arrangement’, could now attract a $187800 fine.
1.23According to the EM, current civil penalties ‘no longer serve as a proportionate deterrent against non-compliance in the face of growing human biosecurity threats’. Increased penalties recognise that contraventions may have serious consequences for Australia’s human health, economy and public health systems.
1.24Among its specific functions, Schedule 3 would:
increase the maximum civil penalty for ‘knowingly providing false or misleading information or documents to a biosecurity industry participant’;
increase civil penalties for ‘knowingly providing false or misleading information or documents in compliance or purported compliance with the Act’; and
allow for higher penalties to be levied against businesses and organisations, than individuals, as these entities ‘should reasonably be expected to have a thorough understanding of their responsibilities and obligations under the Act’.
1.25An increase in penalties is necessary because, according to the EM:
Every Member State under the [World Health Organization’s International Health Regulations (2005)] including Australia, has a responsibility to do all things possible to prevent the international spread of disease. ... The increased civil penalty reflects the serious risk presented by a scenario where a commercial operator of an aircraft or vessel fails to treat their vessel or aircraft as required for publicity reasons. It is intended to deter those who may consider non‑compliance as a cost of doing business or to limit negative publicity for the airline or vessel, ignoring the potential cost to human health.
Schedule 4—Strict liability offences and infringement notices
1.26Schedule 4 of the bill aims to improve the effectiveness of the regulatory regime by introducing new strict liability offences for certain conduct that would contravene existing provisions under the Act. Strict liability offences are ‘defined by the absence of any requirement of fault, coupled with the availability of the defence of reasonable mistake of fact’. This means that for a strict liability offence ‘the prosecution is not required to prove intention, knowledge, recklessness or negligence’ in order to prosecute the offence.
1.27To be charged with a strict liability offence, a person does not have to have meant to break the law, or even to have known they were breaking it. Prosecutors generally only have to prove that a person or entity ‘did the thing which the legislation proscribes’. Strict liability offences are often used in enforcing laws ‘where the benefit to the community … overrides any disadvantage to the person being charged’; in other words, when it is seen as being in the public interest.
1.28The new strict liability offences would be subject to the infringement notice framework under the Act, and would apply to:
(a)failure to comply with a direction given under paragraph 135(2)(b) (to export goods from Australian territory) or 138(1)(a) (to carry out a biosecurity measure);
(b)bringing or importing prohibited goods or suspended goods into Australian territory;
(c)contravening conditions of an import permit that is in force;
(d)contravening conditions of a suspended or revoked import permit where the conditions continue to apply;
(e)failure to comply with a direction given under Division 2, Part 4 of Chapter 4 of the Act, including a direction for an aircraft to land or not land at a specified place;
(f)failure to comply with a direction given under Division 3, Part 4 of Chapter 4 of the Act, including a direction for a vessel to be moored or not to be moored at one or more specified ports in Australian territory;
(g)failure to comply with a direction given under paragraphs 347(a), (b) or (c) to carry out a biosecurity measure in relation to certain goods and premises;
(h)failure of a biosecurity industry participant to carry out biosecurity activities in accordance with an approved arrangement; and
(i)failure of a biosecurity industry participant to comply with a direction issued by a biosecurity officer relating to the operation of an approved arrangement.
1.29Many of the above types of non-compliance could be seen as low-level regulatory contraventions. However, they can lead to high levels of biosecurity risk. According to the EM, these contraventions happen often in practice, and penalties ‘must be imposed immediately to be effective’. The current regulatory framework does not provide an effective way to deal with these incidences of ‘low-level non‑compliance’, as the only pathways are ‘resource intensive’ prosecution or civil litigation. The new strict liability offences would ‘reflect the potentially serious consequences of contraventions in the regulatory scheme, and ensure that noncompliance can be addressed swiftly and effectively’.
1.30Stakeholder responses to the bill are discussed in the next chapter.
Consideration by the Senate’s scrutiny committees
1.31This inquiry was conducted over a short timeframe, coinciding with the Parliament’s winter break. As such, neither the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee), nor the Parliamentary Joint Committee on Human Rights (Human Rights Committee), had met and considered the bill by the time of writing this report.
1.32The committee notes that some aspects of the bill may raise questions for the scrutiny committees, as suggested by their interest in the forerunner to this bill—the Biosecurity Amendment (Strengthening Biosecurity) Bill 2022 (the 2022 bill).
1.33In its analysis of that bill, the Human Rights Committee found the new biosecurity powers ‘may limit the rights to privacy, freedom of movement and liberty and the right to equality and non‑discrimination’. One concern was around the collection, sharing and use of people’s personal information.
1.34Despite the safeguards included in the 2022 bill, the committee ultimately concluded that human rights risks remained, including substantial risks to privacy. As the current bill extends the powers introduced by the 2022 legislation, it is conceivable that the committee may raise concerns and seek further information in relation to these amendments.
1.35The Scrutiny of Bills Committee also raised concerns about powers conferred under the 2022 legislation. The committee’s concerns were around:
the inclusion of no-invalidity clauses;
the exclusion of certain instruments made under Act from disallowance; and
the unavailability of independent merits review in relation to the impact of biosecurity decisions on affected parties.
Despite a detailed response from the minister on these matters, the committee remained concerned about the issue of disallowance, and the lack of access to merits review.
1.36Certain aspects of the current bill may be of interest to the Scrutiny of Bills Committee, such as the potential imposition on privacy, personal rights and/or liberties, and the inclusion of strict liability offences.
1.37The committee recommends any analysis provided by the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights be taken into account when the Senate considers the bill.