Home

http://www.austlii.edu.au/au/legis/cth/bill_em/bb2014166/memo_0.html

 

BIOSECURITY BILL 2014

                           2013-2014




THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




               HOUSE OF REPRESENTATIVES




                  BIOSECURITY BILL 2014




             EXPLANATORY MEMORANDUM




     (Circulated by authority of the Minister for Agriculture,

                  the Hon. Barnaby Joyce MP)

Contents Purpose of the Bill …………………………………………………………………………………………………….. 7 Why is the Bill necessary? ………………………………………………………………………………………….. 7 Key principles …………………………………………………………………………………………………………… 8 Legislation for a strong agricultural industry ……………………………………………………………… 8 Clear legislation to manage biosecurity risks …………………………………………………………….. 8 Increasing efficiency and decreasing regulation …………………………………………………………. 9 Improving compliance ……………………………………………………………………………………………10 Providing protection from public health risks…………………………………………………………….10 Meeting Australia`s international obligations …………………………………………………………….11 Overview of the Bill…………………………………………………………………………………………………..11 Operational chapters ………………………………………………………………………………………………11 Specialised biosecurity management chapters ……………………………………………………………12 General administration chapters……………………………………………………………………………….13 Rationale for Bill provisions ……………………………………………………………………………………….14 Offences and penalties ……………………………………………………………………………………………14 Abrogation of the privilege against self-incrimination ………………………………………………..15 Limitations ……………………………………………………………………………………………………………15 Entry without warrant or consent ……………………………………………………………………………..16 Exemption from disallowance …………………………………………………………………………………17 Consultation about provisions of the Bill ………………………………………………………………….17 The Bill`s operation …………………………………………………………………………………………………..18 Financial impact statement………………………………………………………………………………………….18 Human Rights Compatibility Statement ……………………………………………………………………….19 Discussion: general protection clauses and civil penalties ……………………………………….20 Right to life ……………………………………………………………………………………………………….22 Right to freedom from torture and cruel, inhuman or degrading treatment …………………22 Right to liberty and freedom from arbitrary detention ……………………………………………..25 Right to seek review……………………………………………………………………………………………26 Right to freedom of movement …………………………………………………………………………….26 Right to the presumption of innocence (reverse burden provisions) ………………………….33 Right to the presumption of innocence (strict liability offences) ……………………………….36 Right to be free from self-incrimination ………………………………………………………………..39 Right not to be tried or punished again for an offence for which a person has already been finally convicted or acquitted ……………………………………………………………………….41 Right to protection from arbitrary interference with privacy …………………………………….41 Right to freedom of association ……………………………………………………………………………47


Rights of the child ………………………………………………………………………………………………49 Right to work …………………………………………………………………………………………………….49 Right to an adequate standard of living, including food, water and housing ……………….50 Right to health ……………………………………………………………………………………………………51 Right to enjoy and benefit from culture …………………………………………………………………55 Rights of persons with disabilities ………………………………………………………………………..55 Conclusion ………………………………………………………………………………………………………..56 Notes on clauses ………………………………………………………………………………………………………..57 Chapter 1–Preliminary ………………………………………………………………………………………….57 Part 1–Preliminary ……………………………………………………………………………………………57 Part 2–Definitions …………………………………………………………………………………………….60 Part 3–Constitutional and international law provisions ………………………………………….92 Part 4–Principles affecting decisions to exercise certain powers……………………………..94 Chapter 2–Managing biosecurity risks: human health ……………………………………………….95 Part 1–General protections and listing human diseases ………………………………………….95 Part 2–Preventing risks to human health………………………………………………………………98 Part 3–Managing risks to human health: human biosecurity control orders …………….106 Part 4–Managing risks to human health: other biosecurity measures ……………………..122 Chapter 3–Managing biosecurity risks: goods ………………………………………………………..125 Part 1–Goods brought into Australia territory …………………………………………………….125 Part 2–Biosecurity Import Risk Analyses …………………………………………………………..148 Part 3–Prohibited Goods etc. ……………………………………………………………………………150 Chapter 4–Managing biosecurity risks: conveyances ………………………………………………160 Part 1–Introduction …………………………………………………………………………………………160 Part 2–Conveyances entering Australian territory etc. …………………………………………160 Part 3–First points of entry and biosecurity entry points ………………………………………181 Part 4–Entry points for incoming aircraft and vessels ………………………………………….185 Part 5–Ship sanitation ……………………………………………………………………………………..195 Chapter 5–Ballast water and sediment …………………………………………………………………..197 Part 1–Application and interpretation ………………………………………………………………..197 Part 2–Notice of discharge of ballast water in Australian seas ………………………………198 Part 3–Management of discharge of ballast water ……………………………………………….200 Part 4–Ballast water management plans and ballast water management certificates ..208 Part 5–Ballast water records …………………………………………………………………………….210 Part 6–Offence of disposing of sediment ……………………………………………………………213 Part 7–Compliance and enforcement …………………………………………………………………214 Part 8–Miscellaneous ………………………………………………………………………………………217


Chapter 6–Managing biosecurity risks: monitoring, control and response………………….218 Part 1–Introduction …………………………………………………………………………………………218 Part 2–Assessment of level of biosecurity risk ……………………………………………………219 Part 3–Biosecurity measures to manage unacceptable level of biosecurity risk ……….226 Part 4–Biosecurity control orders ……………………………………………………………………..238 Part 5–Biosecurity response zones …………………………………………………………………….243 Part 6–Biosecurity monitoring zones …………………………………………………………………249 Part 7–Biosecurity activity zones ………………………………………………………………………254 Chapter 7–Approved arrangements ………………………………………………………………………258 Part 1–Introduction …………………………………………………………………………………………258 Part 2–Approval of proposed arrangement …………………………………………………………258 Part 3–Variation of approved arrangement …………………………………………………………260 Part 4–Suspension of approved arrangement ………………………………………………………262 Part 5–Revocation of approved arrangement ………………………………………………………265 Part 6–Powers and obligations of biosecurity industry participants ……………………….267 Part 7–Other provisions …………………………………………………………………………………..269 Chapter 8–Biosecurity emergencies and human biosecurity emergencies ………………….273 Part 1–Biosecurity emergencies ………………………………………………………………………..273 Part 2–Human biosecurity emergencies ……………………………………………………………..292 Chapter 9–Compliance and enforcement ……………………………………………………………….296 Part 1–Monitoring …………………………………………………………………………………………..296 Part 2–Investigation ………………………………………………………………………………………..297 Part 3–Warrants for purposes other than monitoring and investigation ………………….299 Part 4–General rules about entry to premises under a warrant or consent ……………….306 Part 5–Entering and exercising powers on premises without a warrant or consent …..310 Part 6–Civil penalties ………………………………………………………………………………………313 Part 7–Infringement notices ……………………………………………………………………………..315 Part 8–Enforceable undertakings ………………………………………………………………………316 Part 9–Injunctions …………………………………………………………………………………………..316 Part 10–Miscellaneous …………………………………………………………………………………….317 Chapter 10–Governance and officials ……………………………………………………………………322 Part 1–Introduction …………………………………………………………………………………………322 Part 2–Director of Biosecurity ………………………………………………………………………….322 Part 3–Director of Human Biosecurity ………………………………………………………………325 Part 4–Biosecurity officers and biosecurity enforcement officers ………………………….325 Part 5–Chief human biosecurity officers and human biosecurity officers ……………….333 Part 6–Ministerial reviews ……………………………………………………………………………….335


Part 7–Miscellaneous ………………………………………………………………………………………336 Chapter 11–Miscellaneous …………………………………………………………………………………..338 Part 1–Review of decisions ………………………………………………………………………………338 Part 2–Confidentiality of information ………………………………………………………………..340 Part 3–Cost recovery ……………………………………………………………………………………….344 Part 4–Exemptions from and modifications of this Act ………………………………………..353 Part 5–Miscellaneous ………………………………………………………………………………………360 Addendum to the Regulation Impact Statement on the Australian Government`s biosecurity legislation ……………………………………………………………………………………………………………….371 Regulation Impact Statement …………………………………………………………………………………….372


BIOSECURITY BILL 2014 Purpose of the Bill The Biosecurity Bill 2014 (the Bill) will provide the primary legislative means and a modern regulatory framework for the Australian Government to manage the risk of pests and diseases entering Australian territory and causing harm to animal, plant and human health, the environment and the economy. The Bill is designed to manage biosecurity risks–including the risk of listed human diseases– entering Australian territory, or emerging, establishing themselves or spreading in Australian territory or a part of Australian territory. The Bill will also enable the management of risks relating to ballast water and sediment and biosecurity emergencies. The Bill will give effect to Australia`s international rights and obligations, including under the World Health Organization International Health Regulations 2005 (International Health Regulations), the World Trade Organization Agreement on the Application of Sanitary and Phytosanitary Measures 1994 (SPS Agreement) and the Convention on Biological Diversity 1992 (Biodiversity Convention). Why is the Bill necessary? Australia`s people, economy and environment benefit significantly from a strong biosecurity system. Australia`s unique pest and disease status helps to protect our way of life, including our environment, human health, and the wellbeing of our domestic animals and plants. This unique status means that our agricultural industries, environment and communities have remained free of many pests and diseases common elsewhere, giving Australia a comparative advantage in export markets around the world. Australia`s biosecurity system must be underpinned by a modern and effective regulatory framework. Currently, biosecurity is managed under the Quarantine Act 1908 (Quarantine Act) and related regulations. Australia`s biosecurity risks have changed significantly since the Quarantine Act was first drafted over a century ago. Shifting global demands, growing passenger and trade volumes, increasing imports from a growing number of countries and new air and sea craft technology have all contributed to a new and challenging biosecurity environment. Whilst the Quarantine Act has enabled the effective management of biosecurity risks to date, it has been progressively amended no less than fifty times, mostly to cater for the changing demands placed on the biosecurity system. These amendments have contributed to creating complex legislation that is difficult to interpret and contains overlapping provisions and powers. Australia`s biosecurity system has been subject to review several times, and proposed reforms to strengthen the system have included the development of new biosecurity legislation. The Bill provides a strong regulatory framework that enables the management of biosecurity risks in a modern and responsive manner and enhances Australia`s capacity to manage biosecurity risks into the future. 7


Key principles Legislation for a strong agricultural industry Australia is free of many pests and diseases that are common around the world. This favourable status increases the demand for Australian agricultural products domestically and internationally. If harmful pests or diseases enter or spread in Australian territory, the agricultural sector, including farmers and exporters, will feel an enormous impact. The Bill helps protect Australia`s favourable pest and disease status through a strong, clear and flexible legislative framework. As a result, Australia will be able to maximise its agricultural productivity and continue to pursue new agricultural export opportunities. The Australian Bureau of Statistics showed farm exports rose almost 5 per cent to $3.8 billion between December 2013 and January 20141 and agricultural exports were worth $39.4 billion to the Australian economy in the 2013-14 financial year.2 The Bill contains new powers that allow for the management of a wider range of pests and diseases already present in Australian territory, such as fruit fly, which can adversely affect a wide range of fruit crops grown in Australia, and noxious weeds which might pose a threat to agricultural industries or the environment. The Bill also extends the coverage of existing powers so that some of the biosecurity risks posed by invasive pests can be more effectively managed. This is significant, as some invasive pests have the potential to cause significant damage to Australia`s agriculture sector and the environment. For instance, an incursion of red imported fire ants could have an estimated impact of $8.9 billion over 30 years.3 These additional powers will complement current arrangements 4with states, territories and industry to support the management of pest and disease incursions. The Bill also helps to protect Australia`s marine industries from invasive marine pests found in ballast water and sediment. Ballast water is used by ships to maintain their safety and stability at sea, but its uptake and discharge can also spread invasive pests to new marine environments and cause significant harm to the industries that rely upon them. Australia`s key fishery industries are susceptible to a range of marine biosecurity threats that may be present in ballast water. In 2011-12 the gross value of Australian commercial fisheries production was $2.3 billion, with $1.3 billion coming from the wild-catch sector.5 The Bill contains powers to manage the biosecurity risk posed by the ballast water held on board domestic and international ships. Clear legislation to manage biosecurity risks The Bill provides a strong legislative framework that clearly sets out the powers that can be exercised by officials as well as the requirements of those being regulated. The Bill has been divided into chapters by subject matter and then structured in a way that makes it easier to find relevant powers. For example, there are three operational chapters that regulate goods, conveyances and onshore biosecurity risks. These chapters have been structured similarly so that the relevant powers and obligations for each topic can be more easily located. 1 Australian Bureau of Statistics 2014, International Trade in Goods and Services Australia, cat. no. 5368.0 Canberra. 2 Department of Agriculture 2014, Agricultural Commodities: March Quarter 2014, Australian Bureau of Agricultural and Resource Economics and Sciences, Canberra. 3 Department of Agriculture 2014, Cost-effectiveness of Biosecurity Response Options to Red Imported Fire Ants in South East Queensland, Australian Bureau of Agricultural and Resource Economics and Sciences, June 2014. 4 Emergency Animal Disease Response Agreement, the Emergency Plant Pest Response Deed and the National Environmental Biosecurity Response Agreement. 5 Department of Agriculture 2013, Australian Fisheries Statistics 2012, Australian Bureau of Agricultural and Resource Economics and Sciences, Canberra. 8


Many powers in the Bill are similar to existing powers under the Quarantine Act, but are clearly stated and easier to use. Duplicate powers have been removed to reduce administrative complexity. This will lead to more effective biosecurity risk management and compliance and enforcement actions, improving the overall operation of Australia`s biosecurity system. The definition of biosecurity risk` includes a reference to the likelihood of a pest or disease entering Australian territory or a part of Australian territory.` The reference to a part of Australian territory allows for a biosecurity risk to be assessed for a specific area or region, as well as for Australia as a whole. This means that BIRAs can consider and recommend biosecurity measures based on the level of biosecurity risk in a part of Australian territory. A note has been included in the Bill to clarify this. The Bill will also help to protect Australia`s natural environments. The definition of biosecurity risk` considers the risk posed to the environment, as well as human, animal and plant health and the economy. Biosecurity risk is a core concept in the biosecurity legislation. Biosecurity officers have a range of powers to assess biosecurity risks, and if they suspect one is present, to impose measures and manage that risk. Increasing efficiency and decreasing regulation The Bill is outcomes focused and based on a key principle of minimising regulatory impact while still achieving the best biosecurity outcome. This results in a Bill that cuts red tape and reduces the regulatory burden experienced by compliant businesses that regularly interact with Australia`s biosecurity system. The Department of Agriculture currently uses a risk-based approach to biosecurity intervention, where resources are focused on the risks of greatest biosecurity concern. The Bill will support this policy approach by providing flexible and responsive powers that allow biosecurity officials to best target risk based on the circumstances of each case. Risk-based intervention reduces the administrative burden on compliant clients, enabling faster clearance at the border through better targeting and a focus on higher risk commodities and stakeholder behaviours. It also reduces delays for industry and cuts the costs for clients who actively and conscientiously take action to manage their biosecurity risks. The Bill reduces regulation for many businesses by removing duplication and recognising modern business practices and systems that are already in place to manage biosecurity risk. A good example is industry partnerships, where an individual or business enters an arrangement with the Department of Agriculture to manage their biosecurity risks in an approved way (known as approved arrangements). This scheme will replace the duplicative quarantine approved premise and compliance agreement provisions in the Quarantine Act. These provisions overlap and can cause unnecessary administrative costs for businesses that are required to apply for and maintain multiple approvals and agreements with the Department of Agriculture. The Bill allows businesses to enter into a single arrangement with the Department of Agriculture to manage their biosecurity risks in an approved way. The Bill will also allow a broader range of activities to be conducted under an arrangement. By allowing biosecurity risks to be managed more flexibly, the Bill encourages more businesses to approach the department and propose methods of managing biosecurity risk that can be incorporated into their existing business practices. This can be used to save time and money for both that business and the Commonwealth. The Bill also modifies key operational provisions from the Quarantine Act that impose an unnecessary regulatory burden and are not required to manage biosecurity risks effectively. For 9


example, the Quarantine Act does not allow goods to be unloaded from a conveyance automatically when it arrives in Australia. The Bill allows the goods to be unloaded, unless an officer instructs otherwise. This means that the conveyance is not unnecessarily delayed by a requirement to seek permission to unload goods that do not pose a biosecurity risk. Vessels and aircraft that arrive in Australia are required to arrive at a port or landing place that is declared to be a first point of entry. The Quarantine Act allows an aircraft or vessel to apply for permission to enter a port or landing place that is not a first point of entry. The Bill takes this one step further by allowing a business to apply for a standing permission to arrive in Australia multiple times over an identified period of time. This will reduce the administrative burden faced by the aircraft or vessel, as it may otherwise be required to apply for permission for every arrival. Improving compliance The Bill contains a modern compliance framework with new and improved tools to enable more effective and efficient targeting of non-compliant behaviour or activities, while reducing the burden on those that are compliant. The Bill contains a range of enforcement options including: infringement notices, civil penalties, enforceable undertakings and criminal sanctions. This means the Commonwealth can choose between different penalty options and ensure that penalties are imposed in proportion to the offence committed, and are balanced, consistent and based on the level of risk posed. The Bill also contains options to address the risk posed by people or companies that repeatedly breach biosecurity laws. A fit and proper person test can be used to consider a person or company`s history of compliance with Commonwealth legislation and then deny them approval for an import permit on that basis. It can also be used to deny a person approval for an approved arrangement or to suspend, revoke or alter the conditions upon an existing approved arrangement. This ensures that people or companies seeking these approvals, which give them a privileged position, are suitable entities to be responsible for the management of biosecurity risks. The Bill introduces an associate test that can be used to consider whether a person applying for an import permit or an approved arrangement is an associate of another person that the Department of Agriculture does not consider to be a fit and proper person. This test will be used to prevent a person who has previously been denied an import permit or an industry arrangement with the Commonwealth from applying again under the name of an associate, such as a family member or former business partner. The Bill contains a range of new warrant powers that allow biosecurity officers to enter premises and then use their powers to manage biosecurity risks. This means that the Commonwealth can more effectively manage biosecurity risks before they are realised, rather than penalising a person or company after they contravene the Act and have caused damage that cannot be undone. Providing protection from public health risks The Bill contains a range of biosecurity measures to manage the public health risk posed by serious communicable diseases. To reflect the new way in which human health risks are managed, it includes a range of measures that can be tailored to accommodate an individual`s circumstances and aims to ensure individual liberties and freedoms are considered, as well as the risk posed by the disease. The Bill will allow for measures such as passenger entry and exit screening, the management of exotic diseases onshore and provide for the review of human biosecurity decisions, to ensure that the use of powers and exercise of functions under the Bill are balanced against an individual`s rights. 10


The human health provisions of the Quarantine Act, particularly those relating to isolation and treatment, have rarely been used in the last 20 years. It is expected that the human health provisions contained in the Bill will also be seldom used. However it is important that legislative powers are available to manage serious communicable diseases should they occur. This has been particularly highlighted by the recent announcements by the World Health Organization that diseases such as polio and Ebola virus disease have met the conditions for Public Health Emergencies of International Concern. Meeting Australia’s international obligations The Bill allows for the management of biosecurity risks in a manner that is consistent with Australia`s international obligations. This includes obligations under the World Trade Organization Agreement on the Application of Sanitary and Phytosanitary Measures 1994 (SPS Agreement), the World Health Organization International Health Regulations 2005(International Health Regulations), and the Convention on Biological Diversity1992 (Biodiversity Convention). Overview of the Bill The Bill can be broadly divided into three areas; operational chapters that support day to day biosecurity business, stand-alone chapters that support specialised biosecurity situations and general administrative chapters that support the other necessary functions and powers. Operational chapters The primary objective of the Bill is to manage biosecurity risk. This requires powers to identify, assess and manage biosecurity risks in relation to goods, conveyances and onshore pest or disease incursions. These powers will be exercised by appointed biosecurity officials who have the appropriate training and knowledge to recognise biosecurity risks and manage them appropriately–supported by extensive technical, policy and scientific expertise. Chapter 3–Managing biosecurity risks: goods This Chapter specifically deals with the management of goods which may create a biosecurity risk when they come to Australia. This includes powers to assess and manage biosecurity risks. Some goods will be prohibited from being brought in or imported into Australia. Others can only be brought in or imported if certain conditions are met (conditionally non-prohibited). In order to evaluate the level of biosecurity risk associated with goods that are proposed for importation into Australia, the Bill will allow the Director of Biosecurity to conduct a Biosecurity Import Risk Analysis (similar to the current Import Risk Analysis process). Chapter 4–Managing biosecurity risks: conveyances This Chapter deals with the movement of conveyances into Australian territory (conveyances include vessels and aircraft). This includes powers to assess and manage biosecurity risks. International vessels and aircraft arriving in Australia from overseas and the goods on board must arrive at a declared first point of entry that is approved to accept them (unless given permission to do otherwise). This ensures that biosecurity risks enter Australia at a location where there are the appropriate facilities and personnel to manage them to an acceptable level. 11


Chapter 6–Managing biosecurity risks: monitoring, control and response This Chapter provides powers to manage biosecurity risks within Australia, including its territorial waters. This chapter will complement existing agreements6 and state controls, allowing for efficient and effective incursion responses in state, territory and Commonwealth jurisdictions. This includes powers to assess and manage biosecurity risks. In line with the Biodiversity Convention, the powers will allow for the management of invasive pests. A biosecurity control order can be issued, requiring that biosecurity measures are carried out in relation to a specific good, conveyance or premise. Over a larger area, monitoring zones can be declared that allow biosecurity officers to undertake monitoring and surveillance activities to check for potential biosecurity risks. If a pest or disease incursion is identified, a biosecurity response zone can be declared allowing biosecurity officers to carry out biosecurity measures and manage the biosecurity risk. Biosecurity activity zones can also be declared over areas where biosecurity functions or duties are performed on behalf of the Commonwealth. This may include activities at a quarantine station or activities under an approved arrangement. Activity zones allow biosecurity officers to exercise assessment and management powers in the zone and control where and how people, goods or conveyances enter or exit the zone, in order to manage the biosecurity risk. Specialised biosecurity management chapters These chapters outline and support specialised biosecurity management. Chapter 2–Managing biosecurity risks: human health This Chapter contains a range of powers to control the spread of communicable diseases that may cause serious harm to human health. The powers only apply in relation to listed human diseases, determined by the Director of Human Biosecurity. The principles of general protection ensure that a power is exercised, or a biosecurity measure is imposed, only when the circumstances are sufficiently serious to justify it, and only if it would be effective, is proportionate, and is no more restrictive or intrusive than is required to manage the risk. The Chapter also seeks to further implement Australia`s obligations as a signatory to the International Health Regulations. Chapter 5–Ballast water and sediment This Chapter creates a single, Australia-wide ballast water and sediment management regime, providing a comprehensive system for ballast water management that covers international and domestic vessels. This will allow Australia to manage risks associated with ballast water and work towards ratification of the Ballast Water Convention. The Convention has not yet come into force but this legislation will help ensure that Australia is ready when it does. Chapter 7–Approved arrangements This Chapter allows the Commonwealth to partner with industry through an approved arrangement scheme. Industry participants may enter into a voluntary arrangement with the Commonwealth to manage the biosecurity risks associated with their own operations in the most efficient and effective way. The industry participant must demonstrate its ability to meet strict standards to maintain the integrity of Australia`s biosecurity system. 6 Emergency Animal Disease Response Agreement, the Emergency Plant Pest Response Deed and the National Environmental Biosecurity Response Agreement. 12


Chapter 8 –Biosecurity emergencies and human biosecurity emergencies This Chapter contains provisions to manage a pest or disease that poses a nationally significant threat to human, plant and animal health, the environment or the economy. The focus of these powers is to enable a fast and effective response that helps manage the amount of damage to Australia`s communities, local industries and economy. The emergency chapter will complement existing agreements and state and territory controls, allowing for efficient and effective emergency responses in state, territory and Commonwealth jurisdictions. General administration chapters The final group of chapters deal with the general administration of the Bill and apply across the legislation as a whole. They provide a framework for the smooth administration of Australia`s biosecurity system. Chapter 1–Preliminary This Chapter of the legislation deals with administrative matters such as jurisdiction, definitions of key terms and the objects of the Bill. Chapter 9–Compliance and enforcement This Chapter introduces a number of new tools to manage compliance and enforcement, designed to encourage clients to voluntarily comply with biosecurity requirements. The Bill will contain infringement notices, civil penalties, enforceable undertakings and criminal sanctions. It will also have additional warrants powers that allow officers to enter premises in order to manage biosecurity risk. Chapter 10–Governance and officials This Chapter creates the positions of Director of Biosecurity (the Secretary of the Agriculture Department), the Director of Human Biosecurity (the Commonwealth Chief Medical Officer), biosecurity officers, biosecurity enforcement officers and human biosecurity officers. It also assigns some generic powers and functions for each position. This Chapter also contains powers to gather information for the purposes of undertaking a review of the biosecurity system. It is intended that these powers be delegated to the Inspector-General of Biosecurity. This will help ensure that the biosecurity system is robust and that the assessment and management of biosecurity risk is subject to regular review and continual improvement. Chapter 11–Miscellaneous This Chapter includes the remaining provisions for topics that do not belong in other Chapters, but are important for the overall administration of the Bill. This includes cost recovery, exemptions and modifications, immunity, information sharing and reviewable decisions. This Chapter also contains provisions relating to the application of the Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters and the management of biosecurity risks in the external territories. 13


Rationale for Bill provisions Offences and penalties Strict liability offences When strict liability applies to an offence, the prosecution is only required to prove the physical elements of an offence, they are not required to prove fault elements, in order for the defendant to be found guilty. Strict liability is used in circumstances where there is public interest in ensuring that regulatory schemes are observed and it can reasonably be expected that the person was aware of their duties and obligations. The Bill contains some strict liability offences. These offences have been used when there is a strong public interest in managing biosecurity risks appropriately and preventing serious damage to plant and animal health, human health, local industries, the economy and the environment. For example, in Chapter 5 there are a number of strict liability offences that apply to the management of ballast water. There is a strong public interest in preventing invasive marine species from spreading to Australia`s marine environments and causing damage to the local industries that rely upon them or the environment. Ballast water is regulated on an international level through the International Maritime Organization and is the subject of an international convention. It can reasonably be expected that a person responsible for the operation of a ballast carrying vessel is aware of their duties and obligations to manage ballast water correctly and meet environmental standards designed to protect the marine environment. To ensure that the strict liability offences in the Bill only target appropriate conduct, the defence of honest and reasonable mistake of fact is available to the defendant (see section 9.2 of the Criminal Code). This means that if a person has considered the relevant facts and is under a mistaken, but reasonable, belief about those facts, he or she is not liable for an offence. All departures from the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) have been approved by the Attorney-General. Reversing the evidential burden Reversing the evidential burden means that a defendant, rather than the prosecution, is responsible for presenting evidence to a court about a particular fact. It is then up to the prosecution to establish that this evidence is incorrect or does not apply. This can be justified in circumstances where the facts in question are peculiarly within the knowledge of the defendant and it would be difficult or expensive for the prosecution to provide evidence, but the evidence is readily and cheaply available for the defendant. Some offences in the Bill reverse the evidential burden, by making the defendant responsible for providing evidence that proves there is a reasonable excuse why they have failed to meet a duty or obligation under the Act. This has been done because the relevant information is known peculiarly by the defendant and it would be significantly more difficult for the prosecution to prove. For example, a person might have removed a biosecurity control notice affixed to a vessel and seek to rely on the exception that they are a Commonwealth official and approved to do so under another Australian law. This person should easily be able to provide relevant identification and further information about the circumstances and the law that authorised them to remove the notice. It would be more difficult and time-consuming for the prosecution to provide evidence of this. The Bill also reverses the evidential burden for a defendant to prove that an exception applies if they are suspected of receiving or possessing prohibited goods or conditionally non-prohibited 14


goods. This is justified because the defendant will have peculiar knowledge about how the goods in their possession were obtained and should be able to produce evidence of how they obtained them, such as a receipt or evidence of an EFTPOS transfer. It would be much more difficult and time-consuming for the prosecution to provide evidence of this. Shifting the evidential burden for these offences implements the recommendations of the Commonwealth Ombudsman`s 2009 Report: Compliance and Investigation Activities of the Australian Quarantine and Inspection Service (AQIS). The reversal of the onus of evidential burden in these circumstances is also consistent with the Guide. Abrogation of the privilege against self-incrimination The privilege against self-incrimination is an important common law and international law principle that provides an individual with the right not to answer questions or produce materials which may incriminate them of a criminal offence or expose them to a civil penalty. However, this privilege may be overridden in circumstances where its use can seriously undermine the effectiveness of a regulatory scheme and prevent the collection of evidence. Chapters 3, 4 and 6 of the Bill contain powers that allow biosecurity officers to ask questions and require documents that abrogate the privilege against self-incrimination. Removing the privilege in these circumstances is justified, because this information is required to accurately assess biosecurity risks and ensure that they are managed to an acceptable level. For example, the information might inform officers that a shipment of meat products is from a country with a recent foot-and-mouth disease outbreak and strict biosecurity measures are required to prevent the risk of the outbreak spreading to Australia. Foot-and-mouth disease poses a risk of serious damage to Australia`s local industries, economy and the reputation of Australian products overseas. Gathering accurate information about a potential foot-and-mouth disease exposure is crucial to a fast and effective response by the Commonwealth. Allowing a person to use the privilege against self-incrimination and refuse to provide important information could result in a significant biosecurity risk remaining unmanaged. Therefore the public benefit of its removal outweighs the loss of personal liberty. While in some cases it may be feasible to obtain information by other means (for example, through a warrant), the additional time taken to obtain such information may significantly increase the risk of a disease or pest entering, establishing or spreading to Australia. If the privilege is not abrogated, the Commonwealth`s ability to manage biosecurity risks through a responsive, evidence-led approach would be significantly reduced. The abrogation of the privilege has been limited so that self-incriminatory disclosures cannot be used against the person making the disclosure in any proceedings (use and derivative use immunity). The only exceptions to this are in relation to proceedings arising out of sections 137.1 and 137.2 of the Criminal Code (in relation to false and misleading information and documents), and proceedings for the contravention of clause 532 or 533 (civil penalties for false or misleading information or documents). This approach is consistent with the Guide. Limitations The Bill contains some powers that have the potential to be exercised in a manner that impact upon the rights of a particular person. For example, the Director of Biosecurity can issue a direction requiring an aircraft or vessel to move outside of Australian territory, which might impact upon a person`s right to freedom of movement. To ensure that these decisions only impact upon a person`s rights in circumstances where it is justified, Chapter 1 contains general protections that require the relevant decision maker to be 15


satisfied of a number of principles when making the decision (in addition to other protections already contained in the Bill). These limitations have been included to ensure that any direction given, or action undertaken, is appropriate and adapted and does not impact on a person or his or her rights any more than is necessary to manage the level of biosecurity risk posed. This is consistent with international treaties such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Entry without warrant or consent The Bill contains powers that allow a biosecurity officer and biosecurity enforcement officer to enter premises without a warrant or consent. These powers also have the potential to impact upon a person`s rights and therefore can only be exercised in very limited circumstances, as described below. Biosecurity emergency If a biosecurity emergency is declared, biosecurity officers and biosecurity enforcement officers will be able to enter premises without consent or a warrant for the purpose of assessing and managing biosecurity risks associated with the declaration pest or disease. Officers will also be able to access adjacent premises if it is necessary to access the premises where they need to exercise their assessment and management powers. These powers are justified during an emergency period because of exceptional circumstances that led to the emergency being declared. A biosecurity emergency will only be declared by the Governor-General if the Agriculture Minister is satisfied that a pest or disease poses a nationally significant threat to plant or animal health, human health, the environment or the economy. Access to premises is required so that officers can assess whether the declaration pest or disease is present and then, if required, undertake urgent measures to manage them. It would significantly impede the Commonwealth`s ability to work together with state and territory governments and implement a fast and effective response if biosecurity officers are required to seek warrants or consent for the premises that are likely to be affected. The power to enter premises is limited to circumstances where the biosecurity officer suspects on reasonable grounds that the declaration pest or disease is present and is accompanied by a biosecurity enforcement officer (who is responsible for establishing entry to the premises and using force against things, such as opening doors or moving objects). Approved arrangements The Bill also allows a biosecurity enforcement officer to enter relevant premises during business hours to determine whether the Act has or is being complied with. This power can be used to access premises where biosecurity activities are being conducted under an approved arrangement. Entry without a warrant is justified because the premises are the subject of a voluntary agreement between the Agriculture Department and an industry participant, who is approved to manage biosecurity risks on the premises in a particular way. Biosecurity enforcement officers will be able to enter the premises and exercise their investigation and monitoring powers to determine whether the Act is being or has been complied with or that correct information has been supplied for the purposes of the Act. This will allow non-compliance to be more easily detected and ultimately reduced, leading to greater compliance with the Act and the better management of biosecurity risks overall. A biosecurity enforcement officer may also enter the premise if there are reasonable grounds to suspect there may be particular evidential material on the premises. 16


First points of entry The power to enter relevant premises also allows biosecurity officers to enter premises at a first point of entry without a warrant or consent during business hours to determine whether the Act has or is being complied with. Entry without a warrant is justified because these premises are the subject of a regulatory arrangement with the Commonwealth, where the first point is approved to be a place where goods, people and conveyances can arrive in Australian territory from overseas. As a result, premises at a first point of entry are an area of high risk for biosecurity risks entering, establishing and spreading in Australian territory and causing damage to animal and plant health, human health, the environment, local industries and the economy. It is important that these risks are managed as quickly and efficiently as possible. Biosecurity officers may enter any premises at a first point of entry for the purpose of performing functions or exercising powers as a biosecurity officer. This will allow the officer to establish whether a biosecurity risk exists and, if required, undertake biosecurity measures to manage that risk. The Bill also allows a biosecurity enforcement officer to enter the premises at a first point of entry to assess non-compliance with the Act. This will allow non-compliance to be more easily detected and ultimately reduced, leading to greater compliance with the Act and the better management of biosecurity risks overall. A biosecurity enforcement officer may also enter the premise at any time if there are reasonable grounds to suspect there may be particular evidential material on the premises. Exemption from disallowance Section 42 of the Legislative Instruments Act 2003 (LIA) allows some legislative instruments to be exempt from disallowance. These legislative instruments will still have to be tabled in the Parliament. The Bill allows for some legislative instruments to be exempt from disallowance, for example, determinations of prohibited goods and conditionally non-prohibited goods. This is justified because it is more appropriate for Parliament to delegate the power to make determinations that involve technical and scientific decisions about the management of biosecurity risk to the Director of Biosecurity. An implication of these decisions being disallowed is that political considerations will play a role in what should be a technical and scientific decision making process. This has the potential to frustrate the risk management processes and lead to the inadequate management of biosecurity risks. This approach is consistent with the current arrangements in the Quarantine Proclamation 1998. Consultation about provisions of the Bill The Attorney-General and the Attorney-General`s Department have been consulted on all relevant provisions of the Bill. In particular, approval has been provided by the Attorney-General for the approach taken in relation to higher penalty offences, exemptions from the LIA and the power for biosecurity officers and biosecurity enforcement officers to enter premises and adjacent premises without consent or a warrant. 17


The Bill’s operation Date of effect and application The Bill provides for staggered commencement of the Bill. Clauses 1 and 2 of the Bill will commence on the day the Bill receives Royal Assent. The remaining clauses of the Bill will commence on a day fixed by proclamation, or if no day is fixed for commencement within 12 months of Royal Assent, they will commence on the day after the end of the 12 months. Once the Bill receives Royal Assent, the Director of Biosecurity and the Director of Human Biosecurity will be able to make legislative instruments, and authorise various officers as outlined under Chapter 10 (through the operation of the Acts Interpretation Act 1901). These instruments and authorisations will come into effect when the operational provisions of the Bill commence. It is intended that the majority of the clauses of the Bill will commence 12 months after Royal Assent. The period between commencement of clauses 1 and 2 and the remaining clauses of the Bill will allow time for the new requirements in the legislation to be communicated to stakeholders, industry participants and the general public and allow biosecurity officials to undergo appropriate training. It will also provide additional time for consultation with state and territory governments regarding shared responsibilities and obligations under the Bill. Allowing time for communication and education is important, as a number of policies included in the Bill do not exist under the Quarantine Act. This includes the new powers in Chapter 6 and the enforcement provisions in Chapter 9. It is important that stakeholders are aware of the new requirements–including the introduction of civil penalty provisions and an expanded infringement notice scheme–in the Bill so that they are not inadvertently non-compliant with these requirements. Proposed transitional arrangements in the Biosecurity (Consequential Amendments and Transitional Provisions) Bill 2014 will also allow time for stakeholders to adjust to the new legislative requirements, particularly where these requirements lead to changes in business processes. For example, for first points of entry it is proposed that most ports and landing places declared as a first port under the Quarantine Act will transition over a period of time to become a first point of entry under the Act. These ports and landing places will have three years to ensure they comply with the requirements for first points of entry in the Act. This will provide port and landing place operators an appropriate amount of time to upgrade–if necessary–their facilities, systems or processes. Financial impact statement No significant direct or indirect financial impact on the Commonwealth will arise from the introduction of this Bill. 18


Human Rights Compatibility Statement Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Biosecurity Bill 2014 The Biosecurity Bill 2014 (the Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Overview of the Bill The purpose of the Bill is to provide the primary legislative means for the Australian Government to manage the risk of pests and diseases entering Australian territory and causing harm to animal, plant and human health, the environment and the economy. In achieving this purpose, the Bill aims to promote the right to health, the right to life and also the right to an adequate standard of living, including food, water and housing as provided under the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). The Bill is intended to replace the century-old Quarantine Act 1908 (the Quarantine Act) to provide a modern regulatory tool aimed at better managing biosecurity risks in current and future trading environments. The Bill allows for the management of a broader range of biosecurity risks at the border and provides for additional powers to monitor and manage biosecurity risks when they are detected in Australian territory to help prevent pests and diseases from impacting upon human, animal or plant health, the environment and the economy. The Bill provides an effective and adaptive range of biosecurity measures to manage the public health risk posed by serious communicable diseases. It will provide a range of measures which can be tailored to accommodate an individual`s circumstances and aims to ensure individual liberties and freedoms are considered in conjunction with the disease risk. It will provide for consideration of personal freedoms and rights to review in decision-making. The Bill is consistent with Australia`s international obligations under the World Health Organization`s International Health Regulations 2005. The legislation enables a risk based approach to compliance, ensuring that enforcement measures are appropriate to achieve the regulatory outcome sought. The Bill aims to reflect the shared responsibility for biosecurity between governments at all levels, business, industries, trading partners and the community. It is designed to promote good governance, shared responsibility, efficient processes and procedural fairness. The Bill is also designed to draw upon, support and give effect to various international and domestic agreements and obligations. Internationally, these include: the Agreement on the Application of Sanitary and Phytosanitary Measures (the SPS Agreement) the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (the Ballast Water Convention) the International Health Regulations 2005 (International Health Regulations) the Convention on Biological Diversity (the Biodiversity Convention) the United Nations Convention on the Law of the Sea, and the Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries (the Torres Strait Treaty). 19


Domestically, these include the Intergovernmental Agreement on Biosecurity and various emergency response deeds, including the Emergency Animal Disease Response Agreement, Emergency Plant Pest Response Deed and the National Environmental Biosecurity Response Agreement. The Commonwealth intends to work collaboratively with state and territory governments to complement existing powers and agreements in the management of biosecurity risks (however, the Commonwealth will cover the field in some circumstances, as expressly stated in the Bill). List of human rights The Bill will engage, or has potential to engage, the following rights: Article 6(1) of the ICCPR – Right to life Articles 7 and 10 of the ICCPR -Right to freedom from torture and cruel, inhuman or degrading treatment Article 9 of the ICCPR – Right to liberty and freedom from arbitrary detention Articles 9(4) and 14(5) of the ICCPR – Right to seek review Article 12 of the ICCPR – Right to freedom of movement Article 14(2) of the ICCPR – Right to the presumption of innocence (reverse burden provisions) Article 14(3) of the ICCPR – Right to be free from self-incrimination Article 14 (7) of the ICCPR – Right not to be tried or punished again for an offence for which a person has already been finally convicted or acquitted Article 17 of the ICCPR – Right to protection from arbitrary interference with privacy Article 22 of the ICCPR – Right to freedom of association Article 24(1) of the ICCPR and Article 3 of the Convention on the Rights of the Child – Rights of the child Article 6 of the ICESCR – Right to work Article 11(1) of the ICESCR – Right to an adequate standard of living, including food, water and housing Article 12 of the ICESCR – Right to health Article 15 of the ICESCR – Right to enjoy and benefit from culture, and Articles 3 and 5 of the Convention on the Rights of Persons with Disabilities – Rights of persons with disabilities. Discussion: general protection clauses and civil penalties General protections and principles affecting decisions To ensure that the decision to exercise certain powers under the Bill is reasonable and proportionate to achieve a legitimate objective, clause 32 provides a range of principles that a biosecurity official must be satisfied of when making certain decisions, including: that exercising the power is likely to be effective in, or to contribute to, achieving the purpose for which the power is to be exercised that exercising the power is appropriate and adapted to achieve that purpose that the manner in which the power is to be exercised is no more restrictive or intrusive than is required in the circumstances if the power is to be exercised in relation to an individual–that the power is no more restrictive or intrusive than is required in the circumstances, and if the power is to be exercised during a period–that the period is only as long as is necessary. Where powers are to be exercised in relation to a conveyance, the biosecurity official must also consider the impact of the exercise of the power on the health and safety of any persons on board 20


the conveyance. Decisions to which these principles apply are specified in this statement under each human right that may be engaged by the Bill. To ensure the exercise of certain powers in Chapter 2 is reasonable and proportionate to achieve a legitimate objective, clause 34 provides a range of principles that a person making a decision must be satisfied of, including: that exercising the power, or imposing the biosecurity measure, is likely to be effective in, or to contribute to, managing the risk that exercising the power, or imposing the biosecurity measure, is appropriate and adapted to manage the risk that the circumstances are sufficiently serious to justify exercising the power, or imposing the biosecurity measure that the power, or the biosecurity measure, is no more restrictive or intrusive than is required in the circumstances that the manner in which the power is to be exercised, or the biosecurity measure is to be imposed, is no more restrictive or intrusive than is required in the circumstances, and if the power is to be exercised or the biosecurity measure imposed during a period–that the period is only as long as is necessary. The normal principles of administrative law also apply to the exercise of powers in clauses to which the principles under clauses 32 and 34 apply, such as reasonableness, proportionality and natural justice–as they do to the Bill as a whole (except where express limitations apply, such as in Chapter 8 which deals with emergencies). Additionally, a number of the decisions in the Bill to which these clauses apply have tests of reasonableness built into them. Assessment of civil penalties The Parliamentary Joint Committee on Human Rights Practice Note 2 notes that civil penalty provisions may engage criminal process rights under Articles 14 and 15 of the ICCPR, regardless of the distinction between criminal and civil penalties in domestic law. When a provision imposes a civil penalty, an assessment is required as to whether it amounts to a criminal` penalty for the purposes of ICCPR. The civil penalty provisions in the Bill should not be considered criminal` for the purposes of human rights law. While a criminal penalty is deterrent or punitive, the majority of provisions are aimed at objectives that are regulatory or disciplinary in nature. For instance, most provisions do not apply to the general public, but to a sector or class of people who should reasonably be aware of their obligations under the Bill (e.g. operators of incoming vessels), and should be considered disciplinary` rather than criminal`. In many cases, the civil penalty provisions in the Bill are provided as disciplinary alternatives to the punitive or deterrent criminal offences. Civil penalties will also enable an effective disciplinary approach to dealing with non-compliance by corporations. The severity of the civil penalties should be considered low; they are all pecuniary penalties (rather than a more severe punishment like imprisonment), there is no sanction of imprisonment for non-payment of penalties and the maximum amount of each civil penalty is the same or lower than the corresponding criminal offence (except where applied to corporations). Based on the above factors, the cumulative effect of the nature and severity of the civil penalties in the Bill is unlikely to be considered criminal` for the purposes of human rights law. However, where certain civil penalty provisions could limit human rights–such as by reversing the onus or proof, or abrogating the privilege against self-incrimination–justification has been included. This is to make clear that the provisions are reasonable, proportionate and adapted to achieve a 21


legitimate objective in the event that they are considered criminal in the context of international human rights law. Assessment of compatibility with human rights Right to life Article 6(1) of the ICCPR includes a duty on governments to take appropriate steps to protect the right to life of those within its jurisdiction, and an obligation to investigate arbitrary or unlawful killings or punish offenders. The United Nations Committee General Comment 6 (1982) states: …the Committee has noted that the right to life has been too often narrowly interpreted. The expression “inherent right to life” cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures. In this connection, the Committee considers that it would be desirable for State parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics.` A key objective of the Bill is to promote the right to life by preventing harm to human, animal and plant health through managing the risk of pests and diseases entering, establishing or spreading in Australian territory. Chapters 2, 5 and 8 of the Bill promote the right to life by providing powers to control the spread of communicable diseases that may cause serious harm to human health. For example, Chapter 2 promotes the right to life by enabling the Health Minister to prescribe requirements in relation to individuals and operators of certain aircraft or vessels that are entering or leaving Australian territory. These requirements may be imposed for the purpose of preventing the entry, establishment or spread of listed human diseases (clause 44 and 45). Chapter 5 promotes the right to life by regulating the use of ballast water and management of sediment by Australian and foreign vessels in Australian seas to create an Australian-wide ballast water and sediment management regime. The creation of offences for releasing unmanaged ballast water and sediment under this regime may prevent ballast water that contains human diseases, such as cholera, from being released in Australian seas (see clause 270). Chapter 8 of the Bill provides for 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 that is of a nationally significant scale (clause 475). Summary: The Bill promotes the right to life under Article 6(1) of the ICCPR. Right to freedom from torture and cruel, inhuman or degrading treatment The right of individuals not to be subjected to cruel, inhumane or degrading treatment is guaranteed by Article 7 of the ICCPR. This right is an absolute right, and is not subject to permissible limitations. Article 10 of the ICCPR further protects the right of an individual to be treated with humanity and dignity if detained. Chapters 2 and 10 of the Bill include provisions that may engage these rights. Chapter 2 Part 3 of this chapter provides a number of biosecurity measures that can be included under a human biosecurity control order. These include decontamination (clause 89) and traveller movement measures (clause 96). These biosecurity measures are necessary for the legitimate 22


objective of managing the risk of listed human diseases emerging, establishing or spreading in Australian territory. However, these clauses may operate to engage the right to freedom from degrading treatment, as outlined below. A range of tests and protections are included in the Bill to ensure this right is not limited. Clause 60 provides that a human biosecurity control order may only be imposed on an individual if the officer is satisfied of the principles set out in clause 34. The officer must also be satisfied that the individual has one or more signs of a listed human disease, or has been exposed to a listed disease (or another individual who has signs or symptoms of a listed human disease), or has failed to comply with an entry requirement under clause 44 and therefore poses a risk to the broader community. Clause 89 provides that an individual and their clothing and personal effects may be required to be decontaminated under a human biosecurity control order. In some cases, decontamination may require a person to remove their clothing, which could be degrading or humiliating if appropriate protections were not in place. Decontamination may only be included in a human biosecurity control order if the officer is satisfied that it would contribute to the managing of the risk of contagion of a listed disease, or a listed human disease entering, or emerging, establishing itself or spreading in Australian territory (clause 84). The control order must state why the measure is required, how it is to be undertaken, the rights to review in relation to the order, and the details of a chief human biosecurity officer that can be contacted for information and support (clause 61). The contents of the order must also be read out to the individual (clause 63). If the individual refuses to consent to the decontamination, an officer may request the Director of Human Biosecurity to give a direction for the individual to comply (clause 72). However, in order to give a direction for an individual to comply, the Director must review the decision, including the diagnosis of any listed human diseases specified in the order and the inclusion of the measure to decontaminate the individual, and take into account any reason the individual gives for refusing to consent to the measure. The Director must also be satisfied on reasonable grounds that decontamination would contribute to reducing the risk of contagion of the listed disease, or the listed disease spreading in Australian territory. If the Director gives a direction for the individual to comply, the individual may be able to apply for merits or judicial review of the decision in accordance with clause 76 of the Bill and the Administrative Decisions (Judicial Review) Act 1977. If the individual is required to comply with the measure, force must not be used to require them to do so (clause 95). Clause 101 provides that officers of Customs may prevent individuals from boarding an outgoing passenger aircraft or vessel if doing so would contravene a traveller movement measure is in place under a human biosecurity control order. This clause is necessary for the legitimate objective of preventing listed human diseases from spreading to other countries and meeting Australia`s obligations under the International Health Regulations. The clause does not limit officers from using force to prevent the person from boarding the aircraft or vessel, which could potentially result in degrading treatment. Although the clause does not prevent officers from using force to prevent the person from boarding the aircraft or vessel, they must not use more force or subject the person to greater indignity than is necessary to prevent them from boarding the aircraft or vessel. Clause 103 provides that an individual may be detained if they fail to comply with a requirement to remain at a place under clause 68, or with an isolation measure under clause 97. A number of protections are included in the Bill to ensure that the power to detain individuals is only used when necessary and proportionate to a legitimate objective and that individual`s right to be free from degrading treatment are protected during detention. 23


An individual who is detained for failing to comply with an isolation measure may only be detained for the purposes of taking the individual to a medical facility (clause 103). If an individual is required to remain at a place or placed under an isolation order, and they are not an Australian citizen, then they must be informed of their right to seek consular assistance (clause 102). In addition, officers must provide a reasonable time to allow the individual to seek consular assistance and facilitate communication with a consular office if requested. This aims to ensure that all individuals are able to understand why they are being asked to remain at a place or be isolated regardless of language or nationality. If an individual is detained, clause 104 specifies that officers must not use more force or subject the individual to greater indignity than is necessary and reasonable to detain the person or prevent them from escaping. Further to this, detention must be in a place that, in the officer`s opinion, affords adequate personal privacy. Clause 104 also requires the Commonwealth to advise the individual of their right to contact anyone, including a legal representative and to provide facilities for the ill individual to contact that person. A person who has been detained for failing to comply with a requirement to remain at a place must be released after six hours (clause 105). A person detained for failing to comply with an isolation measure must be released when they have been taken to the medical facility specified in the control order, or within 72 hours, whichever is earlier. Additionally, the officer that detains the person must also inform the person that they may communicate, or attempt to communicate, with any person and the officer must give the person the facilities to enable them to do so. Chapter 10 Clauses 558 to 561 provide for decontamination of an individual and their clothing and personal effects. These provisions relate to the management of the risk of a pest or disease, rather than the risk of contagion of a listed human disease as provided for in Chapter 2. These clauses are necessary for the legitimate objective of managing the biosecurity risk associated with the person or their clothing. However they may require a person to remove their clothing which could be degrading or humiliating. A range of protections are included in the Bill to ensure that this right is not limited. An officer may only request decontamination of the person, or require decontamination of the person`s clothing or personal effects, if they suspect on reasonable grounds that the person may have been exposed to a pest or disease and the officer is satisfied that decontaminating the person, clothing or personal effects is likely to be effective in or contribute to managing the biosecurity risk (clause 558). Force must not be used against an individual to require them to comply with a direction to undergo decontamination given under clause 559, or require an individual`s clothing or personal effects to be decontaminated under clause 560. Additionally, clause 551(3) provides that a biosecurity officer who requires an individual to allow his or her clothing to be decontaminated must take the individual to a place that affords adequate personal privacy to the individual and provide the individual with suitable alternative clothing if the individual does not have any. The principles affecting decisions to exercise certain powers (clause 32) also apply to a decision to decontaminate an individual or their clothing or personal effects. In particular, the biosecurity official must be satisfied that, if the power is to be exercised in relation to an individual, the power is no more restrictive or intrusive than is required in the circumstances. Clauses 36 to 40 of Chapter 2 also apply to this clause, which provide a range of protections for children and incapable persons. 24


Summary: The Bill does not limit the right to freedom from torture and cruel, inhuman or degrading treatment under Article 7 of the ICCPR, or the right of an individual to be treated with humanity and dignity if detained under Article 10 of the ICCPR. Right to liberty and freedom from arbitrary detention Article 9 of the ICCPR protects the right of all individuals to liberty and freedom from arbitrary detention. The right to personal liberty requires that persons not be subject to arrest and detention except as provided for by law and provided that neither the arrest nor the detention is arbitrary. The right applies to all forms of detention where people are deprived of their liberty. Provisions in Chapter 2 may operate to limit this right. Chapter 2 This Chapter provides powers for individuals to be required to remain at a place (clause 68), remain isolated at a medical facility (clause 97) or detained (clause 103). These clauses are necessary for the legitimate objective of assessing and managing the risk of contagion of a listed human disease. However, these clauses may operate to limit the right to liberty and freedom from arbitrary detention. To ensure these clauses are reasonable and proportionate to the legitimate objective, a range of tests and protections apply. An individual may only be required to remain at a place under clause 68 if an officer intends to impose a human biosecurity control order under clause 60 and an individual may only be required to remain isolated at a medical facility under clause 97 under a human biosecurity control order. Human biosecurity control orders may only be imposed if an officer believes that an individual has signs or symptoms of a listed human disease, has been exposed to a listed human disease or has failed to comply with an entry requirement under clause 44 and therefore poses a risk to the broader community. An individual may only be required to remain at a place for up to six hours and this period may not be extended (clause 68). After that time the officer must apply measures in a human biosecurity control order or release the individual. If the individual required to remain at a place or be isolated is not an Australian citizen, then they must be informed of their right to seek consular assistance (clause 102). In addition, officers must provide a reasonable time to allow the individual to seek consular assistance and facilitate communication with a consular office if requested (clause 102). If an individual does not consent to an isolation measure (clause 97), they may seek internal review by the Director of Human Biosecurity of the direction for the individual to comply (clause 7). In conducting a review, the Director of Human Biosecurity must give consideration to factors affecting the health of the individual and the reasons why they do not consent to the measure. The Director must also be satisfied that the biosecurity measure contributes to reducing the risk of a listed human disease entering, emerging, establishing itself or spreading in Australian territory. The Bill prescribes timeframes for the Director to complete the review to limit the time that an individual`s liberty may be restricted. An individual may be detained if they fail to comply with a requirement to remain at a place under clause 68, or if they fail to comply with an isolation measure that they have been required to comply with under clause 76 (clause 103). Before an individual is detained, a human biosecurity officer must be satisfied of the principles of general protection (clause 34). In addition, an individual may only be detained if the officer is satisfied the individual may pose a significant risk of contagion without detention. The power to detain individuals has been vested only in law enforcement officers under subclause 103(3) as they have sufficient training and skills to ensure the power is exercised in line with Commonwealth guidelines. 25


Additional protections apply to detention, including that the individual must be advised of their right to contact anyone, including a legal representative (clause 104). Clause 104 also provides that the individual must be taken, as soon as possible, to a place that provides adequate personal privacy to the individual, either at the specified medical facility (for failing to comply with an isolation measure), or at the place where the detainee was when the officer was satisfied that the control order should be imposed (for failing to remain at a place). An individual who has been detained for failing to comply with an isolation measure under clause 97 must be released when they have been taken to the medical facility or when they are no longer required to comply with the isolation measure (clause 105). Individuals may also seek external merits review of the direction to comply with the isolation measure under Administrative Appeals Tribunal Act 1975 (clause 76) or the Administrative Decisions (Judicial Review) Act 1977 (clause 80). Summary: The right to liberty and freedom from arbitrary detention under Article 9 of the ICCPR may be permissibly limited in these instances because a range of tests and protections apply to these clauses to ensure the exercise of the power is reasonable and proportionate to achieving the legitimate objective, and adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion. Right to seek review Article 9(4) of the ICCPR protects the right of an individual who is deprived of his liberty by arrest or detention to be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention`. Article 14(5) also provides that everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law`. The Bill engages this right as a person can be imprisoned as a result of being convicted of an offence under this Act. Additionally, Chapter 2 contains provisions that may result in an individual being required to remain at a place for up to six hours (clause 68), be isolated at a medical facility (clause 97), or detained (clause 103) in certain circumstances. The Criminal Code and the Australian criminal justice system more broadly, provide review rights that are available in these circumstances. These review rights ensure consistency with Australia`s international obligations. Summary: The Bill does not limit the right to seek review under Article 9(4) of the ICCPR. Where the Bill does engage this right, it does so in accordance with the Criminal Code and as a part of Australia`s broader criminal justice system to ensure consistency with Australia`s international obligations. Right to freedom of movement The right to freedom of movement under Article 12 of the ICCPR includes the right to move freely within a country for those who are lawfully within the country, the right to leave any country and the right to enter a country of which you are a citizen. The right may be limited in certain circumstances, including where the limitation is justified on any of the following grounds: to protect national security, public order, public health or morals or the rights and freedoms of others. The limitation must be necessary and proportionate to protect the purpose for which it is imposed and should be as least intrusive as possible to achieve the desired result. Chapters 2, 4, 5, 6, 8 and 11 contain clauses which may operate to limit this right. 26


Chapter 2 Clauses 44 and 45 enable the Health Minister to determine requirements for individuals who are entering or leaving Australian territory. Entry requirements allow the Commonwealth to prevent the risk of the entry, emergence, establishment and spread of a listed human disease at Australia`s borders. Exit requirements seek to prevent the spread of listed human diseases to passengers on aircraft or vessels, or to other countries, in line with Australia`s obligations as a signatory to the International Health Regulations. Entry requirements may include the requirement for individuals to provide evidence of specified vaccination or treatment, or provide a declaration on their health status if they have travelled from a country where there is a disease outbreak. Exit requirements may include individuals undergoing screening, such as completing a health declaration prior to leaving Australia. These clauses are necessary for the legitimate objective of assessing and managing the risk of contagion of a listed human disease in relation to people entering and leaving Australia and ensuring Australia`s international obligations under Annex 1B of the International Health Regulations are met. These requirements are consistent with recommendations of the World Health Organization under Part III of the International Health Regulations, to prevent the global spread of communicable disease. Part III of the International Health Regulations allows the WHO to make temporary recommendations in response to Public Health Events of International Concern. These recommendations may include health measures to prevent or reduce the international spread of disease. Health measures are defined in the International Health Regulations to be measures to prevent the spread of disease or contamination, but do not include security or law enforcement measures. Individuals that have not complied with an entry requirement may present a risk of contagion and therefore measures may be required to manage potential risk to human health. If an individual fails to meet entry or exit requirements under clause 44 or 45 they may be required to remain at a place (clause 68), practice restricted behaviour (clause 87), be restricted from travelling to certain places (clause 96), be isolated (clause 97), prevented from boarding an outgoing aircraft (clause 101) or detained (clause 103). These measures are only available under a human biosecurity control order, or if measures imposed under a control order have not been complied with (except for the requirement to remain at a place under clause 68, which may be applied if an officer intends to impose a control order). A human biosecurity control order may only be applied if an individual has signs or symptoms of (or has been exposed to) a listed human disease, or if the individual has not complied with an entry requirement under clause 44, and therefore poses a risk to the broader community. Before imposing a control order, an officer must be satisfied of the principles of general protection in relation to human health (clause 34). These strict limitations in the application of a human biosecurity control order ensure that measures applied relate only to the management of a listed human disease or entry requirements and are a proportionate and legitimate limitation to an individual`s freedom of movement. An individual may only be required to remain at a place for up to six hours and this period may not be extended (clause 68). After that time the officer must apply a human biosecurity control order or release the individual. Restricting behaviour measures (clause 87) are only available under a human biosecurity control order. These measures may require a person to remain in their homes, or not visit specific places for a specified period of time. This may consequentially prevent individuals from attending work or education for the specified time. Certain members of the community are particularly vulnerable to some communicable diseases, such as children and the elderly. These measures are necessary to meet the legitimate objective of reducing the risk of spread to these members of the community. 27


An ill individual may be required by a human biosecurity control order to attend a specified medical facility to facilitate assessment and treatment of ill individuals, including undergoing an examination, providing body samples for diagnosis, treatment or undergoing a vaccination (clauses 90, 91 and 92). It is essential, where an individual is suspected of suffering from a listed human disease, that the individual be moved to an appropriate place where medical treatment and privacy can be assured. Traveller movement measures (clause 96) may be included under a human biosecurity control order. These measures may be used to temporarily restrict individuals from travelling on international passenger aircraft and vessels for up to 28 days. Passenger aircraft and vessels often carry large numbers of passengers in close proximity for long periods of time and temporary restrictions may be necessary to meet the legitimate objective of preventing ill individuals from travelling, while they present a risk of contagion to other passengers. These restrictions also prevent the spread of listed human diseases to other countries, in line with Australia`s obligations as a signatory to the International Health Regulations. As a measure of last resort, a human biosecurity control order may specify that an ill individual is required to be isolated at a specified medical facility (clause 97). Isolation would be applied in situations where an individual presents a significant risk of contagion and does not consent to a less restrictive measure, or isolation is the most or only effective measure in managing the listed human disease. If the individual being isolated is not an Australian citizen, they must be informed of their right to seek consular assistance. In addition, officers must provide a reasonable time to allow the individual to seek consular assistance and facilitate communication with a consular office if requested (clause 102). Clause 93 enables management of communicable diseases that may require long term medication but not hospitalisation or isolation. This clause will enable individuals who do not, or no longer, pose a serious risk of contagion to continue their medication and complete their treatment outside of a medical facility. Clauses 75 to 79 provide mechanisms for review of the direction for an individual to comply with isolation and traveller movement measures, including review under the Administrative Appeals Tribunal Act 1975 (clause 76) and the Administrative Decisions (Judicial Review) Act 1977 (clause 80). Clause 101 enables an officer of Customs to prevent an individual from boarding an outgoing passenger aircraft or vessel. This clause is necessary for the legitimate objective of managing the risk of contagion of listed human diseases, and in doing so, meeting Australia`s obligations under the International Health Regulations. An officer may only prevent an individual from boarding an aircraft or vessel if a traveller movement measure is in force under a human biosecurity control order and the individual would contravene the measure if they boarded the aircraft or vessel. If an individual who is not an Australian citizen is required to remain at a place or placed under an isolation order, they must be informed of their right to seek consular assistance (clause 102). In addition, officers must provide a reasonable time to allow the individual to seek consular assistance and facilitate communication with a consular office if requested. Clause 103 provides that an individual may be detained if they fail to comply with a requirement to remain at a place under clause 68, or with an isolation measure under clause 74. An individual who is detained for failing to comply with an isolation measure may only be detained for the purposes of taking the individual to a medical facility (clause 103). This is necessary for the legitimate objective of ensuring that individuals that may have a listed human disease are treated and the risk of contagion is managed. Clause 104 requires the Commonwealth to advise the individual of their right to contact anyone, including a legal representative or a consulate, and to provide facilities for the ill individual to contact that person. 28


Clause 113 enables the Director of Human Biosecurity to establish a human health response zone for the legitimate objective of preventing, or reducing the risk of, a listed human disease emerging, establishing or spreading in Australian territory or a part of Australian territory. These zones may be used, for example, to manage small incidents such as a localised disease outbreak or a laboratory hazard. In declaring the response zone, the Director of Human Biosecurity may determine requirements for people entering or leaving the zone, or require individuals to evacuate the zone or not enter the zone. To ensure that response zones are a proportionate and legitimate restriction of an individual`s freedom of movement, the Director must be satisfied that the requirements are appropriate and adapted to prevent, or reduce the possibility of, the emergence, establishment or spread of the specified listed human disease (subclause 113(4)). The Director must also consult with the Chief Health Officer in the relevant state or territory prior to declaring the zone. The determination must be made public and may only be in place for three months. The Director of Human Biosecurity must not set requirements in a zone that subject individuals to biosecurity measures imposed under a human biosecurity control order (subclause 113(5)). These measures must still be imposed using a control order and the associated protections of human rights and rights to review would apply. Chapter 4 Clause 217 enables a biosecurity officer to direct the person in charge of a conveyance not to leave the conveyance for a specified period. This clause is necessary for the legitimate objective of managing the biosecurity risks associated with conveyances as the person in charge of a conveyance may be required to move the conveyance or to assist a biosecurity officer exercising powers in relation to the conveyance. This clause may operate to limit the right to freedom of movement as the person would not be able to leave the conveyance while subject to the direction. To ensure this clause is reasonable and proportionate to the legitimate objective, the period which the direction can be given for must be no longer than 24 hours. A number of other clauses in Chapter 4 provide for directions to be given relating to the movement of conveyances, or require vessels and aircraft to land or moor at specific places, including: directing the person in charge or operator of a conveyance to secure the conveyance (clause 198) directions relating to the movement of a conveyance (clause 202) directions relating to the movement of certain aircraft or vessels, including to a place outside of Australian territory (clause 206) directions relating to the movement of exposed conveyances (clause 207) requiring aircraft to land a first point of entry (clause 237) requiring aircraft to be brought to relevant biosecurity entry point at a first point of entry (clause 238) requiring aircraft to land, or not to land, at a specified landing place or places (clause 240) requiring aircraft not to land at any landing place in Australia territory (clause 241) requiring aircraft to land or not to land at specified landing place in order to manage human health risks (clause 242) (protections apply within) requiring vessels to be brought to relevant biosecurity entry point (clause 246) requiring vessels to be moored or not to be moored at a specified port (clause 248) requiring vessels not to be moored at any port in Australian territory (clause 249), and requiring vessel to be moored, or not to be moored at a specified port due to human health risks (clause 250) These clauses are necessary for the legitimate objective of managing biosecurity risks associated with conveyances (and goods and people on board) by ensuring they arrive at appropriate places. If necessary to manage unacceptable risks, powers can also be used to prevent vessels from 29


arriving at places. These clauses may operate to limit the right to free movement of passengers on board the conveyance to which the direction or requirement relates, as although they are not required to remain on board the conveyance, they may not be able to disembark from it (for example if the aircraft is in flight when a direction is given). These clauses only apply to conveyances that are subject to biosecurity control. Directions requiring an aircraft to land or not to land at a specified landing place can only be given if a biosecurity officer is satisfied that the direction is necessary to manage biosecurity risk associated with the aircraft or any person or thing on board the aircraft (clause 240(2)). For a direction not to land in Australian territory, the Director of Biosecurity must be satisfied that the level of biosecurity risk associated with the aircraft or any person or thing on board the aircraft is unacceptable and that biosecurity measures cannot be taken to reduce the risk to an acceptable level (clause 241(3)). If the direction relates to a human health risk, it may only be given if the chief biosecurity officer or a human biosecurity officer is satisfied that the direction is necessary to manage human health risks associated with the aircraft or any person or thing on board the aircraft (clause 242(2)). Prior to issuing a direction under clause 206, 241 or 249 the Director of Biosecurity must also take into account the principles affecting decisions to exercise certain powers (clause 32), including considering the impact of issuing the direction on any persons on board the conveyance. Directions given under clauses 241 and 249 must be revoked if the level of biosecurity risk is no longer unacceptable. Operators could also reasonably be expected to be aware of the first point of entry and biosecurity entry point requirements set out in clauses 237, 238, 246 and 248 as they are common requirements relating to international travel. Chapter 5 Clause 303 enables the Director of Biosecurity to exercise a range of powers with respect to the movement of a vessel for the management of ballast water, including keeping a vessel out of a port or requiring the vessel to remain at a specified place. This clause is necessary for the legitimate objective of preventing significant damage to Australia`s marine environment and adverse affects to related industries. For example, a vessel may be ordered to remain at a specified place to investigate whether an offence has been committed, or, if an offence has been committed, to prevent any further risk of the spread of exotic pests or diseases from the release of ballast water held on the vessel. This will help to ensure that the objects of the Bill in relation to ballast water–to provide for managing the biosecurity risks related to ballast water and to give effect to Australia`s international rights and obligations–are met and maintained. Clause 303 is necessary to achieve this objective because the ability to regulate the movement of vessels is required to prevent potential threats to the marine environment and to ensure the overall effectiveness of the ballast water management regime. However, this clause may operate to limit the right to free movement, for example where a direction requiring a vessel to stay out of a port results in individuals being hindered from immediately disembarking the vessel at port. The Director of Biosecurity may only issue a direction under clause 303 if they have clear grounds for believing that an offence against Chapter 5 has been committed. Additionally, they must take into account the principles affecting decisions to exercise certain powers (clause 32). There is no requirement that individuals must remain on board a vessel subject to a direction. A decision under this clause is a reviewable decision under clause 574. Further, if a vessel is unduly detained or delayed, the Commonwealth is required to pay reasonable compensation for any losses or damage incurred by the owner of the vessel as a result of the detention or delay (clause 307). 30


Chapter 6 Clauses 365, 366, 367 and 370 enable the Director of Biosecurity to declare a biosecurity response zone, determine powers that may be exercised in the zone and enable biosecurity officers to exercise those powers. These powers include setting entry and exit requirements, including directing persons to leave the zone (clause 367(c)). These clauses are necessary for the legitimate objective of managing biosecurity risk posed by diseases and pests in a biosecurity response zone. However, these clauses may operate to limit the right to freedom of movement as they may prevent individuals from entering or exiting a biosecurity response zone. The Director of Biosecurity may only declare a biosecurity response zone under clause 365 if a biosecurity officer suspects, on reasonable grounds, that a disease or pest that poses an unacceptable biosecurity risk may be present in or on goods or premises in the area and the Director is satisfied that it is necessary to declare a zone for the purpose of managing the biosecurity risk posed by the pest or disease. Directions to leave a biosecurity response zone under clause 367 may only be for a maximum of 24 hours. Additionally, the Director must take into account take into account the principles affecting decisions to exercise certain powers (clause 32) when making a decision under Chapter 6. Chapter 8 Clauses 445 and 446 enable the Agriculture Minister to determine emergency requirements, give directions and take actions during a biosecurity emergency period, including restricting or preventing the movement of persons, goods or conveyances or causing goods or conveyances to be removed from specified places. These clauses are necessary to achieve the legitimate objective of dealing with biosecurity emergencies of national significance; however, they may operate to limit the right to free movement. The Agriculture Minister may only determine a requirement under clause 445 if he or she is satisfied that it is appropriate and adapted to prevent or control the establishment or spread of the declaration disease or pest in Australian territory or part of Australian territory. In giving a direction requiring a person not to enter premises under clause 446, the Minister (including delegated officers such as the Director of Biosecurity, biosecurity officers, biosecurity enforcement officers, or a national response agency executive) must be satisfied that the direction is appropriate and adapted to preventing or controlling the establishment or spread of the declaration disease or pest in Australian territory. Before the Agriculture Minister makes a decision to exercise a power under clause 446, the Minister must also be satisfied of a range of protections (listed in clause 447), including: that exercising the power is likely to be effective, or contribute to, achieving the purpose for which the power is to be exercised the manner in which the requirement is applied is no more restrictive or intrusive than is required in the circumstances if the power is to be exercised in relation to an individual, that the power is no more restrictive or intrusive than required in the circumstances, and if the power is exercised during a period, that the period during which the power is to be exercised is only for as long as necessary. Similarly, clauses 477 and 478 enable the Health Minister to determine requirements, give directions, or take actions during a human biosecurity emergency period including restricting or preventing the movement of persons, goods or conveyances. These clauses are necessary to achieve the legitimate objective of dealing with biosecurity emergencies of national significance. However, they may operate to limit the right to free movement. 31


The Minister must be satisfied that a requirement or direction is necessary to: prevent or control the entry of the listed human disease into Australian territory, or the emergence, establishment or spread of the listed human disease in Australian territory; prevent or control the spread of the listed human disease to another country; or give effect to a recommendation made by the World Health Organization under the International Health Regulations (clauses 477 and 478). Before determining a requirement, the Health Minister must also be satisfied that of a range of protections, including: that the requirement or direction is likely to be effective, or contribute to, achieving the purpose for which it is to be determined the requirement or direction is appropriate and adapted to achieve the purpose for which it is to be determined the requirement or direction, or the manner in which the requirement is to be applied, is no more restrictive or intrusive than is required in the circumstances, and that the period during which the requirement or direction is to be exercised is only as long as necessary. A direction under 478 must not require an individual to be subject to biosecurity measures that may be set out in a human biosecurity control order, such as isolation, treatment or movement measures. This means that these more invasive or restrictive measures can only be required if the criteria relating to biosecurity control orders are met. Chapter 11 Clauses 618 to 624 of Chapter 11 set out a scheme by which the Director of Biosecurity and the Director of Human Biosecurity may jointly declare parts of Australian territory to which a modified version of certain parts of Chapters 2, 3 and 4 apply. The scheme will be used to manage biosecurity risks associated with parts of Australian territory that have a different risks status to the rest of Australian territory, such as Christmas Island and the Cocos (Keeling) Islands. It will enable regulation of the movement of people, goods and conveyances between such parts and the rest of Australian territory. These clauses are necessary to achieve the legitimate objective of managing biosecurity risk between parts of Australian territory, however they may operate to limit freedom of movement by, for example, requiring vessels moving between parts of Australian territory to arrive at a first point of entry as if they were arriving from outside Australian territory. Before making a declaration under clause 619 in order to regulate movements between parts of Australian territory, the Director of Biosecurity and the Director of Human Biosecurity must be satisfied that there is an unacceptable level of biosecurity risk associated with the movements if they are not regulated, and the application of the affected provisions because of the proposed declaration is appropriate and adapted to managing biosecurity risks associated with the movements. Summary: The right to freedom of movement under Article 12 of the ICCPR may be permissibly limited in these instances because these clauses are necessary for the protection of public health, and the protection of the rights and freedoms of others (for example, the right to an adequate standard of living, including food, water and housing under Article 11(1) of the ICESCR). A range of tests and protections also apply to ensure the exercise of these powers is reasonable and proportionate to the legitimate objective and that adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion. 32


Right to the presumption of innocence (reverse burden provisions) Article 14(2) of the ICCPR states that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. The right to presumption of innocence is also a fundamental common law principle. Laws which shift the burden of proof to a defendant, commonly known as reverse burden provisions`, can be considered a limitation of the presumption of innocence. This is because a defendant`s failure to discharge a burden of proof or prove an absence of fault may permit their conviction despite reasonable doubt as to their guilt. This includes where an evidential or legal burden of proof is placed on a defendant. When a defendant bears an evidential burden in relation to an exception it means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. This can be justified in circumstances where the facts in question are peculiarly within the knowledge of the defendant. Reverse burden offences will not necessarily be inconsistent with the presumption of innocence provided that the reverse burden pursues a legitimate objective and is reasonable, necessary and proportionate to achieving that objective. Whether a reverse burden provision impermissibly limits the right to the presumption of innocence will depend on the circumstances of the case and the particular justification for the reverse burden. The Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) notes that placing the burden of proof on the defendant should be limited to where the matter is peculiarly within the knowledge of the defendant and where it is significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. The Guide also notes that a reverse burden provision is more readily justified if: the matter in question is not central to the question of culpability for the offence the penalties are at the lower end of the scale, and the conduct proscribed by the offence poses a grave danger to public health or safety. An additional factor to consider is whether the offences only impose an evidential burden (as the prosecution must still disprove the matters beyond reasonable doubt if the defendant discharges the evidential burden). The Bill may operate to limit the right to be presumed innocent through imposing an evidential burden on the defendant in relation to a range of matters. Clauses in which an evidential burden is imposed on the defendant, and where strict liability applies, are outlined below. Chapter 4 of the Guide was considered in the development of these clauses and is considered consistent with the proposed reverse burden of proof. Agreement of the Attorney-General was also received in relation to these clauses. The following clauses include offences for which an exception applies if a person is authorised to engage in the conduct under the Act or another Australian law: clause 48 (allowing goods to be unloaded or loaded, or people to embark or disembark, before pratique has been granted) clause 151 and paragraph152(2)(a) (unloading, receiving or possessing goods from a vessel displaying the prescribed quarantine signal) clauses 216, 330, 351 and 457 (dealing with goods or conveyances to which a notice is affixed) clause 376 (interfering with equipment set up in biosecurity response zone). 33


It is necessary that the defendant bears the evidential burden in these clauses in order to achieve the legitimate objective of ensuring the objects of the Act are met. These clauses are reasonable and proportionate to the legitimate objective because the defendant will have the information or knowledge that is evidence of the exception (that they were authorised by law to undertake the conduct). A number of civil penalty provisions in the Bill place an evidential burden on the defendant, including: clauses 129, 139, 203, 214, 322, 363, 373, 374, 381, 382, 391, 392, 401 and 456 (interfering, removing or defacing notices or biosecurity control orders) clauses 130, 204 and 323 (moving goods or conveyances to which a direction has been given or notice affixed) clause 393(interfering with equipment set up in biosecurity monitoring zone), and clauses 601 and 607 (moving or interfering with withheld goods or detained conveyances). These provisions are unlikely to be classified as criminal for the purposes of human rights law, given they operate in a regulatory context and, while they impose not insubstantial pecuniary penalties, they are not of a level of severity that would justify classification as ‘criminal’ (see assessment of civil penalties at page 21). However, if they were considered criminal, their inclusion would still be justified based on the reasoning set out above in relation to authorised persons. Clause 438, 439 and 532 create civil penalties for giving false or misleading information or documents. These also place an evidential burden on the defendant in relation to proving that the information or documents were not false or misleading in a material particular (that is, they must provide evidence that the misleading information is trivial or inconsequential). These clauses are necessary to achieve the legitimate objective of ensuring information provided to a biosecurity industry participant is correct. These clauses are reasonable and proportionate to the legitimate objective because the defendant will have the information or knowledge that is evidence of the exception (that the information or documents were not relevant). These clauses also provide an exception where a biosecurity industry participant (or official in clause 532) has failed to take reasonable steps to inform the person that they may be liable to a civil penalty for contravening the provision. The defendant bears the evidential burden with respect to these exceptions, as whether or not a person has been informed that they may be liable to a civil penalty provision for contravening this clause is something peculiarly within the knowledge of that person. It would be difficult for the prosecution to provide evidence that the person has been informed when this evidence can only be known by that person and the biosecurity industry participant. It would also be significantly more difficult and costly for the prosecution to provide evidence that a document is false or misleading than for a defendant to provide evidence of the matter themselves. A number of other clauses in Chapters 3, 5 and 10 also place the evidential burden of proving exceptions to an offence on the defendant. Chapter 3 Clause 120 creates an offence for not giving notice of goods that are, or are intended to be, unloaded in Australian territory. The defendant bears the evidential burden of proving any exceptions, which will be prescribed in the regulations. This clause is necessary in order to achieve the legitimate objective of assessing the biosecurity risk of goods that are, or are intended to be brought into Australian territory. This clause is reasonable and proportionate to the legitimate objective because the defendant will have the information or knowledge that is evidence of the exception (for example, that their goods were brought in as accompanied baggage, if such 34


an exception were prescribed). Any exceptions prescribed under this clause will be consistent with the principles set out in the Guide. Clauses 143 and 188 create offences relating to bringing or importing goods into Australian territory. These offences contain exceptions where the defendant bears the evidential burden of proving the exception (for instance under subclause 143(7) a defendant may rely upon the exception that they contravened the direction because they issued the same direction to another person who failed to comply with it). It is necessary that the defendant bears the evidential burden in these clauses in order to achieve the legitimate objective of ensuring goods that potentially pose a biosecurity risk may be located by biosecurity officials. These clauses are reasonable and proportionate to the legitimate objective because the defendant will have the information or knowledge that is evidence of the exception. For example, under clause 188 (receiving or possessing prohibited goods etc brought or imported into Australian territory) if the defendant did not bring or import the goods into Australian territory, the information or facts about how they obtained the goods, such as information about where they purchased them, will be uniquely in their knowledge. A number of clauses in Chapter 3 create offences relating to moving, possessing or receiving certain goods, including; receiving or possessing goods unloaded from an aircraft or vessel in contravention of Division 6 of the Chapter (clause 149), receiving or possessing goods unloaded from an aircraft or vessel displaying the prescribed quarantine signal (clause 153) and receiving or possessing prohibited goods (clause 188). These offences contain exceptions where the defendant bears the evidential burden of proving the exception (for example, proving that they did not know that the goods they received were in contravention of Division 6). It is necessary that the defendant bears the evidential burden in these clauses in order to achieve the legitimate objective of ensuring the biosecurity risk associated with the goods is managed. These clauses are reasonable and proportionate to the legitimate objective because the defendant will have the information or knowledge that is evidence of the exception. Clause 186 creates a basic offence for contravening conditions applying to conditionally non- prohibited goods, and additional offences for doing so and obtaining commercial advantage, causing harm to the environment or causing economic consequences. This clause contains an exception to these offences where the person did not do (or omit to do) the act that constituted the failure to comply with the condition, did not aid, abet, counsel or procure the act or omission and was not in any way knowingly concerned in or party to the act or omission. The defendant bears the evidential burden of proving the exception. This is necessary in order to achieve the legitimate objective of ensuring that conditions relating to precenting biosecurity risk material being brought into Australian territory are not contravened. This clause is reasonable and proportionate to the legitimate objective because the defendant will have the information or knowledge that is evidence of the exception (for example, if a condition is that a permit must be obtained to being in the goods they will be able to produce the permit). Chapter 4 Clause 193 creates an offence for failing to give a pre-arrival report. Exceptions to this requirement may be prescribed in the regulations; the defendant will bear the evidential burden of proving any exception. This is necessary in order to achieve the legitimate objective of ensuring pre-arrival reports are provided and risks associated with incoming goods, conveyances and people can be assessed and managed. This clause is reasonable and proportionate to the legitimate objective because the defendant will have the information or knowledge that is evidence of the exception. 35


Chapter 5 Clauses 271, 276, 277, 279, 282, and 283 provide exceptions to the offence of discharging ballast water in Australian seas provided for in clause 270. For example, it is an exception that ballast water has been managed for discharge, that discharge is part of an acceptable ballast water exchange, or that ballast water was taken up and discharged at the same place. The defendant bears the evidential burden with respect to these exceptions. In addition, the defendant bears the evidential burden of proving an exception for the following clauses: clause 284, which creates an offence for failing to report a discharge of ballast water relating to an emergency, an accident or to minimise pollution clause 294, which creates an offence in relation to failing to keep requisite records in relation to an Australian vessel`s ballast water management system clause 299, which provides a exception to the offence of disposing sediment in Australian seas (under clause 298), and clause 305, which provides an offence for contravening a direction under Division 3 of Part 6 of Chapter 5. A similar justification applies to these clauses in that the defendant will have the information or knowledge that is evidence of the exception (that is, they will have the appropriate records, such as the ship`s log, to show they did not commit the offence). It is necessary that the defendant bears the evidential burden in these Chapter 5 clauses in order to achieve the legitimate objective of ensuring the biosecurity risk associated with ballast water is appropriately managed in Australian seas. These clauses are reasonable and proportionate to the legitimate objective because the defendant will have the information or knowledge that is evidence of the exception. Chapter 10 Clause 571 creates an offence where a person fails to return an identity card in the prescribed circumstances. The defendant bears the evidential burden of proving the exception that the identity card was lost or stolen. It is necessary that the defendant bears the evidential burden in this clause in order to achieve the legitimate purpose of preventing identity cards from being obtained and used by unauthorised persons. This clause is reasonable and proportionate to the legitimate objective because the defendant will have the information or knowledge that is evidence of this exception, and also because the penalty for this offence is low (one penalty unit). Summary: The offence-specific exceptions included in the Bill are compatible with Article 14(2) of the ICCPR. In consideration that the offences specified above: impose an evidential, rather than legal, burden on the defendant, and the burden relates to facts which are readily within the person`s knowledge the offences are necessary, reasonable and proportionate to the legitimate objective of protecting Australia`s human, plant and animal health, and the environment and economy. Right to the presumption of innocence (strict liability offences) Article 14(2) of the ICCPR states that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. The right to presumption of innocence is also a fundamental common law principle. When strict liability` applies to an offence, the prosecution is only required to prove the physical elements of an offence, they are not required to prove fault elements, in order for the defendant to be found guilty. The defence of honest and reasonable mistake of fact is available to the defendant 36


(see section 9.2 of the Criminal Code). Strict liability is used in circumstances where there is public interest in ensuring that regulatory schemes are observed and it can reasonably be expected that the person was aware of their duties and obligations. Strict liability offences can be considered a limitation of the presumption of innocence because the defendant can be found guilty without the prosecution being required to prove fault. Strict liability offences will not necessarily be inconsistent with the presumption of innocence provided that removal of the presumption of innocence pursues a legitimate objective and is reasonable, necessary and proportionate to achieving that objective. Whether a strict liability provision impermissibly limits the right to the presumption of innocence will depend on the circumstances of the case and the particular justification for an offence being a strict liability offence. The Bill contains some strict liability offences. These offences have been used when there is a strong public interest in managing biosecurity risks appropriately and preventing serious damage to human, plant and animal health, local industries, the economy and the environment. The application of strict liability in the Bill and the offences to which it relates have been developed in line with the Senate Standing Committee for the Scrutiny of Bills Sixth Report of 2002 on Application of Absolute and Strict Liability Offences in Commonwealth Legislation and the Guide, except for the Chapter 5 offences which impose higher maximum penalties than those recommended in the Guide. Agreement of the Attorney-General was received in relation to these clauses. The offences in the Bill to which strict liability applies are outlined below. Chapter 2 Clause 58 provides a strict liability offence where a person fails to comply with a requirement to either answer a question or provide written information under the information gathering powers of Chapter 2 (clause 58). This strict liability offence for failure to provide required information is necessary to addresses public health risk. The offence is reasonable and proportionate to the legitimate objective as the offence is not punishable by imprisonment and imposes a maximum penalty of 60 penalty units, which is at the lower end of the scale. Information sought relating to listed human diseases is vital to address public health risk and it is essential that as much information is collected as quickly as possible. This information will be uniquely known to the individual and individuals may be able to provide important details about the epidemiology of a disease, the source of a disease and the potential exposure of themselves and other individuals to the disease. Ideally this would occur before exposed individuals have the opportunity to depart the airport and enter the community and potentially spread the disease to family and friends. Wherever possible, the Commonwealth will rely on voluntary disclosure. However, in some circumstances, an individual may be unwilling to disclose information about their health status, potential exposure or travel history. In such cases, the need to address public risk justifies the application of the strict liability offence for failure to provide required information. The monitoring and investigation powers available in Chapter 9 are not appropriate for this purpose as the information being sought must be collected as soon as possible to allow effective management. This is because the Chapter 9 powers have a number of restrictions around them (such as judicial approval of warrants) that reduce their responsiveness in these circumstances. Clause 37 provides special protections for individuals who may be temporarily incapable of understanding requirements or complying with a measure due to illness. An incapable person who 37


is not accompanied by a parent, guardian or other authorised person must not be subject to a requirement under Chapter 2. Chapter 3 Chapter 3 provides a strict liability offence where a person receives or has in their possession prohibited or suspended goods brought or imported into Australian territory (clause 188). The clause provides exceptions that are additional to the defence of honest and reasonable mistake of fact that is available under section 9.2 of the Criminal Code. These include where the goods were not brought or imported into Australian territory, the goods were not prohibited or suspended at the time they were brought in, or the goods are the progeny (offspring) of other goods that were legally brought or imported into Australian territory. This offence is necessary to achieve the legitimate objective of deterring conduct which involves receiving or possessing goods which pose an unacceptable biosecurity risk. It is reasonable and proportionate to the legitimate objective as the offence is not punishable by imprisonment, the penalty is low (maximum 60 penalty units) and additional exceptions are available. Chapter 4 Chapter 4 provides a strict liability offence where a person in charge of a conveyance fails to display the prescribed quarantine signal in the circumstances and manner prescribed by the regulations (clause 221). The defence of honest and reasonable mistake of fact under section 9.2 of the Criminal Code applies to the clause. This offence is necessary to achieve the legitimate objective of ensuring the requirement to display the prescribed quarantine signal is met. The offence is reasonable and proportionate to the legitimate objective as it is not punishable by imprisonment and imposes a maximum penalty of 50 penalty units, which is at the lower end of the scale. Chapter 5 Chapter 5 contains strict liability offences where: a person in charge or operator of a vessel in Australian seas discharges ballast water (subclause 270(3)) – 500 penalty units a person in charge or operator of a vessel in Australian seas discharges ballast water for the purpose of safety, accident or pollution minimisation and fails to comply with reporting requirements under subclause 284(4) – 500 penalty units a person in charge of a vessel does not have a ballast water management system as required by subclause 292(2) – 200 penalty units a person in charge of a vessel fails to make a record of ballast water operations and the disposal of sediment in accordance with subclause 293(3) – 200 penalty units a person in charge of a vessel fails to retain records in accordance with subclause 294(4) – 200 penalty units a person in charge or operator of a vessel in Australian seas disposes sediment, other than to a sediment reception facility (subclause 298(3)) – 500 penalty units the owner of an Australian vessel fails to produce a ballast water record, or a copy of the record, in accordance with subclause 301(4) – 80 penalty units, or a person in charge of a vessel fails to comply with a direction under Division 3, Part 6 (subclause 305(1)) – 2000 penalty units. The defence of honest and reasonable mistake of fact under section 9.2 of the Criminal Code is available for the above ballast water offences. Some of these offences contain additional exceptions: exceptions to the offence under subclause 270(3) are contained in Divisions 3 to 8 of Part 2 of Chapter 5; exceptions to the offence under subclause 284(4) are contained in clauses 271, 276, 277, 279 and 282; clause 299 sets out specific exceptions in relation to the offence under subclause 298(3); and subclauses 305(2), 305(3) and 305(4) set out exceptions available to the offence under clause 305. 38


The application of strict liability in these clauses is necessary for the legitimate objective of preventing potentially significant damage to Australia`s marine environment and adverse affects to related industries. They will help ensure that the objects of the Bill in relation to ballast water are met and maintained and give effect to Australia`s international rights and obligations. These strict liability offences are necessary to achieve this legitimate objective because they are imposed in order to effectively deter contravention of ballast water obligations under the Act. The application of strict liability in the above clauses is consistent with the Ballast Water Convention. Where relevant, the penalties for these clauses are consistent with equivalent offences and penalties in the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (see in particular sections 21, 22(1B)(1), 22(1B)(3), 23(5), 25(3), 27(1)(m), 27(2) and 27A(5)). These higher maximum penalties are proportionate given the potentially significant harm to the marine environment that could be cause by the commission of the offences. Additionally, the clauses are only directed at persons in charge, operators or owners of vessels, who can be expected to be responsible and aware of the requirements of the legislation. Therefore due to the regulatory nature of the scheme and the availability of exceptions for these clauses, the high penalties are reasonable, proportionate and necessary to achieve the legitimate objective of effective management of ballast water in Australian seas. Chapter 10 Clause 556 contains a strict liability offence where a person does not comply with a direction given by a biosecurity officer to provide suitable and sufficient food and sleeping accommodation for the officer. This offence is necessary to achieve the legitimate objective of enabling an officer to perform functions or duties, or exercise powers under the Biosecurity Act. This strict liability offence is reasonable and proportionate to the legitimate objective as it is not punishable by imprisonment and imposes a maximum penalty of 10 penalty units, which is at the lower end of the scale. Clause 571 contains a strict liability offence where a person has been issued with an identity card and does not return it within 14 days of ceasing to be an officer. This offence is necessary to achieve the legitimate objective of ensuring that identity cards cannot be obtained and misused by persons that are not authorised under the legislation. The offence is reasonable and proportionate to the legitimate objective as it is not punishable by imprisonment and imposes a maximum penalty of one penalty unit, which is at the lower end of the scale. Summary: The strict liability offences included in the Bill are compatible with Article 14(2) of the ICCPR. In consideration that the offences specified above: are not punishable by imprisonment have comparatively low penalties (or where higher penalties apply, they are justified) make available a range of exceptions, and the offences are necessary, reasonable and proportionate to the legitimate objective of protecting Australia`s human, plant and animal health, and the environment and economy. Right to be free from self-incrimination Article 14(3)(g) of the ICCPR protects the right of an individual to be free from self-incrimination in the determination of a criminal charge by providing that a person may not be compelled to testify against him or herself or confess guilt. The common law also recognises the privilege against self-incrimination which applies unless expressly or impliedly overridden by statute. The privilege against self-incrimination may be subject to permissible limits. Any limitations must be for a legitimate objective and be reasonable, necessary and proportionate to that objective. Chapters 2 through 9 contain clauses which may operate to limit this right. 39


The Bill operates to limit the right to be free from self-incrimination in certain circumstances by expressly removing the privilege against self-incrimination in the following information-gathering clauses of the Bill (as listed in clause 635): clauses 44, 45, 69, 70, 85 and Division 6 of Part 2 of Chapter 2 (information gathering powers for human biosecurity) clauses 120, 121, 122, 126 and 127 (requiring a person to answer questions or produce documents to assess the level of biosecurity risk of goods brought into Australian territory) clauses 193, 194, 195, 196, 200 and 201 (requiring a person to answer questions or produce documents to assess level of biosecurity risk of conveyances entering Australian territory) clauses 267 and 268 (reporting ballast water discharges in Australian seas) clauses 319 and 320 (requiring a person to answer questions or produce documents relating to goods or premises for the purpose of assessing biosecurity risk) subclause 437(1) (audit powers in relation to approved arrangements) clauses 450 and 451 (requiring a person to answer questions or produce documents relating to biosecurity emergencies) clauses 481 and 484 (requiring information for monitoring and investigation purposes) Removing the privilege in these circumstances is necessary to achieve the legitimate objective of effective assessment and management of biosecurity risks to human, plant and animal health, the environment and the economy. Upholding the privilege in relation to individuals who have information regarding a potential biosecurity or human biosecurity risk could have significant consequences such as contagion of a listed human disease, reduced agriculture, fisheries or forestry productivity, serious environmental damage or increased costs associated with controlling pests and diseases. An animal disease outbreak (such as foot-and-mouth disease) has the potential to cause significant and long term damage to Australian industries and the reputation of Australia as a reliable producer of quality food and fibre. Whilst in some cases it may be feasible to obtain information by other means (for example, warrants), the additional time taken to obtain such information may significantly increase the risk of a disease or pest entering, establishing or spreading to Australia, or within Australian territory. Without these limitations, the Commonwealth`s ability to manage biosecurity risks through a responsive, evidence-led approach will be significantly reduced. Removal of the privilege ensures that the assessment of biosecurity risk and application of response measures can occur as urgently as necessary and reflects the magnitude of the potential impacts biosecurity risks pose to Australia. These limitations are reasonable and proportionate to achieving the objective, as clause 635 provides that self-incriminatory disclosures cannot be used against the person who made the disclosure either directly in court (use immunity) or indirectly to gather other evidence against the person (derivative use immunity). The only exception to the use and derivative use immunity are in relation to proceedings arising out of sections 137.1 and 137.2 of the Criminal Code (in relation to false and misleading information and documents) and proceedings for the contravention of clause 532 and 533 of the Bill (in relation to false and misleading information and documents). Summary: These limitations of the right to be free from self-incrimination under Article 14(3)(g) of the ICCPR are permissible as protections apply to ensure the exercise of these powers is reasonable and proportionate to achieving the legitimate objective and adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion. 40


Right not to be tried or punished again for an offence for which a person has already been finally convicted or acquitted Article 14(7) of the ICCPR prohibits an individual from being tried or punished again for an offence for which he or she has already been finally convicted or acquitted in accordance with the law and penal procedure of each country–commonly known as the prohibition on double jeopardy. This prohibition is limited to proceedings relating to a criminal charge. Despite this limitation however, the approach under international and comparative human rights law has been to look at the substance and the effect of the proceedings themselves, rather than their label under domestic law, when determining whether a proceeding relates to a civil or criminal charge. From an international perspective therefore, it is possible for a civil penalty provision which subjects a person to a significantly high penalty that is intended to be punitive or deterrent in nature to constitute a criminal charge` for the purposes of the prohibition on double jeopardy. The civil penalty provisions contained in the Bill are a distinct penalty regime from criminal sanctions and provide a proportionate and effective mechanism to punish actions that may contravene Australia`s biosecurity laws. The civil penalty provisions under the Bill cannot be used to subject a person to imprisonment. Subclause 520(1) of the Bill provides that a court may not make a civil penalty order under Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act) against a person for a contravention of a civil penalty provisions of the Bill where the person has been convicted of an offence under an Australian law or 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 conduct constituting a contravention under the Biosecurity Act. This protects a person from being penalised twice for the same conduct under Australian law. Similarly, subclause 520(2) provides for a stay of proceedings for a civil penalty order under the Biosecurity Act during corresponding criminal or civil proceedings. Clause 520 modifies the application of Part 4 of the Regulatory Powers Act, which provides for the circumstances where a court may not make a civil penalty order, may stay proceedings and may commence proceedings to take into account interactions between Commonwealth and state or territory legislation. This has been done to address the potential for an individual to contravene a civil penalty or criminal provision under both a Commonwealth and state or territory law due to the same activity. This departure has been agreed to by the Attorney-General`s Department. Summary: Given the operation of these clauses it is unlikely that a person convicted of a civil offence under the Bill will become subject to an additional proceeding for conduct that is the same or substantially the same as the conduct constituting the first offence unless new evidence relating to the conduct comes to light. The practical operation of these provisions, as well as the usual operation of the rules of evidence, makes it highly unlikely that Article 14(7) would be engaged by the operation of the civil penalty provisions of the Bill. Right to protection from arbitrary interference with privacy Article 17 of the ICCPR protects the right to be free from arbitrary or unlawful interference with an individual`s privacy, family, home or correspondence. This right may be subject to permissible limitations where those limitations are provided by law and are non-arbitrary. In order for limitations not to be arbitrary, they must seek to achieve a legitimate objective and be reasonable, necessary and proportionate to this purpose. Chapters 2, 3, 4, 6, 7, 8, 9, and 10 contain clauses which may operate to limit this right. Chapter 2 Entry and exit requirements under clauses 44 and 45 may include requirements to provide declarations or evidence relating to an individual`s health status or medical treatments, or 41


information on where they have travelled prior to entering Australia. For example, individuals may be required to produce evidence that they have received a vaccination for yellow fever if they have travelled through an area where there is a risk of yellow fever transmission. To ensure that these requirements are a proportionate and legitimate restriction of an individual`s privacy, these requirements apply only for the purposes of preventing the entry, establishment and spread of listed human diseases in Australian territory, preventing listed human diseases from spreading to another country, or on recommendation by the World Health Organization under the International Health Regulations. Clause 51 provides that the Health Minister may determine preventative biosecurity measures to be taken by classes of persons. This may include, for example, requiring blood samples from individuals for testing. These requirements may only apply for the purpose of preventing behaviour or practice that may cause, or contribute to, a listed human disease entering, emerging, establishing itself or spreading in Australian territory. The Health Minister must also be satisfied that the measure is appropriate and adapted to prevent, or reduce, the risk of the disease entering, emerging, establishing itself or spreading in Australian territory. The determination may only be in force for a period of up to one year. Clauses 55 and 56 enable officers to ask questions and require answers from individuals. In certain situations, it may be vital that officers can quickly obtain information from individuals in order to prevent the entry, emergence, establishment or spread of listed human diseases. Wherever possible, the Commonwealth will rely on voluntary disclosure of this information, however in some circumstances an individual may be unwilling to disclose information about their health status, potential exposure and travel history. In such cases, the need to address public risk will justifies the requirement for individuals to answer questions or provide documents under these clauses. To ensure that there is no arbitrary interference with an individual`s privacy, the requirement to provide information under clauses 55 and 56 must be for the purposes of preventing a listed human disease from entering, emerging, establishing or spreading in Australian territory, or preventing a listed human disease from spreading to another country. Biosecurity officials may only ask questions and require documents if they are satisfied that an individual has been exposed to a listed human disease; exposed to another individual who has signs or symptoms of a listed human disease; the questions relate to human remains or an individual who has died in transit or on arrival in Australia, or; the person is subject to a human biosecurity control order or in a human health response zone. Clause 69 enables an officer who intends to impose a human biosecurity control order to require an individual to provide prescribed contact information for the individual. This clause is necessary for the legitimate objective of ensuring an individual who may have a listed human disease can be contacted. The protections in Chapter 11 described at the end of this section would apply to the collection and storage of this information. Clause 85 provides that a human biosecurity control order may require an individual to provide an officer with prescribed contact information for any individual with whom the person has been, or will be, in close proximity to. A range of criteria must be met in order for a human biosecurity control order to be imposed, including that the officer imposing the order must be satisfied that the individual has one or more signs or symptoms of a listed human disease, or has been exposed to a listed human disease (or another individual who has signs or symptoms of a listed human disease), or has failed to comply with an entry requirement under clause 44. The principles of general protection (clause 34) must also be met before the order is imposed. This clause is necessary for the legitimate objective of ensuring that individuals who may have been exposed to a listed human 42


disease can be contacted, and if necessary, assessed and treated. This clause constitutes an authorisation for the purposes of the Privacy Act 1998. Clause 91 provides that an individual may be required by a human biosecurity control order to provide body samples for diagnosis. This clause only applies for the purpose of determining the presence in the individual of listed human diseases and if the individual has undergone examination under clause 90. A range of criteria must be met in order for a human biosecurity control order to be imposed, as outlined above in relation to clause 85. If a person does not consent to providing body samples for diagnosis, they may make an application under the Administrative Decisions (Judicial Review) Act 1977 for review of the direction to comply (clause 80). Chapter 2 also provides for sharing of personal information between agencies in specific circumstances. If an individual is subject to a traveller movement measure in a human biosecurity control order, clause 98 includes a requirement that the following Commonwealth bodies are notified using a travel movement measure alert: the Agriculture Department the Immigration Department the Foreign Affairs Department the Australian Customs and Border Protection Service, and the National Focal point. To protect an individual`s privacy, the alert is restricted to the specified Commonwealth bodies, all of whom have responsibility relating to the movement of conveyances, goods and passengers into and from Australia. In addition, clause 98 restricts the information which can be shared to ensure that only the information necessary to clearly identify the individual subject to the measure and any known travel details of that individual. A traveller movement measure alert informs the responsible Commonwealth bodies to ensure ill passengers are prevented from boarding a passenger airline or vessel. This manages the risk of contagion to other passengers in the confines of a passenger aircraft or vessel and the risk of spread of a listed human disease to another country. To protect an individual`s privacy and reputation, clause 98 specifies that traveller movement alerts must be destroyed within six months of no longer being in force. Part 2 of Chapter 11 also includes a range of protections relating to the collection, storage and disclosure of protected information. Clause 580 provides that only certain persons may collect, disclose, or use information, and that they may only do so for a permissible purpose (a purpose which promotes the objects of the Act). Clause 585 provides an offence for improper collection or use of protected information. Chapters 3, 4 and 5 These chapters contain clauses allowing a biosecurity officer to ask questions or to require persons to provide documents (clauses 126, 127, 200 and 201) and provide reports or notices to enable assessment of the risk associated with goods or conveyances in Australian territory, or intending to enter Australian territory (clauses 120, 121, 122, 194, 195, 196, 267 and 268). By exercising powers to ask questions or require persons to provide documents, notices or reports, a biosecurity officer may incidentally require the provision of personal information. These clauses are necessary for the legitimate objective of assessing the level of biosecurity risk associated with goods or conveyances in, or intending to enter, Australian territory. Biosecurity officers need access to this information in order to properly assess the level of biosecurity risk associated with the goods or conveyances and then to be able to manage any biosecurity risks appropriately. However, the 43


collection, use, storage and sharing of personal information may operate to limit the right to privacy. The application of clauses 124, 125, 200 and 201 is restricted to circumstances where a biosecurity officer suspects on reasonable grounds that a person or persons has relevant information or documents required to achieve the legitimate objective of assessing the level of biosecurity risk. Reporting and notification obligations under clauses 120, 121, 122, 194, 195, 196, 267 and 268 apply only in particular circumstances and the persons required to provide the information (such as the owner or operator of the aircraft or vessel) can be reasonably expected to be aware of these obligations. Additionally, Part 2 of Chapter 11 includes a range of protections relating to the collection, storage and disclosure of protected information. Clause 580 provides that only certain persons may collect, disclose, or use information and that they may only do so for a permissible purpose (a purpose which promotes the objects of the Act). Clause 585 also provides an offence for improper collection or use of protected information. Chapter 6 This chapter provides for powers to enter premises (clause 315) and for powers to be exercised on those premises, including the ability to ask questions about goods or premises (clause 319), require documents to be produced and take extracts or copies of documents (clause 320) and inspect and sample anything on the premises (clause 318). These powers are necessary for the legitimate objective of assessing the level of biosecurity risk associated with the premises. Without these powers biosecurity officers would not have sufficient information to effectively assess or manage onshore biosecurity risks. However, these clauses may operate to limit the right to protection from arbitrary interference with privacy by enabling the entry of premises, including residential premises, the searching of premises and the taking of documents which may include personal information. These powers can only be exercised in particular circumstances and reflect the serious harm that may be caused by biosecurity risks arising onshore. The principles affecting decisions to exercise certain powers (clause 32) apply to all decisions made under Chapter 6. Additionally, entry to premises under Chapter 6 is only allowed with consent or a warrant. A warrant to enter premises may only be granted if there are reasonable grounds for suspecting that a pest or disease that poses an unacceptable level of biosecurity risk may be present on the premises, or it is reasonably necessary to monitor whether such a pest or disease has entered, established itself or spread in the premises. Officers entering premises under a warrant must also provide identification to the appropriate person for the premises (clause 502). Chapter 8 This chapter provides for powers to control the establishment or spread of a declared disease or pest in Australian territory during a biosecurity emergency period (such as a severe and widespread outbreak of foot-and-mouth disease that affects multiple Australian states). Such powers include the power to ask questions or require documents to be produced (clauses 450 and 451) and enter premises without a warrant or consent (clause 470). These powers are necessary for the legitimate objective of managing biosecurity risks during a biosecurity emergency period. If these powers were not provided for, biosecurity officers would be unable to gather sufficient information to effectively assess and manage biosecurity risks during an emergency period. However, these clauses may also operate to limit the right to privacy for the same reasons set out above in relation to Chapters 3, 4 and 6. 44


These powers may only be exercised during a biosecurity emergency period, which can only be declared by the Governor-General if the Agriculture Minister is satisfied that a disease or pest poses a severe and immediate threat, or is causing harm, on a nationally significant scale to animal or plant health, the environment or economic activities relating to animals, plants or the environment; and the declaration is necessary to prevent or control the establishment or spread of the disease or pest (clause 443). Additionally, the application of clauses 450 and 451 is restricted to circumstances where a biosecurity officer suspects on reasonable grounds that a person or persons has relevant information or documents required to achieve the legitimate objective. Entry to premises under clause 470 is only allowed during a biosecurity emergency period for the purpose of controlling the establishment or spread of a declared disease or pest in Australian territory. When making a decision to enter premises under clause 470, a biosecurity official must also be satisfied of the principles affecting decisions to exercise certain powers (clause 32). Additional protections include that an enforcement officer entering premises without a warrant under Chapter 8 must announce that he or she is authorised and provide identification (clause 514). The protections in Part 2 of Chapter 11 relating to the collection, storage and disclosure of protected information also apply to these clauses. Further to this, officers would also be required to meet the requirements of the Australian Government Investigations Standards (AGIS), consistent with the Commonwealth Fraud Control Guidelines. This includes the requirement that staff involved in investigations meet minimum levels of training or qualifications and that the department meets the minimum standards for effective and efficient management of investigations, including record keeping. Quality assurance reviews (QAR) of investigations can also be undertaken to establish whether an investigation was conducted in a way that complied with the AGIS. QARs may be conducted by the Australian Federal Police in relation to criminal investigations and, in relation to non-criminal investigations, can be conducted by another agency with the necessary skills and capacity. Chapter 9 This chapter provides for compliance and enforcement powers, including for powers to be drawn from the Regulatory Powers Act. Clause 498 of this chapter and sections 18 and 48 of the Regulatory Powers Act, provide for powers to enter premises, which enables a number of monitoring and investigation powers to be exercised on those premises. These powers include the ability to search the premises, inspect documents or things on the premises, take extracts or copies of documents and sample anything on the premises (sections 19 and 49 of the Regulatory Powers Act and subclauses 482(1), 482(2), 485(1) and 485(2) of the Bill). Additional powers available include the powers to seize evidence (sections 49 and 52 of the Regulatory Powers Act) and ask questions and seek production of documents (sections 24 and 54 of the Regulatory Powers Act). These powers are necessary for the legitimate objective of ensuring that relevant information required under the Act and information required to assess compliance with the Act, is accessible and available to biosecurity officials when required. However, these clauses may operate to limit the right to privacy as they enable entry to premises that may be a person`s residence and inspection, copying and sampling of potentially personal information. Entry to premises is only allowed with consent or a warrant and a warrant to enter premises may only be granted for the purposes of: determining whether the Act has been, or is being, complied with determining whether information supplied for the purposes of the Act is correct, or there are reasonable grounds for suspecting that there may be evidential material on the premises. 45


The threshold tests that are laid out above are designed to ensure that any interference with the right to privacy is lawful and is only to ensure compliance with the Act and manage biosecurity risks. A number of protections are in place to ensure that any interference with the right to privacy is lawful and protect individuals` rights including: obligations on biosecurity enforcement officers when entering with consent or under warrant, which include the requirement that consent of the occupier is only to be given voluntarily; and where entry is with a warrant, the requirement that an announcement must be made before entry and details of the warrant given to the occupier (section 25 to 28, 55 to 58 of the Regulatory Powers Act and clauses 500 to 504 of the Bill), and the limitations on use of force against things (subclauses 482(8) and 485(8) and clause 505 of the Bill). Entry to premises without a warrant is only provided for in specific circumstances listed in clause 513, which include: entering landing places or ports for the purposes of performing function or exercising powers under the Biosecurity Act (clause 252(2)) during biosecurity emergencies (clause 470(1)) entering adjacent premises during a biosecurity emergency for the purpose of gaining access to other premises to exercise powers (clause 472(1)), and monitoring or searching premises at which biosecurity activities are carried out by a biosecurity industry participant that is covered by an approved arrangement, or at a first point of entry (clauses 511 and 512). Protections apply in these circumstances including the requirement for announcement before entry (clause 514) and rights of the appropriate person for the premises (as defined under clause 9) to observe the exercise of powers while on the premises (clause 516). Stakeholders affected by clause 252(2) will be informed of this power through the public release of a determination by the Director of Biosecurity or the Director of Human Biosecurity establishing a place to be a first point of entry. Additionally, entry to premises under this clause is only allowed if the biosecurity official is satisfied of the principles affecting the decision to exercise certain powers (clause 32). Entry to premises without a warrant or consent is provided for in clauses 511 and 512, as the relevant premises relate to an approved arrangement, where consent to entry is implied by the voluntary nature of the arrangement (and will be a condition of the approved arrangement). Additionally, the premises may only be entered during business hours. Entry under clause 512 is limited to situations where a biosecurity officer has reasonable grounds for suspecting that there may be evidential material on the premises. Chapter 9 also provides the Director of Biosecurity and the Director of Human Biosecurity with the ability to apply a fit and proper person test and gather personal information from applicants (clauses 530 and 531). The fit and proper person test is necessary for the legitimate objective of ensuring that persons covered by approved arrangements or who have been granted import permits (including for high risk goods) are persons that are able to appropriately and responsibly manage biosecurity risks. The personal information that is to be supplied under clause 531 is designed to work in conjunction with the fit and proper persons test and will allow confirmation of a person`s identity. These clauses may operate to limit the right to privacy as they expressly require the release of personal information. Clauses 530 and 531 specify that the fit and proper person test and collection of personal information for applications powers can be applied to approved arrangements and import permits. They are not requirements placed on the general public–that is, they only extend to circumstances 46


where the legislation provides a permission based on voluntary application by a person. Additional provisions linking to either the fit and proper persons test or collection of personal information are required to be specified in the regulations. Clause 530 further provides an exhaustive list of the matters that the Director of Biosecurity and Director of Human Biosecurity must have regard to in determining whether a person is fit and proper, for example, whether a person has been convicted of an offence against the Quarantine Act. Additionally, Part VIIC of the Crimes Act 1914 applies to the fit and proper person test. This allows, in certain circumstances, that the person does not need to disclose spent convictions and requires persons who are aware of the spent convictions to disregard the convictions. The above clauses involving the collection, use and storage of personal information are also subject to the confidentiality information clauses (Part 2 of Chapter 11). These limit the circumstances and purposes for which personal information obtained in accordance with the Act can be recorded, disclosed or used (for example, contacting the applicant regarding the application). Additionally, the powers contained in these clauses are required to be exercised in compliance with the Privacy Act 1988, which means that there are additional protections on the use and storage of personal information collected under these clauses. Summary: These limitations of the right to protection from arbitrary interference with privacy under Article 17 of the ICCPR are permissible as tests and protections apply to ensure the exercise of these powers is reasonable and proportionate to achieving the legitimate objective and adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion. Right to freedom of association Article 22 of the ICCPR protects the right of individuals to free association with others. It also states that the only permissible limitations to this right are those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others`. In all cases, restrictions must be provided for by legislation (or imposed in conformity with legislation), must be necessary to achieve the desired purpose and must be proportionate to the need on which the limitation is based. Chapters 2, 6 and 8 contain clauses which may operate to limit this right. Chapter 2 Clause 97 provides that an individual may be required by a human biosecurity control order to remain isolated at a specified medical facility. This clause is necessary for the legitimate objective of preventing the contagion of listed human diseases; however it may limit the right to freedom of association. This measure can only be applied under a human biosecurity control order, which may only be imposed if an officer believes that an individual has signs or symptoms of a listed human disease, has been exposed to a listed human disease or has failed to comply with an entry requirement under clause 44 in relation to a listed human disease and therefore poses a risk to the broader community. The general protections (clause 34) must also be taken into account in imposing the control order. If the individual required to be isolated is not an Australian citizen, then they must be informed of their right to seek consular assistance. In addition, officers must provide a reasonable time to allow the individual to seek consular assistance and facilitate communication with a consular office if requested (clause 102). Clause 103 provides that an individual may be detained if they fail to comply with a requirement to remain at a place under clause 68, or if they fail to comply with an isolation measure under clause 76. This clause is necessary for the legitimate objective of preventing contagion of listed human diseases. Before an individual is detained, a human biosecurity officer must be satisfied of 47


the principles of general protection (clause 34). In addition, an individual may only be detained if the officer is satisfied that detention is necessary because, without it, the individual may pose a significant risk of contagion. Additional protections apply to detention, including that the individual must be advised of their right to contact anyone, including a legal representative (clause 104). Clause 113 enables the Director of Human Biosecurity to determine a human health response zone for the legitimate objective of preventing, or reducing the risk of, a listed human disease emerging, establishing or spreading in Australian territory. These zones may be used, for example, to manage small incidents such as a localised disease outbreak or a laboratory hazard. In declaring the response zone, the Director of Human Biosecurity may determine requirements for not entering or leaving the zone. This may consequentially restrict individuals from attending places where a large number of people may gather, such as a shopping centre, school, work or sporting event. Restricting the movement of ill individuals from such venues protects the right of other individuals within of the community to freedom of association while reducing risk of being exposed to a listed human disease. To ensure that response zones are a proportionate and legitimate restriction of an individual`s right to free association, under subclause 113(4), the zone must only be for preventing or controlling the spread of a listed human disease and the Director must be satisfied that the requirements are appropriate and adapted to prevent, or reduce the possibility of, the emergence, establishment or spread of the specified listed human disease. The Director must also consult with the Chief Health Officer in the relevant state or territory prior to declaring the zone. The determination must be made public and may only be in place for three months. Chapter 6 Clauses 365, 366, 367 and 370 enable the Director of Biosecurity to declare a biosecurity response zone, determine powers that may be exercised in the zone and enable biosecurity enforcement officers to exercise those powers, as outlined above in relation to the right to freedom of movement. These clauses may also operate to limit the right to freedom of association as they may prevent individuals from entering or exiting a biosecurity response zone and interacting with people within the zone. To ensure these clauses are reasonable and proportionate to the legitimate objective, a range of tests and protections apply which are outlined in relation to the right to freedom of movement above. Chapter 8 Clauses 445 and 446 enable the Agriculture Minister to determine emergency requirements, give directions and take actions during a biosecurity emergency period, including restricting or preventing the movement of persons, goods or conveyances or causing goods or conveyances to be removed from specified places, as outlined above in relation to the right to freedom of movement. They may also operate to limit the right to free association. To ensure these clauses are reasonable and proportionate to the legitimate objective, a range of tests and protections apply, which are outlined in relation to the right to freedom of movement above. Summary: These limitations to the right to freedom of association under Article 22 of the ICCPR are permissible because these clauses are necessary for the protection of public health. A range of tests and protections also apply to ensure the exercise of these powers is reasonable and proportionate to the legitimate objective and that adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion. 48


Rights of the child Article 24 of the ICCPR provides for the right to such measures of protection as are required by a child`s status as a minor, on the part of their family, society and the State. In addition, Australia`s human rights framework also considers the Convention on the Rights of the Child (Article 3). Chapter 2 contains a number of provisions that protect the rights of the child. Clause 36 provides that a child who is subject to a requirement under the chapter may be accompanied by a parent, guardian, next of kin or other authorised person. Clause 37 provides that children must not be subject to biosecurity measures under Chapter 2 unless reasonable steps have been taken to contact a parent, guardian or next of kin of the child. In cases of urgent or life threatening medical needs, an officer must meet those needs first, and then the officer must take reasonable steps to contact a parent or guardian. On contacting a parent, guardian or next of kin, these protections must be explained to them and to allow an accompanying person to accompany the child. Clause 38 provides that officers may give directions to accompanying persons for a child for the purpose of ensuring the child complies with the direction. An accompanying person for a child may also give consent on behalf of the child for the purposes of managing risks to human health. Clause 39 provides that a parent, guardian or next of kin may authorise another person to be an accompanying person for the child. These protections ensure that a responsible person for the child can give informed consent in relation to the child. These protections also apply to clause 558 of Chapter 11 (decontaminating an individual) as if the section were in Chapter 2 (clause 558(6)). Summary: The Bill protects the rights of the child under Article 24 of the ICCPR as a range of tests and protections apply to ensure that where powers are exercised in relation to children, the exercise of powers is reasonable and proportionate to achieving a legitimate objective and adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion. Right to work Articles 6(1), 8 and 8(1)(a) of the ICESCR protect the right of everyone to the opportunity to gain his or her living by work which he or she freely chooses or accepts and rights in work, including the enjoyment of just and favourable conditions of work. This right may be subject only to such limitations ‘as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society’. Chapters 7 and 11 of the Bill contain provisions which may limit this right. Clauses 423 and 597 provide for the suspension or revocation of permits or approved arrangements to recover unpaid cost recovery charges. The powers under this clause are necessary to achieve the legitimate objective of ensuring the Commonwealth is able to cease providing services to clients when the costs associated with the provision of those services have not been paid. However, they may limit the right to work by preventing a person from working under an approved arrangement or importing goods under an import permit. Potential engagement with the right to work under this clause is reflective of the business-like arrangement between persons wishing to import goods and the Commonwealth and allows the Commonwealth to cease providing services and activities when the user of those services or activities does not pay for them. These penalties can only be imposed when a person is liable to pay a cost recovery charge that is due and payable and cannot be imposed arbitrarily. To ensure clients of the system are given sufficient warning about a potential suspension or revocation of a permit or approval, the Director 49


of Biosecurity is required to provide written notice that a charge is outstanding before invoking these powers. The decisions to revoke or suspend a permit or approved arrangement are reviewable decisions (see Part 1 of Chapter 11). The recovery of costs that are due and payable in relation to goods and vessels is a reasonable and proportionate response to non-payment, even in circumstances where the right to work is engaged. Summary: The right to work Articles 6(1), 8 and 8(1)(a) of the ICESCR may be permissibly limited in these circumstances as tests and protections apply to these clauses to ensure the exercise of the power is reasonable and proportionate to achieving the legitimate objective and adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion. Right to an adequate standard of living, including food, water and housing Article 11(1) of the ICESCR protects the right to an adequate standard of living, including food, water and housing. To protect this right, governments have an obligation to ensure the availability and accessibility of the resources necessary for the realisation of the right. Article 4 of ICESCR provides that rights such as this may be subject to permissible limitations only where those limitations are provided by law and are for the purpose of promoting the general welfare in a democratic society. The United Nations Committee on Economic, Social and Cultural Rights General Comment 12 (1999) notes that, in the context of food, the concept of adequacy is to a large extent determined by prevailing social, economic, cultural, climatic, ecological and other conditions. Within this context, adequacy is also linked to the notion of sustainability, which implies food security and that food should be accessible for both present and future generations. The right to water has been recognised by the United Nations Committee as a subset of the rights contained in the International Convention on Economic, Social and Cultural Rights. In particular, the right to water is recognised under Article 11(1) (right to an adequate standard of living) and Article 12 (right to highest attainable standard of health) in General Comment 15 (2003). The General Comment provides: Water is required for a range of different purposes, besides personal and domestic uses, to realize many of the Covenant rights. For instance, water is necessary to produce food (right to adequate food) and ensure environmental hygiene (right to health). Water is essential for securing livelihoods (right to gain a living by work) and enjoying certain cultural practices (right to take part in cultural life). Nevertheless, priority in the allocation of water must be given to the right to water for personal and domestic uses. Priority should also be given to the water resources required to prevent starvation and disease, as well as water required to meet the core obligations of each of the Covenant rights.` By minimising or preventing harm caused to plants and animals that could severely impact upon Australia`s food production systems and food security the Bill represents a positive measure to protect the right to food. In managing the risk of pests and diseases entering, establishing or spreading in Australian territory, the Bill also represents a positive measure to protect the right to water. For instance, Chapter 5 of the Bill provides for the management of the risk of water borne pests and diseases in ballast water. In addition to promoting these rights, some provisions in Chapter 6 of the Bill may also operate to limit the right to an adequate standard of living, including food, water and housing. Clauses 365 and 367 enable the Director of Biosecurity to declare a biosecurity response zone in relation to premises, such as a residence and enable biosecurity enforcement officers to exercise a range of powers in that zone. The powers provided for under these clauses are necessary for the 50


legitimate objective of assessing and managing biosecurity risk posed by diseases and pests in the biosecurity response zone. For example, clause 367 enables a biosecurity enforcement officer to direct a person to leave the zone for a specified period. This power assists with the management of biosecurity risk by facilitating the treatment or destruction of goods and premises within the zone in a safe manner. However, these clauses may potentially operate to limit the right to housing as they may prevent individuals accessing their residence. Under clause 365 the Director of Biosecurity may only declare a biosecurity response zone if a biosecurity officer suspects, on reasonable grounds, that a disease or pest that poses an unacceptable biosecurity risk is on the premises and the Director is satisfied that it is necessary to declare a zone for the purpose of managing the biosecurity risk posed by the pest or disease. An additional safeguard also applies to clause 367 that a direction to leave a biosecurity response zone may only be for a maximum of 24 hours. Clause 344 enables the Director of Biosecurity to approve a biosecurity officer to require premises be destroyed, which could include a person`s residence. This clause is necessary for the legitimate objective of managing the biosecurity risk associated with premises. However, it may operate to limit the right to housing as it may result in a person`s residence being destroyed. The power is only available in relation to premises that cannot be treated and are specified in a biosecurity control order or a biosecurity response zone determination, which requires the Director of Biosecurity to be satisfied that the zone or control order is necessary for the purposes of managing biosecurity risk. Additionally, the power will only be available to officers if it is specified by the Director in the zone determination or biosecurity control order. Before exercising power under Chapter 6, a biosecurity official must also be satisfied of the principles affecting decisions to exercise certain powers (clause 32). The decision to destroy premises under clause 344 is also a reviewable decision under Part 1 of Chapter 11 and premises must not be destroyed during the review period unless the officer is satisfied disease or pest poses a high level of biosecurity risk that cannot be managed for long enough to allow for review of the decision. Compensation to the owner of the premises may also be available under clauses 633 and 634. Summary: The Bill represents a positive measure to protect the right to an adequate standard of living, including food, water and housing under Article 11(1) of the ICESCR. Where it limits this right, the limitations are permissible as tests and protections apply to ensure the exercise of these powers is reasonable and proportionate to achieving a legitimate objective and adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion. Right to health Article 12 of the ICESCR promotes the right of all individuals to enjoy the highest attainable standards of physical and mental health. This includes the application of measures for the prevention, treatment and control of epidemic, endemic, occupational and other diseases (Article 12(2)). The United Nations Committee on Economic, Social and Cultural Rights has stated in General Comment 14 (2000) that health is a fundamental human right indispensable for the exercise of other human rights` and that the right to health is not to be understood as the right to be healthy, but rather entails a right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health. Article 4 of the ICESCR provides that countries may subject economic, social and cultural rights (such as the right to health) only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the 51


general welfare in a democratic society.` The United Nations Committee has stated that such limitations must be proportionate and must be the least restrictive alternative where several types of limitations are available and that even where such limitations are permitted, they should be of limited duration and be subject to review. The Bill takes positive steps to promote this right with the objects of the Bill including: managing the risk of contagion of a listed human disease (as defined by clause 9) managing the entry, emergence, establishment or spread of a listed human disease, and giving effect to Australia`s international obligations as a signatory to the International Health Regulations. Chapter 2 promotes the protection of public health by ensuring the Commonwealth has the power to control the spread of serious communicable diseases and also ensures any person developing signs or symptoms of these diseases is provided with prompt medical assessment and treatment. The broad range of measures available in the Bill allows officers to consider the disease risk together with individuals` circumstances, including medical history and apply the most appropriate and least restrictive measure in the circumstances. The Bill will also ensure Australia`s obligations as a signatory to the International Health Regulations are met. The purpose of the International Health Regulations is to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to, public health. Clause 42 enables the Director of Human Biosecurity to determine that a disease is a listed human disease` if the Director is satisfied that the disease is communicable and may cause significant harm to human health. This triggers a range of powers to be available to manage the disease, including the following clauses which promote the right to health: Clauses 44 and 45 – entry and exit requirements can be put in place for the purposes of preventing a listed human disease from entering, or establishing itself or spreading in Australian territory or a part of Australian territory. Clauses 48 and 49 – vessels and aircraft can be prevented from unloading or loading goods, or allowing people to embark or disembark until pratique is granted Clauses 55 and 56 – officers will have the power to ask questions about an individual`s health and exposure to listed human diseases for the purpose of determining the nature of, and to manage, human biosecurity risks, and Clause 60 – human biosecurity control orders may be imposed which can include measures to manage human health risks. A number of measures that may be included in a human biosecurity control order under clause 60 also promote the right to health. These include requiring an individual to provide contact details (clause 85), regularly update an officer of their health status (clause 86), restrict certain behaviour to reduce the spread of disease to others (clause 87), undergo decontamination (clause 89), provide body samples for diagnosis (clause 91), undertake treatment, or receive a vaccination (clause 92), restrict travel movement (clause 96), or be isolated at a medical facility (clause 97). A range of clauses are also included in the chapter to protect the right to health. Clause 35 specifies that there should be no interference with life threatening medical needs when exercising any power or imposing any measure in relation to an individual under Chapter 2. Clause 94 specifies that biosecurity measures (such as medication, treatment, or medical examination), may only be applied by officers who have appropriate medical training or clinical expertise. In addition, clause 94 requires that these measures must be conducted using appropriate medical and professional standards. Any person who exercises a power or imposes a biosecurity measure under Chapter 2 must first consider the principles of general protection under clause 34. To ensure that officials consider the principles of general protection when exercising powers under the Bill, 52


biosecurity measures may only be applied to individuals by issuing a human biosecurity control order (clause 60). This requires that officials specify details of the listed human disease(s) that is (are) suspected and the biosecurity measure required to manage that disease. A control order must only be applied for as long as is necessary, to a maximum of 28 days with no provision for extension. If the officer believes a control order is still necessary to prevent the entry, emergence, establishment or spread of a listed human disease, the officer must reapply the control order and consider the principles of general protection. In applying a control order, the officer must explain to the individual their rights and obligations, including their rights to review. The officer must also explain why the order is being applied and the risks to the individual of the listed human disease and the contagion risk the individual may pose to the community. Clause 72 allows the Director of Human Biosecurity to give a direction requiring compliance with a biosecurity measure. A direction to comply with a biosecurity measure is only given if the Director is satisfied the measure contributes to reducing the risk of contagion and listed human diseases entering, emerging or establishing in Australian territory. It further allows the Director to review a biosecurity measure including the diagnosis of the listed human disease in the human biosecurity control order, including an individual`s refusal to consent to the measure. The Director of Human Biosecurity must give notice of the outcome of the review within 72 hours from when a request is made or consent is refused. Consistent with the requirements of the International Health Regulations, clause 108 requires that all reasonable expenses associated with an individual complying with biosecurity measures applied in a human biosecurity control order must be met by Commonwealth. This ensures that all ill individuals who are subject to public health measures do not incur undue personal cost. In addition to protecting an individual`s right to health, Chapters 4 and 5 of the Bill may also operate to limit the right to health. Chapter 4 Clauses 202, 206, 207, 209, 241 and 249 of Chapter 4 enable the Director of Biosecurity to exercise a range of powers with respect to the movement of conveyances, including directing them to remain in a specified place or move to a specified place, or not to land or moor in Australian territory. These clauses are necessary to achieve the legitimate objective of preventing harm to human, animal or plant health as they enable the assessment and management of biosecurity risks related to conveyances. However, they may also operate to limit the right to health as they may affect passengers` access to health facilities and goods, including essential medications and services, by preventing them from disembarking from a conveyance that is subject to a direction (for example, to stay out of a port). When making a decision to exercise powers under clauses 206, 209, 241 and 249, a biosecurity officer must satisfy the principles affecting decisions to exercise certain powers (clause 32) including the protection that a biosecurity official must consider the impact of the exercise of the power on the health and safety of any persons on board the conveyance. Clause 207 only applies to conveyances that meet the exposed conveyance criteria under clause 192 (conveyances that have been exposed to an aircraft or vessel, another conveyance or goods that are subject to biosecurity control). Clauses 241 and 249 give biosecurity officers powers to direct an aircraft not to land, or a vessel not to moor, at a landing place in Australian territory. Before giving a direction under this clause, a biosecurity officer must seek written approval of the Director of Biosecurity and the Director 53


must be satisfied that the level of biosecurity risk associated with the aircraft or vessel, or any person or thing on board, is unacceptable and that biosecurity measures cannot be taken to reduce that level of biosecurity risk to an acceptable level. Additionally, such a direction must not be given for the purposes of managing human health risks associated with the aircraft or person or thing on the aircraft. Chapter 5 Clause 303 enables the Director of Biosecurity to exercise a range of powers with respect to the movement of a vessel where the Director has grounds for believing an offence contained in the chapter has been committed. These include keeping a vessel out of a port or requiring the vessel to remain at a specified place. This clause is necessary for the legitimate objective of preventing potentially significant harm to human health, the marine environment and related industries and giving effect to Australia`s international rights and obligations relating to ballast water management. However these movement directions may limit the right to health as they may affect passengers` access to health facilities and goods, including essential medications and services. Before exercising this power, the principles affecting decisions to exercise certain powers (clause 32) must be satisfied, including the protection that a biosecurity official must consider the impact of the exercise of the power on the health and safety of any persons on board the conveyance. Additionally, the decision to exercise powers under this clause is a reviewable decision (see Part 1 of Chapter 11). Chapter 8 Clause 446 enables the Agriculture Minister to give directions in relation to conveyances, which could include directing a vessel not to land at a port, or requiring it to remain at a specified place. This clause is necessary to achieve the legitimate objective of dealing with biosecurity emergencies of national significance. However, as above, these movement directions may limit the right to health as they may affect passengers` access to health facilities and goods, including essential medications and services. There are limits on the power to give directions and take actions listed in clause 447, which include that the Agriculture Minister must be satisfied of all of the following before making the decision to exercise the power: that exercising the power is likely to be effective, or contribute to, achieving the purpose for which the power is to be exercised the manner in which the requirement is applied is no more restrictive or intrusive than is required in the circumstances if the power is to be exercised in relation to an individual, that the power is no more restrictive or intrusive than required in the circumstances, and if the power is exercised during a period, that the period during which the power is to be exercised is only for as long as necessary. Additionally, directions under clause 446 may only be issued if a biosecurity emergency is declared under clause 443. This requires the Agriculture Minister to be satisfied that a disease or pest is posing a severe and immediate threat, or causing harm on a nationally significant scale to animal or plant health, the environment, or economic activities and that the declaration is necessary to prevent or control the establishment or spread of the disease or pest in Australian territory or a part of Australian territory. Before a biosecurity emergency is declared, the Agriculture Minister must also be satisfied that the declaration is necessary to prevent the establishment or spread of the disease or pest in Australian territory or part of Australian territory. The normal principles of administrative law also apply to the exercise of powers under this clause, such as reasonableness, proportionality and natural justice. 54


Summary: The Bill represents a positive measure to protect the right to health under Article 12 of the ICESCR. Where it limits this right, the limitations are permissible as tests and protections apply to ensure the exercise of these powers is reasonable and proportionate to achieving the legitimate objective and adequate safeguards apply to prevent the risk of abuse or arbitrary exercise of discretion. Right to enjoy and benefit from culture Article 15 of ICESCR protects the right of all persons to take part in cultural life. The United Nations Committee on Economic, Social and Cultural Rights (General Comment 21, 2009) has stated that culture encompasses: ways of life, language, oral and written literature, music and song, non-verbal communication, religion or belief systems, rites and ceremonies, sport and games, methods of production or technology, natural and man-made environments, food, clothing and shelter and the arts, customs and traditions.` The Committee has stated that cultural rights may be exercised by a person as an individual, in association with others, or within a community or group. The Committee has also stated that countries should guarantee that the exercise of the right to take part in cultural life takes due account of the values of cultural life, which may be strongly communal or which can only be expressed and enjoyed as a community by Indigenous peoples. Indigenous peoples’ cultural values and rights associated with their ancestral lands and their relationship with nature should be regarded with respect and protected. Countries must take measures to recognise and protect the rights of Indigenous peoples to own, develop, control and use their communal lands, territories and resources. Indigenous peoples have the right to act collectively to ensure respect for their right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions. Clause 617 promotes the right to take part in cultural life by allowing for exemptions to be made to enable free movement of traditional inhabitants and the performance of lawful traditional activities within the Torres Strait protected zone (in line with Articles 10 and 11 of the Torres Strait Treaty). The protected zone is a geographical zone in the Torres Strait region which was established under Article 10 of the Torres Strait Treaty in order to acknowledge and protect the traditional way of life and livelihood of traditional inhabitants, including their free movement. See clause 617 for the definition of traditional inhabitant`. Summary: The Bill promotes the right of all persons to take part in cultural life under Article 15 of the ICESCR. Rights of persons with disabilities Article 3 of the Convention on the Rights of Persons with Disabilities protects the rights of persons with disabilities. Individuals may be incapable due to disability or temporarily incapable as a result of illness (see clause 9 for the full definition of incapable person). The Bill protects this right by providing for special protections for the rights of individuals who may be incapable of understanding the nature and effect of requirements under the Bill, or may be incapable of consenting to biosecurity measures. Such individuals may not be subject to biosecurity measures under Chapter 2 of the Bill unless the Commonwealth has taken reasonable steps to contact a parent or guardian. Any urgent or life threatening medical needs of the individual must first be met and a parent or guardian must then be contacted as soon as possible. However, the individual may still be required to remain at a place for up to six hours (clause 68). This allows the Commonwealth to manage any potential risk 55


of contagion, while contacting a parent or guardian prior to the application of measures in a human biosecurity control order. The protections in Chapter 2 also apply to subclause 558(6) (decontaminating an individual) as if the section were in Chapter 2. Summary: The Bill does not limit the rights of persons with disabilities under Article 3 of the Convention on the Rights of Persons with Disabilities. Conclusion The Bill is compatible with the human rights outlined above because it advances the protection of human rights and to the extent that it may operate to limit these rights, the limitations are reasonable, necessary and proportionate to achieve legitimate objectives. Minister for Agriculture, the Hon. Barnaby Joyce MP 56


Notes on clauses Chapter 1–Preliminary Part 1–Preliminary Clause 1 Short title This clause provides that the Bill, when enacted, may be cited as the Biosecurity Act 2014 (the Act). Clause 2 Commencement This clause provides for the commencement of the Bill. The effect of items within the table in subclause (1) is to enable different parts of the Bill to commence at different times. Each provision of the Bill specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 in the table. Item 1 of the table provides that clauses 1 and 2 of the Bill (and anything in the Bill not elsewhere covered by the table) will commence on the day the Bill receives Royal Assent. Item 2 of the table provides that the remainder of the clauses (the substantive clauses of the Bill) will commence on a date to be fixed by proclamation. In the absence of proclamation within 12 months of Royal Assent, the substantive clauses will commence on the date of the day after the end of precisely 12 months. Once the Bill receives Royal Assent, the Director of Biosecurity and the Director of Human Biosecurity will be able to make legislative instruments, and authorise various officers as outlined under Chapter 10 (through the operation of the Acts Interpretation Act 1901). These instruments and authorisations will come into effect when the substantive clauses of the Bill commence. It is intended that the majority of the clauses of the Bill will commence 12 months plus one day after Royal Assent. The period between commencement of clauses 1 and 2 and the substantive clauses is to allow time for the new requirements in the Act to be communicated to stakeholders, industry participants and the general public, and allow biosecurity officials to undergo appropriate training. The delay will also provide additional time for consultation with state and territory governments regarding shared responsibilities and obligations under the Act. Allowing time for communication and education is important as a number of policies included in the Bill do not exist under the Quarantine Act 1908, such as the new powers in Chapter 6 and enforcement regime in Chapter 9. It is important that stakeholders are aware of the new requirements–including the introduction of civil penalty provisions and an expanded infringement notice scheme–in the Bill so that they are not inadvertently non-compliant with these requirements. Clause 3 Simplified outline of this Act This clause provides an overview of each Chapter of the Bill. It provides that the Bill is about managing diseases and pests that may cause harm to human, animal or plant health, the economy or the environment, and sets out the general purposes of each of the Chapters of the Bill, including the powers that may be exercised and the functions that may be performed under the clauses of that Chapter. 57


Clause 4 Objects of this Act This clause provides that the objects of the Act are 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 risks related to ballast water, and biosecurity emergencies and human biosecurity emergencies. Additionally, the Bill will give effect to Australia`s international rights and obligations, including under the International Health Regulations 2005, the World Trade Organization Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) and the Convention on Biological Diversity 1992 (Biodiversity Convention) (see clause 9 for further details of these international agreements). The objects ensure that the Bill will provide a strong regulatory framework that enables the management of biosecurity risks in a modern and responsive manner and enhances Australia`s capacity to manage biosecurity risks into the future. Any exercise of power or performance of a function or duty under the Bill by a biosecurity official, including by the Director of Biosecurity or Director of Human Biosecurity, must be consistent with these objects. Clause 5 Appropriate Level of Protection (ALOP) for Australia against biosecurity risks This clause defines the Appropriate Level of Protection (ALOP) for Australia. The SPS Agreement contains the basic rules on animal and plant health and food safety standards for trade between World Trade Organization member countries. It requires that sanitary (relating to human and animal) and phytosanitary (relating to plant) measures are based on science and applied only to the extent necessary to protect human, animal or plant life or health. The SPS Agreement allows World Trade Organization members to determine their own appropriate level of sanitary and phytosanitary protection; however it must be applied in a consistent manner–this is known internationally as the ALOP. Consistent with the SPS Agreement, Australia bases its sanitary and phytosanitary measures on international standards developed by the World Organisation for Animal Health, the International Plant Protection Convention and the Codex Alimentarius where such measures exist and where the measures meet Australia`s ALOP. This Bill will manage biosecurity risks, while food safety risks in imported food are managed under the Imported Food Control Act 1992 in accordance with the Australia New Zealand Food Standards Code. The Australian Government, with the agreement of the state and territory governments, has expressed Australia`s ALOP as: providing a high level of sanitary and phytosanitary protection, aimed at reducing biosecurity risks to a very low level, but not to zero.` Australia`s ALOP is included in the Bill to provide additional certainty for importers and trading partners of the formulation of the ALOP that is applied when undertaking risk assessments to determine if, and under what conditions, goods may be brought into Australian territory. When performing a function or exercising a power under the Biosecurity Import Risk Analysis (BIRA) process (outlined in Chapter 3) and risk assessments conducted for the bringing in, or 58


importation of particular goods into Australian territory, the Director of Biosecurity must apply Australia`s ALOP. Where risks do not meet Australia`s ALOP, biosecurity measures may be identified to reduce the risk to a level that meets Australia`s ALOP. If no biosecurity measures are available to do this, the import will not be allowed. This policy recognises that Australia has the right to protect its unique biosecurity status and that a zero risk stance is impractical as it would mean that people, conveyances or goods would not be able to enter Australian territory. Clause 6 Act binds the Crown This clause provides that the Act will bind the Crown in each of its capacities. This means that the Commonwealth and state and territory governments will be bound to comply with the provisions of the Act. This clause also provides that the Crown will not be liable to be prosecuted for an offence, subject to civil proceedings for a civil penalty order, or given an infringement notice. This means that the Act will apply to the Commonwealth and state and territory governments, but in a modified way so as to avoid a situation occurring where, for example, a government is liable to pay an infringement notice to itself. Clause 7 Extension of Act to Christmas Island, Cocos (Keeling) Islands and other prescribed external Territories This clause provides that the Act will extend to Christmas Island and the Cocos (Keeling) Islands. It also provides that the Act or any provision of the Act may be extended to other external territories as prescribed in the regulations. However, provisions relating to the management of ballast water, as outlined in Chapter 5, will apply to all external territories of Australia. This clause supports the policy approach not to extend the Act to other external territories unless a formal, scientifically based, risk assessment such as a pest and disease survey has been undertaken (for example, as has been done in the case of Christmas Island and Cocos (Keeling) Islands). This approach has been taken because the biosecurity risks associated with external territories where a risk assessment has not been undertaken are unknown, and free movement of people, conveyances and goods between such territories and mainland Australia could pose a significant biosecurity risk. When a pest and disease survey has been completed with respect to a specific external territory it is appropriate that the Act apply to that territory to ensure that any identified biosecurity risks are able to be managed. This is consistent with the objects of the Act (see clause 4) and the extension of the Act to Christmas Island and Cocos (Keeling) Islands. Parliament will have the opportunity to scrutinise the extension of the Act to an external territory when the enabling regulations are tabled in each House of the Parliament. Clause 8 Concurrent operation of State and Territory laws Subclause 8(1) provides that the Act does not exclude or limit the operation of a state or territory law that is capable of operating concurrently with this Act. This is subject to two exceptions which are discussed below. Section 109 of the Constitution invalidates a state law to the extent that it is inconsistent with a Commonwealth law. Determining whether a state law is inconsistent with a Commonwealth law involves interpreting both laws. If the Commonwealth law is interpreted as operating to the exclusion of state law, the state law will be inconsistent with the Commonwealth law and invalid. This clause applies to territory laws in the same way as it applied to state laws. While section 109 of the Constitution does not does not apply to territory laws, similar principles apply in relation to the inconsistency or repugnancy of territory laws with Commonwealth laws. 59


A concurrent operation provision, such as clause 8, is used in interpreting the Commonwealth law to determine whether it operates to the exclusion of state or territory law. It indicates the Parliament`s intention that the Commonwealth law should not operate to the exclusion of state or territory law to the extent that the laws are capable of operating concurrently that us it is not intended to cover the subject matter exclusively or exhaustively. In some cases, the laws may not be able to operate concurrently in specific instances despite the general intention that the laws should. Without limiting the effect of subclause 8(1), subclause 8(3) clarifies that the Act is not intended to exclude the concurrent operation of state laws imposing offences or civil penalties, where the same or similar conduct is also an offence or subject to a civil penalty under the Act. Under subclause 8(4), subclause 8(3) applies even if the penalty, fault elements, defences or exceptions that apply to the offence or civil penalty provisions under the state law differ to those set out in the Act. There are exceptions to the application of this clause in provisions relating to the prohibition or restriction of bringing in or importing goods into Australian territory (Part 3 of Chapter 3), ballast water (Chapter 5) and biosecurity emergencies or human biosecurity emergencies (Chapter 8). Clauses 172 and 265 and subclauses 445(4), 446(4), 477(5) and 478(4) respectively, set out the intended effect of those parts of the Bill on state and territory laws. Part 2–Definitions Clause 9 Definitions This clause provides definitions for the Bill. Notes are provided below on each definition. acceptable ballast water exchange This definition provides that acceptable ballast water exchange` has the meaning given by clause 275. An acceptable ballast water exchange refers to a prescribed proportion (by volume) of ballast water in the tank of a vessel being discharged at an acceptable location and replaced by refilling the ballast water tank. See clause 275 and ballast water exchange for further details. This term is used in Chapter 5 in relation to ballast water management. accompanying person, for a child or incapable person This definition provides that the term accompanying person` for a child or incapable person refers to a parent, guardian or next of kin of the child or incapable person, or a person authorised by a parent, guardian or next of kin of a child or incapable person under clause 39 to accompany the child or incapable person. acquisition of property This definition provides that acquisition of property` has the same meaning as in section 51(xxxi) of the Constitution which currently provides: The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.` adjacent premises warrant This definition provides that an adjacent premises warrant` means a warrant issued as a result of the test in item 5 of the table in clause 489 being met. That is, an adjacent premises warrant can be issued where it is reasonably necessary that one or more biosecurity enforcement officers should have access to the premises for the purpose of: gaining access to adjacent premises to perform functions, or exercise powers, as a biosecurity enforcement officer, or 60


accompanying a biosecurity officer who needs to gain access to adjacent premises to perform functions, or exercise powers, under or for the purposes of the Bill. Administration of a vessel This definition provides that administration of a vessel has the same meaning as in the Ballast Water Convention which currently provides: Administration means the Government of the State under whose authority the ship is operating. With respect to a ship entitled to fly a flag of any State, the Administration is the Government of that State. With respect to floating platforms engaged in exploration and exploitation of the sea-bed and subsoil thereof adjacent to the coast over which the coastal State exercises sovereign rights for the purposes of exploration and exploitation of its natural resources, including Floating Storage Units (FSUs) and Floating Production Storage and Offloading Units (FPSOs), the Administration is the Government of the coastal State concerned.` affected provisions This definition has the meaning provided by subclause 618(1) and refers to provisions which have been modified for declared movements between parts of Australian territory. Agriculture Department This definition provides that Agriculture Department` refers to the department administered by the Agriculture Minister. Agriculture Minister This definition provides that Agriculture Minister` refers to the Minister that administers the Primary Industries Levies and Charges Collection Act 1991. Agriculture Secretary This definition provides that Agriculture Secretary` refers to the Secretary of the Agriculture Department. This term is used in the definition of Director of Biosecurity. aircraft This definition provides that aircraft` refers to any machine or craft that can derive support in the atmosphere from the reactions of the air, other than the reactions of the air against the earth`s surface. This term is used in the definition of conveyances. Chapter 4 includes specific provisions in relation to aircraft, vessels and other conveyances. Under this Bill, an aircraft that is, or is to be, brought or imported into Australian territory from outside Australian territory on board another conveyance is consider to be goods from the time the aircraft is first intended to be so brought or imported until immediately after the aircraft is released from biosecurity control. This is intended to exclude such aircraft from provisions of the Bill that deal with biosecurity risks associated with aircraft that convey people or goods into Australian territory (for example, clause 193–pre-arrival reporting). Biosecurity risks associated with such aircraft will be managed under Chapter 3. However, in relation Parts 1 and 3 of Chapter 11 (and any provision of the Bill that relates to Parts 1 and 3 of Chapter 11) an aircraft which is transported on another conveyance will not be considered goods so that the cost recovery provisions in Chapter 11 apply as if the aircraft is a conveyance (see definition of conveyance and goods in clauses 16 and 19 for further information). ALOP (short for Appropriate Level of Protection) See clause 5 for the meaning of ALOP. animal 61


This definition provides that a reference to an animal in this Bill includes a dead animal and any part of an animal. Chapter 3 provides that the Director of Biosecurity and the Director of Human Biosecurity may jointly prohibit (absolutely or subject to conditions) goods from being brought or imported into Australian territory. This may include prohibiting (absolutely or subject to conditions) or requiring a permit for the bringing in or importation of live or dead animals, parts of animals or animal products as they are considered goods under this Bill. appropriate ballast water records This definition provides that a vessel is considered to have appropriate ballast water records` if it has on board records made in accordance with clause 295 for an Australian vessel and clause 296 for a foreign vessel, where the records are sufficient to allow any biosecurity risk associated with the vessel`s ballast water or sediment to be identified and assessed. These records include a ballast water record system to record the details of a vessel`s ballast water uptake and discharge (for all vessels which carry ballast water in Australian seas). See clauses 295 and 296 for further information. appropriate person This definition outlines who an appropriate person` is in relation to premises or conveyances which are the subject of certain warrants. Specifically: for premises to which an entry warrant or a premises possession warrant relates, or premises entered under a provision referred to in clause 513, the appropriate person is the occupier of the premises, or another person who apparently represents the occupier, or for a conveyance to which a conveyance possession warrant relates, the appropriate person is the person responsible for the conveyance, or another person who apparently represents a person responsible for the conveyance. If an entry warrant relates to a conveyance, the appropriate person is the person occupying the conveyance, or another person who apparently represents that person (see paragraph (a) of the definition of premises in clause 9). approved arrangement See clause 10 for the meaning of approved arrangement`. associate See clause 11 for the meaning of associate`. Australian law This definition provides that Australian law` refers to a law of the Commonwealth or a law of a state or territory. This term is also intended to include any subordinate legislation made under such a law. Australian seas This definition provides that Australian seas` means the waters of Australia (including the internal waters of Australia) within the outer limits of the territorial sea of Australia, including every external territory to which the Act extends (see clause 7 for the extension of the Act to external territories). This term is used in Chapter 5 in relation to ballast water management and is affected by the operation of clause 260 (vessels in dry dock) and clause 261 (foreign vessels near the Australian Antarctic Territory). Australian territory See clause 12 for the meaning of Australian territory`. 62


Australian vessel This definition provides that Australian vessel` refers to vessels that have Australian nationality under section 29 of the Shipping Registration Act 1981. The Shipping Registration Act currently provides that the following ships are taken to be Australian ships and to have Australian nationality: registered ships, or unregistered ships (other than ships required to be registered), being: – Australian-owned ships referred to in section 13 of the Shipping Registration Act ships wholly owned by residents of Australia or by residents of Australia and Australian nationals, or – ships operated solely by residents of Australia or Australian nationals or both. The term also refers to a vessel whose administration is the Commonwealth (see Administration of a vessel). This term is used in Chapter 5 in relation to ballast water management. baggage This definition provides that baggage` refers to goods that are carried on a conveyance by or for a person who is on board the conveyance (including the person in charge and members of the crew of the conveyance). This term is used in the decontamination provisions of the Bill (clauses 89 and 560) to specify what things may be decontaminated in addition to a person and his or her immediate personal effects. Goods are only considered baggage if a person intended them to be carried in such a way. For example, if a person is travelling on a conveyance and an article which they had sent by post was consigned on the same conveyance, the article would not be considered his or her baggage and could not be decontaminated under clause 89 or 560. Powers in Chapter 3 relating to assessment and management of biosecurity risks associated with goods would apply in relation to the article. ballast water This definition provides that ballast water` has the same meaning as in the Ballast Water Convention which currently provides: Water with its suspended matter taken on board a ship to control trim, list, draught, stability or stresses of the ship.` Ballast water is an essential part of maintaining a vessel`s safe operation and is vital to most cargo loading and unloading activities. Ballast water contains live marine organisms that, if untreated, may create a risk of exotic colonies becoming established when released into Australian seas. This has the potential to damage Australia`s marine environment and adversely affect related industries. This term is used in Chapter 5 which specifies ballast water management requirements in order to implement the majority of the Ballast Water Convention and manage biosecurity risks associated with ballast water. Chapter 5, however, does not generally apply to permanent ballast water in sealed tanks (see clause 263). Ballast Water Convention This definition provides that Ballast Water Convention` refers to the International Convention for the Control and Management of Ships’ Ballast Water and Sediments 2004. The Convention is not yet in force, however Chapter 5 is intended to ensure that Australia has a regulatory framework for ballast water management in place once the Convention comes into effect. ballast water exchange Ballast water exchange` refers to when ballast water in the tank of a vessel is discharged and replaced simultaneously by refilling the ballast water tank. See also acceptable ballast water exchange. 63


ballast water management This definition provides that ballast water management` has the same meaning as in the Ballast Water Convention which currently provides: Mechanical, physical, chemical, and biological processes, either singularly or in combination, to remove, render harmless, or avoid the uptake or discharge of Harmful Aquatic Organisms and Pathogens within Ballast Water and Sediments.` Chapter 5 is intended to ensure that Australia has a regulatory framework for ballast water management in place once the Ballast Water Convention comes into effect, including the requirement for vessels to keep appropriate ballast water records. It will be an offence to discharge ballast water that has not been managed in accordance with the requirements set out in Chapter 5. ballast water management certificate This definition provides that a ballast water management certificate` has the meaning given by clause 288 and is a document which certifies that a vessel, and any equipment on the vessel, can manage the vessel`s ballast water in accordance with its ballast water management plan. Chapter 5 provides that Australian vessels need to be surveyed when requested by the Director of Biosecurity or at a time specified in the regulations in order to keep a valid certificate. Clause 288 outlines items that the certificate certifies in relation to both Australian vessels and foreign vessels, and who the certificate must be issued or endorsed by. ballast water management plan This definition provides that a ballast water management plan` is a document that outlines the ballast water management methods used by a vessel as well as the disposal of sediments. See clause 286 for further information. ballast water operation This definition provides that ballast water operation` refers to when ballast water is taken up into a vessel or discharged from a vessel (whether deliberately, accidently or part of a ballast water exchange), or treated or circulated on a vessel for the purposes of ballast water management. This term is used in Chapter 5 in relation to ballast water management. ballast water reception facility This definition provides that ballast water reception facility` refers to a facility (which may include a vessel) for receiving ballast water from vessels for treatment or disposal. Clause 278 provides the Director of Biosecurity with the ability to approve a ballast water reception facility to receive ballast water for treatment or disposal. This term is used in Chapter 5 in relation to ballast water management. ballast water record system This definition provides that ballast water record system` refers to a system for making and keeping records of a vessel`s ballast water and ballast water operations in order to manage biosecurity risks associated with ballast water. This term is used in Chapter 5 in relation to ballast water management. See also appropriate ballast water records. Biodiversity Convention This definition provides that Biodiversity Convention` refers to the Convention on Biological Diversity 1992, done at Rio de Janeiro on 5 June 1992, as in force for Australia from time to time. This term is used in relation to the application of this Bill in relation to invasive pests (see clause 26 for further information). 64


biosecurity activities This definition provides that biosecurity activities` has the meaning given by clause 405 which refers to activities carried out under an approved arrangement to manage biosecurity risks associated with goods, premises or other things. For example, the treatment of goods under an approved arrangement to manage biosecurity risk associated with those goods would be considered a biosecurity activity. See Chapter 7 for further information. biosecurity activity zone This definition provides that a biosecurity activity zone` has the meaning given by subclause 395(1) and is a zone that may be determined by the Director of Biosecurity to manage biosecurity risks in relation to an area in Australian territory where powers are exercised or functions or duties are performed by, or on behalf of, the Commonwealth under this Act. It is intended that this zone will be used in relation to premises where an approved arrangement is in place or where a Commonwealth facility manages biosecurity risks. The Director may only make a biosecurity activity zone determination if satisfied it is necessary to manage biosecurity risks posed by the exercise of powers or performance of functions under the Bill in the area. A biosecurity activity zone is ongoing and will remain in force until the determination is revoked. See Part 7 of Chapter 6 for further information. biosecurity activity zone determination This definition provides that a biosecurity activity zone determination` means a determination made under subclause 395(1) by the Director of Biosecurity. A biosecurity activity zone determination will set out the powers available in a biosecurity activity zone. As this type of zone is determined in relation to premises where powers or functions are performed under the Act (by, or on behalf of, the Commonwealth), consent or a warrant will not be required to enter premises in the area specified in the determination. See Part 7 of Chapter 6 for further information. biosecurity control notice This definition provides that a biosecurity control notice` is a notice (in the form approved by the Director of Biosecurity) which may be affixed to goods or conveyances that are subject to biosecurity control and states that goods or conveyances are subject to biosecurity control. See clauses 129 and 203 for further information. biosecurity control order This definition provides that a biosecurity control order` is an order that may be made by the Director of Biosecurity under clause 353 to manage an unacceptable level of biosecurity risk in relation to goods or premises. A biosecurity order cannot be used on goods or conveyances that are subject to biosecurity control. The biosecurity risks associated with these goods or conveyances can be managed using the powers in Chapters 3 and 4. For a biosecurity control order to be made by the Director of Biosecurity under clause 353, a biosecurity officer must suspect on reasonable grounds that a disease or pest may be present in or on goods or premises, that the disease or pest poses an unacceptable level of biosecurity risk, and that biosecurity measures are needed to reduce the biosecurity risk posed by the disease or pest to an acceptable level. The biosecurity control order will specify the biosecurity measures that a biosecurity officer may take to manage the identified biosecurity risk, such as treatment of goods or premises, or specifying entry and exit requirements in relation to premises. If a biosecurity risk is present over an area rather than in relation to particular goods or premises, it is intended that the biosecurity risk would instead be managed by determining a biosecurity response zone in relation to the area. 65


biosecurity control order warrant This definition provides that a biosecurity control order warrant` refers to a warrant issued as a result of the test in item 2 of the table in clause 489 being met. Biosecurity control order warrants may be issued by an issuing officer if the officer is reasonably satisfied that the test in clause 489 is met. It is reasonably necessary for one or more biosecurity officers or a biosecurity enforcement officers to enter the premises (without consent of the owner or occupier) in relation to which a biosecurity control order made under clause 353 which is in force to exercise powers for the purpose of managing the biosecurity risk posed by the pest or disease. A biosecurity officer must have reasonable grounds to suspect a disease or pest is present on or in the premises that poses an unacceptable level of biosecurity risk for a warrant to be issued. A biosecurity control order warrant may only be applied for by a biosecurity enforcement officer, however the warrant may authorise one or more biosecurity officers along with one or more biosecurity enforcement officers to access the premises. biosecurity emergency This definition provides that a biosecurity emergency` refers to an emergency that is declared to exist under clause 443(1). The biosecurity emergency provisions in Chapter 8 outline the powers and provisions relating to biosecurity emergency declarations and the management of associated biosecurity risks. The emergency powers in the Bill are intended to be used in circumstances where the scale and significance of an emergency requires management at a national level. See Chapter 8 for further information. biosecurity emergency declaration This definition provides that biosecurity emergency declaration` refers to a declaration of a biosecurity emergency made by the Governor-General under subclause 443(1). A biosecurity emergency declaration will specify the disease or pest that the declaration relates to, the nature of the biosecurity emergency and the conditions that gave rise to it and the period during which the declaration is in force (see subclause 443(3)). biosecurity emergency period This definition provides that a biosecurity emergency period` refers to the period of time during which a biosecurity emergency declaration is in force under paragraph 443(3)(c). biosecurity enforcement officer This definition provides that biosecurity enforcement officer` refers to an officer authorised by the Director of Biosecurity under clauses 546 and 548. A biosecurity enforcement officer will have specific powers additional to those of a biosecurity officer. For example, a biosecurity enforcement officer may apply to an issuing officer for a warrant to enter premises under the Bill under Chapter 9. Biosecurity enforcement officers will have appropriate training and/or qualifications to exercise coercive powers under the Bill. biosecurity entry point See clause 13 for the meaning of biosecurity entry point`. biosecurity industry participant See clause 14 for the meaning of biosecurity industry participant`. biosecurity measures This definition provides that biosecurity measures` refers to measures to manage any of the following: biosecurity risks biosecurity emergencies and human biosecurity emergencies 66


the risk of contagion of a listed human disease, or the risk of listed human diseases: – entering Australian territory or a part of Australian territory, or – emerging, establishing or spreading in Australian territory or a part of Australian territory. Biosecurity measures may be required under a number of provisions of the Bill (for example clauses 60, 131, 205, and 335), in order to manage biosecurity risks associated with people, goods, conveyances or premises. Biosecurity measures available in relation to people include, but are not limited to, decontamination, examination, vaccination, treatment, medication or isolation. Biosecurity measures available under the Bill in relation to goods, conveyances and premises include, but are not limited to, movement, requiring samples, treatment, exportation or destruction. Applying biosecurity measures is a key concept in relation to managing biosecurity risks (to meet the objects of the Act) and in relation to reducing biosecurity risk to an acceptable level in order to meet Australia`s ALOP. biosecurity monitoring zone This definition provides that biosecurity monitoring zone` means either a permanent or a temporary biosecurity monitoring zone. Biosecurity monitoring zones are in place to monitor whether a pest or disease that may pose an unacceptable level of biosecurity risk has or is likely to enter, emerge, establish or spread in an area within Australian territory. This may be done, for example by setting up insect traps or other equipment. See Part 6 of Chapter 6 for more details. biosecurity monitoring zone warrant This definition provides that biosecurity monitoring zone warrant` refers to a warrant issued as a result of the test in item 4 of the table in clause 489 being met. A biosecurity monitoring zone warrant may be issued if entry to premises (without consent of the owner or occupier), is necessary in a biosecurity monitoring zone (see clause 489 for further information). A biosecurity monitoring zone warrant may only be exercised by a biosecurity enforcement officer. biosecurity officer This definition provides that biosecurity officer` means a person authorised under clause 545 of this Bill. Biosecurity officers will be the main personnel performing functions and exercising powers under this Bill. Biosecurity officers will have appropriate training and/or qualifications to exercise powers under the Bill. biosecurity official This definition provides that biosecurity official` is a term used to mean any of the following officers–biosecurity officer, biosecurity enforcement officer or the Director of Biosecurity. biosecurity response zone This definition provides that a biosecurity response zone` has the meaning given by subclause 365(1) and is a zone that may be determined by the Director of Biosecurity in order to manage biosecurity risks where risks have been identified over a specified area. The Director may make a biosecurity response zone determination if the Director is satisfied that a disease or pest is present and it is necessary for the purpose of managing the biosecurity risk posed by a disease or pest. A biosecurity response zone may be declared, for example, where a biosecurity risk may have a major impact on an industry or community or has a high potential of spreading to other areas. If the biosecurity risk is not present over a large area, the risk may instead be dealt with by making a biosecurity control order in relation to goods or premises. See Part 5 of Chapter 6 for further information. 67


An area may also be determined to be a biosecurity response zone under Part 5 of Chapter 6 during a biosecurity emergency period (see clause 465). biosecurity response zone determination This definition provides that a biosecurity response zone determination` is a determination made by the Director of Biosecurity under clause 365(1) that a specified area is a biosecurity response zone. Clause 366 specifies the content of a biosecurity response zone determination, including the powers that may be exercised in a response zone. These powers may include treatment or destruction of goods or premises which pose a biosecurity risk, and setting entry or exit requirements to the affected properties (for example, requiring people to undertake decontamination before exiting the zone). biosecurity response zone warrant This definition provides that biosecurity response zone warrant` refers to a warrant issued as a result of the test in item 3 of the table in clause 489 being met. Biosecurity response zone warrants may be issued if entry to premises (without consent of the owner or occupier) is necessary in a biosecurity response zone (see clause 489 for further information). A biosecurity response zone warrant may only be exercised by a biosecurity enforcement officer. biosecurity risk This definition provides that biosecurity risk` (except as provided by clause 310) means: the likelihood of a disease or pest: – entering Australian territory or a part of Australian territory, or – establishing itself or spreading in Australian territory or a part of Australian territory, and the potential for any of the following: – the disease or pest to cause harm to human, animal or plant health – the disease or pest to cause harm to the environment, and – economic consequences associated with the entry, establishment or spread of the disease or pest. Biosecurity risk is a core concept in the Bill and draws on and is consistent with Australia`s obligations under the SPS Agreement. See also clause 310 for the modified definition of biosecurity risk in relation to the Chapter 6. biosecurity risk assessment warrant This definition provides that biosecurity risk assessment warrant` refers to a warrant issued as a result of the test in item 1 of the table in clause 489 being met. Biosecurity risk assessment warrants may be issued if entry to premises (without consent of the owner or occupier) is necessary in order to assess biosecurity risks associated with goods or premises. Biosecurity risk assessment warrants may not be issued in relation to goods or conveyances which are subject to biosecurity control or goods in relation to which an exposed goods order is in force (see clause 312 for the application of Chapter 6). A biosecurity risk assessment warrant may only be exercised by a biosecurity enforcement officer. BIRA (short for Biosecurity Import Risk Analysis) This definition provides that Biosecurity Import Risk Analysis` (BIRA) has the meaning given by clause 166, which outlines that a BIRA is a risk analysis that may be conducted in order to evaluate the level of biosecurity risk associated with the import or proposed import of goods into Australian territory. BIRAs may identify conditions that must be met to manage the level of biosecurity risk associated with the goods to a level that achieves ALOP. Clause 167 provides that a BIRA is conducted by the Director of Biosecurity. See Part 2 of Chapter 3 for further information. 68


chief human biosecurity officer This definition provides that a chief human biosecurity officer` is a medical practitioner employed by a state or territory body that has been authorised under clause 562 by the Director of Human Biosecurity. child or incapable person This definition provides that a child or incapable person` is: a person less than 18 years old, or a person who is at least 18 years old and either: – incapable(whether permanently or temporarily) of understanding the general nature and effect of, and purposes of carrying out a biosecurity measure, or – incapable (whether permanently or temporarily) of indicating whether he or she consents or does not consent to a biosecurity measure. Christmas Island This definition provides that Christmas Island` means the Territory of Christmas Island which is an external territory to which the Act applies (see clause 7 for the application of the Act in relation to external territories). civil penalty provision This definition provides that a civil penalty provision` has the same meaning as in the Regulatory Powers Act which currently provides that it is a provision that either: sets out at its foot a pecuniary penalty, or penalties, indicated by the words civil penalty`, or another provision of an Act or a legislative instrument provides that the provision is a civil penalty provision, or that a person is liable to a civil penalty if the person contravenes the provision, and the provision is: – a subsection, or a section that is not divided into subsections – a subregulation, or a regulation that is not divided into subregulations – a subclause (however described) of a Schedule to an Act, or of a legislative instrument, or – a clause (however described) of a Schedule to an Act, or of a legislative instrument, that is not divided into subclauses. Civil penalties can be applied to a variety of contraventions of the Act, and have been included in addition to criminal offences with the intention of providing flexibility to take action where non- compliance has been identified. The Director of Biosecurity or the Director of Human Biosecurity may apply to a relevant court for a civil penalty order where a person contravenes a civil penalty provision. coastal sea of Australia or an external Territory This definition provides that coastal sea` of Australia or an external territory has the same meaning as in subsection 15B(4) of the Acts Interpretation Act 1901, which currently provides: the territorial sea of Australia, and the sea on the landward side of the territorial sea of Australia and not within the limits of a State or internal Territory, and includes the airspace over, and the sea-bed and subsoil beneath, any such sea.` This term is used in the definition of Australian territory (clause 12). 69


Cocos (Keeling) Islands This definition provides that Cocos (Keeling) Islands means the Territory of Cocos (Keeling) Islands. The Cocos (Keeling) Islands are an external territory to which the Act applies (see clause 7 for the application of the Act in relation to external territories). commercial-in-confidence See clause 15 for the meaning of commercial-in-confidence`. Commonwealth body This definition provides that the term Commonwealth body` includes a Department of State, or an authority, of the Commonwealth. A Commonwealth body may be declared as a national response agency and its officers or employees may be authorised as biosecurity officers or biosecurity enforcement officers. competent authority This definition provides that a competent authority` is the authorised body of a member state that is responsible for implementing the International Health Regulations. conditionally non-prohibited goods This definition provides that conditionally non-prohibited goods` has the meaning given by subclause 174(2), which provides that conditionally non-prohibited goods are goods, or classes of goods, specified in a determination in force under subclause 174(1). The Director of Biosecurity and the Director of Human Biosecurity may jointly determine that that specified goods, or a specified class of goods, must not be brought or imported into Australian territory unless specified conditions (including conditions for administrative purposes) are complied with. See clause 174 for further information. constitutional trade and commerce This definition provides that constitutional trade and commerce` means trade or commerce between Australia and places outside Australia, trade or commerce among states, or trade or commerce within a territory, between a state and territory or between two territories. The definition reflects the extent of the Commonwealth’s legislative power to regulate trade and commerce in reliance on section 51(i) and section 122 of the Constitution. The term is used in Division 2 of this Chapter in relation to clause 24 (severability). conveyance See clause 16 for the meaning of conveyance` which include any vessel, aircraft, vehicle, or train (including railway rolling stock). The regulations may prescribe additional means of transport for the purpose of this definition, which is intended to allow for new developments in transport methods into the future. In limited circumstances a conveyance may be considered to be goods (see clause 16 for further information). conveyance possession warrant This definition provides that a conveyance possession warrant` means a warrant issued as a result of the test in item 6 of the table in clause 489 being met. That is, a conveyance possession warrant can only be issued where: a person has not complied with a request of a biosecurity officer under subclause 209(4) within a specified time period a person has not complied with a request of a biosecurity officer under subclause 338(4) within a specified time period a notice has been provided to the owner or the operator of the conveyance under subclauses 210(3) or 343(3), or 70


a certificate in relation to the conveyance has been issued under subclauses 210(4) or 343(4). cost-recovery charge This definition provides that a cost-recovery charge` means: a fee imposed prescribed by regulations made for the purposes of subclause 592(1) for a fee-bearing activity, or a charge imposed by: – the Biosecurity Charges Imposition (Customs) Act 2014 – the Biosecurity Charges Imposition (Excise) Act 2014 – the Biosecurity Charges Imposition (General) Act 2014 includes any late payment fee. A cost-recovery charge sets out all the fee-bearing activities and charges that can be collected under the Act. covered by, in relation to an approved arrangement See clause 14 for the meaning of covered by`, in relation to an approved arrangement. damage, in relation to data This definition provides that damage` in relation to data includes damage by erasure of data or addition of other data. Clause 326 provides that the Commonwealth is liable to pay compensation for damage to electronic equipment, including damage to data recorded on the equipment, where the damage occurred because insufficient care was exercised in selecting the person who was to operate the equipment or insufficient care was exercised by the person operating the equipment (see clause 326 for further information). declaration disease or pest, in relation to a biosecurity emergency declaration and a biosecurity emergency period This definition provides that declaration disease or pest` means the disease or pest specified under paragraph 475(3)(a) (the disease or pest to which the declaration relates) in the biosecurity emergency declaration that specifies the biosecurity emergency period. See Chapter 8 for further information. declaration listed human disease, in relation to a human biosecurity emergency declaration and a human biosecurity emergency period This definition provides that declaration listed human disease` means the listed human disease specified under paragraph 475(3)(a) (the listed human disease to which the declaration relates) in the human biosecurity emergency declaration that specifies the human biosecurity emergency period. See Chapter 8 for further information. de facto partner This definition provides that de facto partner` has the meaning given by the Acts Interpretation Act 1901. This term is used in clause 11 dealing with the meaning of associate. destination part This definition provides that destination part` has the meaning given by subclause 618(2) which relates to the declared movements between parts of Australian territory. Director of Biosecurity This definition provides that Director of Biosecurity` refers to the person who is, or is acting as, the Agriculture Secretary, as specified in clause 540. The Director of Biosecurity has specified 71


powers and functions under the Bill, including a power of general administration. Chapter 10 outlines who the Director of Biosecurity may delegate his or her powers to. Director of Human Biosecurity This definition provides that the Director of Human Biosecurity` refers to the person who occupies, or is acting in the position of the Commonwealth Chief Medical Officer, as specified in subclause 544(1). disease This definition provides that disease` refers to the signs or symptoms of an illness or infection caused by a disease agent, a collection of signs or symptoms that is clinically defined (for which the causal agent is unknown), or a disease agent that has the potential to cause an illness or infection (either directly or indirectly). This broad definition is intended to ensure the widest range of biosecurity risks and human health risks may be assessed and managed under this Bill. disease agent This definition provides that disease agent` includes, but is not limited to, a microorganism, an infectious agent and a parasite. This definition is intended to clarify what is meant by disease agent in the definition of disease. enactment This definition provides that enactment` means an Act of the Commonwealth, a state or a territory, as well as an instrument (including rules, regulations and by-laws) made under an Act of the Commonwealth, a state or a territory. engage in conduct This definition provides that engage in conduct` means to do an act, or omit to perform an act. entry warrant This definition provides that entry warrant` refers to any of the following warrants authorising entry to premises: a biosecurity risk assessment warrant a biosecurity control order warrant a biosecurity response zone warrant a biosecurity monitoring warrant, and an adjacent premises warrant. environment This definition provides that environment` includes ecosystems and their constituent parts, and natural and physical resources. Environment` is a term used in the definitions of biosecurity risk and pest. This broad definition is intended to ensure that biosecurity risks and pests may be assessed and managed in the widest possible range of circumstances. evidential burden This definition provides that evidential burden` in relation to a matter means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. For example, a person who bears the evidential burden in relation to adducing evidence that he or she received prohibited goods through legal means under clause 188, it means that he or she must adduce evidence that suggests the reasonable possibility that the goods were received through legal means. 72


exit provisions This definition provides that exit provisions` has the meaning given by subclause 619(2) which relates to leaving Australian territory. exposed conveyance This definition provides that exposed conveyance` means an exposed conveyance within the meaning of subclauses 192(2) or (3). That is, an exposed conveyance is a conveyance that becomes subject to biosecurity control when it is exposed to an aircraft or vessel that is subject to biosecurity control (other than those referred to in paragraph 192(1)(a)), or a conveyance that becomes subject to biosecurity control when it re-enters Australian territory (after being exposed to another conveyance outside of Australian territory) and is subject to paragraph 192(1)(b). exposed goods This definition provides that exposed goods` has the meaning given by subclause 158(3), which refers to goods (other than goods that are subject to biosecurity control) that are suspected by a biosecurity officer, on reasonable grounds, to have been exposed to goods or a conveyance that is or are subject to biosecurity control. exposed goods order This definition provides that an exposed goods order` means an order made under subclause 159(3). For an exposed goods order to be made under subclause 159(3), a biosecurity officer must suspect, on reasonable grounds, that there is an unacceptable level of biosecurity risk associated with goods that have been exposed to goods or a conveyance that is subject to biosecurity control. An exposed goods order allows a biosecurity officer to exercise the powers in Divisions 4, 5, 6, 7, 8 and 10 of Chapter 3 in relation to the exposed goods in the same way the officer would exercise those powers in relation to goods that are subject to biosecurity control. Clause 159 sets out where goods must be to enable a biosecurity officer to make an exposed goods order in relation to them. An exposed goods order ceases to be in force if when the order expires or is revoked, or if the goods are released from biosecurity control under Division 10 of Chapter 3. exposed to See clause 17 for the meaning of exposed to`. Federal Circuit Court This definition provides that Federal Circuit Court` means the Federal Circuit Court of Australia. This term is used in the definition of relevant court. Federal Court This definition provides that a reference to the Federal Court` is a reference to the Federal Court of Australia. This term is used in the definition of relevant court. fee-bearing activities See subclause 592(1) for the definition of fee-bearing activities` which refers to activities carried out by, or on behalf, of the Commonwealth in performing functions or exercising powers under the Bill. first point of entry See clause 18 for the meaning of first point of entry`. This term is primarily used in Parts 3 and 4 of Chapter 4. 73


Foreign Affairs Department This definition provides that Foreign Affairs Department` refers to the Department administered by the Minister administering the Diplomatic Privileges and Immunities Act 1967. The Foreign Affairs Department is specified in clause 98 as one of the bodies and agencies that the Director of Human Biosecurity must notify if a traveller movement measure is included in a human biosecurity control order. foreign vessel This definition provides that foreign vessel` refers to a vessel that is not an Australian vessel. The term is used in Chapter 5 in relation to ballast water management. goods See clause 19 for the meaning of goods`. harbour This definition outlines that harbour`, for the purposes of the definition of port, includes: a navigable estuary, river, creek or channel a haven, roadstead, dock pier or jetty, or any other place in or at which vessels can obtain shelter or load and unload goods or embark and disembark passengers. This definition is based upon the definition of harbour` in the Navigation Act 2012. This is to ensure consistency with other Commonwealth legislation to the extent possible while meeting the needs of the Bill. The definition of harbour is used in Chapter 4 in relation to a first point of entry. Health Department This definition provides that Health Department` refers to the department administered by the Health Minister. Health Minister This definition provides that Health Minister` refers to the Minister that administers the National Health Act 1953. Health Secretary This definition provides that Health Secretary` refers to the Secretary of the Health Department. high-value conveyance This definition provides that a conveyance is considered to be a high-value conveyance` if it is of a value greater than the amount prescribed by the regulations for the purpose of this definition. Certain powers in Chapter 4 and Chapter 6 that relate to high-value conveyances are only available to biosecurity officers with the written approval of the Director of Biosecurity. For example, clause 208 provides that a biosecurity officer may require a conveyance which poses an unacceptable biosecurity risk to be treated, however an officer must receive written approval from the Director of Biosecurity in order to require treatment that may damage a high-value conveyance. This differentiation is intended to ensure that the Director of Biosecurity (or a delegate) makes decisions that relate to high-value conveyances while still providing operational practicality for biosecurity officers to require the treatment of a conveyance (other than high-value conveyances) where necessary. high-value goods This definition provides that goods are considered high-value goods` if the goods are of a value greater than the amount prescribed by the regulations for the purpose of this definition. 74


Certain powers in Chapter 3 and Chapter 6 that relate to high-value goods are only available to biosecurity officers with the written approval of the Director of Biosecurity. For example, clause 136 provides that a biosecurity officer may require goods (other than high-value goods) which pose a biosecurity risk to be destroyed, however an officer must receive written approval from the Director of Biosecurity in order to destroy high-value goods. This differentiation is intended to ensure that the Director of Biosecurity (or his or her delegate) makes decisions that relate to high- value goods while still providing operational practicality for biosecurity officers to require treatment or destruction of goods (other than high-value goods) where necessary. human biosecurity control order This definition provides that a human biosecurity control order` is an order that is imposed under clause 60 on an individual that may have a listed human disease. This order enables biosecurity measures to be specified to control the risks posed by serious communicable diseases. human biosecurity emergency This definition provides that a human biosecurity emergency` refers to an emergency that is declared under subclause 475(1). The human biosecurity emergency provisions in Chapter 8 outline the powers and provisions relating to human biosecurity emergency declarations and the management of associated human health risks. The emergency powers in the Bill are intended to be used in circumstances where the scale and significance of an emergency requires management at a national level. See Chapter 8 for further details. human biosecurity emergency declaration This definition provides that a human biosecurity emergency declaration` refers to a declaration of a human biosecurity emergency made by the Governor-General under subclause 475(1). A human biosecurity emergency declaration will specify the listed human disease the declaration relates to, the nature of the human biosecurity emergency and the conditions that gave rise to it and the period during which the declaration is in force. human biosecurity emergency period This definition provides that a human biosecurity emergency period` refers to the period of time specified under paragraph 475(3)(c) during which a human biosecurity emergency declaration is in force. human biosecurity officer This definition provides that a human biosecurity officer` is a person authorised under clause 563 of this Bill. human disease This definition provides that a human disease` is a pest or disease that has the potential to enter, emerge, establish itself or spread in Australian territory or a part of Australian territory and cause harm to human health. human health response zone See clause 113 for the meaning of human health response zone`. A human health response zone` is a specified area that has been determined to prevent or reduce the risk of a disease from entering, emerging, establishing itself or spreading in Australian territory or part of Australian territory and causing harm to human health. The Director of Human Biosecurity is responsible for determining a human health response zone under clause 113 of the Bill. human health risk This definition provides that a human health risk` is: the likelihood of a disease or pest: 75


– 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 either of the following: – 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. human remains This definition provides that human remains` are the remains of all or any part of the body of a deceased human, but does not include cremated remains. Immigration Department This definition provides that Immigration Department` refers to the department administered by the Minister administering the Migration Act 1958. The Immigration Department is specified in clause 98 as one of the bodies and agencies that the Director of Human Biosecurity must notify if a traveller movement measure is included in a human biosecurity control order. import, in relation to goods This definition provides that import` in relation to goods, does not include unloading the goods for temporary purposes only (for example, to unload other goods). This term is used in Chapter 3 in a number of contexts, including provisions that outline the requirement to obtain a permit to bring or import certain goods into Australian territory (see Division 3 of Part 3, Chapter 3). The Bill also refers to goods being brought in` to Australian territory–this term is similar to import` however it also captures goods which are brought in for temporary purposes, such as goods that are on board a conveyance but are not unloaded in Australian territory (for example, ship stores), or goods that are transported by land from the port or landing place of arrival in Australian territory to another port or landing place in Australian territory on the way to a final destination outside of Australian territory. incoming aircraft or vessel This definition provides that incoming aircraft or vessel` means an aircraft or vessel that has entered Australian territory during a flight or voyage that commenced outside Australian territory, and intends to arrive (or has arrived) at a landing place or port in Australian territory. This term is used in Chapter 4. incoming passenger aircraft or vessel This definition provides that an incoming passenger aircraft or vessel` is an incoming aircraft or vessel that is a passenger aircraft or passenger vessel. installation See clause 20 for the meaning of installation`. The definition of a vessel includes an installation for the purposes of the Bill. internal waters of Australia This definition provides that internal waters of Australia` has the same meaning as in section 10 of the Seas and Submerged Lands Act 1973, where it is defined as: any waters of the sea on the landward side of the baseline of the territorial sea`. To avoid doubt, the definition clarifies that the internal waters of Australia includes waters within the limits of a state. This term is used in the definition of Australian seas. 76


International Health Regulations This definition provides that International Health Regulations` are the regulations prepared by the World Health Organization to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with, and restricted to, public health risks. Australia is a signatory to the International Health Regulations and a World Health Organization Member State, and is therefore obliged to enforce the International Health Regulations in Australia. international mail centre This definition provides that international mail centre` refers to a place approved by the Chief Executive Officer of Customs under paragraph (f) of the definition of Customs place` in subsection 183UA(1) of the Customs Act 1901. Chapter 6 provides that a permanent biosecurity monitoring zone will be in place around all international mail centres. See clause 376 for further information. invasive pest This definition provides that invasive pest` refers to a pest that is an alien species within the meaning of the Biodiversity Convention that is not capable of infesting humans, animals or plants; acting as a vector for a disease; or causing disease in any other way. This definition is intended to capture invasive pests such as lantana or bitou bush that may cause harm to human, animal or plant health or the environment (by, for example, affecting plant communities or water catchments) although they do not cause harm through infesting humans, animals or plants, or acting as a vector for or cause of disease. See clauses 25 and 26 for the application of this Bill in relation to invasive pests. Article 8(h) of the Biodiversity Convention imposes an obligation to ‘prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species’. The Guiding Principles in relation to Article 8(h), adopted by the Conference of the Parties to the Biodiversity Convention (COP 6 Decision VI/23), define ‘alien species’ as referring to a species, subspecies or lower taxon, introduced outside its natural past or present distribution. Therefore, an ‘alien species’, for the purposes of the Convention and also this definition, can include species that are not native to a particular part of Australian territory, as well as species that are not native to Australian territory as a whole. investigation warrant This definition provides that investigation warrant` means; a warrant issued under section 70 of the Regulatory Powers Act as it applies in relation to evidential material that relates to a provision mentioned in subclause 484(1), or a warrant signed by an issuing officer under section 71 of the Regulatory Powers Act as it applies in relation to evidential material that relates to a provision mentioned in subclause 484(1). isolation measure This definition provides that isolation measure` refers to a biosecurity measure provided for under clause 97, which may be imposed under a human biosecurity control order. This measure requires an individual to remain isolated at a specified medical facility. This measure aims to prevent other members of the community from being exposed to a listed human disease. issuing officer This definition provides that issuing officer` refers to a magistrate, or Judge of the Federal Court or the Federal Circuit Court or a Judge of a state or territory court who has the power to issue a warrant under this Bill. It is intended that warrants provided for in Chapter 9 will be issued to 77


allow entry to premises (including conveyances) under this Bill for the purposes of assessing or managing biosecurity risks, or monitoring or investigating compliance with the Act. See clause 537 for conferral of powers on an issuing officer. just terms This definition provides that just terms` has the same meaning as in section 51(xxxi) of the Constitution, which currently provides: the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.` The term is used in this Bill in relation to acquisition of property. landing place, in relation to aircraft This definition provides that landing place` means any place where an aircraft can land, including an area of land or water, or an area on a building or a vessel. The term is used in Chapter 4 to outline where aircraft that are subject to biosecurity control can and cannot land. See also first point of entry. late payment fee See clause 595 for meaning of late payment fee`, which is an additional fee that is payable if a basic charge that is due and payable under the regulations is not paid at or before the time specified in the regulations. listed human disease See clause 42 for meaning of listed human disease`, which is a human disease that the Director of Human Biosecurity may consider to be a communicable disease that may cause significant harm to human health, and is determined in accordance with that clause. managed for discharge This definition provides that managed for discharge` refers to ballast water that has met the ballast water management requirements set out in Chapter 5. See clauses 272 and 275 for further information. medical facility This definition provides that medical facility` refers to a facility where medical assessments of individuals are conducted. This includes permanent facilities such as hospitals and clinics, and may also include facilities that are temporarily designated for this purpose. monitoring warrant This definition provides that monitoring warrant` means a warrant issued under section 32 of the Regulatory Powers Act as it applies in relation to this Act. A monitoring warrant may be issued if entry to premises (without consent of the owner or occupier of the premises) is necessary in order to monitor whether the Act is, or has been, complied with or whether information provided for the purposes of the Act is correct. A monitoring warrant may only be exercised by a biosecurity enforcement officer. National Focal Point This definition provides that National Focal Point` refers to the designated point of contact for the sharing of information with other States party to the International Health Regulations, as specified in section 9 of the National Health Security Act 2007. The National Focal Point is specified in clause 98 as one of the bodies and agencies that the Director of Human Biosecurity must notify if a traveller movement measure is included in a human biosecurity control order. 78


national response agency This definition provides that national response agency` refers to the Agriculture Department and all biosecurity officers and biosecurity enforcement officers, or a body that is declared to be a national response agency by the Agriculture Minister under clause 452. A national response agency may be declared to assist with the Commonwealth`s response to a biosecurity emergency. It is intended that national response agencies will be used to direct people, staff biosecurity zones, close roads and assist with the application of biosecurity measures during a biosecurity emergency. officer of Customs This definition provides that officer of Customs` has the same meaning as in the Customs Act 1901. This term is used in Chapter 2. operator of a conveyance See clause 21 for the meaning of operator` of a conveyance. origin part This definition provides that origin part` has the meaning given by subclause 618(2) which relates to the declared movements between parts of Australian territory. outgoing aircraft or vessel This definition provides that outgoing aircraft or vessel` refers to an aircraft or vessel that is departing from Australian territory. outgoing passenger aircraft or vessel This definition provides that outgoing passenger aircraft or vessel` is an outgoing aircraft or vessel that is a passenger aircraft or passenger vessel. passenger This definition provides that passenger` refers to an individual travelling on an aircraft or vessel, but does not include the crew of that aircraft or vessel. passenger aircraft This definition provides that passenger aircraft` refers to an aircraft that can carry six or more passengers. passenger vessel This definition provides that passenger vessel` refers to a vessel that can carry 12 or more passengers. permanent biosecurity monitoring zone This definition provides that permanent biosecurity monitoring zone` has the meaning given by clause 378 and refers to a biosecurity monitoring zone that is permanently in place within the permissible distance of the outer boundary of a first point of entry, an international mail centre, a biosecurity activity zone or any other place in Australian territory prescribed by the regulations. It is intended that permanent biosecurity monitoring zones will be used to monitor whether pests or diseases that may pose an unacceptable level of biosecurity risk have entered, or are likely to enter, emerge, establish or spread from places that are known to be subject to high traffic of goods or conveyances that are subject to biosecurity control. permissible distance 79


This definition provides that permissible distance` in relation to a permanent biosecurity monitoring zone is 400 metres, or greater if prescribed in the regulations for the purposes of this definition. permissible purpose This definition provides that permissible purpose` means a purpose that promotes the objects of the Act (see clause 4). This term is used in provisions relating to confidentiality of information in Chapter 11. Personal information and commercial-in-confidence information may be collected for a permissible purpose (e.g. through processing a permit application). Records may be made of that information and it may be disclosed or used for a permissible purpose in the exercise of powers or performance of functions under the Bill (for example, to contacting the person who made the application about the application). personal information This definition provides that personal information` has the same meaning as in section 6 of the Privacy Act 1988 which currently provides the meaning as: Information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.` This term is used in provisions relating to confidentiality of information in Chapter 11. person assisting This definition provides that person assisting` has the meaning given by clause 536. A biosecurity officer may be assisted by other persons in exercising powers and performing functions referred to in subclause 536(1) if that assistance is necessary and reasonable. Similarly, a biosecurity enforcement officer may be assisted by other persons in entering premises, and exercising powers and performing functions referred to in subclause 536(1), if that assistance is necessary and reasonable. A person giving such assistance to a biosecurity officer or a biosecurity enforcement officer is a person assisting the officer. See clause 536 for further information. person in charge See clause 22 for the meaning of person in charge`. person responsible for a conveyance This definition provides that a person responsible for a conveyance `means the owner of the conveyance, the person in charge of the conveyance or the operator of the conveyance. See clauses 21 and 22 for further information in relation to the meaning of the terms operator of a conveyance and person in charge of a conveyance. pest This definition provides that pest` refers to 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, the economy or the environment. This broad definition is intended to ensure that the widest range of biosecurity risks and human health risks may be assessed and managed under this Bill. See clauses 25 and 26 for the application of this Act in relation to pests, and also the definition of invasive pests. 80


plant This definition provides that a reference to plant` in this Bill includes a dead plant and any part of a plant. Chapter 3 provides that the Director of Biosecurity and the Director of Human Biosecurity may jointly prohibit (absolutely or subject to conditions) goods from being brought or imported into Australian territory. This may include prohibiting (absolutely or subject to conditions) or requiring a permit for the bringing in or importation of plants, parts of plants or plant products as they are included in the definition of goods under this Bill. port This definition provides that port` includes a harbour. See the definition of harbour for further information. possession warrant This definition provides that possession warrant` refers to a premises possession warrant or a conveyance possession warrant that authorises the taking of possession of premises or conveyances. PPSA security interest This definition provides that a PPSA security interest` means a security interest within the meaning of the Personal Property Securities Act 2009 and to which that Act applies (other than a transitional security interest within the meaning of that Act). This term is used in Chapter 11 in relation to the cost recovery provisions. The Personal Property Securities Act 2009 applies to certain security interests in person property. See section 8 (interests to which the Act does not apply), section 12 (meaning of security interest) and Chapter 9 (transitional provisions) of that Act. Further, see section 308 of the Personal Property Securities Act 2009 for the meaning of transitional security interest. premises This definition provides that premises` includes a structure, building or conveyance; a place (whether or not enclosed or built on), including a place situated underground or under water; or a part of either of the previous. This broad definition is intended to ensure that powers provided in the Bill are able to be exercised in the widest range of locations in order to manage biosecurity risk. Conveyances are included in the definition of premises in most of the Bill as the same policy that applies to premises generally applies to conveyances (see clauses 252, 472 and 497 for examples of clauses where premises does not include a conveyance). premises possession warrant This definition provides that premises possession warrant` refers to a warrant issued as a result of the test in item 7 of the table in clause 489 being met. A biosecurity enforcement officer may apply for a premises possession warrant where a biosecurity officer has requested under subclause 341(1) for the owner of premises to arrange for the premises to be dealt with or destroyed, and the request has not been complied with. Premises possession warrants will allow biosecurity officers to access to premises in order to manage biosecurity risks associated with the premises. prescribed contact information This definition provides that prescribed contact information` refers to the contact information that is required to be provided by the operators of passenger aircraft and passenger vessels, individuals that may be suffering from a listed human disease, or close personal contacts of individuals that may be suffering from a listed human disease (see clause 47, 69 and 85 respectively). 81


prescribed quarantine signal This definition provides that prescribed quarantine signal` means the signal prescribed under subclause 221(2). Quarantine signals are internationally-recognised signals (e.g. flags or lights) on vessels that indicate the state of health of the people on board. Quarantine signals are prescribed in this Bill in accordance with the International Code of Signals. The requirements for how the quarantine signal is to be displayed will be covered in the regulations. prohibited goods See subclause 173(2) for the meaning of prohibited goods`, which refers to goods (or classes of goods) that the Director of Biosecurity and Director of Human Biosecurity have jointly determined are prohibited from being imported or brought into Australian territory. The Directors may only determine that goods are prohibited goods if satisfied that the level of biosecurity risk associated with the goods (or class of goods) is unacceptable and that biosecurity measures would not be able to be taken to reduce that level of biosecurity risk to an acceptable level. The Directors must apply the ALOP for Australia in conducting a risk assessment for the purpose of determining whether particular goods (or classes of goods) should be prohibited goods (see subclause 173(4)). protected information This definition provides that protected information` refers to personal information, or information that is commercial-in-confidence that: is obtained under, or in accordance with, this Act is derived from a record of personal information, or information that is commercial-in- confidence, that was made under, or in accordance with, this Act, or is derived from a disclosure or use of personal information, or information that is commercial-in-confidence, which was made under, or in accordance with, this Act. This term is used in provisions relating to confidentiality of information in Chapter 11 which outlines the circumstances that a person can record, disclose or otherwise use protected information for the purposes of the Act (i.e. a permissible purpose) (see Part 2 of Chapter 11). Also, see clause 15 for the meaning of commercial-in-confidence. protected person This definition provides that protected person` has the meaning given by subclause 644(6) and refers to a person protected from civil proceedings under clause 644. Civil proceedings involve legal disputes between individuals based on one person claiming that the other has failed in his or her legal duty. Protection from civil proceedings is intended to allow those required under the Bill to make decisions and take action to manage biosecurity risk appropriately without the fear of being sued. This protection does not however extend to protection from criminal prosecution where a protected person is alleged to have committed an offence. protected zone This definition provides that protected zone` has the meaning given by clause 617 which is the zone established under Article 10 of the Torres Strait Treaty, being the area bounded by the line described in Annex 9 to the Treaty. protected zone area This definition provides that protected zone area` has the meaning given by clause 617 which is the protected zone established under the Torres Strait Treaty, or an area in the vicinity of the protected zone prescribed in regulations made under clause 617. The area in the vicinity of the 82


protected zone is included in the definition of this term to ensure that traditional inhabitants navigating protected zone vessels (which may not have access to accurate navigation equipment) are provided with a buffer zone in which they may travel while still being considered protected zone vessels. protected zone vessel This definition provides that protected zone vessel` has the meaning given by clause 617, which refers to a vessel that meets the conditions set out in that clause. Protected zone vessels are vessels that are used to transport traditional inhabitants in the protected zone. See clause 617 for further details of how Australia will meet its obligations under the Torres Strait Treaty in this Bill. Regulatory Powers Act This definition provides that Regulatory Powers Act` means the Regulatory Powers (Standard Provisions) Act 2014. related provision This definition provides that related provision` refers to an offence against this Act or the Quarantine Act 1908 (as it applied of its own force or to the extent that it continues to apply because of the Biosecurity (Consequential Amendments and Transitional Provisions) Act 2014, a civil penalty provision under the Biosecurity Act, or an offence against the Crimes Act 1914 or the Criminal Code that relates to the Biosecurity Act or the Quarantine Act 1908 (as it is applied of its own force or to the extent that it continues to apply because of the Biosecurity(Consequential Amendments and Transitional Provisions) Act 2014 . release from biosecurity control This definition provides that release from biosecurity control` refers to when goods and conveyances are no longer subject to biosecurity control. See clauses 162 and 218 for further information. relevant court This definition provides that relevant court` refers to the Federal Court, the Federal Circuit Court or a court of a state or territory that has jurisdiction in relation to matters arising under the Bill. relevant Director, in relation to a proposed arrangement or an approved arrangement This definition provides that relevant Director`, when used in relation to a proposed arrangement or approved arrangement, refers to the Director of Biosecurity unless the arrangement provides for biosecurity activities to be carried out in relation to human health risks only. If the arrangement relates only to human health risks, the Director of Human Biosecurity is the relevant Director. relevant person This definition provides that relevant person` for a reviewable decision refers to a person listed in column 1 of the table in subclause 574(1), or for a reviewable decision prescribed in the regulations made for the purposes of subclause 574(2), the person prescribed in the regulations to clause 574. A relevant person, in relation to a reviewable decision, is the person that may apply for the decision to be reviewed. See clause 574 for further information. relevant premises See clause 510 for the meaning of relevant premises`, which refers to any premises at which biosecurity activities are carried out by a biosecurity industry participant that is covered by an approved arrangement and any landing place or port that is determined to be a first point of entry. 83


reportable biosecurity incident This definition provides that reportable biosecurity incident` refers to an incident relating to a biosecurity risk that must be reported to a biosecurity officer or the Director of Biosecurity (for incidents reportable in Chapter 3) or the relevant Director (for incidents reportable in Chapter 7). Division 8 of Part 1 of Chapter 3 provides that in relation to goods that are subject to biosecurity control, the Director of Biosecurity may determine that an act, or omission or event is a reportable biosecurity incident. Reportable biosecurity incidents will be listed in a legislative instrument made by the Director of Biosecurity. See clauses 155 and156 for further information. In Chapter 7, clause 431 provides that a report must be made to the relevant Director if an act, omission or event specified in an approved arrangement occurs, or if a condition of the approved arrangement requires a report to be made to the relevant Director if an act, omission or event specified in the condition occurs. See clauses 431 and 432 for further information. Reportable biosecurity incidents are intended to ensure persons in charge of goods, persons in charge of vessels or aircraft that bring goods into Australian territory, and biosecurity industry participants report any biosecurity incidents to a biosecurity officer or the Director of Biosecurity in order to ensure the biosecurity risk is assessed and managed. reviewable decision This definition provides that a reviewable decision` has the meaning given by subclauses 574(1) and (2). Subclause 574(1) lists decisions that are reviewable and subclause 574(2) provides that regulations may prescribe further decisions that are reviewable decisions. Applications can be made to the Administrative Appeals Tribunal for a decision made personally by the Director of Biosecurity, or for a decision that has been reviewed by the Director of Biosecurity or other internal reviewer. It is intended that reviewable decisions will allow people in relation to whom a decision has been made under this Act to have the decision reviewed if the person is not satisfied that the decision was made correctly, and potentially re-made if the original decision was found to be incorrect. sanitation health risk The definition provides that sanitation health risk` has the meaning prescribed under clause 255(1)(a). Clause 255 provides for the regulations to establish a scheme for ship sanitation, which must give effect to the International Health Regulations. sediment This definition provides that sediment` has the same meaning as Sediments in the Ballast Water Convention, which refers to matter settled out of ballast water within a ship`. This term is used in Chapter 5 in relation to ballast water management. sediment reception facility This definition provides that sediment reception facility` refers to a facility in Australian territory for receiving sediment from vessels for treatment or disposal in a way authorised under a Commonwealth law or a state or territory law (if the facility is in a state or territory). This term is used in Chapter 5 in relation to ballast water management. ship’s pilot This definition provides that ship`s pilot` refers to a person who does not belong to, but has the conduct of, a vessel. The term is commonly used to refer to a person with extensive knowledge of conditions applicable to the port that a vessel wishes to enter. The ship`s pilot boards the vessel to 84


pilot it into the port and ensure it docks safely. This term is used in the definition of person in charge of a conveyance. SPS Agreement This definition provides that SPS Agreement` refers to the Agreement on the Application of Sanitary and Phytosanitary Measures 1994 set out in Annex 1A to the World Trade Organization (WTO) Agreement as in force for Australia from time to time. The SPS Agreement contains the basic rules on animal and plant health and food safety standards for trade between World Trade Organization member countries. It requires that sanitary (relating to human and animal) and phytosanitary (relating to plant) measures are based on science and applied only to the extent necessary to protect human, animal or plant life or health. The SPS Agreement allows World Trade Organization members to determine their own appropriate level of sanitary and phytosanitary protection (ALOP), which must be applied in a consistent manner. State or Territory body This definition provides that a reference to a state or territory body` includes a Department of State, or an authority of a state or territory. subject to biosecurity control This definition provides that subject to biosecurity control` has the meaning given by clause 119 in relation to goods, and clause 191 or clause 192 in relation to conveyances. Goods and conveyances that arrive from outside Australian territory–or in some circumstances, interact with goods or conveyances that have arrived from outside Australian territory–provide a direct pathway for biosecurity risks to enter into Australian territory. This Bill makes those goods and conveyances subject to biosecurity control. When goods or conveyances are subject to biosecurity control, biosecurity officers can exercise powers in relation to them to manage any associated biosecurity risks. survey authority This definition provides that survey authority` refers to a person authorised by the Director of Biosecurity under clause 289 to be a survey authority. Regulations can prescribe a scheme for survey authorities to perform a number of functions in relation to ballast water management certificates of Australian vessels on behalf of the Commonwealth (see clause 290). The Director of Biosecurity may only authorise a survey authority under this clause if the Director is satisfied the person has suitable qualifications to perform these functions. suspended goods See subclause 182(2) for meaning of suspended goods`, which provides that suspended goods are goods that the Director of Biosecurity has determined must not be brought, or imported, into Australian territory for a specified period. tank This definition provides that tank` includes a space or compartment. The term is used in the definition of ballast water exchange. This definition is intended to ensure that any space or compartment that can contain ballast water is captured by the term ballast water exchange. 85


temporary biosecurity monitoring zone This definition provides that temporary biosecurity monitoring zone` has the meaning given by subclause 384(1) and refers to a biosecurity monitoring zone in relation to which the Director of Biosecurity has made a temporary biosecurity monitoring zone declaration. It is intended that temporary biosecurity monitoring zones will be used to monitor whether pests or diseases that may pose an unacceptable level of biosecurity risk have, or are likely to, enter, emerge, establish or spread from a specified area within Australian territory. temporary biosecurity monitoring zone determination This definition provides that a temporary biosecurity monitoring zone determination` is a determination made under clause 384(1) that specifies the particular biosecurity measures or powers that a biosecurity officer may use to manage an identified biosecurity risk in a temporary biosecurity monitoring zone. Clause 385 specifies the required contents of a temporary biosecurity monitoring zone determination. this Act This definition provides that any reference to this Act` includes instruments made under the Biosecurity Act and the Regulatory Powers Act applying in relation to this Act. Torres Strait Treaty See clause 617 for the meaning of Torres Strait Treaty`, which refers to the Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters 1978. Articles of the Torres Strait Treaty that are relevant to this Bill include: Article 10.3 which states that the principle purpose of the Parties in establishing the protected zone is to acknowledge and protect the traditional way of life and livelihood of the traditional inhabitants including their traditional fishing and free movement` Article 11.3 which states that, subject to the other provisions of the Torres Strait Treaty, each Party shall continue to permit free movement and the performance of lawful traditional activities in and in the vicinity of the protected zone by the traditional inhabitants of the other Party`, and Article 16 which states that each Party shall apply immigration, customs, quarantine and health procedures in such a way as not to prevent or hinder free movement or the performance of traditional activities in and in the vicinity of the protected zone by the traditional inhabitants of the other Party’. See clause 617 for further details. traditional activities See clause 617 for the meaning of traditional activities`, which refers to the meaning given in the Torres Strait Treaty. traditional inhabitant See clause 617 for the meaning of traditional inhabitant`, which refers to the meaning given in the Torres Strait Treaty. traveller movement measure This definition provides that traveller movement measure` refers to a biosecurity measure provided for under clause 96 that may be imposed under a human biosecurity control order. This measure requires that an individual does not leave Australian territory on an outgoing passenger 86


aircraft or passenger vessel for up to 28 days. This measure seeks to prevent the spread of listed human diseases to other passengers, and to prevent the international spread of the disease. unduly detained or delayed This definition provides that unduly detained or delayed` in relation to ballast water management refers a vessel being unduly detained or delayed under articles 7.2, 8, 9, or 10 of the Ballast Water Convention. These articles relate to undue detainment or delay in the course of: requiring additional surveys or certifications that are not required under the Convention investigating a suspected violation of the Convention and subsequent sanctions against a vessel inspection and sampling to determine whether a vessel is in compliance with the Convention, and detaining a vessel that has violated the Convention. Chapter 5 provides that if a vessel is unduly detained or delayed as a result of an action undertaken by a biosecurity officer, the owner may claim reasonable compensation from the Commonwealth (see clause 307). This is intended to safeguard owners against financial loss if a vessel is detained longer than was required to ensure compliance with the ballast water management provisions of the Bill, or if there was no basis for the detention. United Nations Convention on the Law of the Sea This definition provides that United Nations Convention on the Law of the Sea` refers to the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982 in force for Australia from time to time. This term is used in clause 30 in relation to foreign vessels. vessel This definition outlines which types of conveyances are considered to be a vessel` under this Bill. The term refers to any kind of vessel used in navigation by water, however propelled or moved, including a barge, lighter or other floating craft, and an air-cushion vehicle (or other similar craft, used wholly or primarily in navigation by water). This definition provides that vessel also includes an installation, and any floating structure. Under this Bill, a vessel (except in relation to Chapter 5) that is, or is to be, brought or imported into Australian territory from outside Australian territory on board another conveyance is consider to be goods from the time the vessel is first intended to be so brought or imported until immediately after the vessel is released from biosecurity control. This is intended to exclude such vessels from provisions of the Bill that deal with biosecurity risks associated with aircraft that convey people or goods into Australian territory (for example, clause 193–pre-arrival reporting). Biosecurity risks associated with such vessels will be managed under Chapter 3. However, in relation Parts 1 and 3 of Chapter 11 (and any provision of the Bill that relates to Parts 1 and 3 of Chapter 11) a vessel which is transported on another conveyance will not be considered goods so that the cost recovery provisions in Chapter 11 apply as if the vessel were a conveyance (see definition of conveyance and goods in clauses 16 and 19 for further information). warrant This definition provides that warrant` refers to any warrant issued under clause 488 or clause 492 or an investigation warrant or a monitoring warrant. World Trade Organization Agreement This definition provides that World Trade Organization Agreement` refers to the Marrakesh Agreement 1994 that established the World Trade Organization. See SPS Agreement for how this Agreement relates to this Bill. 87


Clause 10 Meaning of approved arrangement This clause provides that an approved arrangement is 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 paragraph 406(1)(a) as it applies because of subclause 412(3). In order to be approved, an arrangement must meet the requirements set out in the regulations, the applicant must meet a fit and proper person test (see clause 530), and the relevant Director must consider that the level of biosecurity risk associated with the operation of the arrangement is acceptable. Once an application has been approved by the relevant Director, the applicant will become a biosecurity industry participant. All arrangements will be supported by an audit model that ensures the biosecurity risks are being adequately managed. Chapter 7 outlines the scope and principles of approved arrangements, the processes for application, approval and any subsequent changes to an arrangement with a biosecurity industry participant. Clause 11 Meaning of associate This clause defines the term associate` which is used in clauses 179, 410 and 530. Subclause 11(1) provides that the word associate` covers a person who is or was a consultant, adviser, partner, representative on retainer, employer or employee of the first person or a corporation the first person is employed by or has shares in; a spouse, de facto partner, or family member of the first person; a family member of a spouse or de facto partner of the first person or any other person who was directly or indirectly concerned with or in a position to control the business or an undertaking of the first person or a corporation he or she is employed by or has shares in. (See section 2D of the Acts Interpretation Act 1901 for the meaning of de facto partner). Guidance is provided on who may be a child` or a parent` of a person. The intent of the associates` test is to ensure that an applicant for a permit to bring or import goods into Australian territory, an arrangement or a person who holds an approved arrangement is a suitable person to be responsible for managing biosecurity risks, in light of the potential consequences of non-compliance. It aims to do this by preventing a person the relevant Director has determined should not hold a permit or an approved arrangement from obtaining another arrangement via an associate, such as a family member or business partner, on his or her behalf; or by ensuring a person involved in the behaviour that resulted in non-compliance of the first person can be refused a permit or an arrangement or have his or her approved arrangement suspended or revoked if the relevant Director deems it appropriate. The term associate` is also used in clause 530 to provide guidance as to who is a fit and proper person. Clause 12 Meaning of Australian territory This definition outlines the application of provisions referring to Australian territory`. A reference in a provision of this Bill to Australian territory is defined to mean a reference to Australia, Christmas Island, the Cocos (Keeling) Islands (and any external Territory to which that provision extends), and the airspace over these areas. It also refers to the coastal sea of Australia, of Christmas Island, of the Cocos (Keeling) Islands (and of any other external Territory to which that provision extends). Clause 13 Meaning of biosecurity entry point This clause defines the term biosecurity entry point` for aircraft, vessels and goods in relation to first points of entry. Clauses 224 and 230 allow the Director of Biosecurity to designate a specified area of a port or landing place as a biosecurity entry point` in a first point of entry determination. These designated entry points are flexible non-mandatory enforcement tools intended to ensure that aircraft, vessels and goods with a specific type of biosecurity risk (i.e. timber) are being taken 88


to the appropriate place within a first point of entry where biosecurity risks can be managed effectively. Clause 14 Meaning of biosecurity industry participant and covered by This clause clarifies terms used in Chapter 7. It defines the term biosecurity industry participant` to mean a person who is the holder of an approved arrangement (until the agreement is approved, the person is referred to as an applicant`). It also explains that the biosecurity industry participant is considered to be covered by` the approved arrangement. Provisions in the Bill that refer to a biosecurity industry participant covered by an arrangement refer to a biosecurity industry participant who is operating in accordance with his or her approved arrangement. See Chapter 7 for further information. Clause 15 Meaning of commercial-in-confidence This clause defines the meaning of the term commercial-in-confidence` in relation to information. Under this Bill, information is considered commercial-in-confidence if a person can demonstrate to the Director of Biosecurity that all of the following apply in relation to the information: 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. This term is used in the definition of protected information. Clause 16 Meaning of conveyance This clause provides that the term conveyance` refers to any vessel, aircraft, vehicle, or train (including railway rolling stock). The regulations may prescribe additional means of transport for the purpose of this definition, which is intended to allow for new developments in transport methods into the future. Chapter 4 provides for the management of biosecurity risks associated with conveyances in Australian territory. This clause also provides that a reference to a conveyance does not include a reference to a conveyance while it is goods because of subclause 19(2) (except in relation to Part 3 of Chapter 11 and any clause of this Bill to the extent that it relates to that Part) A reference to an aircraft does not include a reference to an aircraft while it is considered goods because of subclause 19(2). A reference to a vessel does not include a reference to a vessel while it is considered goods because of subclause 19(2) (except in Chapter 5 and any clause of this Bill to the extent that it relates to that Chapter). These exceptions are provided so that ballast water can be managed under Chapter 5 in relation to a vessel carried on board another conveyance, and the cost recovery provisions in Chapter 11 will continue to apply to a conveyance carried on board another conveyance. Under subclause 19(2), a conveyance (carried conveyance) that is, or is to be, brought or imported into Australian territory from outside Australian territory on board another conveyance is consider to be goods from the time the carried conveyance is first intended to be so brought or imported until immediately after the carried conveyance is released from biosecurity control. This is intended to exclude such carried conveyance from provisions of the Bill that deal with biosecurity risks associated with conveyances that convey people or goods into Australian territory (for example, clause 193–pre-arrival reporting). Biosecurity risks associated with such aircraft will be managed under Chapter 3. 89


However, in relation Parts 1 and 3 of Chapter 11 (and any provision of the Bill that relates to Parts 1 and 3 of Chapter 11) a carried conveyance which is transported on another conveyance will not be considered goods so that the cost recovery provisions in Chapter 11 apply as if the carried conveyance is a conveyance (see definition of goods in clause 19 for further information). Clause 17 Meaning of exposed to This clause provides the meaning of the term exposed to`. This term is used in Chapters 2, 3 and 4 to describe persons and things that have been in physical contact with, in close proximity to, or exposed to, contamination, infestation or infection from other people or things. In this clause, thing` includes goods, conveyances and premises. Powers are available in Chapters 2, 3 and 4 in relation to goods, conveyances or premises and people that are exposed to other people or things in order to manage biosecurity risks associated with exposure. Clause 18 Meaning of first point of entry This clause defines the term first point of entry` in relation to aircraft, vessels and goods that are subject to biosecurity control. In relation to aircraft and vessels that are subject to biosecurity control, a first point of entry describes the landing place or port where aircraft and vessels must arrive after entering Australian territory, as determined under paragraph 223(1)(a) or paragraph 229(1)(a). In relation to goods that are subject to biosecurity control, or exposed goods in relation to which a exposed goods order is in force, a first point of entry describes a landing place or port determined under clause 223(1)(b) or clause 229(1)(b) to be a first point of entry for those goods (or a class of goods that includes those goods). See Part 3 of Chapter 4 for further details. Clause 19 Meaning of goods This clause provides that the term goods` includes the following: an animal a plant (whether moveable or not) a sample or specimen of a disease agent a pest mail, and any other article, substance or thing (including, but not limited to, any kind of moveable property). Under subclause 19(2), a conveyance (carried conveyance) that is, or is to be, brought or imported into Australian territory from outside Australian territory on board another conveyance is consider to be goods from the time the carried conveyance is first intended to be so brought or imported until immediately after the carried conveyance is released from biosecurity control. Once the carried conveyance has been released from biosecurity control it will be treated as a conveyance. For example, a car that is being imported into Australia will be treated as a good until it is released from biosecurity control when it will be treated as a conveyance. This is intended to exclude such carried conveyance from provisions of the Bill that deal with biosecurity risks associated with conveyances that convey people or goods into Australian territory (for example, clause 193–pre-arrival reporting). Biosecurity risks associated with such conveyances will be managed under Chapter 3. It will also allow the Director of Biosecurity to grant import permits in relation to carried conveyances such as farming or mining machinery under clause 179 and place conditions on the 90


importation or bringing in of the conveyance. These conveyances will be managed as goods at the border, consistent with other types of cargo and consignments. However, in relation Parts 1 and 3 of Chapter 11 (and any provision of the Bill that relates to Parts 1 and 3 of Chapter 11) a carried conveyance which is transported on another conveyance will not be considered goods so that the cost recovery provisions in Chapter 11 apply as if the carried conveyance is a conveyance. For the purposes of Parts 1 and 3 of Chapter 3, and any other provision of this Act to the extent that it relates to either of those Parts, the carried conveyance continues to be goods after it is released from biosecurity control. This ensures that a notice revoking the release from biosecurity control under clause 164 can be issued making the carried conveyance subject to biosecurity control again where the goods have been released by mistake or based on incorrect information provided to a biosecurity officer or biosecurity industry participant. The clause clarifies that the definition of goods does not include ballast water, human remains or except as provided by subsections 19(2) and (3) a conveyance. The biosecurity risks associated with ballast water, human remains and conveyances will be managed under the powers available in Chapters 5, 2 and 4 respectively. Clause 20 Meaning of installation This clause provides that the term installation` refers to a structure that is either attached to or resting on–or attached semi-permanently or permanently–to a structure that is: attached to or resting on–the seabed able to float or be floated able to move or be moved, as an entity from one place to another, and is, or is to be, wholly or principally used in: – exploring or exploiting natural resources (such as fish or minerals) with equipment that is on or forms part of the structure, or – operations or activities associated with, or incidental to, activities in relation to exploring or exploiting natural resources. This term is used in the definition of vessel. Clause 21 Meaning of operator of a conveyance This clause provides that operator` in relation to a conveyance, means: if there is a body corporate or an unincorporated body responsible for the operation of the conveyance–that body, and in any other case–the person in charge of the conveyance. This term has an alternative meaning when it is used in Chapter 5. In Chapter 5, operator of a conveyance has the same meaning as company` in the Annex to the Ballast Water Convention which currently provides that company means: the owner of the ship or any other organisation or person such as the manager, or bareboat charterer, who has assumed the responsibility for operation of the ship from the owner of the ship and who on assuming such responsibility has agreed to take over all the duties and responsibilities imposed by the International Safety Management Code.` Clause 22 Meaning of person in charge This clause defines the term person in charge`. The term may refer to the owner of a thing or a person in possession or control of a thing. 91


In relation to goods, person in charge refers to the owner of the goods or a person (other than a biosecurity officer or biosecurity enforcement officer) who is in possession or control of the goods. Person in charge of goods also includes a biosecurity industry participant who is in possession or control of the goods as authorised by an approved arrangement covering the biosecurity industry participant. A biosecurity industry participant is not a person in charge for the purposes of subclauses 134(7), 336(6), 626(5) and 628(7). In relation to conveyances, person in charge refers to the person in charge or command of the conveyance, but does not include a ship’s pilot. Ship’s pilots are excluded from this definition as although they may be in charge of a conveyance, they are not legally responsible for the conveyance in the same way as an owner, operator or captain of the conveyance would be. The concept of person in charge is used in the Bill instead of owner (the term generally used in the Quarantine Act 1908), as it reflects the broad range of people who are responsible for goods and conveyances. The inclusion of a broad range of people in the definition is intended to increase the operational practicality of the Bill, for example where the owner of a conveyance is not in Australian territory and a biosecurity officer needs to give a direction in relation to the conveyance in order to assess or manage biosecurity risk. Part 3–Constitutional and international law provisions Division 1–Introduction Clause 23 Simplified outline of this Part This outline sets out the Part`s objectives. This Part contains provisions relating to the Constitution (such as the constitutional powers relied on for this Act), the application of the Act in relation to pests, protections in the Constitution, as well as provisions that ensure that the Act is consistent with the rights that foreign aircraft and vessels have under the United Nations Convention on the Law of the Sea. Division 2–Constitutional and international law provisions Clause 24 Severability This clause provides for continued operation of the Bill (or provisions of the Bill) in the event of a successful constitutional challenge. It sets out the various constitutional heads of power upon which the Bill can draw if its operation is expressly confined to acts or omissions under those constitutional powers. This clause is intended to ensure that the Bill is given the widest possible operation consistent with Commonwealth constitutional legislative power. This clause provides that the Bill draws on the following constitutional powers: Quarantine power section 51(ix) of the Constitution External affairs power section 51(xxix) of the Constitution Trade and commerce power section 51(i) of the Constitution Fisheries power section 51(x) of the Constitution Aliens power section 51(xix) of the Constitution Corporations power section 51(xx) of the Constitution Territories and Commonwealth section 122 of the Constitution and the places power Commonwealth Places (Application of Laws) Act 1970 Postal power section 51(v) of the Constitution 92


Sickness benefits power section 51(xxiiiA) of the Constitution Census and statistics power section 51(xi) of the Constitution Clause 25 Application of this Act in relation to pests that are quarantine risks or invasive pests The definition of ‘pest’ in clause 9 of the Bill is broadly expressed to capture a wide range of pests. Subclause 25(1) limits the application of the Act (other than Part 1 of Chapter 8) to those pests which may pose biosecurity risks (paragraph (a)) or are invasive pests (paragraph (b)). See clause 9 for the definition of invasive pest` and clause 26 for the application of the Act in relation to invasive pests. Part 1 of Chapter 8, which deals with biosecurity emergencies, applies only to pests which may pose biosecurity risks (subclause 25(2)). Together with the definition of ‘pest’, clause 25 is intended to ensure that the widest range of pests that may pose a biosecurity risk can be dealt with under the Act, consistent with Commonwealth legislative power. Clause 26 Application of this Act in relation to invasive pests This clause provides for the application of the Act in relation to invasive pests where this relies only on the external affairs power as engaged by the Biodiversity Convention (see clause 9 for the definition of invasive pest). The external affairs power (section 51(xxix) of the Constitution), in its treaty implementation aspect, supports legislation that is capable of being reasonably considered appropriate and adapted to fulfilling the obligations and benefits of a treaty (Victoria v Commonwealth (1996) 187 CLR 419 at 487-488). Clause 26 is intended to limit the effect of the Act to ensure that, in its application to invasive pests, it is appropriately supported by the external affairs power. The clause does this by limiting the extent to which a provision of the Act confers a power, function or right, or imposes an obligation, in relation to an invasive pest to the circumstances set out in subclause 26(2). First, it is limited to the purpose of preventing the introduction of, or controlling or eradicating, invasive pests which threaten ecosystems, habitats or species. The second limitation is that the conferral of the power, function or right, or imposition of the obligation, must be reasonably capable of being considered appropriate and adapted to give effect to Australia’s obligations under Articles 7 and 8 of the Biodiversity Convention. For example, Article 8(h) of the Convention imposes obligations on Australia to prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species. The effect of paragraph 26(1)(b) is that the limitations in subclause 26(2) do not apply where the application of provisions of the Act to invasive pests would be supported by other sources of legislative power, that is, other than the external affairs power as engaged by the Biodiversity Convention. Clause 27 Compensation for acquisition of property This clause is intended to ensure, for the purposes of section 51(xxxi) of the Constitution, that if the operation of the Act results in the acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay reasonable compensation to the person. This clause also provides for the person to institute court proceedings if the Commonwealth and the person do not agree on the amount of compensation. See also clause 9 for definitions of acquisition of property and just terms. 93


Clause 28 Freedom of interstate trade, commerce and intercourse This clause provides that a power or function conferred by this Act is not to be exercised in a way that prevents free trade and commerce among the states and territories of Australia. Clause 29 Commonwealth not to give preference This clause is intended to ensure that a power of function conferred by this Act is not exercised or performed in a way that gives preference to one state or part of one state. This clause is not intended to limit the Commonwealth`s ability to consider differences in biosecurity risk between the states and territories that are based on valid scientific evidence. Clause 30 Application of the Act to foreign aircraft and vessels This clause provides that the Act only applies to foreign aircraft or vessels to the extent that the application is consistent with the exercise of rights of foreign aircraft or vessels in accordance with the United Nations Convention on the Law of the Sea, above or in any of the following: the territorial sea of Australia the exclusive economic zone, or waters of the continental shelf. Part 4–Principles affecting decisions to exercise certain powers Clause 31 Simplified outline of this Part This outline sets out the Part`s objectives. This Part provides that a biosecurity official who is making a decision to exercise a power under certain provisions of this Act must first consider the principles set out in this Part. The principles aim to ensure that the power is exercised only if exercising the power is likely to be effective in, or to contribute to, achieving the purpose for which the power is to be exercised, is appropriate and adapted for its purpose, and is no more restrictive or intrusive than is required. It also provides that where a power is to be exercised in relation to a conveyance, the biosecurity official must consider the impact of the exercise of the power on the health and safety of any persons on board the conveyance. Clause 32 The principles This clause outlines a list of factors, known as the principles`, which a biosecurity official must be satisfied of before exercising a number of specified powers in the Bill. The principles must be applied to the following decisions made under the specified clauses of the Bill (or instruments in force under these specified clauses). If the power is to be exercised in relation to a conveyance, subclause (3) provides the biosecurity official must also consider the impact of the exercise of the power on the health and safety of any persons on board the conveyance. This is consistent with Article 6 of the International Covenant on Civil and Political Rights (ICCPR) which provides for the right to life. For example, when making the decision to issue a direction for an aircraft or vessel not to go to a specific location, or be secured, a biosecurity official should consider whether the conveyance has adequate fuel and supplies to comply with this direction and whether any persons on board require life saving medical treatment. These principles have been included in the Bill to ensure that any direction given or action undertaken is necessary, appropriate, and adapted and does not impact on a person or their rights any more than is necessary to manage the level of biosecurity risk posed. This is consistent with international treaties such as the ICCPR and the International Covenant on Economic, Social and Cultural Rights. These principles provide an appropriate balance between individual rights and the management of biosecurity risks, allowing a biosecurity officer to exercise the necessary powers to manage biosecurity risks. 94


Subclause (4) provides that the principles are not required to be applied in relation to the making of a biosecurity control order or the making of a legislative instrument under Chapter 6 (including a biosecurity control order or a legislative instrument made under Chapter 6 in accordance with Division 5 or 6 of Part 1 of Chapter 8). This is because the decision to make a biosecurity control order or a legislative instrument does not directly impact upon an individual or his or her rights. The impact will occur when a biosecurity official exercises the powers listed in the order, therefore the principles will apply to the decisions that may be included in the order. See also clause 34, which provides for principles affecting the exercise of power under Chapter 2. Chapter 2–Managing biosecurity risks: human health Part 1–General protections and listing human diseases Division 1–Introduction Clause 33 Simplified outline of this Part This clause sets out the Part`s objectives. The Part provides that a biosecurity official must consider general protection principles when exercising a power or imposing a biosecurity measure under Chapter 2 of this Act to ensure that the powers are used only when the circumstances are sufficiently serious to justify them, and only if the biosecurity measure is likely to be effective, is proportionate to the risk, is the least restrictive or intrusive and only for as long as necessary to manage the disease risk. This Part also ensures that the exercise of powers does not conflict with an individual`s urgent or life threatening medical needs and sets out additional steps that must be carried out before subjecting a child or incapable person to a requirement under Chapter 2. Division 2–Protections Subdivision A–General protections Clause 34 The principles All decisions made under Chapter 2 are bound by principles of general protection. The person making the decision must be satisfied of all the following matters: that exercising the power, or imposing the biosecurity measure, is likely to be effective in preventing, reducing or controlling the risk that exercising the power or imposing the biosecurity measure is proportionate to the risk that the circumstances are sufficiently serious to justify exercising the power, or imposing the biosecurity measure that the power, or the biosecurity measure, is the least restrictive or intrusive power that could be exercised in relation to, or measure that could be imposed on, the individual that the manner in which the power is to be exercised, or the biosecurity measure is to be imposed, is the least restrictive or intrusive manner, and that the period during which the power is to be exercised, or the biosecurity measure is to be imposed, is only for as long as necessary. 95


The principles are intended to inform all decisions made under this Chapter. An officer, in making a decision, must take into account each of these principles. The principles provide for consideration of the rights enshrined in the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the personal protections enshrined in the International Health Regulations 2005 (International Health Regulations), the seriousness of the circumstances and the balance between the public interest in giving an order or including a measure against the public interest in upholding the individual`s liberty. These decisions are made by the officer, using their personal knowledge of infectious disease control in a public health capacity. The principles can inform internal review, merits review and judicial review, thus adding an additional layer of protection for an individual affected by a decision. Administrative guidelines issued by the Director of Human Biosecurity will provide officials with guidance in relation to the exercise of their powers. Clause 35 No interference with urgent or life-threatening medical needs This clause expressly provides that the urgent or life-threatening medical needs of an individual will prevail over the provision of any measures under this Chapter to address human biosecurity risk. Officers must ensure that, when making a decision with respect to human biosecurity risk, that they first consider the urgent or life-threatening medical needs of the individual. This is in addition to considerations of the principles set out in clause 34. Subdivision B–Protections for children or incapable persons Clause 36 Child or incapable person may be accompanied To ensure compliance with Commonwealth guidelines and international obligations, this clause requires that a child or incapable person may be accompanied while subject to the clauses of this Chapter (see clause 9 for definitions of child` and incapable person`). The only exception to this requirement is set out in clause 41 where an officer who intends to impose a human biosecurity control order (see Part 3, Division 2) on a child or incapable person, may require that person to remain at the place where the officer became satisfied that a human biosecurity control order should be imposed on that person (see clause 68). Clause 37 Officer to contact parent, guardian or next of kin of unaccompanied child or incapable person A child or incapable person must not be subject to a requirement under this Chapter unless an officer has taken reasonable steps to contact a parent, guardian or next of kin. To avoid doubt, an officer must address the urgent or life-threatening needs of the child or incapable person in the first instance. This clause creates an obligation on an officer to contact the parent, guardian or next of kin of a child or incapable person to ensure they are accompanied or provided with the option of being accompanied while under a human biosecurity control order. An officer bears an obligation to explain the rights of a parent, guardian or next of kin under clauses 36 and 39 and allow them to accompany the child or incapable person. 96


The requirements under this Chapter may not be carried out on the child or incapable person if a parent, guardian or next of kin has indicated they wish the child or incapable person to be accompanied, until the accompanying person is physically accompanying the child or incapable person. Clause 38 Requirement to comply with direction An accompanying person must comply with any direction given to them by an officer. This clause explicitly provides that an accompanying person is obligated to comply with directions of an officer, despite not being subject to a human biosecurity control order themselves. This clause creates an offence for contravening a direction given to an accompanying person by a biosecurity officer, human biosecurity officer or chief human biosecurity officer, for the purpose of ensuring the compliance of the child or incapable person with a requirement under this Chapter. A contravention of this clause will give rise to a maximum penalty of five years imprisonment, or a fine of 300 penalty units, or both. Clause 572 provides that these directions may be given orally or in writing (including by electronic means) and that later directions supersede earlier directions. This ensures that officers can provide direct and timely directions to the accompanying person of a child or incapable person in managing their associated human biosecurity risks. Clause 39 Parent, guardian or next of kin may authorise person to accompany child or incapable person A parent, guardian or next of kin may nominate another person to accompany a child or incapable person for the purposes of this Chapter. This clause addresses circumstances where a parent, guardian or next of kin are unable to be with the child or incapable person themselves. This ensures that children and incapable persons always have access to a person who can make decisions on their behalf. Clause 40 Giving consent An accompanying person may give consent on behalf of a child or incapable person. To avoid doubt, this clause makes it explicit that the consent of an accompanying person under Part 3 is taken to be consent of the child or incapable person. Conversely, if an accompanying person does not consent, it is taken that the child or incapable person does not consent. Clause 41 Exception for requiring an individual to remain at a place A child or incapable person can be subject to the requirement to remain at a place (clause 68) without being accompanied or the officer taking reasonable steps to contact a parent, guardian or next of kin. This clause is provided where there is an urgent need to address a potential risk of contagion. This may result in a child or incapable person being moved to a medical facility as a priority and there may not be sufficient time to contact a parent, guardian or next of kin. However, no further measures can be applied to, or actions taken in regard to, the child or incapable person until a parent, guardian or next of kin is contacted. 97


Division 3–Listing human diseases Clause 42 Listing human diseases In addition to the principles at clause 34 above, powers and functions under the human biosecurity chapter are restricted to managing a listed human disease. This clause vests the Director of Human Biosecurity with the power to declare a disease to be a listed human disease, if they consider that the disease may be communicable and cause significant harm to human health. Many of the powers and functions within this Chapter are personally invasive. To ensure there are appropriate safeguards for individuals, the powers and functions in this Chapter flow only in response to preventing or managing the entry, establishment, emergence or spread of a listed human disease in Australia or to another country. The instrument declaring listed human diseases is exempted from the disallowance section 42 of the Legislative Instruments Act 2003. This ensures the Commonwealth will have the continual use of powers and functions in this Chapter to control serious communicable diseases. The decision to determine, vary or revoke a listed human disease determination is a technical and scientific decision that is made based on whether the human biosecurity risk is able to be satisfactorily managed. Subjecting these determinations to disallowance could undermine the technically and scientifically based decision making process and frustrate risk management processes. In addition, disallowance of a determination made under this clause could lead to inadequate management of biosecurity risks posed by listed human diseases. Part 2–Preventing risks to human health Division 1–Introduction Clause 43 Simplified outline of this Part This clause sets out the Part`s objectives. This Part allows the Health Minister to prescribe requirements in relation to individuals, and operators of certain aircraft or vessels, that are entering or leaving Australian territory. The Part also sets out powers to require operators of an overseas aircraft or vessel to provide 24 hour contact information to the Director of Human Biosecurity. This allows for the Commonwealth to share information and plan for management of human biosecurity risks. The powers in this Part also allow pratique to be granted for incoming aircraft and vessels, and for things to be unloaded from, and persons to disembark from, aircraft or vessels. This Part further allows the Minister to apply preventative measures to prohibit or restrict a practice or process which would contribute to the establishment or spread in Australian territory of a listed human disease. The Act provides officers the power to ask questions about an individual`s health and exposure to listed human diseases for the purpose of determining the nature of, and management of risks. 98


Division 2–Entry and exit requirements Clause 44 Entry requirements This clause vests the Health Minister with powers to determine one or more requirements for all individuals or classes of individuals entering Australia. These requirements may only be for the purpose of preventing the entry, establishment, or spread of a listed human disease. This clause allows the Commonwealth to identify risks to human health posed by individuals intending to enter Australia, and establish mitigating measures to be performed prior to arrival to address any potential risks. The requirements primarily relate to the provision of information to inform officers of the individual`s risk status; however some requirements may require the individual to undertake a vaccination or course of treatment prior to arrival in Australia. Requirements under this clause may include requiring Yellow Fever certification (a recommendation under Article 36 and Annexes 6 and 7 of the International Health Regulations) and identifying when individuals have travelled to high risk areas. If an individual fails to comply with an entry requirement as determined by the Health Minister, an officer may impose a human biosecurity control order on that individual (see clause 60). This clause states that a determination made under subclause 44(2) (determination of entry requirements) or an instrument that varies or revokes a determination made under subclause 44(2) is a legislative instrument, but is not subject to disallowance under section 42 of the Legislative Instruments Act 2003. The decision to determine, vary or revoke a listed human disease determination is a technical and scientific decision that is made based on whether the human biosecurity risk is able to be satisfactorily managed. Subjecting these determinations to disallowance could undermine the technically and scientifically based decision making process and frustrate risk management processes. In addition, disallowance of a determination made under this clause could lead to inadequate management of human biosecurity risks. This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as it is critical for the management of human biosecurity risks that information required to be shared under this clause can be sought in a timely fashion. Whilst the privilege against self-incrimination is abrogated in relation to this clause, the Bill provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person. Clause 45 Exit requirements This clause provides that the Health Minister may activate exit requirements for individuals or operators of overseas passenger vessels or aircraft leaving Australia, for the purpose of preventing the spread of a listed human disease to another country. Exit requirements may also be activated if a recommendation has been made to the Minister by the World Health Organization under Part III of the International Health Regulations. Similar to the requirements for entry above, exit requirements allow the Commonwealth to identify human biosecurity risks posed by individuals intending to leave Australia. The requirements provide a spectrum of options to respond to the range and scale of human biosecurity 99


risks. These include providing public information in airports and seaports to advise of human biosecurity risks; and provision for the Commonwealth to conduct screening of passengers as they exit Australia. These requirements have been drafted to be consistent with recommendations under the International Health Regulations (e.g. Article 43) relating to the taking of additional health measures to help prevent the international spread of disease. This clause states that a determination made under subclause 45(2) (determination of an exit requirement) or an instrument that varies or revokes a determination made under subclause 45(2) is a legislative instrument, but is not subject to disallowance under section 42 of the Legislative Instruments Act 2003. The decision to determine, vary or revoke an exit requirement determination is a technically and scientifically based decision making process incorporating whether the human biosecurity risk is able to be satisfactorily managed. Subjecting these determinations to disallowance could undermine the technically and scientifically based decision making process and frustrate risk management processes. In addition, disallowance of a determination made under this clause could lead to inadequate management of risks to human health. This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as it will allow biosecurity officers to determine whether an unacceptable. Whilst the privilege against self-incrimination is abrogated in relation to this clause, the Bill provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person (see clause 635). Clause 46 Civil penalties for failing to comply with certain entry and exit requirements This clause sets the penalty for individuals failing to comply with entry requirements under clause 44, for operators failing to comply with a requirement to perform a specified treatment, or for individuals who fail to comply with exit requirements specified under paragraphs 45(6)(d), (e), (f), (g), or (h). The maximum civil penalty for contravention of entry or exit requirements is 30 penalty units. The penalty levels in this clause reflect the severity of the potential consequences if requirements for entry or exit are not complied with. For example, an entry requirement may be determined for individuals landing in Australian territory from overseas to provide information about their exposure to a listed human disease. If an individual does not share that information, the biosecurity risk associated with that person may not be adequately managed, which may result in the spread of the specified listed human disease within Australian territory. Division 3–Contact information for operators Clause 47 Requirements for operators to provide 24/7 contact information An operator of an incoming or outgoing passenger aircraft or vessel must provide the Director of Human Biosecurity with the prescribed contact information for an individual nominated by the operator. The prescribed information will include phone, fax and email contact details. The contact information is intended to be used to allow the Director to contact operators about a listed human disease outbreak or an individual or class of individuals. The ability to contact 100


operators quickly allows the Commonwealth to share information and plan and prepare for any risks to human health that is present on the operator`s aircraft or vessel. This clause, together with the amendments to the National Health Security Act 2007 sharing of information clauses, allows the operator to provide information to the Commonwealth about human biosecurity risk on their vessel or aircraft without contravening the Privacy Act 1988. An operator is liable to a civil penalty if the operator contravenes the requirement to provide 24/7 contact information for a nominated individual, or the information provided is not kept up-to-date, or the information is provided in contravention of the manner prescribed by the regulations. The maximum civil penalty for each contravention is 120 penalty units. This will encourage operators to provide and maintain up to date contact information so that they can be reached in the event of human biosecurity risk associated with their operations. Division 4–Pratique Clause 48 Positive pratique Pratique is a permission to enter an Australian port, disembark and embark persons, and unload and load goods. An operator of an incoming vessel or aircraft cannot perform these activities unless pratique has been granted in some form. The operator is liable for a civil penalty if he or she contravenes the requirement not to unload or disembark persons before pratique has been granted. The maximum civil penalty for contravention is 120 penalty units. This is to ensure risks to human health can be identified and managed before the vessel or aircraft is unloaded or disembarked. It will be an exception to the civil penalty if the operator is authorised under this Act or under another Australian law to unload or load a thing or to disembark or embark persons. The positive pratique clause is automatically granted to all incoming vessels and aircraft arriving in Australian territory at an authorised landing place or port, unless the aircraft or vessel is a class specified by the Director of Human Biosecurity as being subject to negative pratique (see clause 49). This clause allows for permission to disembark and unload to be given automatically, on entry into Australian territory and where no risks to human health have been reported. Clause 49 Negative Pratique This clause allows the Director of Human Biosecurity to specify the circumstances in which positive pratique is not granted and when negative pratique must be given. These circumstances may relate to reporting of signs and symptoms of, or exposure to a listed human disease (as part of pre-arrival reporting – see clause 193); or issues relating to ship sanitation (contained in Part 5 of Chapter 4). The Director may specify in a legislative instrument the classes of incoming vessels and aircraft that are to be subject to requirements for complying with negative pratique and those requirements. These requirements must be consistent with Articles 28.2 and 43 of the International Health Regulations. This clause states that requirements specified under this clause is a legislative instrument, but is not subject to disallowance under the Legislative Instruments Act 2003. The decision to determine, vary or revoke the requirements should be a technical and scientific decision based on whether the human biosecurity risk is able to be satisfactorily managed. Subjecting these determinations to disallowance could undermine the technically and scientifically based decision making process and frustrate risk management processes. In addition, disallowance of a determination made under this clause could lead to inadequate management of human biosecurity risks. 101


In the absence of positive pratique, a biosecurity officer must grant an aircraft or vessel negative pratique. The requirements of being granted negative pratique may relate to additional pre-arrival reporting obligations, treatment measures or inspection on arrival, or the requirement for a biosecurity officer to be present for unloading or disembarking. To ensure granting of pratique is as efficient and will have the least impact on industry as possible, negative pratique can be granted orally or in writing. If an officer grants pratique orally that officer must create a written record as soon as possible after the aircraft or vessel arrives. Under subclause 49(4) this notification is not a legislative instrument for the purposes of subsection 5(1) of the Legislative Instruments Act 2003. This reflects that the record is administrative in nature. Clause 50 Pre-departure reporting This clause allows the Director of Human Biosecurity to specify, in a legislative instrument, information that is required to be provided by operators of specified outgoing international aircraft or vessels (pre-departure reporting). The instrument will also prescribe the manner in which, and the period during which, the information is required to be provided. An operator or the person in charge of an incoming passenger vessel or aircraft may be required to make a pre-departure report, containing information as specified by the Director. If an operator or person in charge finds that information provided was incomplete or incorrect, he or she must provide that information as soon as reasonably practicable. The information contained in a pre- departure report is intended to provide the Commonwealth with information about the individuals, cargo and aircraft/vessel, in order to manage any potential risks to human health. The Commonwealth may use pre-departure information to notify the next international destination port`s National Focal Point of an impending biosecurity risk, which is consistent with the Commonwealths obligations under the International Health Regulations to prevent the international spread of disease. An operator is liable to a civil penalty if the operator contravenes the requirement to provide information in accordance with this clause. The maximum civil penalty for a contravention is 120 penalty units. This clause states that a legislative instrument made under clause 50 is not subject to disallowance under section 42 of the Legislative Instruments Act 2003. The decision to create, vary or revoke an instrument made under this clause should be a technically and scientifically based decision making process on whether the human biosecurity risk is able to be satisfactorily managed. Subjecting these determinations to disallowance could undermine the technical and scientific based decision making and frustrate risk management processes. In addition, disallowance of a determination made under this clause could lead to inadequate management of human biosecurity risks. Division 5–Preventative biosecurity measures Clause 51 Determining preventative biosecurity measures This clause provides that where there is a biosecurity risk posed by a listed human disease, and an identified behaviour, practice or process would contribute to the entry, establishment or spread of the disease, the Health Minister has the power to determine human biosecurity measures to prohibit, require or restrict the behaviour, practice or process. The biosecurity measures that may be determined in relation to a class of persons include: banning or restricting a behaviour or practice requiring a behaviour or practice 102


requiring a specified person to provide a specified report or keep specified records and/or conducting specified tests on specified goods. The Minister must be satisfied that the biosecurity measure is appropriate and adapted to prevent, or reduce the risk of, the entry, emergence, establishment or spread in Australian territory, of the disease and that the measure is appropriate in the circumstances. The determination must specify the period in which it is in force and has a maximum duration of 12 months. Before making the determination, the Minister must consult with each state and territory Minister responsible for Health and the Director of Biosecurity. This clause allows the Commonwealth, in a domestic context, to prescribe biosecurity measures to respond to an outbreak of a disease or the reasonable belief that there is likely to be an outbreak of a disease as a result of a specified behaviour, practice or process. The measures that may be imposed under this clause provide for temporary management of a human biosecurity risk within a state or territory, until the state or territory is able to create clauses within their own legislation to manage the risk in the long term. The determination will specify the Commonwealth powers and functions available to the state or territory to manage the risk; and the state or territory officers who are to be vested with those powers/functions, in consultation with the state or territory. In practice, only one determination will be made in relation to a particular behaviour or practice. Agreement of a state or territory would be sought before the determination would apply in that state or territory. This clause states that a determination under this clause is a legislative instrument, but is not subject to disallowance under section 42 of the Legislative Instruments Act 2003. The decision to determine, vary or revoke the requirements should be a technically and scientifically based decision making process on whether the human biosecurity risk is able to be satisfactorily managed. Subjecting these determinations to disallowance could undermine the technical and scientific based decision making and frustrate risk management processes. In addition, disallowance of a determination made under this clause could lead to inadequate management of risks to human health. The civil penalty for contravention of this clause is contained in clause 52. Clause 52 Civil penalty for failing to comply with preventative measures This clause sets the penalty for failing to comply with a preventative biosecurity measure in a determination by the Health Minister under subclause 51(2). The maximum civil penalty for a contravention is 120 penalty units. The penalty levels in this clause reflect the severity of the potential consequences if preventative biosecurity measures are not complied with. For instance a failure to comply could lead to an outbreak of a listed human disease in Australian territory. 103


Clause 53 Requirements to destroy disease agents on incoming or outgoing aircraft or vessels This clause provides for the development of regulations that require operators of incoming aircraft or vessels to undertake measure to destroy disease agents which have the potential to cause a listed human disease and may exist on the aircraft or vessel. This ensures that the disease agents can be destroyed and the potential risk to human health by the agents can be appropriately managed. Division 6–Information gathering powers Clause 54 Who may ask questions and require written information This clause provides that certain officers may require answers to questions, or written information. These officers are: the Director of Human Biosecurity a chief human biosecurity officer human biosecurity officer biosecurity officer a member or special member of the Australian Federal Police a member of the police force of a state or territory, or a protective services officer within the meaning of the Australian Federal Police Act 1979. Throughout this Division, an officer is taken to be any of those listed above. These officers must be able to ask questions and request written information of individuals in order to determine the nature of, and manage, risk to human health. Under this clause all officers have powers to ask individuals questions relating to their health and exposure to listed human diseases. The application of clause 34 means that the powers in this Division must be exercised in accordance with the principles set out in that clause. This Division is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high as collecting accurate and timely information in relation to an individual to determine the level of risk to human health associated with the individual will allow that risk to be assessed and then appropriately managed. The offence for contravention of this clause is contained in clause 58. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 contain offences for providing false or misleading information or documents. Clause 55 Asking questions and requiring answers from particular individuals This clause provides that an officer may ask questions and require answers where: a human biosecurity control order is in force (see clause 60 to clause 67), or an individual is in a human health response zone (see clauses 113 to 115). This power allows an officer to ask questions of an individual who is in a biosecurity response zone, or if a human biosecurity control order is in force. Questions may only be asked in relation to the level of risk to human health. While this clause allows officers to ask questions of a broader scope than in clause 54 above, the questions must still be related to assessing biosecurity risks. The Act also contains separate powers to allow officers to ask questions in relation to biosecurity risks posed by goods (Chapter 3) and conveyances (Chapter 4). 104


The offence for contravention of this clause is contained in clause 58. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 contain offences for providing false or misleading information or documents. Clause 56 Asking questions and requiring answers from any individual This clause differs from clause 55 above, in that an officer may ask any person questions or to provide written information if: the officer is satisfied that an individual has one or more signs or symptoms of a listed human disease the officer is satisfied the person has been exposed to another individual who has signs or symptoms of a listed human disease, or the question relates to human remains, a death in transit or an individual who has died on arrival. The power allows an officer to ask questions of fellow passengers, crew or family and friends that were travelling with the ill individual. The presence of a sign or symptom of a listed human disease provides a sufficient causal link to justify asking questions of those who have travelled near the ill individual or an individual who has died in transit. The purpose of asking questions has been cast broadly to include the purpose of preventing the entry, establishment, emergence, or spread of a disease and preventing the spread of a listed human disease in Australian territory, or part of Australian territory or to another country. The offence for contravention of this clause is contained in clause 58. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 contain offences for providing false or misleading information or documents. Clause 57 Requiring an individual to provide written information This clause allows an officer to require an individual to provide written information if: the officer is satisfied that an individual has one or more signs or symptoms of a listed human disease the officer is satisfied the person has been exposed to another individual who has signs or symptoms of a listed human disease, or the question relates to human remains, a death in transit or someone who has died on arrival. This clause allows an officer to ask questions of fellow passengers, crew or family and friends that were travelling with the ill individual. The presence of a sign or symptom of a listed human disease provides a sufficient causal link to justify asking questions of those who have travelled near the ill individual or an individual who has died in transit. The purpose of asking questions has been cast broadly to include the purpose of preventing the entry, establishment, emergence, or spread of a disease and preventing the spread of a listed human disease to another country and determining the level of risk to human health associated with the relevant individual. The offence for contravention of this clause is contained in clause 58. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 contain offences for providing false or misleading information or documents. Clause 58 Offence for failing to comply with a requirement A person commits a strict liability offence if a person fails to answer a question or provide written information when required under this Division. The maximum penalty for a contravention is 60 105


penalty units. This is appropriate as the information gathered from the individual may be vital to address a serious public health risk and it is essential that as much information as possible is collected quickly. This means that the prosecution will have to prove that the person contravened the provision, but not the fault elements of the offence (intention, knowledge, recklessness or negligence). However, the accused person will still be able to rely on the defence in the Criminal Code (section 9.2) of honest and reasonable mistake of fact. In all cases, this information may be uniquely known to the individual, and each individual may be able to provide important details about the epidemiology of the disease, the source of the disease, and the potential exposure of themselves and other individuals to the disease. This information is vital to address public health risk, and it is essential that as much information is collected as quickly as possible. Ideally this would occur before exposed individuals have the opportunity to depart the airport and enter the community, and potentially spread the disease to family and friends. Alternative powers, such as monitoring and investigation powers, or enforcement, are not appropriate as the information being sought must be collected as soon as possible, to allow the Commonwealth to develop a picture of the disease needing to be managed, and the number of individuals potentially infected and in need of intervention. Wherever possible, the Commonwealth will rely on voluntary disclosure; however, in some circumstances, an individual may be unwilling to disclose information about their health status, potential exposure or travel history. In such cases, the need to address public risk justifies the application of the strict liability offence for failure to provide required information. Clause 37 also provides special protections for individuals who may be temporarily incapable of understanding requirements or complying with a measure due to illness. An incapable person must not be subject to a requirement of Chapter 2 of the Bill unless an officer has taken reasonable steps to contact a parent, guardian or next of kin, and any urgent or life threatening medical needs must be met in the first instance. Part 3–Managing risks to human health: human biosecurity control orders Division 1–Introduction Clause 59 Simplified outline of this Part This clause sets out the Part`s objectives. The Part determines the range of measures that can be implemented under a human biosecurity control order to manage the risk posed by listed human diseases. The powers of human biosecurity control order measures include vaccination, restricting the individual`s behaviour and ordering the individual to remain isolated. The Part sets out that an individual may consent to a measure included in a human biosecurity control order. An individual who refuses to consent to a measure (other than an isolation measure or traveller movement measure) is not required to comply unless a direction has been given by the Director of Human Biosecurity. An individual who is given a direction from the Director to comply must do so immediately or in some circumstances, may apply for judicial review within the specified period before being required to comply with the measure. The application of clause 34 means that the powers in this Division must be exercised in accordance with the principles set out in that clause. 106


Division 2–Imposing human biosecurity control orders on individuals Subdivision A–Imposing, varying and revoking human biosecurity control orders Clause 60 Imposing a human biosecurity control order on an individual This clause provides that a human biosecurity control order can be imposed to manage risks to human health posed by an individual. This clause outlines the officers who can impose a human biosecurity control order, noting that some measures imposed under a human biosecurity control order are personally invasive and therefore restricted in their application to those officers with clinical expertise or who are medical practitioners. This clause also provides the threshold test for applying a human biosecurity control order. A human biosecurity control order may only be applied where there are signs and symptoms of or exposure to a listed human disease; or an entry requirement relating to a listed human disease under subclause 44(6) has not been complied with. This restricts intervention to only those diseases identified by the Director of Human Biosecurity as warranting Commonwealth intervention. A human biosecurity control order may be imposed on an individual on arrival in Australian territory. To facilitate this, the ability to apply the human biosecurity control order in the first instance is vested with a biosecurity officer. A biosecurity officer is restricted from applying any measures that require clinical expertise or qualifications to make informed decisions about management of an individual with a listed human disease. The application of clause 34 means that the powers in this Division must be exercised in accordance with the principles set out in that clause. Clause 61 Contents of a human biosecurity control order This clause provides that a human biosecurity control order must include the following information: the grounds under which the human biosecurity control order was imposed, that is, which limb of the threshold test at subclause 60(2) has been satisfied the listed human disease in relation to which the order is imposed (this can include more than one listed human disease where the signs or symptoms are not sufficiently clear to point to only a single disease; noting that some listed human diseases will initially exhibit the same signs and symptoms) any signs or symptoms of the listed human disease the prescribed contact information required under clauses 69 and 70 each biosecurity measure imposed or to be imposed and an explanation as to why the measure is required (this forms a record of events under the human biosecurity control order; and information about how the biosecurity measure is to be undertaken) the period in which the order is in force – up to a maximum of 3 months the human biosecurity control order must also explain the responsibilities and liabilities of the individual and the Commonwealth. Paragraphs 61(1)(h) and (i) outlines this, including requirements to notify of contact details, review and offences for non-compliance contact details of a chief human biosecurity officer that an individual may contact for information and support information about review rights and offences for failure to comply other information considered appropriate y the officer imposing order and any other information required by the regulations. The content outlined in this clause provides information for the individual and other officers to facilitate the management of a listed human disease. 107


The requirement to provide an explanation why a particular measure is being imposed helps the individual to understand why they are subject to a human biosecurity control order. It also imposes an obligation on the officer to turn their mind to the reasons for imposing a measure, and that they have considered the principles in making the decision. A maximum duration of an order of 3 months has been specified in part to address the difficulties with diagnosing and treating the disease. The principles in clause 34 apply to ensure an officer does not apply a measure or enforce the human biosecurity control order for longer than is reasonably necessary to address the risk. The order cannot be extended. If the time expires and the individual still requires management, a new human biosecurity control order must be created. This ensures all the tests are revisited and also provides that a human biosecurity control order cannot be kept in place indefinitely. The provision of contact details for a chief human biosecurity officer is to ensure an individual has an avenue to contact a medical practitioner who can provide expert advice during the period that the order is in force. Consent is not required by an individual before a human biosecurity control order is imposed, however there are requirements for notifying a person they are subject to an order (see clause 63) and consent is required for all biosecurity measures. There are also a range of review mechanisms in relation to a human biosecurity control order (see Subdivisions D and E of this Part). Clause 62 Form of a human biosecurity control order This clause provides that a human biosecurity control order must be in the form approved by the Director of Human Biosecurity. This allows for consistent application of the requirements of the Act. A human biosecurity control order is not a legislative instrument for the purposes of subsection 5(1) of the Legislative Instruments Act 2003. This reflects that the human biosecurity control order is administrative in nature. Clause 63 Giving a human biosecurity control order to an individual This clause requires officers to give a copy of the human biosecurity control order to the individual. The officer must also read the human biosecurity control order to the individual. If the contents of the order are not read out or the written human biosecurity control order is not provided within 24 hours the human biosecurity control order is invalid. As a human biosecurity control order does not require consent to be applied, it is essential that a person is given a copy of the human biosecurity control order. It is also good regulatory practice that a person is made aware that they are subject to obligations under the Act. The requirement to read out the human biosecurity control order and follow up with a written copy was developed to address issues that arise in remote locations where the officer may be making verbal orders over the phone. They must follow up with the written copy, which may be sent electronically. 108


Clause 64 Varying a human biosecurity control order This clause provides that a variation to a human biosecurity control order must be related to the risk posed by the person or be of a minor technical nature. There are limitations on the power to vary, as not all officers may apply all measures. A chief human biosecurity officer, a human biosecurity officer or a biosecurity officer may only vary measures that he or she may validly impose. This prohibits biosecurity officers from varying a measure that is restricted in its application to a human biosecurity officer or a chief human biosecurity officer. Any additional powers listed in the varied biosecurity control order must be deemed appropriate for managing the risk posed by the listed human disease to which the order relates by the officer. A variation to a human biosecurity control order must be in writing and will take effect immediately after it is made. Consistent with clause 62, a human biosecurity control order which has been varied is not a legislative instrument. Clause 65 Giving notice of a variation to a human biosecurity control order Consistent with giving a human biosecurity control order to an individual at clause 63, This clause requires the officer to give a copy of the varied human biosecurity control order to the individual as soon as practicable. The officer must also cause the variations to the human biosecurity control order to be read to the individual. If the contents of the varied order are not read out or the written human biosecurity control order is not provided within 24 hours the human biosecurity control order is invalid. Clause 66 Revoking a human biosecurity control order This clause provides for a chief human biosecurity officer or a human biosecurity officer may revoke a human biosecurity control order in two circumstances: if the officer is satisfied that the individual does not pose a risk of contagion; or the order no longer contributes to reducing the risk of a listed human disease entering, emerging, establishing or spreading in Australia. This clause allows for an officer to revoke a human biosecurity control order where there is no longer a contagion risk or where the risk is widespread in the community and a human biosecurity control order no longer contributes to reducing or controlling the risk. This ensures that Commonwealth intervention is only sustained for as long as is necessary or appropriate to manage the risk. A human biosecurity control order may also expire. An officer may specify when all measures applied expire and thus the human biosecurity control order also expires. Alternatively the human biosecurity control order expires after 3 months if not revoked earlier (see also clause 61). If a chief human biosecurity officer or a human biosecurity officer determines that there is no longer an unacceptable level of risk posed by the listed human disease to which the order relates, for instance after successful treatment, the order may be revoked rather than allowing the order to lapse. This reflects the potentially invasive nature of powers that can be exercised under a human biosecurity control order. A revocation must be in writing, is not a legislative instrument and will take effect immediately after it is made. This clause also outlines the notice requirements for the revocation of the human biosecurity control order. The notification requirements for a revocation of a human biosecurity control order are the same as those set out in clause 63– an officer must give the individual a written notice revoking the order. 109


Clause 67 Notifying Director of Human Biosecurity of imposition, variation or revocation of human biosecurity control order This clause requires all officers imposing, varying or revoking human biosecurity control orders to inform the Director of Human Biosecurity that this has occurred. Subdivision B–Powers if officer intends to impose human biosecurity control order Clause 68 Requiring an individual to remain at a place This clause allows an officer to require an individual to remain at specified place for up to six hours. This allows the officer time to seek information and impose a human biosecurity control order if it is required. It also allows for contacting a parent or guardian if clause 37 applies. The individual may be detained (see clause 103) for up to six hours to enforce this requirement. Clause 69 Providing contact information This clause provides that, if an officer intends to impose a human biosecurity control order on an individual, the officer may require an individual to provide prescribed contact information. The contact information required will be prescribed in the Regulations, and will include the individual`s name, address, contact phone number and passport number. An individual is required to immediately comply with this request; if the he or she does not immediately comply, he or she is liable for a civil penalty. The maximum penalty for contravention is 12 months imprisonment, or a fine of 60 penalty units, or both. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 contain offences for providing false or misleading information or documents. This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as it is critical for the management of human biosecurity risks that personal information required to be shared under this clause can be sought in a timely fashion and that person can be contacted as required. Whilst the privilege against self-incrimination is abrogated in relation to this clause, the Bill provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person. Clause 70 Requirement for an individual to notify changes to contact information This clause sets out that an individual subject to a human biosecurity control order must notify a chief human biosecurity officer as soon as practicable if their prescribed contact information which has been provided in the order, changes. It is essential that the Commonwealth has valid contact information for any individual subject to a human biosecurity control order. A person is liable to a civil penalty if the person contravenes the requirement to notify a chief human biosecurity officer of a change in the individual`s contact information. The maximum penalty for contravention of this clause is 12 months imprisonment, or a fine of 60 penalty units, or both. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 contain offences for providing false or misleading information or documents. This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as it is critical for the management of human biosecurity risks that personal information required to be shared under this clause is on hand so that person can be contacted as required. 110


Whilst the privilege against self-incrimination is abrogated in relation to this clause, the Bill provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person. Subdivision C–When an individual is required to comply with a biosecurity measure Clause 71 Consenting to a biosecurity measure This clause sets out that a person may consent to a biosecurity measure included in a human biosecurity control order. If it is practicable to do so, the consent must be recorded in writing on the order. If an individual does not consent to or withdraws their consent to a measure, then an officer may apply to the Director of Human Biosecurity for a direction to comply under paragraph 72(5)(a). Clause 74 sets out when the individual is required to comply with a measure. Clause 72 Director of Human Biosecurity may give direction requiring compliance This clause allows for the Director of Human Biosecurity to make an administrative decision as to the validity of a measure under a human biosecurity control order and to issue a direction to comply. A failure to comply with this direction permits the Director to seek enforcement of the decision by a court. The Director will only make such a direction after an officer makes a request for such a direction under subclause 71(3) or a previous direction that is still in force has not been complied with at the end of 25 days. In circumstances where an individual has refused to comply with a biosecurity measure, an officer may request the Director to issue a direction to an individual to comply with the biosecurity measure. In deciding whether to issue a direction, the Director must conduct a review of the diagnosis and the biosecurity measure proposed to be included in the human biosecurity control order. The Director must take into account the reasons why the individual has refused to consent, and factors which may affect that individual`s health. The Director may also take into account any other matter they consider relevant. If requested, the Director must perform a review and advise the individual of the outcome of that review within 72 hours. The clause also specifies the different calculations for the 72 hour period based on the type of measure imposed. The Director may give a direction requiring an individual to comply with the measure only if the Director is satisfied that the measure contributes to reducing the risk of contagion of the listed human disease or the disease entering, emerging, establishing or spreading in Australian territory. An individual may be able to apply for merits of judicial review of a decision to give a direction in accordance with this clause (see clause 74 and the Administrative Decisions (Judicial Review) Act 1977 (Administrative Decisions (Judicial Review) Act). If an individual refuses to comply with a direction, the Director may be able to apply for an injunction requiring compliance under Part 7 of the Regulatory Powers Act. Clause 73 When a direction to comply with biosecurity measures ceases to be in force This clause specifies when a direction given in accordance with clause 72 to comply with a biosecurity measure ceases to be in force. A biosecurity measure ceases to be in force if: a period of 28 days passes a new notice is provided to the individual 111


the measure is removed from the human biosecurity control order the individual is not required to comply with the direction based on a first determination under the Administrative Decisions (Judicial Review) Act or the decision is set aside by the Administrative Appeals Tribunal, or the traveller movement measure or human biosecurity order ceases to be in force. Clause 74 When an individual is required to comply with a biosecurity measure This clause sets out that if the Director of Human Biosecurity issues a direction to comply with measures under clause 85 (managing contacts), clause 89 (decontamination), clause 90 (examination), clause 91 (body samples), or clause 92 (vaccination or treatment), the individual is required to comply with the direction when: the 7 day period to seek external merits review under the Administrative Decisions (Judicial Review) Act has expired and an application has not been made or an application for review has been made under the Administrative Decisions (Judicial Review) Act, the application has been finally determined, and the resulting order is that the individual is required to comply with the measure. An individual must comply with measures under clause 86 (contacting officer with health status), clause 87 (restricting behaviour), clause 88 (risk minimisation), clause 93 (medication), clause 96 (traveller movement measure) or 97 (isolation measure), the individual is required to comply with the direction when: the individual has consented to the measure the Director has given a direction to comply under clause 72 and that direction is still in force, or in the case of traveller movement and isolation measures, if the individual has refused consent and 72 hours has not passed since he or she refused to consent to the measure. Although the Bill does not include any specific clauses, this does not negate the general right of all individuals to seek a second medical opinion in relation to their medical diagnosis and treatment. If an individual seeks a second medical opinion, the Director of Human Biosecurity may take this into account when making a decision to issue a direction requiring an individual to comply with a biosecurity measure. The offence for contravention of this clause is contained in clause 107. Subdivision D–AAT review of isolation and traveller movement measures Clause 75 Obligations on Director of Human Biosecurity relating to Administrative Appeals Tribunal application This clause obliges the Director of Human Biosecurity to inform individuals of their right to apply for review of isolation and traveller movement measures by the Administrative Appeals Tribunal and provided with reasonable facilities to enable the individual to do so. Clause 76 Applications This clause sets out that where the Director of Human Biosecurity has issued a direction to an individual to comply with an isolation or traveller movement measure, this power provides an individual with an automatic, independent avenue for merits review of that decision through the Administrative Appeals Tribunal. The Commonwealth bears the obligation of informing individuals of their right to seek review. In the situation where an individual is subject to more than one decision, this clause specifies that an application made with respect to a decision (the first decision) is also taken to be an application relating to a further decision (the second decision), unless the Administrative Appeals Tribunal 112


gives the individual notice to make a separate application. This allows the Administrative Appeals Tribunal to review similar decisions together, or direct the individual to make a second application if the second decision is of a different nature. To ensure the appropriate management of the biosecurity risk, the Administrative Appeals Tribunal must make a decision within 7 days of receiving an application under clause 74(1). Clause 77 Reasons and documents This clause specifies that section 28 (obtaining reasons for decision) of the Administrative Appeals Tribunal Act 1975 will not apply in respect to a direction by the Director of Human Biosecurity to comply with an isolation or traveller movement measure. Clause 72 requires the Director of Human Biosecurity to provide reasons for requiring an individual to comply with a biosecurity measure. In addition, this clause instead places an obligation for the Director of Human Biosecurity to provide to both the Administrative Appeals Tribunal and the individual, reasons for the decision and every other document that is in the Director`s possession or under his/her control, and is relevant to the review of the decision by the Administrative Appeals Tribunal. The operation of section 28 of the Administrative Appeals Tribunal Act 1975 requiring that an individual required to comply with a decision be provided with reasons for the decision, and section 37 requiring the lodgement of documentation with the Administrative Appeals Tribunal, are superseded by requirements within clause 77 of this legislation. The Director must be notified as soon as possible under subsection 29(11) of the Administrative Appeals Tribunal Act that an application for review has been made, and must lodge all relevant documents within 2 days. In the instance where a second decision is made with respect to an individual, the Director must inform the Administrative Appeals Tribunal as soon as possible that a second decision has been made, and relevant documents must be lodged within 2 days. The Administrative Appeals Tribunal may extend the timeframe for any documents to be lodged, and this will ordinarily be in writing. However this may not occur during times where the Administrative Appeals Tribunal is required to manage the review of a large number of decisions in a short period of time. Clause 78 Time period for making a decision This clause requires the Administrative Appeals Tribunal to make a decision with respect to directions which are in force within 7 days of receiving the application, to ensure the continued ability of the Commonwealth to protect public health and manage the risk of contagion posed by an individual. The Administrative Appeals Tribunal may extend the time to make a decision if they are satisfied it is reasonable to do so, but may only extend the time period once. If the Administrative Appeals Tribunal does not make a decision within 7 days, or within the specified extended time period, then the decision by the Director of Human Biosecurity is taken to be affirmed. If the direction has ceased to be in force then the Administrative Appeals Tribunal is not taken to have made a decision. Clause 79 Limitation on Administrative Appeals Tribunal power to stay etc. decisions This clause prevents the Administrative Appeals Tribunal from making an order to stay a decision despite subsections 41(2) to (6) of the Administrative Appeals Tribunal Act. Individuals that are subject to an isolation or traveller movement measure have demonstrated signs or symptoms of, or exposure to, a listed human disease. The individual has been isolated or restricted from travelling because they pose a serious communicable disease risk to the community. This prevents an individual from being released from isolation or travelling on an international passenger airline or vessel, while they pose a risk of contagion to the community. 113


Subdivision E–Other provisions relating to external review of isolation and traveller movement measures Clause 80 Time period for making applications under the Administrative Decisions (Judicial Review) Act 1977 This clause sets out that under the Administrative Decisions (Judicial Review) Act 1977, an individual has 28 days to seek review of an administrative decision. The Commonwealth has a reduced capacity for managing the risk of contagion during the period that an individual has available to submit an application for review. This clause requires individuals to submit the application for review within 7 days, to allow for the continued management of disease risk. The Commonwealth bears the obligation of informing individuals of their right to seek review. Clause 81 Judicial review of isolation and traveller movement measures This would allow an individual to seek review of a traveller movement measure or isolation measure under the Judiciary Act 1903, the Administrative Decision (Judicial Review) Act, or under section 75 of the Constitution. This clause is necessary to ensure no breach of human rights, and to prevent the spread of disease during a review period Under this clause, a requirement for an individual to be subject to a traveller movement measure, or remain isolated under a human biosecurity control order, remains in force unless a court finally determines the validity of the decision to impose the requirement. Whilst an individual may seek review of the decision to impose a traveller movement measure or isolation order in a court; this clause ensures that they must remain in isolation, or the traveller movement measure remains in place, until the court has comprehensively reviewed the case and made a final determination. The intention of this clause is to ensure that where an individual is subject to a traveller movement measure, or has been placed in isolation to manage their disease risk, a temporary injunction cannot be sought to release the individual, pending a court determination as to the validity of the decision to impose the measure in question. This manages the potential risk of contagion in Australian territory posed by an individual. This clause does not extend the ordinary operation of an isolation or traveller movement measure. Isolation and traveller movement measures will cease to be in force if they would have ordinarily expired while the individual seeks review. Division 3–Biosecurity measures that may be included in a human biosecurity control order Subdivision A–General provisions relating to including biosecurity measures in a human biosecurity control order Clause 82 Who can include a biosecurity measure in a human biosecurity control order This clause sets out the type of biosecurity measures that can be by different classes of officers established in Chapter 10. A chief human biosecurity officer or a human biosecurity officer may include any biosecurity measure set out in Subdivision B of this Division. For example, restricting behaviours, decontamination or examination requirements for individuals. This is appropriate as people appointed as chief human biosecurity officers and human biosecurity officers have medical or clinical expertise to allow them to make appropriate decisions to manage risks relating to human health. 114


Biosecurity officers may only include a restricted range of biosecurity measures in a human biosecurity control order. Biosecurity officers do not have medical expertise and are therefore restricted to applying biosecurity measures that are not personally invasive and do not require medical expertise to apply. As such a biosecurity officer can only require an individual to provide contact information or take risk minimisation measures such as wearing protective clothing (see clauses 85 and 88). Clause 83 Informing individuals of the risk This clause requires all officers to take reasonable steps to explain the risk of a listed human disease to the individual`s health and the health of the public. It is intended that this step will assist in obtaining consent to the taking of biosecurity measures. It also imposes an obligation on the Commonwealth to explain the risks and ensure the individual can make an informed decision about the management of their health. Clause 84 Test for including a biosecurity measure in a human biosecurity control order This clause sets out that there is a single threshold test for the application of any and all biosecurity measures, that the application of a measure contributes to reducing or controlling the risk of contagion of a listed human disease; or a listed human disease entering, emerging, establishing itself or spreading in Australian territory. The use of a single threshold test for the application of all biosecurity measures allows for consistent decision making and reduces the administrative burden of satisfying multiple tests for the management of a single listed human disease. Subdivision B–Biosecurity measures that may be included in a human biosecurity control order Clause 85 Managing contacts In many cases, an individual will have exposed others to a listed human disease before they are identified by an officer. In these circumstances, the Commonwealth will seek to identify and contact any individuals who have travelled with, or been in close contact with, the ill individual. The Commonwealth may then follow up with the individual and their contacts to inquire after their health and to ascertain if they have any signs or symptoms of a listed human disease. This is essentially a contact tracing power, and also acts as an authorisation for sharing protected information that would otherwise be in contravention of the Privacy Act 1988. This power may be imposed by a chief human biosecurity officer or human biosecurity officer. Clause 86 Contacting officer with health status This clause requires a person to contact an officer with information regarding the presence or absence of signs or symptoms of a listed human disease for a specified period of time. The order may also require the individual to report if specified signs or symptoms disappear. In many cases an individual will not have sufficient signs or symptoms of a listed human disease to warrant intensive intervention; however they may pose a risk, and may be asked to provide updates to a specified officer on the presence or absence of signs or symptoms of a listed human disease. This allows the Commonwealth to monitor an individual while allowing them to continue their journey or return home. If an individual develops further signs or symptoms, an officer may vary a human biosecurity control order and apply additional biosecurity measures to better manage the risk. 115


This power may be imposed by a chief human biosecurity officer or human biosecurity officer. If an individual refuses to comply with such a requirement, the Director of Human Biosecurity may issue the individual with a direction to comply under subclause 72(5). Clause 87 Restricting behaviour This clause sets out that an individual may be required to do, or not to do, any of the following activities: go to and remain at the individual`s intended place of residence for a specified period not to visit a specified place or class of place where there is an increased risk of contagion or not to have contact with a class of individuals where the class is of increased risk of exposure. In some circumstances, an individual who has, or is suspected of having, a listed human disease does not have to be managed in a medical facility. The most effective and least restrictive and invasive decision may be to allow the individual to go home, subject to restrictions in their behaviour. This restriction may include advising them to not go to work or to places where there is a high risk of contagion. It may also include restricting their exposure to particular classes of people, such as children, pregnant women or the elderly. The terminology with respect to specified place or class of place` has been described in terms of the risk of contagion rather than in terms of the type of place, so as not to restrict its application to places of a certain size or character. It may include a workplace, school or hospital facility. This power may be imposed by a chief human biosecurity officer or human biosecurity officer. If an individual refuses to comply with such a requirement, the Director of Human Biosecurity may issue the individual with a direction to comply under subclause 72(5). Clause 88 Risk minimisation interventions This clause allows an officer to require an individual to wear specified clothing or equipment. The officer must specify the circumstance where they must be worn; the period in which it is to be worn and instructions for correct wear. For listed human diseases that are respiratory in nature, effective mitigation measures may include wearing facemasks and gloves to prevent the spread of airborne disease particles. This power may be imposed by a chief human biosecurity officer, human biosecurity officer, or biosecurity officer. If an individual refuses to comply with such a requirement, the Director of Human Biosecurity may issue the individual with a direction to comply under subclause 72(5). Clause 89 Decontamination This clause allows for decontamination of an individual and their personal effects. An officer must specify in the human biosecurity control order that decontamination is required, when and where the decontamination is to take place and who is to conduct the decontamination. This power, if applied, is intended to be undertaken immediately to contain the contagion risk or to prevent establishment, emergence or spread of a listed human disease. Decontamination of an individual may be exercised by chief human biosecurity officers or human biosecurity officers as they will have appropriate training to deliver the treatment effectively. 116


Who will undertake the decontamination of personal effects including any baggage must be specified in the human biosecurity control order. This decontamination power is separate from decontamination powers provided for in Chapter 10 relating to the management of biosecurity risks (see clauses 588-561). Clause 90 Undergoing an examination This clause allows for a chief human biosecurity officer or a human biosecurity officer to require an individual to undertake a specified examination relating to the diagnosis of a listed human disease. Safeguards have been provided by restricting the undertaking of an examination to a medical facility and providing that an individual may seek a review of the decision. This power may be imposed by chief human biosecurity officers or human biosecurity officers. The application of clause 94 to this clause means that the vaccination or treatment required by this clause must be carried out in a manner consistent with either appropriate medical standards, or other appropriate or relevant professional standards. Clause 91 Requiring body samples for diagnosis This clause provides that an individual may be required to provide body samples for determining the presence of a listed human disease. Regulations must specify requirements for taking, storage, transport and labelling of samples, and uses for which body samples may be collected. Samples may also be provided to the World Health Organization, on request, for use in detecting, assessing or responding to a listed human disease. This is consistent with Australia`s obligations under the International Health Regulations to assist the World Health Organization and State Parties in addressing international disease threats. Safeguards have been provided with respect to this power by restricting the collection of body samples subsequent to examination at a medical facility. Body samples may only be required by a chief human biosecurity officer or a human biosecurity officer. The application of clause 94 to this clause means that the taking body samples required by this clause must be carried out in a manner consistent with either appropriate medical standards, or other appropriate other relevant professional standards. Clause 92 Receiving a vaccination or treatment This clause provides that an individual subject to a human biosecurity control order may be required to receive a specified vaccination or undergo a specified form of treatment in order to manage a listed human disease. This requirement may only be imposed after an examination at a medical facility has been undertaken. This power may be imposed by a chief human biosecurity officer or a human biosecurity officer. The application of clause 94 to this clause means that the vaccination or treatment required by this clause must be carried out in a manner consistent with either appropriate medical standards, or other appropriate other relevant professional standards. 117


Clause 93 Receiving medication This clause provides that an individual subject to a human biosecurity control order may be directed to take medication to manage a listed human disease outside of a specified medical facility. The human biosecurity control order must specify how much medication is to be taken and for how long the medication is to be taken for. Management of some communicable diseases may require long term medication but not hospitalisation, and this allows for individuals who no longer present a risk of contagion to continue medication and complete their treatment outside of a medical facility. This power may be imposed by a chief human biosecurity officer or a human biosecurity officer. The application of clause 94 to this clause means that the treatment required by this clause must be carried out in a manner consistent with either appropriate medical standards, or other appropriate other relevant professional standards. If an individual refuses to comply with such a requirement, the Director of Human Biosecurity may issue the individual with a direction to comply under subclause 72(5). Clause 94 Appropriate medical or other standards to be applied This clause provides that a biosecurity measure conducted under clause 90 (examination), clause 91 (body samples), or clause 92 (vaccination or treatment) and clause 93 (medication) must be carried out in a manner consistent with appropriate medical standards and/or other relevant professional standards. The clause is intended to ensure that appropriate medical and/or professional standards are complied with by chief human biosecurity officers and human biosecurity officers in undertaking personally invasive measures. Clause 95 No use of force to require compliance with certain biosecurity measures This clause prevents the use of force against an individual to require them to comply with any biosecurity measures imposed in this Subdivision (see clauses 85-93), that are included in a human biosecurity control order. However, reasonable force may be used to prevent an individual from boarding an overseas vessel or aircraft in contravention of a traveller movement measure (clause 96); or to detain a person who fails to comply with an isolation order (clause 97). The use of force is restricted to law enforcement for the purposes of clause 103 and requiring a person to remain at a place in clause 68; and to an officer of customs for the purpose of clause 101. Clause 96 Traveller movement measure This clause provides that an individual subject to a human biosecurity control order may be placed under a traveller movement measure, which has the effect of restricting the individual`s departure from Australia territory on an overseas passenger aircraft or vessel for up to 28 days. Travel restrictions apply only to overseas passenger aircraft and vessels. An individual may leave Australian territory on any other aircraft or vessel. Overseas passenger aircraft and vessels pose a high risk of contagion because they carry many passengers that will be in close proximity to the ill individual for many hours. A traveller movement measure may only be applied where an individual poses a significantly high risk of contagion risk and has either indicated an intention to leave Australia territory or is suspected of intending to do so. 118


This power does not require consent however the individual must be notified that they are subject to the restriction. If a restriction is applied, a traveller movement alert must be issued; notifying border agencies and state and territory health departments of the details of the restriction (see clause 98). This power may be imposed by a chief human biosecurity officer or human biosecurity officer. Clause 97 Isolation measure This clause sets out that an individual subject to a human biosecurity control order may be required to remain isolated at a specified medical facility until the individual is authorised, in writing, to leave. Isolation in many cases is considered the measure of last resort, and is applied where consent is not given by the individual for less invasive or less restrictive measures or alternative measures have not been effective. This power may be imposed by a chief human biosecurity officer or human biosecurity officer. If an individual refuses to comply with such a requirement, the Director of Human Biosecurity may issue the individual with a direction to comply under subclause 72(5). In addition the person may be detained under Subdivision B of Division 4 of this Part. Subdivision C–Provisions relating to traveller movement measures Clause 98 Traveller movement measure alert This clause provides that the Director of Human Biosecurity must alert the agencies and departments in subclause 98(1) and may alert the additional operators, agencies and departments in subclause 98(3) that a traveller movement measure has been applied to an individual in a human biosecurity control order. Failure to notify a required person, body or agency does not affect the traveller movement measure that has been applied by the Director. Notifications provided by the Director must be in writing and be made within 24 hours of the decision to impose a traveller movement measure to an individual. The Director of Human Biosecurity must further notify anyone who they notified under this clause, if a traveller movement measure ceases to be in force. The clause clarifies that the notification is not a legislative instrument originally for the purposes of subsection 5(1) of the Legislative Instruments Act 2003. This reflects that the notice is administrative in nature. Clause 99 Contents of traveller movement measure alert This clause provides that an alert made under clause 98 must include the name of the individual, his or her passport number, and a statement that a restriction is in force in relation to the individual and they must not board an outgoing passenger aircraft or vessel for the duration of the restriction. The alert must also specify the duration of the measure, any known travel details of the individual and the contact details for a chief human biosecurity officer that may be contacted for information in relation to the measure. This information must also include information prescribed by the regulations (if any). The alert must contain essential information to allow Commonwealth agencies and operators to correctly identify and enforce a traveller movement measure. 119


As the information contained in the alert is sensitive and personal in nature, it must be dealt with in accordance with the Privacy Act 1988. Clause 100 Destruction of a traveller movement measure alert This clause requires that all Commonwealth agencies and operators that are provided with a traveller movement measure alert must destroy the alert within 6 months of being advised that the alert is no longer in force. A person who fails to destroy a movement measure alert within the 6 month period is liable to a civil penalty. The maximum penalty for contravention is 120 penalty units. Clause 101 Prevention from leaving Australian territory This clause sets out that a Customs officer may prevent an individual who is subject to a traveller movement measure from boarding an overseas passenger aircraft or vessel. The officer must not use more force than is necessary and reasonable to prevent the individual from boarding the aircraft or vessel. An individual cannot be detained or arrested under this clause. While they are prevented from boarding the aircraft or vessel, they are free to leave the passenger terminal. The intent of this clause is to comply with Australia`s obligations under the International Health Regulations to prevent the international spread of communicable diseases. Division 4–Other provisions relating to human biosecurity control orders Subdivision A–Consular assistance Clause 102 Consular assistance This clause sets out that where a biosecurity officer or human biosecurity officer has applied a measure in a human biosecurity control order that requires an individual to remain at a place (clause 68) or isolated (clause 97); or an individual is detained (clause 103), and the individual is a non-citizen; the officer must as soon as practicable inform the individual that they may request consular assistance. An officer must provide an individual with the opportunity to contact their consular for assistance when any measure that results in restricting the individual`s liberty is included in a human biosecurity control order. Subdivision B–Detention Clause 103 Detention This clause allows a law enforcement officer to detain an individual if they fail to comply with an isolation measure (clause 97)or fail to remain at a specified place required (clause 68). Detention can only be required if a chief human biosecurity officer or a human biosecurity officer is satisfied of the principles in subclause 32(2) and that the detention is necessary because the individual may pose a significant risk of contagion. These tests ensure that detention is only required in circumstances where the community could be at significant risk. Detention may only be performed by an officer of the Australian Federal Police, a state or territory police officer or a protected services officer. When enforcing an isolation order in a human biosecurity control order, the detention is for the purpose of moving the individual to the medical facility specified in that order. If the individual refuses to comply with an isolation order, the Commonwealth may seek an injunction from the court requiring the individual to stay isolated. 120


In all decisions relating to the management of human biosecurity risk, the conflicting interests of the individual versus the community must be considered. In some circumstances, the community risk is such that the individual must be detained to ensure they do not endanger the health of others. This may require an individual to be isolated. The power to detain an individual has been vested only in law enforcement officers as they have sufficient training and skills to ensure the power is exercised in line with Commonwealth guidelines. A state or territory police officer can only detain an individual under this section consistently with any agreement between that state or territory and the Commonwealth. Clause 104 Rules relating to detention This clause sets out that an officer must not use more force, or subject any individual to greater indignity, than is necessary and reasonable to detain the individual and prevent them from escaping detention. An officer must detain the individual in a place that affords the individual personal privacy. As soon as practicable after detaining the person, the officer must inform the detainee that they may communicate with any person, including a legal representative, and this must be facilitated. Clause 105 Release from detention This clause provides that detention must not be used as de-facto arrest power and is only applicable to ensure to ensure an individual remains at a specified place, or complies with an isolation measure. Where detention is used to require an individual to remain at a place under clause 68, detention must end after 6 hours. It cannot be re-applied. An officer must make a decision whether to take further action within the 6 hours or the individual must be released. When the detention under subclause 104(2) is for the purposes of enforcing an isolation order, an individual is released from detention once they have been taken to the medical facility specified in the isolation order. However, the individual is still required to remain isolated at the medical facility as specified in the human biosecurity control order. Clause 106 Offence for escaping from detention This clause sets out that an individual commits an offence if the individual escapes from a detention under clause 103. The maximum penalty for the contravention is 5 years imprisonment, or a fine of 300 penalty units, or both. The criminal penalties available are higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If directions are not complied with, significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia`s local industries, the environment and the economy. 121


Subdivision C–Miscellaneous Clause 107 Offence for failing to comply with a human biosecurity control order This clause imposes a penalty on individuals if they fail to comply with a biosecurity measure included in a human biosecurity control order, after the Director of Human Biosecurity has given a direction for that individual to comply with the requirement under clause 74. The maximum penalty for a contravention is 5 years imprisonment, or a fine of 300 penalty units, or both. The criminal penalties available are higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If directions are not complied with, significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia`s local industries, the environment and the economy. Clause 108 Expenses incurred complying with human biosecurity control orders This clause sets out that the Commonwealth is liable to pay for reasonable expenses incurred in complying with a biosecurity measure as part of a human biosecurity control order. This clause is consistent with the recommendations of the International Health Regulations. Part 4–Managing risks to human health: other biosecurity measures Division 1–Introduction Clause 109 Simplified outline of this Part This clause sets out the Part`s objectives. The Part permits human remains to enter Australia without restriction. This Part sets out powers for the Director of Human Biosecurity to specify requirements to specific classes of remains. The Director of Human Biosecurity will also have the power to determine which entry and exit requirements apply. Division 2–Managing deceased individuals Clause 110 Human remains brought into Australia territory This clause sets out that human remains are permitted into Australia without restriction unless they are a class of remains specified under subclause 110(2). The Director of Human Biosecurity may specify in an instrument the classes that are subject to particular requirements, and what those requirements are. Any requirements specified in the instrument must relate to the prevention or reduction of the risk of a listed human disease entering, emerging, establishing or spreading in Australian territory. This clause states that a determination made under this clause is a legislative instrument, but is not subject to disallowance under section 42 of the Legislative Instruments Act 2003. The decision to determine requirements relating to the entry or management of a class of human remains into Australian territory or part of Australian territory is a technical and scientific decision based on whether the risk of a listed human disease is able to be satisfactorily managed. Subjecting these determinations to disallowance could undermine the technical and scientific based decision making and frustrate risk management processes. In addition, disallowance of a determination made under this clause could lead to inadequate management of risk to human health. 122


A person who contravenes a requirement for bringing in human remains or managing human remains after bringing them into Australia territory is liable to a civil penalty. The maximum civil penalty for a contravention is 30 penalty units. Clause 111 Officer may specify requirements for managing human remains This clause gives a biosecurity officer, human biosecurity officer, or chief human biosecurity officer the power to give a direction and manage any human remains if an officer is satisfied the remains are likely to be infected with a listed human disease or if a person has not complied with a requirement specified under subclause 110(2) in relation to the remains, in either case, the officer must give a written notice to the person responsible for the remains. A person who contravenes a direction is liable to a civil penalty. The maximum civil penalty for a contravention is 30 penalty units. Clause 112 Individuals who have died in transit or on arrival This clause provides for the Director of Human Biosecurity to specify requirements in an instrument for the management of individuals that die in transit or on arrival into Australian territory. Any requirements specified in the instrument must relate to the prevention or reduction of the risk of a listed human disease entering, emerging, establishing or spreading in Australian territory. Consistent with the management of human remains at clause 110, individuals who have died in transit are to be managed as individuals under the Act. Unlike the importation of human remains, there is no person who is clearly responsible for an individual who has died in transit. On arrival, the individual will be referred to the state or territory for management. This clause allows the Director of Human Biosecurity to manage any imminent risk of a listed human disease posed by the human remains at the point of arrival in Australia and before they become the responsibility of the state or territory. This clause states that a determination made under this clause is a legislative instrument, but is not subject to disallowance under section 42 of the Legislative Instruments Act 2003. The decision to determine requirements relating to management of individuals who have died in transit or on arrival in Australian territory is a technical and scientific decision based level of risk posed by a listed human disease. Subjecting these determinations to disallowance could undermine the technically and scientifically based decision making process and frustrate risk management processes. In addition, disallowance of a determination made under this clause could lead to inadequate management of contagion risks. A person who contravenes a requirement is liable to a civil penalty. The maximum civil penalty for a contravention is 30 penalty units. Division 3–Human Health Response Zones Clause 113 Determining human health response zones This clause sets out that the Director of Human Biosecurity may determine that a specified area of a state or territory is a biosecurity response zone if the Director is satisfied that it is necessary for the purposes of preventing the emergence, establishment or spread in Australia of a listed human disease. The determination must specify the listed human disease to which the determination relates and any entry or exit requirements for individuals entering or leaving the zone. 123


The Director must be satisfied that the requirements are appropriate and adapted to prevent, or reduce the possibility of, the emergence, establishment or spread in Australia, of the specified listed human disease. The determination can only be in place for up to 3 months. This clause has been drafted to address isolated, short term incidents or outbreaks of a listed human disease. It allows the Commonwealth to activate clauses to manage the risk of contagion, and is designed to complement existing state and territory legislation. If the incident or outbreak spreads beyond a single state or territory, an emergency would be declared and the zone will cease to be in force. This clause states that a determination made under this clause is a legislative instrument, but is not subject to disallowance under section 42 of the Legislative Instruments Act 2003. Subjecting these determinations to disallowance could undermine the technically and scientifically based decision making process and frustrate risk management processes. In addition, disallowance of a determination made under this clause could lead to inadequate management of human biosecurity (see Part 2, Chapter 8). Clause 114 Consultation requirements This clause sets out that before making a determination under clause 113, the Director of Human Biosecurity must consult with the chief health officer for each state or territory in which the zone will lie; and the Director of Biosecurity. This clause ensures that the state or territory in which the zone is created is fully aware of the intervention of the Commonwealth to address the biosecurity risk. The Director of Biosecurity is also notified in the event the risk has implications for animal or plant health or where biosecurity officers are requested to assist in managing the risk within the zone. Clause 115 Notification requirements This clause places an obligation on the Commonwealth to make public the declaration of a response zone. It is essential that individuals directly affected by the declaration of the zone are notified that clauses of the Bill may be applicable to them. This requirement is in addition to the requirement under the Legislative Instruments Act 2003 that requires the determination to be published on the Federal Register of Legislative Instruments. Clause 116 Civil penalty for failing to comply with a requirement of a human health response zone determination This clause imposes a civil penalty on individuals who fail to comply with a requirement that is specified in a human health response zone determination under clause 113. A person who contravenes a requirement is liable to a civil penalty. The maximum civil penalty for a contravention is 30 penalty units. This is important to encourage individuals to comply with requirements to prevent or reduce the risks of contagion to the community. 124


Chapter 3–Managing biosecurity risks: goods Part 1–Goods brought into Australia territory Division 1–Introduction Clause 117 Simplified outline of this Part This outline sets out the Part`s objectives. This Part provides powers to manage biosecurity risks associated with goods brought or imported into Australian territory from outside Australian territory. When goods enter Australian territory, they become subject to biosecurity control, which means that a range of powers become available to assess and manage biosecurity risks associated with the goods. This Part provides for the management of goods that are or will be subject to biosecurity control, including: requiring a notice to be given for goods that are, or are intended to become, subject to biosecurity control requirements relating to unloading goods at landing places or ports in Australian territory (including from vessels displaying a quarantine signal) powers to assess and manage biosecurity risks associated with goods )and to assess and manage goods which are exposed to these goods) powers for biosecurity officers to give directions concerning the unloading of goods from a conveyance, and reporting requirements in the event of a biosecurity incident relating to goods. This Part also sets out the ways that goods are released from biosecurity control. Clause 118 Objects of this Part This clause outlines the objects of this Part, which are to provide for the assessment of the level of biosecurity risk associated with goods being brought or imported into Australian territory; and to provide for biosecurity measures to be taken in relation to those goods if the level of biosecurity risk associated with them is considered to be unacceptable. In this Chapter, goods` may include a conveyance that is being carried on board another conveyance, for the purposes of Parts 1 and 3 of this Chapter (see clauses 16 and 19 for information). These conveyances will be managed as goods at the border, consistent with other types of cargo and consignments. This will allow conveyances–such as agricultural or mining machinery–to be subject to import permits requirements and conditions. Treating these conveyances like goods means that biosecurity risks can be appropriately managed through permit conditions and a single notice of intention to unload goods can be used to deal with conveyances–such as cars–as a consignment and gather more accurate information about them for assessing the level of biosecurity risk prior to arrival. The biosecurity risks with these conveyances will be assessed and managed using the powers available in Chapter 4. 125


Division 2–Goods are subject to biosecurity control Clause 119 Goods brought into Australian territory are subject to biosecurity control This clause applies in relation to goods that are brought into Australia territory on an aircraft or vessel that has entered Australian territory during a flight or voyage that commenced outside Australian territory. Any goods that arrive from outside Australian territory provide a direct pathway for biosecurity risks to enter into Australian territory. These goods become subject to biosecurity control when the aircraft or vessel carrying the goods enters Australian territory. When goods become subject to biosecurity control, a range of powers in the Bill become available to assess or manage the biosecurity risks associated with the goods. This trigger point for goods becoming subject to biosecurity control reflects the need to assess biosecurity risks associated with goods brought into Australia from overseas, and enable management of those risks. Goods which are subject to biosecurity control will remain subject to biosecurity control until they have been released from biosecurity control in accordance with Division 10 of this Part. Goods will be released when they no longer pose a biosecurity risk or once they leave Australian territory (see clause 162). However, goods on board a conveyance which leaves Australian territory on a journey between places in Australian territory will become subject to biosecurity control again when the conveyance re-enters Australian territory. This ensures that the powers required to assess and manage any biosecurity risks associated with the goods are available if they are required and reflects that the goods still pose a biosecurity risk. For example, a vessel arriving from overseas may arrive at an Australian port and after unloading some goods may move to another Australian port to unload other goods. This clause ensures that if the vessel happens to leave Australian territory on its voyage to the other Australian port, the goods on board the vessel become subject to biosecurity control again when the vessel re-enters Australian territory and any risks associated with the goods can be assessed and managed at the second port. Division 3–Notice of goods to be unloaded in Australian territory Clause 120 Notice must be given of goods to be unloaded in Australian territory Clause 120 sets out the requirements for a notice to be provided that goods are intended to be brought or imported into Australian territory and unloaded at a port or landing place. This notice requirement will apply to goods originating outside Australian territory including transhipped goods and goods brought in for temporary purposes. An example of transhipped goods is where a container is unloaded at a port, travels to another port by road, and is loaded onto another vessel. The notice will allow the Commonwealth to gather important information about goods that assists with the accurate and timely assessment and management of biosecurity risks. This may include information about the country of origin and a description of the goods such as the main material from which the goods are made. Biosecurity officers can use this information to determine what risk management activities are necessary to deal with goods subject to biosecurity control when a conveyance arrives in Australian territory. 126


This clause also sets out the requirements of the notice. Specifically, the notice must include the information in relation to the goods that is prescribed by the regulations be given in the manner, and to the person prescribed by the regulations be given at a time or during the period prescribed by the regulations (which may be at any time before or after the goods are unloaded at a landing place or port in Australian territory), and be in a form or forms approved by the Director of Biosecurity. The requirements for a notice are prescribed in the regulations. This gives the Commonwealth more flexibility to amend the information required, or the requirements for how and when and in what form the information should be given. The information required may change over time, as the nature and levels of biosecurity risk changes. The notice must be given by a person prescribed by the regulations in relation to the goods. The prescribed person will be the person who has access to the information set out in the notice. A person prescribed by the regulations in relation to the goods who contravenes the requirement to provide a notice will commit an offence and is liable to a civil penalty. The maximum penalty for contravention of this provision is two years imprisonment, or 120 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 of this Act create offences and civil penalties for providing false or misleading information or documents. The regulations may also prescribe exceptions to the requirement to give a notice under this clause. This will provide flexibility and reduce red tape on individuals where there other screening and reporting requirements in place. For example, it is envisaged that personal baggage will be exempted from these requirements as any relevant information in relation to goods will be provided in the incoming passenger card. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. The clause provides that the obligation to provide a notice applies and is required to be complied with, regardless of whether the person is in Australian territory or overseas. This ensures that biosecurity officers will have access to the notice when required to make an assessment of the level of biosecurity risk associated with the goods. This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as collecting accurate and timely information through a notice will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and put appropriate biosecurity measures in place to address any risk. Allowing a person to use the privilege and refuse to provide important information, could result in a significant biosecurity risk remaining unmanaged. It would also undermine the management of biosecurity risks, as officers would be forced to rely on warrants to obtain routine information required in a notice. This is impractical and time consuming, particularly given the significant number of goods that are brought in or imported into Australian territory. 127


Whilst the privilege against self-incrimination is abrogated in relation to this clause, the Bill provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person. Clause 121 Notice of goods to be unloaded in Australian territory–requirement to give additional or corrected information This clause creates an obligation on the person who provided notice under clause 120 to provide additional or corrected information where the information provided in the original notice is incomplete or incorrect. This means that a person must provide updated information once they realise the information provided in the notice is incomplete or where circumstances have changed resulting in the information previously provided no longer being correct. This ensures that biosecurity officers are provided with the most accurate information possible to assess and manage biosecurity risks. This obligation only applies to information that is relevant to assessing the level of biosecurity risk associated with the good. For example, a person will not need to provide corrected information once the goods are released from biosecurity control. A person who contravenes the requirement to provide additional or corrected information will commit an office and is liable to a civil penalty. The maximum penalty for a contravention is two years imprisonment, or 120 penalty units, or both if the elements of a fault-based offence are established. The maximum civil penalty for a contravention is 120 penalty units. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 of this Act create offences and civil penalties for providing false or misleading information or documents. Similarly to clause 120, a person will be required to give the additional or corrected information regardless of whether they are in Australian territory or overseas. This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as ensuring the information contained in a notice is correct and complete will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and put appropriate biosecurity measures in place to address any risk. Allowing a person to use the privilege and withhold correct or further information, could result in a significant biosecurity risk being mismanaged. It would also undermine the management of biosecurity risks, as officers would be forced to rely on warrants to obtain routine information required in a notice. This is impractical and time consuming, particularly given the significant number of goods that are brought in or imported into Australian territory. Whilst the privilege against self-incrimination is abrogated in relation to this clause, the Bill provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person. Clause 122 Power to obtain extra information relating to goods covered by a notice under section 120 This clause provides a biosecurity officer with the power to require additional information in relation to goods to that are subject to a notice under clause 120, prior to the goods becoming subject to biosecurity control. 128


This will allow biosecurity officers to make a preliminary assessment of the level of biosecurity risks associated with the goods, ensuring that appropriate resources can be allocated to assess the risks once the goods are unloaded in Australia. This clause provides biosecurity officers with the power to: require a person to answer questions in relation to the goods, where a biosecurity officer suspects on reasonable grounds that the person has information in relation to the goods, or require a person to produce documents in relation to the goods, where a biosecurity officer suspects on reasonable grounds that the person has custody or control of specific documents in relation to goods. A biosecurity officer may make copies of, or take extracts from any document that has been produced, and may remove the document from the place where it was produced in order to make copies or take extracts. A person who contravenes the requirement to answer questions, provide information or produce documents commits an offence and is liable to a civil penalty. The maximum penalty for a contravention is two years imprisonment, or 120 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 of this Act create offences and civil penalties for providing false or misleading information or documents. The clause provides that the obligation to provide a notice applies and is required to be complied with, regardless of whether the person is in Australian territory or overseas. This ensures that biosecurity officers will have access to the notice when required to make an assessment of the level of biosecurity risk associated with the goods. This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as ensuring the information contained in a notice is correct and complete will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and put appropriate biosecurity measures in place to address any risk. Allowing a person to use the privilege and refuse to answer questions, give information or produce documents relating to goods that are the subject of a report in clause 120, could result in a significant biosecurity risk remaining unmanaged. It would also undermine the management of biosecurity risks, as officers would be forced to rely on warrants to obtain further information to assess the level of biosecurity risk associated with the goods. This is impractical and time consuming, particularly given the significant number of goods that are brought in or imported into Australian territory. Whilst the privilege against self-incrimination is abrogated in relation to this clause, the Bill provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person. 129


Division 4–Assessment of level of biosecurity risk Clause 123 Biosecurity risk assessment powers This clause provides that the assessment powers in this Division apply and can be exercised in relation to goods that are subject to biosecurity control or exposed goods which have an exposed goods order in force (see Division 9) for the purposes of assessing the level of biosecurity risk. Clause 124 Direction to secure goods This clause provides a biosecurity officer with the power to secure goods in a specified mannerfor example, by giving a direction to ensure that the goods not be moved. A biosecurity officer may direct the person in charge of goods to secure the goods. This will allow a biosecurity officer to exercise the other assessment powers in this Division to assess the level of biosecurity risk associated with the goods, and will limit the possibility that any biosecurity risks associated with the goods will spread. A person who contravenes a direction to secure the good is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. In addition, a person may be liable to a civil penalty for moving, dealing with or interfering with goods that has been secured in accordance with a direction given under this clause (see clause 130). If judicial review is sought in relation to a direction under this clause, the direction will remain in force until a court determines the validity of the direction (clause 538). This ensures that any biosecurity risk remains secure while a final decision is made. Clause 572 applies to this clause, allowing a biosecurity officer to issue a direction orally or in writing (including electronically). It also ensures that any later directions override an earlier one if there is any inconsistency. Clause 125 Inspecting goods and taking samples This clause provides a biosecurity officer with the power to inspect and take samples of goods to identify whether a disease or pest is present and assess the level of biosecurity risk associated with the goods. A biosecurity officer may inspect, search and physically examine the goods. A biosecurity officer may take and test samples of the goods themselves or he or she may direct a person in charge of the goods to deliver samples of the goods, or arrange for a person with appropriate qualifications or expertise to take samples and test the goods. For example, where the goods are in a remote location, the biosecurity officer may arrange for a suitably qualified local person to take samples and send them to be assessed. A person who contravenes this clause is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. Clause 126 Asking questions about goods This clause provides biosecurity officers with the power to require a person to answer questions in relation to the goods if the biosecurity officer suspects on reasonable grounds that a person has information in relation to the goods. This will ensure that biosecurity officers have access to all the necessary information to make an accurate and timely assessment of the level of biosecurity risk associated with the goods. For example, a biosecurity officer may ask questions or seek information about the previous movements of the goods in order to determine whether the goods have been in a location known to have a specific biosecurity risk. 130


A person who contravenes this clause is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. In addition, section 137.1 of the Criminal Code and clause 532 of this Act create an offence and civil penalty for providing false or misleading information. This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as it will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and put appropriate biosecurity measures in place to address that risk. Allowing a person to use the privilege and refuse to answer questions or provide important information could result in a significant biosecurity risk remaining unmanaged. It would also undermine the management of biosecurity risks, as officers would be forced to rely on warrants to obtain routine information required in a notice. This is impractical and time consuming, particularly given the significant number of goods that are brought in or imported into Australian territory. Whilst the privilege against self-incrimination is abrogated in relation to this clause, the Bill provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person. Clause 127 Requiring documents in relation to goods to be produced This clause provides biosecurity officers with the power to require a person to produce documents in relation to goods. Where a biosecurity officer suspects on reasonable grounds that a person has custody or control of specific documents in relation to goods, the biosecurity officer may require the person to produce those documents. A biosecurity officer may make copies of, or take extracts from any document that has been produced, and may remove the document from the place where it was produced in order to make copies or take extracts. Similar to clause 126, this power assists biosecurity officers to assess the level of biosecurity risk associated with the goods by ensuring that the biosecurity officer has access to all the necessary information to determine the level of biosecurity risk. A person who contravenes the requirement to produce documents is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. In addition, section 137.2 of the Criminal Code and clause 533 of this Act create an offence and civil penalty for providing false or misleading documents. This clause is not subject to the privilege against self-incrimination (see clause 635). Similarly to the justification provided in clause 126, the privilege against self-incrimination is abrogated to give biosecurity officers timely access to documents to effectively assess risks and ensure that appropriate biosecurity measures are in place to manage identified biosecurity risks. Whilst the privilege against self-incrimination is abrogated in relation to this clause, the Bill provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person. Clause 128 Movement of goods This clause provides biosecurity officers with the power to give directions to a person in charge of goods to: not move, deal with or interfere with the goods move the goods as soon as practicable to a specified place, or any other direction relating to the movement of the goods. 131


This will allow a biosecurity officer to issue movement directions in relation to the goods to ensure that appropriate biosecurity risk assessment and management activities can be carried out. For example, a biosecurity officer may give a direction for timber products to be moved away from forested areas to ensure that any biosecurity risks associated with the timber do not spread. The biosecurity officer will also have an ability to cause goods to be moved. This power can be used, for example where a person in charge contravenes a direction to move the good. A person who contravenes a direction to relating to the goods is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. In addition, a person may be liable to a civil penalty for moving, dealing with or interfering with goods that has been secured in accordance with a direction given under this clause (see clause 130). Clause 129 Biosecurity control notice may be affixed to goods or given to person in charge of goods This clause provides a biosecurity officer with the power to affix a biosecurity control notice to, or near to, the goods or to provide a notice to the person in charge of the goods. This notice is used to inform the person that the movement of the goods is restricted, so that a biosecurity officer can carry out an assessment of the biosecurity risk associated with the goods. This clause provides that a person must not interfere with, remove or deface the notice affixed to the goods unless the person is authorised to do so under an approved arrangement (see clause 10 for the meaning of approved arrangement), or he or she has been given a direction by a biosecurity official or otherwise has permission under the Act. A person who interferes with, removes or defaces the notice in contravention of this clause is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. It will be an exception to be authorised under an Australian law to interfere, remove or deface the notice. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. Clause 130 Unauthorised persons must not move etc. goods in relation to which direction has been given or notice has been affixed This clause applies to: goods that are secured in accordance clause 124 goods that are subject to movement direction or have been moved under clause 128, or goods to which a biosecurity control notice is affixed under clause 129. A person must not move, deal or interfere with these goods unless the person: is authorised to do so under an approved arrangement, has been given a direction under the Act by a biosecurity official, or has permission under clause 557. A person who moves, interferes or deals with the goods in contravention of this clause is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. 132


It will be an exception to be authorised under this Act or another Australian law to move, interfere or deal with the goods. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. Division 5–Biosecurity measures to manage unacceptable level of biosecurity risk Clause 131 Biosecurity measures may be required in relation to goods This clause provides that where a biosecurity officer suspects, on reasonable grounds, that the level of biosecurity risk associated with the goods that are subject to biosecurity control is of an unacceptable level, the officer may require biosecurity measures to be taken in relation to the goods as set out in this Division. These biosecurity measures allow a biosecurity officer to manage biosecurity risks to an acceptable level. This power also extends to exposed goods (see clause 161). Clause 132 Movement of goods This clause provides that biosecurity officers can require: goods to be moved to a particular place goods to be left at a specified place for a specified period of time, or any other action relating to the movement of the goods. This allows biosecurity officers to goods to be moved to a location where risk management activities can be undertaken or to prevent the pest or disease from spreading and establishing in Australian territory. For example, a biosecurity officer may give a direction to move a shipping container to a wash bay. Clause 138 allows a biosecurity officer to direct the person in charge of the goods to carry out this biosecurity measure. Clause 133 Treatment of goods This clause provides biosecurity officers with the power to require that goods be treated in a specific manner. If the goods are high-value goodsthat is the value of the goods is greater than the amount prescribed in the regulationsthe goods must not be treated in a way that the biosecurity officer suspects may damage the goods without the written approval of the Director of Biosecurity. This extra step reflects the impact ordering such a treatment might have on the owner of the goods and the potential loss of value caused by the treatment. Regardless of the value of the goods, if the treatment might damage the goods, a person in charge must be asked to agree to the treatment (see clause 134). This power ensures that biosecurity officers can order necessary treatments for goods to manage biosecurity risks and reduce those risks to an acceptable level. For example, a biosecurity officer may require goods with an ant infestation to be fumigated. 133


Clause 138 allows a biosecurity officer to direct the person in charge of the goods to carry out this biosecurity measure. Clause 134 Treatment that may damage goods This clause outlines the requirements for notifying the person in charge of goods where a biosecurity officer suspects on reasonable grounds that the treatment required under clause 133 is likely to damage the goods. Before any treatment is carried out on the goods, a biosecurity officer must, by notice in writing or orally, inform a person in charge of the goods that the goods are required to be treated in a specified manner which is likely to result in damage to the goods and request the person to agree to the treatment of the goods. If the biosecurity officer suspects on reasonable grounds that the goods pose a high level of biosecurity risk and need to be treated as soon as practicable, the officer will be able to carry out the specified treatment without having to notify the person in charge. If a notice is given to the person in charge of the goods requesting their agreement to treatment, and the person does not respond or does not agree to the treatment within 30 days, a biosecurity officer may in writing request that the person arrange for the goods to be dealt with or destroyed within a specified period. If the person in charge of the goods does not comply with this request the biosecurity officer may take possession of the goods and cause them to be exported out of Australian territory, destroyed or otherwise disposed of. This clause allows a biosecurity officer to seek agreement and give a notice orally as well as or instead of in writing. This is appropriate for situations where the biosecurity officer is in direct contact with the person in charge of the goods, for example, at an airport where the officer is inspecting a person`s baggage. The notification requirement gives a person in charge of goods a reasonable opportunity to address the biosecurity risks associated with the goodswith appropriate consequencesif the biosecurity risks have not be managed. The clause excludes a biosecurity industry participant from the definition of person in charge` of goods if the biosecurity industry participant is in possession or control of goods only because of a direction given to the participant by a biosecurity officer. This reflects that it would not be appropriate for the biosecurity industry participant to agree to treatment that may damage goods, where they do not have a relationship to the owner of the goods and the goods are only in their possession because of the actions of the biosecurity officer. Clause 135 Export of goods This clause allows a biosecurity officer to require goods to be exported from Australian territory. The biosecurity officer may arrange for the goods to be exported or direct a person in charge of the goods to arrange for the goods to be exported. Exporting offers an alternative way to deal with the biosecurity risks (in addition to treatment or destruction of the goods). As these provisions apply to goods that have been brought or imported into Australian territory, it is appropriate that the goods can be exported, to ensure that the biosecurity risks can be managed. For example, it is envisaged that these goods would be returned to their country of origin. A person who contravenes a direction to export the goods may commit an offence or be liable to a civil penalty (see clause 140). 134


Clause 136 Destruction of goods This clause provides biosecurity officers with the power to require that goods be destroyed. If the biosecurity officer suspects on reasonable grounds that the goods cannot be effectively treated to reduce the biosecurity risk to an acceptable level, the biosecurity officer may, subject to the notification and approval requirements, require the goods to be destroyed. If the goods are high-value goodsthat is the value of the goods is greater than the amount prescribed in the regulationthe goods must not be destroyed without written approval of the Director of Biosecurity. The decision to require high-value goods be destroyed is a reviewable decision under clause 574. If a review is being undertaken, the good can only be destroyed if the biosecurity officer is satisfied that the goods pose a high level of biosecurity risk and the risks cannot be managed for long enough to allow a review to be finally determined. The requirement that the Director approve the destruction of high-value goods along with the review function reflect the monetary outlay that an owner may have invested in the good and ensures that an owner or person in charge is able to access review mechanisms to protect his or her goods. A biosecurity officer must not cause high-value goods to be destroyed until the end of the review period, for any review of the decision to destroy the good to be completed or until an application for review (including an appeal) has been determined. If the goods have been destroyed, because the biosecurity risks cannot be managed for the duration of any review or appeal, no application for review can be made and any review or related proceedings are taken to be discontinued. Clause 138 allows a biosecurity officer to direct the person in charge of the goods to carry out this biosecurity measure. Clause 137 Regulations may provide for other biosecurity measures The clause allows for regulations to prescribe additional biosecurity measures that a biosecurity officer may use in relation to goods under this Division. The clause limits the biosecurity measures that can be prescribed by the regulations. The biosecurity measures in the regulations must not be: measures that are of a kind set out in Division 4 of this Part (biosecurity risk assessment powers) a measure of another kind set out in this Division, or a biosecurity measure relating to decontamination (see Division 2 of Part 4 of Chapter 10). This ensures that the regulations do not contain biosecurity measures already available in the Act. It also ensures that any notification or processes in place in the legislation are not circumvented. For example, an additional prescribed biosecurity measure may include a requirement that certain animals are to be isolated (quarantined). This clause also allows for other matters relating to a prescribed biosecurity measure to be set out in the regulations. This can include matters such as notification requirements and limitations on carrying out prescribed biosecurity measures during review periods (if the exercise of the prescribed biosecurity measure is a reviewable decision). Clause 138 allows a biosecurity officer to direct the person in charge of the goods to carry out a biosecurity measure under clauses 132, 133, 136 or 137. 135


Clause 138 Powers of biosecurity officer if biosecurity measures are required The clause provides that where a biosecurity officer requires biosecurity measures to be taken in relation to goods under clauses 132 (movement), 133 (treatment), 136 (destruction) or a regulation made under clause 137 (prescribed biosecurity measure), the biosecurity officer can direct a person, or arrange for a person to carry out the biosecurity measures. The biosecurity officer can also carry out the biosecurity measure personally. Where the biosecurity officer gives a direction to a person to carry out a biosecurity measure, or arranges for someone to carry out the biosecurity measure, the biosecurity officer may supervise the person carrying out the biosecurity measures. This ensures that the biosecurity measures are carried out properly, and where they have not been carried out in accordance with the directions, the biosecurity officer can take action to manage the biosecurity risks. A person who is given a direction to carry out a biosecurity measure under this clause may commit an offence or contravene a civil penalty provision (see clause 140 for further information) Clause 139 Biosecurity officer may affix notice to goods Clause 139 allows a biosecurity officer, to affix a notice to goods in relation to which biosecurity measures have been required under this Division or a regulation made under clause 137. This notice must state that the level of biosecurity risks associated with the goods is unacceptable, that biosecurity measures have been required in relation to those goods and that a person may be liable to a civil penalty or offence if they move or interfere with the goods to which the notice relates (see clause 141). The notice is designed to inform a person not to move or interfere with the goods. If it is not possible to affix the notice to the goods, the person exercising the power may affix the notice as near to the goods as reasonably practicable. A person must not interfere with, remove or deface the notice unless the person is authorised to do so under an approved arrangement (see clause 10) or they been given a direction or permission by a biosecurity official or otherwise has permission under the Act. An unauthorised person who interferes with, removes or defaces the notice may be liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. It will be an exception to be authorised under an Australian law to interfere, remove or deface the notice. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. Clause 140 Person must comply with direction to take biosecurity measures This clause provides that a person must comply with a direction to take biosecurity measures. A person will commit an offence and be liable to a civil penalty if they contravene a direction under clause 135 to export the goods or under clause 138 to take measures given by a biosecurity officer under this Division (see clauses 132, 133, 136 and 137). The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If directions are not 136


complied with, significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia`s local industries, the economy and the environment. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. Clause 141 Unauthorised persons must not move etc. goods to which notice has been affixed This clause provides that a person must not move, deal or interfere with the goods where a notice has been affixed under subclause 139(1) unless the person is authorised to do so under an approved arrangement (see clause 10 for the meaning of approved arrangement), or he or she has been given a direction by a biosecurity official or otherwise has permission under the Act. An unauthorised person who moves, deals or interferes with these goods commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If the goods are moved or interfered with biosecurity risk associated with the goods may spread which has the potential to cause serious damage to plant and animal health, Australia`s local industries, the economy and the environment. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. It will be an exception to be authorised under an Australian law to move, interfere or deal with the goods. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. These powers are required to ensure biosecurity officers can carry out functions under this Part by affixing notices to goods restricting their movement so that biosecurity measures can be conducted to manage any identified biosecurity risks. 137


Division 6–Unloading goods at landing places or ports Clause 142 Application of this Division This Division applies in relation to goods that are or will be subject to biosecurity control and are intended to be unloaded from an aircraft or vessel carrying the goods at a landing place or port in Australian territory. The powers in this Division also apply in relation to exposed goods (see clause 161). Clause 143 Person in charge may allow goods to be unloaded from aircraft or vessel subject to direction etc. Clause 144 Person may unload goods from aircraft or vessel subject to direction etc. These clauses outline the circumstances in which: a person in charge of an aircraft or vessel can allow the unloading of goods at a landing place or port, and a person, such as a stevedore, can unload goods from a vessel or aircraft. These clauses provide that goods can be unloaded: subject to any directions given by a biosecurity officer, or in accordance with the requirements in clauses 145, 146, 147, 148 and 151. Subject to meeting the requirements in clauses 145, 146, 147, 148 and 151, goods will be able to be unloaded from a vessel or aircraft without any intervention from biosecurity officers. This will allow goods which do not pose a biosecurity risk to move smoothly through the border, reducing delays on individuals and businesses. A biosecurity officer may give the person in charge of aircraft or vessels, or another person, a direction relating to the unloading of the goods from the aircraft or vessel. This direction may relate to not allowing some or all of the goods to be unloaded from the aircraft or vessel. For example, where a particular shipping container is suspected of posing a high level of biosecurity risk, a biosecurity officer may direct the person in charge not to unload that shipping container. A person who contravenes a direction given by a biosecurity officer under these clauses commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. The criminal penalties available are higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of the commission of the offence. If directions are not complied with, significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia`s local industries, the economy and the environment. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. It will be an exception to both the offence and civil penalty in clause 143, if the person in charge of the aircraft of vessel gave a direction to a person under clause 144, and the direction was in the same terms as that given by a biosecurity officer, and the other person contravened the person in charge`s direction. For example, if a biosecurity officer directs the person in charge of a vessel not to unload a container, and the person in charge has passed that direction on to the stevedore, if the stevedore unloads the container, the person in charge will not be liable. 138


The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. Notwithstanding these clauses, nothing may be unloaded from the aircraft or vessel unless pratique has been granted in relation to the aircraft or vessel (see clauses 48 and 49). Clause 145 Goods must not be unloaded except at first point of entry for those goods or with permission Clause 146 Permission to unload goods at landing place or port other than first point of entry for those goods Clause 145 provides that a person in charge of a vessel or aircraft that brought goods into Australian territory must not allow the goods that are subject to biosecurity control to be unloaded unless: the landing place or port is a first point of entry for those goods, or permission has been given by the Director of Biosecurity for the goods to be unloaded at that port or landing place. First points of entry may be determined to receive specific goods, depending on the biosecurity risks associated with the goods and the facilities at the first point to manage the biosecurity risks (see clauses 223 and 229 for further information). This clause ensures that in the event a first point of entry is determined to receive specific goods, the biosecurity risk assessment process for determining a first point of entry is not circumvented and that biosecurity risks associated with unloading goods at places that are not first points of entry are appropriately managed. A person who unloads goods at a landing place or port that is not a first point of entry for those goods, without permission from the Director, commits an offence and is liable to a civil penalty. The maximum penalty for contravening clause 145 is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. Clause 146 provides that a person in charge or the operator of an aircraft of vessel that is intending to bring goods into Australian territory may request the Director of Biosecurity to give permission to unload the goods at a first point of entry not determined to receive those goods. On receiving a request, the Director may–by notice in writing–give permission. This permission may be subject to conditions. This allows the Director to place any conditions that are appropriate for the management of biosecurity risks associated with the goods. For example, permission to unload timber at a place that is not a first point of entry may be given on the condition that there are fumigation facilities available to manage any biosecurity risks associated with the timber. This clause provides flexibility for industry by ensuring that alternative arrangements can be made to unload goods at a landing place or port not determined to receive those goods. A person who has been given permission to unload the goods subject to conditions and contravenes the conditions commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. The person in charge of the aircraft or vessel commits an offence if the operator has been given permission subject to conditions and the conditions have been contravened. The operator of the 139


aircraft or vessel commits an offence if the person in charge has been given permission subject to conditions and the conditions have been contravened. The maximum penalty for contravention of both these offences is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. The criminal penalties available are higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If the goods were unloaded without permission or a condition was contravened biosecurity risk associated with the goods may spread which has the potential to cause serious damage to plant and animal health, Australia`s local industries, the economy and the environment. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. Notwithstanding these clauses, nothing may be unloaded from the aircraft or vessel unless pratique has been granted in relation to the aircraft or vessel (see clauses 48 and 49). Clause 147 Goods must be brought to biosecurity entry point for those goods at first point of entry Clause 148 Permission to bring goods to alternative biosecurity entry point These clauses apply if: the aircraft or vessel that brought goods into Australian territory has arrived at a first point of entry for that aircraft or vessel, and there is a biosecurity entry point at the first point of entry for goods that are to be unloaded from the aircraft or vessel. Biosecurity entry points are designated areas within a landing place or port that an aircraft, vessel or goods must enter as soon as practicable upon arriving at a first point of entry–allowing biosecurity risks associated with the aircraft, vessel or goods to be managed at a specific location within the landing place or port (see clauses 224 and 230 for further explanation). A person in charge of the aircraft or vessel must ensure goods that are unloaded are brought to a biosecurity entry point as soon as practicable, unless the person in charge has been given: a direction by a biosecurity officer, or permission in accordance with clause 148 for the goods to be brought to an alternative biosecurity entry point. A person who unloads goods in contravention of this requirement commits an offence and is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. Clause 147 provides biosecurity officers with the power to give directions to the person in charge or the operator of a vessel or aircraft. The direction may require that the goods be brought to an alternative biosecurity entry point at the first point of entry. A biosecurity officer will be able to use the direction power to manage biosecurity risks associated with the goods. A person who has been given a direction and contravenes the direction commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both if the elements of a fault-based offence are established. The maximum civil penalty for a contravention is 120 penalty units. A person in charge of the aircraft or vessel who has been given a direction and the direction has been contravened commits an offence and is liable to a civil penalty. The maximum penalty for a 140


contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. The operator of the aircraft or vessel who has been given a direction and the direction has been contravened commits an offence and is liable to a civil penalty. The maximum penalty for contravention of both these offences is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. Clause 148 outlines the process for the Director of Biosecurity to give permission to unload goods at an alternative biosecurity entry point. A person in charge, or an operator, of an aircraft of vessel that brought goods into Australian territory may request the Director of Biosecurity to give permission to unload the goods at a biosecurity entry point that is not a biosecurity entry point for those goods. On receiving a request, the Director may–by notice in writing–give permission. This permission may be subject to conditions. This allows the Director to place any conditions that are appropriate for the management of biosecurity risks associated with the goods. For example, a condition on unloading timber products at a biosecurity entry point that is not a biosecurity entry point for timber, may include storing the timber products at a premise under an approved arrangement or away from plants or trees. This clause provides flexibility to industry by ensuring that alternative arrangements can be made to unload goods at biosecurity entry points not determined to receive those goods. A person who has been given permission subject to conditions and contravenes the conditions commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. The person in charge of the aircraft or vessel who contravenes conditions of a permission to unload goods at an alternative biosecurity entry point commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. The operator of the aircraft or vessel who contravenes conditions of a permission to unload goods at an alternative biosecurity entry point commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. These clauses ensure that biosecurity risk assessment processes for determining biosecurity entry points at first points of entry are not circumvented and that biosecurity risks associated with unloading goods at places that are not a biosecurity entry point are appropriately managed. It is appropriate that both the operator of the aircraft or vessel and the person in charge of the goods are liable to these offences, as they will either be giving permission for the goods to be unloaded from the vessel or aircraft, or be the person unloading the goods. The criminal penalties available are higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If directions are not complied with or the goods were unloaded without permission or a condition was contravened biosecurity risk associated with the goods may spread which has the potential to cause serious damage to plant and animal health, Australia`s local industries, the economy and the environment. 141


A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. Notwithstanding these clauses, nothing may be unloaded from the aircraft or vessel unless pratique has been granted in relation to the aircraft or vessel (see clauses 48 and 49). Clause 149 Receiving or possessing goods unloaded from aircraft or vessel in contravention of this Division This clause provides that a person who receives or has in his or her possession goods that were unloaded from an aircraft or vessel in contravention of this Division is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. It will be an exception if the person did not know, or could not reasonably be expected to know that the goods were unloaded in contravention of this Division. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. Division 7–Unloading goods from vessel displaying prescribed quarantine signal Clause 150 Application of this Division This Division applies in relation to goods that are subject to biosecurity control including exposed goods (see clause 161) and are unloaded from a vessel that is displaying the prescribed quarantine signal. Clause 151 Unloading goods from vessel displaying prescribed quarantine signal This clause provides that a person must not unload goods from a vessel in Australian territory if the goods are subject to biosecurity control or are exposed goods (see clause 161) and the vessel is displaying the prescribed quarantine signal (see clause 221 for further information). A vessel displaying a quarantine signal has been deemed to pose an unacceptable level of biosecurity risk. This clause ensures that the biosecurity risks are not spread by unloading the goods from the vessel. A person who unloads goods in contravention of this clause commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If goods are unloaded from a vessel displaying the prescribed quarantine signal biosecurity risk associated with the goods may spread which has the potential to cause serious damage to plant and animal health, Australia`s local industries, the economy and the environment. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. 142


It will be an exception to be authorised under this Act or under another Australian law to unload goods from a vessel displaying the prescribed quarantine signal. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. Clause 152 Receiving or possessing goods unloaded from vessel displaying prescribed quarantine signal This clause provides that a person must not receive or have in his or her possession goods unloaded from a vessel that is displaying the prescribed quarantine signal and the goods are subject to biosecurity control or are exposed goods. This clause does not apply if the person is authorised to do so under an approved arrangement, or he or she has been given a direction by a biosecurity official or otherwise has permission under the Act. This clause appropriately places responsibility on people receiving or possessing goods to ensure that they are aware of the circumstances of the goods arrival and biosecurity status. A person who receives goods unloaded in contravention of this clause commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. Goods that are unloaded from a vessel displaying the prescribed quarantine signal potentially pose a high level of biosecurity risk. Biosecurity risk associated with the goods may spread which has the potential to cause serious damage to plant and animal health, Australia`s local industries, the economy and the environment. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. It will be an exception if the person did not know, or could not reasonably be expected to know that the goods were unloaded in contravention of this Division or if the person is authorised under an Australian law. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. 143


Division 8–Reporting biosecurity incidents Clause 153 Application of this division This Division applies obligations to report biosecurity incidents to goods that are subject to biosecurity control. The Division also applies in relation to exposed goods (see clause 161). Clause 154 Director of Biosecurity may determine acts, omissions or events to be reportable biosecurity incidents This clause provides the Director of Biosecurity with the ability to determine via legislative instrument, what constitutes a biosecurity incident in relation to goods that are subject to biosecurity control or exposed goods (see clause 161). A biosecurity incident can be an act, omission or event. The reporting of biosecurity incidents will allow for biosecurity officers to efficiently manage biosecurity risks associated with an incident. It is important that biosecurity incidents are reported as soon as practicable, to ensure that any biosecurity risks associated with the incident can be managed to an acceptable level and to limit the risk associated with any pest or disease entering, establishing or spreading into Australian territory. For example, a person in charge of timber products may be required to report any insect activity. This will allow biosecurity officers to assess if the insect activity is a biosecurity risk and if necessary, carry out biosecurity measures to manage the biosecurity risks associated with those insects. Clause 155 Reporting by person in charge of aircraft or vessel carrying goods Clause 156 Reporting by person in charge of goods These clauses provide that a person in charge of an aircraft or vessel that brought goods into Australia and the person in charge of goods once they are unloaded must report any biosecurity incident that he or she is aware of to the Director of Biosecurity or a biosecurity officer as soon as practicable after becoming aware of the incident. It is important that biosecurity incidents are reported as soon as practicable, to ensure that any biosecurity risks associated with the incident can be managed to an acceptable level and to limit the risk associated with any pest or disease entering, establishing or spreading into Australian territory. It is appropriate that the requirement to report these incidents sits with the person in charge of the aircraft, vessel or goods as he or she is most likely to become aware that a biosecurity incident has occurred as he or she is in possession of the goods. A person who fails to report a biosecurity incident commits an offence and is liable to a civil penalty. The maximum penalty for a contravention is two years imprisonment, or 120 penalty units, or both if the elements of a fault-based offence are established. The maximum civil penalty for a contravention is 120 penalty units. The obligation to report a biosecurity incident applies whether or not the person was in Australian territory when they became aware of the biosecurity incident. This reflects that an incident can occur outside Australian territory, and that having an incident reported as soon as practicable allows for the efficient management of biosecurity risks. Clause 157 How reports must be made Clause 157 outlines the process for how reports of biosecurity incidents are to be made. This clause provides the Director of Biosecurity the ability to determineby legislative instrumentthe information that must be included in the report (required by clauses 155 and 156) and the way in which the report must be made. 144


If a report is not made in accordance with these requirements, the report is not taken to have been made the person who made or was required to make the report may have committed an offence or be liable to a civil penalty. This ensures that all reports are made in the appropriate manner, allowing for biosecurity measures (if required) to be carried out in a timely manner. Division 9–Goods exposed to goods that are subject to biosecurity control Clause 158 Application of this Division This Division applies to goods if a biosecurity officer suspects, on reasonable grounds, that the goods have been exposed to goods or conveyances that are subject to biosecurity control and goods in relation to which a biosecurity control order under clause 159 has been made. These goods are defined as exposed goods. This Division extends some of the powers available in this Part to exposed goods, allowing for biosecurity risks associated with exposed goods to be efficiently assessed and managed. Clause 159 Assessment and management of biosecurity risk associated with exposed goods A biosecurity officer may exercise the powers in Division 4 of this Part for the purpose of identifying and assessing the level of biosecurity risk associated with exposed goods. If the biosecurity officer suspects on reasonable grounds that the biosecurity risks associated with exposed goods is unacceptable, the biosecurity officer may issue an exposed goods order in accordance with clause 160extending some of the powers in this Part to manage the biosecurity risks with the exposed goods. The assessment powers in Division 4 of this Part can only be exercised in relation to exposed goods if the goods: are within the precincts of a landing place or port are onboard a conveyance which is subject to biosecurity control (see Division 2 of Part 2 of Chapter 4) are on premises owned or controlled by the Commonwealth where biosecurity measures can be taken for the purpose of managing biosecurity risk, or are on premises where biosecurity activities are carried out in accordance with an approved arrangement. Limiting the exercise of these powers to these areas reflects that these are areas with a high level of biosecurity risk, which have a direct connection to the goods being brought or imported into Australian territory. It is appropriate that these powers extend to these goods, as exposed goods potentially have an unacceptable level of biosecurity risk by virtue of coming into contact with goods or conveyances that are subject to biosecurity control. In situations where this Part does not apply and the goods are suspected of having an unacceptable level of biosecurity risk, the biosecurity risks can be assessed and managed by the provisions in Chapter 6. Clause 160 Exposed goods orders This clause outlines the requirements for an exposed goods order. An exposed goods order must be in writing, specify the goods to which it relates, and the period in which it is in force. The clause clarifies that an exposed goods order is not a legislative instrument for the purposes of section 5(1) of the Legislative Instruments Act 2003. This is to recognise the fact that the notice is administrative in nature. The exposed goods order is intended to notify the person in charge of exposed goods that the provisions in this Part apply in relation to the goods. 145


A biosecurity officer must give a copy of an exposed goods order to a person in charge of the exposed goods to which the order relates, if it is practicable to do so. Clause 161 Effect of exposed goods order This clause outlines the effect of an exposed goods order. If an exposed goods order is in force in relation to exposed goods, the powers in Divisions 4, 5, 6, 7, 8 and 10 of this Part will apply to the exposed goods as if they were goods subject to biosecurity control. This ensures that biosecurity officers can use the powers to manage and assess the biosecurity risks which may be associated with the goods as a result of the exposure. An exposed goods order made in relation to exposed goods ceases to be in effect when the order expires, is revoked or the goods are released from biosecurity control in accordance with Division 10. In the same way as clause 162 applies to goods that are subject to biosecurity control, subclause 161(3) provides that the goods are released from biosecurity control by virtue of leaving Australian territory on a conveyance on a journey between places in Australian territory and the exposed goods order has not expired or been revoked, the exposed goods order takes effect again when the conveyance re-enters Australian territory. This is appropriate as the biosecurity risks associated with the exposed goods, have not been managed to an acceptable level simply be leaving the Australian territory. Division 10–Release of goods from biosecurity control Clause 162 When goods brought into Australian territory are released from biosecurity control This clause outlines the circumstances in which goods are released from biosecurity control. Goods will be released from biosecurity control if: a notice is given to a person in charge of the goods under clause 163 by a biosecurity officer a written notice is given to the person in charge of the goods by a biosecurity industry participant who is authorised to release the goods in accordance with an approved arrangement the goods are prescribed goods and the goods leave a designated biosecurity control release area at a first point of entry or an international mail centre the goods are destroyed, or the goods leave Australian territory. Goods are released through these mechanisms in recognition that the goods no longer pose an unacceptable level of biosecurity risk. If goods are released from biosecurity control by leaving Australian territory on a conveyance that is on a journey between places in Australian territory, the goods become subject to biosecurity control again when the conveyance returns to Australian territory during that journey (see clause 119). This is appropriate as the biosecurity risks associated with the goods, has not been assessed or managed to an acceptable level. Goods may be released prior to becoming subject to biosecurity control based on an assessment of the information provided via notice under clause 120. The clause clarifies that if a notice has been issued releasing the goods from biosecurity control, prior the goods became subject to biosecurity control, the goods are taken to be released immediately after they became subject to biosecurity control. This will allow these goods to move smoothly through the border ensuring that individuals and businesses are not subject to delays or additional costs. 146


The clause clarifies that a release notice is not a legislative instrument for the purposes of section 5(1) of the Legislative Instruments Act 2003. This is to recognise the fact that the notice is administrative in nature. The notice is intended to notify the person in charge of the goods that the goods are released from biosecurity control. The regulations may provide that a specified area at a first point of entry or an international mail centre is a designated biosecurity control release area. These designated areas reflect that it will not be possible for a biosecurity officer to personally release all goods–either orally or in writing. For example, international mail will be released from biosecurity control when it leaves an international mail centre. The regulations will also prescribe goods that are released by this mechanism, it is envisaged that these will include personal baggage and international mail. This limits the goods released by the mechanism, and allows biosecurity officers to focus on goods which pose a higher level of risk. Biosecurity officers will still be able to use the assessment and management powers in this Chapter to manage any unacceptable level of biosecurity risk associated with these goods. A biosecurity officer may refuse to release goods from biosecurity control if the goods are withheld under clause 600 because a cost-recovery charge has not been paid (see subclause 600(4)). Clause 163 Notice releasing goods from biosecurity control This clause provides that a notice issued under clause 162 may be issued in writing or orally. This clause also allows for notices that are issued by an automated electronic system to release goods from biosecurity control. The automated system must comply with the requirements in the regulations. An automated notice is taken to be issued by a biosecurity officer so that the practical effect of this notice is to release the goods under clause 162. This provision also makes it clear that an automated release notice in relation to goods has no effect to the extent that it is inconsistent with an earlier direction given in relation to the goods by a biosecurity officer under this Act. Clause 164 Revoking notice releasing goods from biosecurity control This clause outlines the process for revoking a notice issued under clause 162 releasing goods from biosecurity control. If a biosecurity officer or biosecurity industry participant suspects on reasonable grounds that the goods pose an unacceptable level of biosecurity risk the biosecurity officer may revoke the notice issued under clause 162–ensuring that the goods are still subject to biosecurity control. This will allow biosecurity officers to use the powers in Divisions 4 and 5 of this Chapter to assess, and if necessary, manage biosecurity risks associated with the goods. This ability to revoke a notice given under clause 162 is necessary to manage biosecurity in circumstances where the goods have been released by mistake or based on incorrect information provided to a biosecurity officer or biosecurity industry participant. A biosecurity officer may revoke a notice releasing goods from biosecurity control that was given to a person by a biosecurity officer or automated electronic system, by informing the person in writing or orally of the revocation. If a biosecurity industry participant gave a person in charge of goods a written notice releasing goods from biosecurity control, the biosecurity industry participant or a biosecurity officer may revoke the notice by informing the person in writing of the revocation. Biosecurity industry 147


participant are also afforded this power as they are likely to be in a position to identify any biosecurity risks associated with released goods that are being managed under their approved arrangement. It is appropriate that these goods are managed under the powers available in this Chapter as it provides a direct link with the goods being brought into Australia and ensures that the biosecurity risk management powers that are available at the border–such as exporting the goods–can be used. Chapter 6 powers are available for goods that are not subject to biosecurity control. However tis provision is intended to be used in cases where goods have been mistakenly released or incorrect information has been provided. For example, a good has been released from biosecurity control based on documentation and when it arrives a biosecurity officer notices that it is infested with insects. Chapter 6 powers in this instance would be administratively burdensome on the department and may result in delayed responses to biosecurity risks. The clause clarifies that a written revocation notice is not a legislative instrument for the purposes of section 5(1) of the Legislative Instruments Act 2003. This is to recognise the fact that revocation is administrative in nature. The revocation notice is intended to notify the person in that the goods are subject to biosecurity control. Part 2–Biosecurity Import Risk Analyses Division–Introduction Clause 165 Simplified outline of this Part This outline sets out the Part`s objectives. This Part confers on the Director of Biosecurity the power to conduct Biosecurity Import Risk Analyses (BIRA). A BIRA can be conducted for goods or a particular class of goods that may be imported or are proposed to be imported. A BIRA is an evaluation of the level of biosecurity risk associated with the goods. It also identifies conditions that must be met to manage the level of biosecurity risk associated with the goods to a level that achieves Australia`s Appropriate Level of Protection (ALOP). Division 2–Biosecurity Import Risk Analyses Clause 166 What is a Biosecurity Import Risk Analyses (BIRA) This clause defines a BIRA as a scientific evaluation of the level of biosecurity risk associated with goods that may be imported, or are proposed to be imported, into Australian territory. The BIRA can identify conditions that must be satisfied to manage the level of biosecurity risk to achieve Australia`s appropriate level of protection (ALOP) (see clause 5 for further information on ALOP). This clause clarifies that a BIRA can consider and recommend biosecurity measures that are varied based on the level of biosecurity risk in a part of Australian territory. For example, in a recent Import Risk Analysis two quarantine pests associated with stone fruit production in the United States of America were of regional concern to Western Australia (in addition to other quarantine pests of concern to the whole of Australia). As a result, specific import conditions were identified and placed on stone fruit being imported to Western Australia, in addition to the import conditions applied for the whole of Australia. A BIRA provides information and advice to the Director of Biosecurity to take into account when assessing an import permit application. 148


Clause 167 Director of Biosecurity may conduct a BIRA This clause confers the power for the Director of Biosecurity to undertake a BIRA in relation to particular goods or particular classes of goods and provides that the Director must apply Australia`s ALOP in conducting the BIRA. The application of Australia`s ALOP ensures that any biosecurity measures identified to manage the risks to meet Australia`s ALOP will be science- based sanitary and phytosanitary measures consistent with Australia`s rights and obligations under the SPS Agreement. The Director of Biosecurity can determine the order in which BIRAs are conducted subject to any direction from the Agriculture Minister under clause 168. Clause 168 Agriculture Minister may direct Director of Biosecurity to commence a BIRA This clause provides that the Agriculture Minister may issue a written direction to the Director of Biosecurity to commence a BIRA in relation to a particular good or a particular class of good. Aside from this direction, the clause provides that the Director of Biosecurity is not subject to any directions from the Agriculture Minister or the Commonwealth Government about the conduct, findings or outcomes relating to the BIRA. This means that although the Agriculture Minister can ensure that BIRAs are being conducted in accordance with Australia`s international trade priorities, the BIRA process and scientific decision-making are independent from any direction or influence. The clause clarifies that a direction from the Agriculture Minister is not a legislative instrument for the purposes of section 5(1) of the Legislative Instruments Act 2003. This is to recognise the fact that written direction to commence a BIRA is an administrative direction by the Minister. Written directions of this nature will be based on the international trade policies and priorities of the government of the day. This is further reinforced by the requirement that written direction must be tabled in both Houses of Parliament with 15 sittings days of the written notice being issued. This allows for Parliamentary oversight over the directions being given. Clause 169 Process for conducting a BIRA This clause provides that the BIRA process must be conducted in accordance with the process prescribed by the regulations and take into account the matters set out in the guidelines made by the Director of Biosecurity. Because the BIRA process is largely administrative in nature the details of the process are to be included in the regulations and administrative guidelines that support this Part rather than in the Bill. The Director of Biosecurity can in writing make guidelines setting out matters to be taken into account when conducting a BIRA. It is intended that the guidelines will include a range of guidance material and may include, for example, factors to be considered when deciding whether to commence a BIRA process or how the biosecurity risk identified should be assessed against Australia`s ALOP. The guidelines must be made publicly available on the Agriculture Department`s website to ensure that the BIRA process is transparent for industry and other persons who have a legitimate interest in the outcome of the BIRA process. For the purposes of section 5(1) of the Legislative Instruments Act 2003, the guidelines are not a legislative instrument. This is to recognise the fact that guidelines issued for BIRAs are administrative in their nature. The Director of Biosecurity may also request that the Director of Human Biosecurity prepare a statement of the human health risk associated with the proposed importation of the goods. This ensures that human health impacts are properly considered in the BIRA process. 149


Clause 170 Reports This clause provides that the regulations must require the Director of Biosecurity to prepare draft, provisional and final BIRA reports. Each of the reports must be published and contain the information prescribed by the regulations. It is intended that stakeholders will be able to comment on the draft BIRA report. The provisional BIRA report will build on the draft BIRA report, taking into account stakeholder comments. Once completed, the BIRA report provides information and advice to the Director to take into account when assessing the prohibition or conditions required for goods, the import of goods and assessing any import permit application. The decision to grant the import permit is made using a variety of information, including, but not limited to, information contained in the BIRA report. Part 3–Prohibited Goods etc. Division 1–Introduction Clause 171 Simplified outline of this Part This Part provides the Director of Biosecurity and the Director of Human Biosecurity with the power to jointly determine goods that must not be brought or imported into Australian territory (prohibited goods) and goods that may be brought or imported into Australian territory subject to conditions (conditionally non-prohibited goods). This Part also allows permits to be issued to bring or import certain conditionally non-prohibited goods into Australian territory. In addition, the Director of Biosecurity will have the power to determine that the bringing or importation of certain goods into Australian territory is suspended for up to six months. The Part also outlines offences and civil penalty provisions. Clause 172 Exclusion of State and Territory laws This clause indicates Parliament’s intention that Part 3 of Chapter 3 covers the field in relation to prohibiting or restricting the bringing in or importing of goods into Australian territory for the purposes of managing biosecurity risks associated with the goods. Accordingly, the Act should operate to exclude any state or territory law that purports to prohibit or restrict the bringing in or importing of goods on biosecurity grounds. Section 109 of the Constitution invalidates a state law to the extent that it is inconsistent with a Commonwealth law. Determining whether a state law is inconsistent with a Commonwealth law involves interpreting both laws. If the Commonwealth law is interpreted as operating to the exclusion of state law, the state law will be inconsistent with the Commonwealth law and invalid. A provision such as clause 172, which sets out Parliament’s intention to exclude the operation of state laws will be used in interpreting the Commonwealth law to determine whether it does exclude a particular state law. An example of where the Act may operate to the exclusion of a state law would be if a state law purports to prohibit the importation of a good on biosecurity grounds and the Act permits the importation. The state law may be inconsistent with the Commonwealth law under section 109 of the Constitution; if so the Act would prevail and the goods would be able to be imported. It is intended that conditions on the importation of goods into Australian territory will be based on the outcomes of a national risk assessment process, which takes account of variances in biosecurity risk which may occur in parts of Australia. 150


This clause applies to territory laws in the same way as it applied to state laws. While section 109 of the Constitution does not apply to territory laws, similar principles apply in relation to the inconsistency or repugnancy of territory laws with Commonwealth laws. This provision is intended to increase certainty about roles and responsibilities with respect to bringing or importing goods into Australian territory. Consistent with the World Trade Organization`s SPS Agreement, authority to import goods into Australian territory will also authorise the goods to be imported into a state or territory on the same conditions (if any). The risk assessment process will consider regional differences between states and territories and will allow for different import conditions where differences are based on scientific grounds. Division 2–Prohibited goods and conditionally non-prohibited goods Clause 173 Prohibited goods Clause 174 Conditionally non-prohibited goods These clauses provide that the Director of Biosecurity and the Director of Human Biosecurity may jointly determine that certain goods or classes of goods that are brought into Australian territory or imported, are prohibited absolutely (prohibited goods) or are prohibited unless certain conditions are satisfied (conditionally non-prohibited goods). The conditions can be in relation to the way the goods are used and may include that the goods not be brought or imported into Australian territory unless a permit, authorising the goods to be bought or imported into Australian territory, has been issued under Division 3 of this Chapter. The Director of Biosecurity and the Director of Human Biosecurity can only prohibit the bringing in or importation of a good (or class of goods) if they are satisfied that the level of biosecurity risk associated with the goods or the class of goods, is unacceptable and biosecurity measures would not be able to be taken to reduce that level of biosecurity risk to an acceptable level. The power to prohibit the bringing in or importation of goods into Australian territory provides protection from serious diseases and pests posing unacceptably high biosecurity risk coming into Australian territory. Consistent with the SPS Agreement the Director of Biosecurity and the Director of Human Biosecurity must apply the Australia`s ALOP in conducting a risk assessment for the purpose of determining whether particular goods, or a particular class of goods, should be either prohibited goods or conditionally non-prohibited goods. This clause states that the determinations for prohibited goods and conditionally non-prohibited goods are legislative instruments, but are not subject to disallowance under section 42 of the Legislative Instruments Act 2003. The decision to determine prohibited or conditionally non-prohibited goods is a technical and scientific decision based on whether the biosecurity risk is able to be satisfactorily managed. Therefore it is appropriate for the Parliament to delegate to the Director of Biosecurity and the Director of Human Biosecurity (whichever relevant) the power to make these determinations. Subjecting these determinations to disallowance could undermine the technical and scientific based decision making and frustrate risk management processes. These determinations are critical to the management of biosecurity risks posed by the importation of certain types of goods. If these determinations were to be disallowed, all goods would be allowed in regardless of their pest and disease status. This could have a significant impact on the economy and may lead to restrictions being put on Australia`s exports by trading partners. In addition, disallowance of a determination made under this clause could lead to inadequate 151


management of the biosecurity risks posed to human, plant and animal health, Australia`s local industries, the environment and the economy. The relevant Director will be able to vary or revoke a determination in accordance with subsection 33(3) of the Acts Interpretation Act 1901. Clause 175 Security may be required in relation to conditionally non-prohibited goods This clause provides the Director of Biosecurity with the discretion to require security to be given to conditionally non-prohibited goods that are intended to be, or are brought or imported into Australian territory. The Director of Biosecurity must have regard to criteria prescribed by the regulations when considering whether a security will be required. The regulations may prescribe the range of matters set out in this clause, including the form, amount, timing of the security and circumstances when the security may be kept and used by the Commonwealth. Securities can be used to ensure that the Commonwealth is not left to meet the costs of applying biosecurity measures to non-compliant goods. This is particularly relevant where the importer of the goods is not an Australian resident as it is difficult to take enforcement action to recover costs for biosecurity measures undertaken with respect to the goods such as treatment, destruction or export of the goods. If a permit to import conditionally non-prohibited goods is required under this Act, the Director of Biosecurity may refuse to consider the application for the permit until the security is given. Division 3–Permits to bring or import goods into Australian territory Clause 176 Application of this Division This Division applies in relation to conditionally non-prohibited goods that must not be brought or imported into Australian territory unless the Director of Biosecurity has granted a permit. A permit allows the Commonwealth to manage biosecurity risks associated with bringing in conditionally non-prohibited goods into Australian territory. In issuing a permit, the Director of Biosecurity may place conditions on the permit which may for example, relate to managing biosecurity risks for importation and the use or disposal of the goods. Clause 177 Person may apply for permit This clause provides that a person may make an application to the Director of Biosecurity for a permit to bring in or import conditionally non-prohibited goods. The permit will authorise the applicant or a person acting on behalf of the applicant to bring or import goods into Australian territory. The permit application must be in a form approved by the Director of Biosecurity and the application must include the information prescribed by the regulations. Under clause 592, the regulations may prescribe that an application must be accompanied by a specified fee. Clause 531 provides that the Director of Biosecurity may, by legislative instrument, specify kinds of personal information that are required to be provided with an application for a permit. If personal information is required to be provided with the application and the information is not provided, the application is taken not to have been made. Permits are used administratively to place conditions on goods, as well as to collect data and track the location of certain classes of goods that may pose a biosecurity risk. 152


Clause 178 Dealing with application This clause provides that the Director of Biosecurity must make a decision in relation to an import permit application within a decision-making period prescribed by the regulations for an application of that kind. This allows the Director to identify a specific period of time in which a category of applications must be considered. This is required because of the broad range of biosecurity risks posed by imported goods and the various conditions required to manage the risks to an acceptable level. Some applications will be straight forward and require a shorter consideration period. Others will cover goods which pose different levels of biosecurity risk and require a longer decision-making period for the Director to consider whether the biosecurity risks can be managed appropriately. The decision-making period begins on the day the application was received by the Director. If the Director does not make a decision within the decision-making period, the Director is taken to have refused the application. This is to ensure there is a definite end point where a decision is taken to have been made and the applicant can apply for a review of the decision if they choose. For the purpose of making a decision regarding an application, the Director can issue a written notice requesting that the applicant, or any other person the Director considers may have information relevant to the application, provide specified information or documents relevant to the application within a specified period. The initial decision-making period identified in the regulations is extended every time the Director makes a request for information. The period of time for the extension commences when the additional request is made and ends the day the additional information or documents are received by the Director, or the last day of the period identified by the Director in his or her request if the information or documents are not received. The initial decision making period can also be extended for the purposes of conducting activities prescribed in the regulations. These prescribed activities will assist the Director in assessing an application and considering any conditions required to manage biosecurity risks associated with the import to an acceptable level. For example, it is envisaged that the decision making-period may be extended in circumstances where the biosecurity risks associated with the goods need to be reassessed. The period of time for the extension commences when the activity is started and ends on the day when the activity ends. This ensures that if the Director requires additional information in order to properly assess an application (particularly more complex applications) and make a decision regarding whether the biosecurity risks can be managed to a satisfactory level, the Director has time to request and receive this information before the decision-making period runs out and a decision to refuse the application is considered to have been made (which attracts review rights under clause 574). Clause 179 Director of Biosecurity may grant permit This clause allows the Director of Biosecurity to grant a permit authorising particular goods or a particular class of goods to be brought or imported into Australian territory when an application is received under clause 177. In making this decision the Director is under an obligation to apply Australia`s ALOP to any risk assessment undertaken. This clause outlines the matters that the Director must take into account in making a decision. The Director must consider: if the permit were to be granted, the level of biosecurity risk associated with the goods whether it is necessary to impose conditions to reduce the biosecurity risk to an acceptable level, and 153


any personal information that is required to be provided with the application for the permit (see clause 531). In deciding whether to grant a permit, the Director may also consider whether the applicant is a fit and proper person who is likely to adhere to any import conditions (see clause 530) or is an associate of a person whose application for a permit under clause 177 has been refused, as well as any other matters relating to the goods or applicant the Director considers relevant. The Director may refuse to grant a permit if the applicant is an associate to a person who has been refused a permit under clause 177 or who has had a permit revoked under clause 181. This aims to do prevent a person that the Director has determined should not hold a permit from obtaining another permit via an associate, such as a family member or business partner, on his or her behalf. The ability to consider other relevant matters provides the Director with flexibility to consider a variety of factors relating to the goods or the applicant, such as the applicants history of complying with permit conditions. In addition the Director is permitted to refuse to consider an application where the requirement for a security to be paid under clause 175 has not been met. The Director must issue a permit in writing. In deciding whether to grant a permit, the Director is not subject to directions from the Agriculture Minister in relation to the application (see clause 543). A decision to refuse to grant a permit is reviewable under clause 574. Clause 180 Conditions of permit This clause provides that a permit issued under clause 179 may be subject to conditions as specified in the permit. This provides the mechanism for ensuring the conditions on conditionally non-prohibited goods are complied with. For example, wood products being imported from overseas may be required as a condition of the permit to undergo fumigation or heat treatment prior to leaving their place of export. This clause also provides the Director of Biosecurity with the power to, in accordance with the regulations, vary or revoke a condition on a permit, or impose further conditions on the permit. These powers are intended to ensure that the biosecurity risks associated with the bringing in, or importation, of goods continue to be managed to an acceptable level. If the Director is not satisfied this is the case, he or she can require that conditions attached to a permit be varied or revoked; or that further conditions are imposed. For example, where a new biosecurity risk has been identified in relation to goods under a permit, the Director may vary a permit, to impose a condition that manages the newly identified biosecurity risk. Conditions on a permit may: require the holder of the permit to do specified things in relation to the goods to which the permit relates, and be required to be met either before or after the goods are brought or imported into Australian territory. The conditions provide flexibility to manage biosecurity risks associated with goods being brought or imported into Australian territory. Conditions may include a requirement that a good not be used for certain purposes–for example that goods imported as animal feed not be used for human consumption. A decision to impose, vary or revoke a condition on a permit is reviewable under clause 574. 154


A person who holds a permit issued under clause 179 may commit an offence or be liable to a civil penalty if the person contravenes a condition of the permit (see clause 187). Clause 181 Variation, suspension or revocation of permit This clause provides that the Director may in accordance with the regulations, vary, suspend or revoke a permit issued under clause 179. In deciding whether to vary, suspend or revoke a permit, the Director of Biosecurity is not subject to directions from the Agriculture Minister in relation to the application (see clause 543). These powers are intended to ensure that the biosecurity risks associated with the bringing in, or importation, of goods continue to be managed to an acceptable level and that conditions on the permit are complied with. If the Director is not satisfied this is the case, the Director can require that a permit be varied, suspended or revoked. For example, a permit may be varied where additional conditions are required to identify biosecurity risks or revoked where the holder is no longer deemed to be a fit and proper person, or is an associate of a person who has had a permit revoked. A decision to impose, vary or revoke a condition on a permit is reviewable under clause 574. Where a permit is revoked, any permit conditions will continue to apply to the goods that have previously been brought in or imported. This ensures the ongoing management of biosecurity risks. Division 4–Suspended goods Clause 182 Director of Biosecurity may suspend bringing or importation of goods into Australian territory for a period This clause outlines when the Director of Biosecurity may make a determination to suspend the bringing or importation of specified goods or a class of goods for a period of up to six months. This suspension extends to goods for which a permit has been issued (see clause 184). The Director may only suspend the bringing in or importation of specified goods or class of goods if he or she is satisfied that the level of biosecurity risk associated with the goods, or class of goods, is unacceptable. These goods are called suspended goods.` For example, if there was a foot-and- mouth disease outbreak in another country, the Director may make a determination suspending the bringing in or importation of all animals or specified animal product into Australian territory from that country. In making this decision the Director is under an obligation to apply Australia`s ALOP to any risk assessment undertaken. The determination made under this clause must set out the reasons for the suspension. This clause states that a suspended good determination is a legislative instrument, but is not subject to disallowance under section 41 of the Legislative Instruments Act 2003. The decision to suspend the importation or bringing in of specified goods or a specified class of goods is a technical and scientific decision based on whether the biosecurity risk is able to be satisfactorily managed. Therefore it is appropriate for the Parliament to delegate to the Director the power to make this determination. Subjecting these determinations to disallowance could undermine the technical and scientific based decision making and frustrate risk management processes. 155


A determination made under this clause is critical to the management of biosecurity risks posed by the importation of goods. If these determinations were to be disallowed, all goods would be allowed in, regardless of their pest and disease status. This could have a significant impact on the economy and may lead to restrictions being put on Australia`s exports by trading partners. In addition, disallowance of a determination made under this clause could lead to inadequate management of the biosecurity risks posed to human, plant and animal health, Australia`s local industries, the environment and the economy. A determination made under this clause will prevail over any determination made under clause 174 to the extent of the inconsistency. This ensures that the suspension will take precedence. This is appropriate given the potential seriousness of biosecurity risks associated with a suspension. Clause 183 Variation of determination suspending bringing or importation of goods into Australian territory The Director of Biosecurity can vary a determination made under clause 182 to extend the period of suspension specified in the determination for a further period of up to six months. If after this time the level of biosecurity risk is still unacceptable, the determination of prohibited goods will be amended. The period of suspension can be extended more than once. This clause does not limit the application of subsection 33(3) of the Acts Interpretation Act 1901 in relation to a determination under clause 182. Clause 184 Effect on permit of suspended goods determination Where a determination is made under clause 182 suspending the bringing in or importation of prescribed goods, it is deemed that any current permits in respect of those suspended goods are also suspended for the time specified. The intention is to ensure that any permits issued prior to the suspension of the good in the determination are automatically suspended at the time the determination comes into effect to ensure that these goods do not enter Australian territory. The suspension will only take effect from the date of the determination, and will not retrospectively affect the validity of the permit that was issued prior to the determination being made. Permit holders will be directly notified in writing that permits have been suspended. In addition to directly notifying affected import permit holders, a public notification will usually be published on the import condition database (currently ICON) and through an industry notice both published on the Agriculture Department website and distributed to major stakeholders. A person who was the holder of a permit that is taken to have been suspended may commit an offence and be liable to a civil penalty provision if the person contravenes a condition of the permit that continues to apply because of subclause 181(3) (see clause 187). Division 5–Offences and civil penalty provisions Clause 185 Bringing or importing prohibited goods or suspended goods into Australian territory This clause creates offences for bringing or importing prohibited goods or suspended goods into Australian territory. The clause includes aggravated offences where commercial advantage is obtained, where harm is caused to the environment, or where there are economic consequences. A person who brings or imports into Australian territory prohibited goods or suspended goods commits an offence and is liable to a civil penalty. The maximum penalty for a basic fault based 156


contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. A person who brings or imports into Australian territory prohibited goods or suspended goods and obtains or may obtain a commercial advantage over the person`s competitors or potential competitors commits an offence. The maximum penalty for a contravention of this kind is ten years imprisonment, or 2000 penalty units, or both. An example would be the importation of prohibited plant bulbs or seeds for a nursery business and thereby creating a commercial advantage over other nurseries. A person who brings or imports into Australian territory prohibited goods or suspended goods and the importation has caused or has potential to cause harm to the environment or has had or has the potential to have economic consequences commits an offence. The maximum penalty for a contravention of this kind is ten years imprisonment, or 600 penalty units, or both. For example a person intentionally brings in a biological agent with an animal disease with the intention to cause damage to Australia`s livestock industries. This offence is intended to protect the integrity of Australia`s borders. The clause clarifies that if a person is found not guilty of the offences relating to obtaining commercial advantage, causing harm to the environment or causing economic consequences, the person may be found guilty of the basic fault based offence. The penalties in this clause are higher than those outlined in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. Obtaining a commercial advantage from bringing in or importing prohibited goods are aggravated circumstances that warrant the additional penalty because of the added monetary benefit that can be gained by an individual involved in this behaviour. Additionally, these types of goods pose significant biosecurity risks, which may result in serious damage to plant and animal health, Australia`s local industries, the economy and the environment. Depending upon the nature and scale of the biosecurity risk, the social and economic costs of controlling and cleaning up the damage may be far greater than even the maximum penalties imposed by the Bill. Therefore, the overall objective is to increase compliance with the Act and decrease the need to resort to prosecution to achieve this aim. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. The penalties for this offence are intended to reinforce the deterrent effect of the Bill and allow the court a greater capacity to respond meaningfully and proportionally to the worst breaches. Clause 186 Contravening conditions applying to conditionally non-prohibited goods brought or imported into Australian territory This clause creates offences for bringing or importing conditionally non-prohibited goods into Australian territory and contravening a condition specified in the determination made under clause 174. The clause includes aggravated offences where commercial advantage is obtained or where harm is caused to the environment or there are economic consequences. A person who brings or imports into Australian territory conditionally non-prohibited goods and contravenes a condition specified in the determination commits an offence and is liable to a civil penalty. The maximum penalty for a basic fault based contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. 157


A person who brings or imports into Australian territory conditionally non-prohibited goods and contravenes a condition specified in the determination made under subclause 174(1) and obtains a commercial advantage over the person`s competitors or potential competitors by this contravention commits an offence. The maximum penalty for contravention of this kind is ten years imprisonment, or 2000 penalty units, or both. For example, an importer may be granted a permit which imposes the condition that a good is only permitted for animal use but instead uses the good for human consumption in order to avoid the cost of the requisite permit. A person who brings or imports into Australian territory conditionally non-prohibited goods and contravenes a condition specified in the determination made under subclause 174(1) and the contravention has caused or has potential to cause harm to the environment or has had or has the potential to have economic consequences commits an offence. The maximum penalty for contravention is ten years imprisonment, or 600 penalty units, or both. The penalties in this clause are higher than those outlined in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. Obtaining a commercial advantage from contravening a condition specified in a determination made under subclause 174(1) are aggravated circumstances that warrant the additional penalty because of the added monetary benefit that can be gained by an individual involved in this behaviour. Additionally, these types of goods pose significant biosecurity risks, which may result in serious damage to plant and animal health, Australia`s local industries, the economy and the environment. Depending upon the nature and scale of the biosecurity risk, the social and economic costs of controlling and cleaning up the damage may be far greater than even the maximum penalties imposed by the Bill. Therefore, the overall objective is to increase compliance with the Act and decrease the need to resort to prosecution to achieve this aim. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. The penalties for this offence are intended to reinforce the deterrent effect of the Bill and allow the court a greater capacity to respond meaningfully and proportionally to the worst breaches. The clause clarifies that if a person is found not guilty of the offences relating to obtaining commercial advantage, causing harm to the environment or causing economic consequences, the person may still be found guilty of the basic fault based offence. It will be an exception to the offence, if the person who brought or imported the goods into Australian territory: did not do the act, or omit to do the act, that constituted the failure to comply with the condition did not aid, abet, counsel or procure that act or omissions, and was not in any way, knowingly concerned in, or party to, that act or omission (whether directly or indirectly and whether by an act or omission of the person). This provides an exception to a person who brought or imported the goods and who did not contravene or was not involved in the contravention of a condition. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. 158


See the Human Rights Compatibility Statement for further information on this reverse burden provision. Clause 187 Contravening conditions of a permit This clause creates offences for contravening a condition of a permit issued under clause 179. The clause also creates an offence for contravening a condition of a permit where a permit has been suspended or revoked under clause 181 and the condition on the permit continues to apply due to subclause 181(3). A person who contravenes a condition on a permit which is in force commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. A person who contravenes a condition on a permit which has been suspended or revoked and the conditions on the permit continue to apply due to subclause 181(3) commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. The penalties in this clause are higher than those outlined in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. Given the potential seriousness of the biosecurity risks posed by conditionally non-prohibited goods it is appropriate that the court be able to impose a high penalty. For example, conditions placed on a permit are intended to reduce the level of biosecurity risk to an acceptable level. If the conditions are not complied with, the goods will pose an unacceptable biosecurity risk which has the potential to cause serious damage to plant and animal health, Australia`s local industries, the economy and the environment. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. Clause 188 Receiving or possessing prohibited or suspended goods brought or imported into Australian territory This clause sets out a strict liability offence for a person who receives, or has in their possession prohibited or suspended goods that have been imported into Australian territory whilst those goods were determined to be prohibited or suspended goods. A person who contravenes this clause commits an offence and is liable to a civil penalty. The maximum penalty for a contravention is 60 penalty units. This is appropriate as there are strong public safety concerns in ensuring that prohibited goods and suspended goods are not to be managed outside of the specified and managed pathway to which they have been restricted. By creating a strict liability offence when a person receives or possesses prohibited or suspended goods, each person with any potential involvement in the movement of these goods is able to be prosecuted. This means that the prosecution will have to prove that the person contravened the provision, but not the fault elements of the offence (intention, knowledge, recklessness or negligence). However, the accused person will still be able to rely on the defence in the Criminal Code (section 9.2) of honest and reasonable mistake of fact. See the Human Rights Compatibility Statement for further information on this strict liability offence. 159


It will be an exception to this offence if: the goods were not brought or imported into Australian territory the defendant did not bring or import the goods into Australian territory the defendant brought or imported the goods into Australian territory, but at the time they were brought in they were not prohibited goods or suspended goods, and the goods are the progeny of other goods that were legally brought or imported into Australian territory. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. The findings of the Commonwealth Ombudsman support the approach towards strict liability offences in suspected importation offences.7 As highlighted in paragraph 4.5 of the report, it is not presently an offence to own illegally imported goods, whilst it is an offence to import those same goods. Clause 188 gives effect to the recommendations of the Commonwealth Ombudsman by requiring the defendant to adduce evidence that either they did not import or bring in the prohibited or suspended goods, or that the goods are the progeny of other legally imported goods. Chapter 4–Managing biosecurity risks: conveyances Part 1–Introduction Clause 189 Objects of this Chapter This clause provides that the main objects of Chapter 4 are: to provide for the assessment of the level of biosecurity risk associated with conveyances entering Australian territory (see clause 12 for the meaning of Australian territory) from outside Australian territory, including by: – controlling the places where those conveyances can land or be moored, – controlling the movement of conveyances that are subject to biosecurity control while they are in Australian territory to provide for biosecurity measures to be taken in relation to conveyances where the level of biosecurity risk is considered unacceptable, and to give effect to Australia`s rights and obligations in relation to ship sanitation for the purposes of the International Health Regulations. In this Chapter, a conveyance does not include a conveyance being carried on board another conveyance (see clause 16 for the meaning of conveyance). Part 2–Conveyances entering Australian territory etc. Division 1–Introduction Clause 190 Simplified outline of this Part This outline sets out the Part`s objectives. Key provisions include when conveyances become subject to biosecurity control, pre-arrival reporting, powers to assess the level of biosecurity risk, 7 Commonwealth Ombudsman 2009, Compliance and investigations activities of the Australian Quarantine and Inspection Service (AQIS) Report One: audit of policies, procedures, systems and processes no. 13, August 2009, p 18, accessed at: http://www.ombudsman.gov.au/files/investigation_2009_13.pdf 160


powers to undertake biosecurity measures, persons leaving conveyances that are subject to biosecurity control, releasing conveyances from biosecurity control and when quarantine signals must be displayed. Division 2–Conveyances that are subject to biosecurity control Clause 191 Aircraft and vessels entering Australian territory This clause applies to an aircraft or vessel (see clause 9 for the definitions of aircraft and vessel) that has entered Australian territory during a flight or voyage that commenced outside of Australian territory. An aircraft or vessel that arrives from outside Australian territory provides a direct pathway for biosecurity risks to enter into Australian territory. The aircraft or vessel becomes subject to biosecurity control when the aircraft or vessel enters Australian territory. When an aircraft or vessel becomes subject to biosecurity control, a range of powers in this Part become available to assess and manage any biosecurity risks associated with the aircraft or vessel. This trigger point for an aircraft or vessel becoming subject to biosecurity control reflects the need to assess biosecurity risks associated with aircraft or vessel entering Australian territory from overseas, and enable management of those risks. An aircraft or vessel which is subject to biosecurity control will remain subject to biosecurity control until it has been released from biosecurity control in accordance with Division 7 of this Part. A conveyance will be released when it no longer poses a biosecurity risk or once it leaves Australian territory (see clause 218). However, an aircraft or vessel which leaves Australian territory on a journey between places in Australia territory will become subject to biosecurity control again when it re-enters Australian territory. This ensures that the powers required to assess and manage any biosecurity risks associated with the aircraft or vessel are available if they are required and reflects that the aircraft or vessel still poses a biosecurity risk. For example, a vessel from overseas may arrive at a port in Melbourne, unload goods, and then travel on to a port in Tasmania. This provision ensures that if the vessel happens to leave Australian territory (i.e. outside of 12 nautical miles) on its voyage to the Tasmanian port, and is released from biosecurity control under clause 218, the vessel will become subject to biosecurity control again when it re-enters Australian territory and any risks associated with the vessel can be assessed and managed when it arrives in Tasmania. Clause 192 Conveyances exposed to other conveyances that are subject to biosecurity control This clause provides that a conveyance that is not already subject to biosecurity control will become subject to biosecurity control if it is exposed to (see clause 17 for the definition of exposed to`): an aircraft or vessel that is subject to biosecurity control because it enters Australian territory on a journey that commenced outside of Australian territory (see clause 191) a conveyance that is subject to biosecurity control under this clause (i.e. an exposed conveyance), or goods that are subject to biosecurity control and of a kind prescribed in the regulations. This ensures that a conveyance can become subject to biosecurity control if it interacts with another conveyance or goods that poses a biosecurity risk, allowing biosecurity officers to assess and manage any biosecurity risks that may have transferred from the second conveyance to the first. 161


For example, a vessel is moored next to a second vessel that is infested with Asian Gypsy Moths. These moths can fly or be blown between the two vessels, which means there is now a risk that the first vessel has become infested. This clause allows the first vessel to be considered an exposed conveyance and become subject to biosecurity control, giving biosecurity officers access to powers to assess and manage any risks associated with the first vessel. A conveyance will also become subject to biosecurity control if, in the course of a journey, it leaves Australian territory and is exposed to another conveyance while it is outside Australian territory, then re-enters Australian territory. An exposed conveyance will remain subject to biosecurity control, until it is released (see clause 218). Similar to clause 191, this ensures that conveyances that travel between places in Australian territory, and in doing so leave Australian territory, become subject to biosecurity control again if they re-enter Australian territory. This gives biosecurity officers the powers required to assess and manage any biosecurity risks associated with that conveyance. The Director of Biosecurity can determine by legislative instrument that this clause does not apply in relation to specified conveyances or specified conveyances in specified circumstances. This means that an exemption can be given by the Director for different types of interactions between different types of conveyances that pose a minimal biosecurity risk and those conveyances will not become subject to biosecurity control. For example, an exemption may be given to a Royal Australian Navy vessel that interacts with another vessel to refuel. The Director may vary or revoke a legislative instrument giving an exemption under subsections 33(3) and (3AA) of the Acts Interpretations Act 1901. Division 3–Pre-arrival reporting etc. Clause 193 Pre-arrival reporting This clause provides that the operator of an aircraft or vessel must give a pre-arrival report if: the aircraft or vessel intends to enter, or enters, Australian territory on a flight or voyage that commenced outside Australian territory the aircraft or vessel intends to enter, or enters, Australian territory after being exposed to another conveyance while outside Australian territory the aircraft or vessel intends to be exposed to a conveyance that is subject to biosecurity control, or the aircraft or vessel intends to be exposed to prescribed goods referred to in clause 192 that are subject to biosecurity control. Pre-arrival reporting allows the Commonwealth to gather important information about a conveyance to assist with the accurate and timely assessment and management of biosecurity risk. This may include information about where a conveyance has travelled, information about the people and goods on board, or information about the conveyance itself. Biosecurity officers can use this information to determine what risk management activities might be necessary when the conveyance arrives in Australian territory. The obligation to provide a pre-arrival report rests with the operator of the aircraft or vessel, as he or she is the person who is in charge of the conveyance and has access to the required information (see clause 21 for the definition of operator). 162


A pre-arrival report must: include the information in relation to the aircraft or vessel that is prescribed by the regulations be given in the manner, and to the person prescribed by the regulations be given during the period prescribed by the regulations (which may be at any time before or after the aircraft or vessel enters Australian territory, or is exposed to another conveyance in Australian territory), and be in a form or forms approved by the Director of Biosecurity. The information required may change over time, as the nature and levels of biosecurity risks change. Prescribing the more detailed requirements for a pre-arrival report in the regulations allows the Commonwealth to respond more quickly and flexibly to any change in risk. The regulations may also prescribe different reporting requirements for different classes of aircraft or vessels. This recognises that different classes of aircraft or vessels do not always pose the same level of biosecurity risk and it is not always appropriate for them to be subject to the same requirements. A person who contravenes the requirement to give a pre-arrival report commits an offence and is liable to a civil penalty. The maximum penalty for a contravention is two years imprisonment, or 120 penalty units, or both. The maximum civil penalty for contravention is 120 penalty units. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 of this Bill create offences and civil penalties for providing false or misleading information or documents. The regulations may also prescribe exceptions to the requirement to provide a pre-arrival report. This is intended to allow reporting by exception for particular aircraft and vessels, where a report is only required if certain criteria is met. For example, an aircraft operator whose aircraft poses a low risk may be granted an exception where he or she is only required to provide a pre-arrival report if a specific thing happens (like a death on board). It is also intended that exemptions will apply in relation to operators of aircraft or vessels which do not pose an unacceptable level of biosecurity risk. For example, exceptions to pre-arrival reporting requirements may apply to vessels that only travel between ports in Australian territory and installations outside Australian territory in circumstances where the installation only interacts with vessels departing from Australian territory. In these circumstances there is a low level of biosecurity risks associated with the interaction between the vessel and the installation and the pre-arrival report is not required to assess biosecurity risks. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. This clause applies whether or not the person is in Australian territory when he or she is required to give a pre-arrival report. This is to ensure that the pre-arrival report can be required before the aircraft or vessel enters Australian territory and received with enough time for a biosecurity officer to assess potential risks and determine what measures might be required to manage them before the aircraft or vessel arrives at a port or landing place. 163


This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as collecting accurate and timely information through a pre-arrival report will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and whether biosecurity measures are required. Allowing a person to use the privilege and refuse to provide important information could result in a significant biosecurity risk remaining unmanaged. It would also undermine the management of biosecurity risks, as officers would be forced to rely on warrants to obtain the routine information required in a pre-arrival report. This is impractical and time consuming. Whilst the privilege against self-incrimination is abrogated in relation to this clause, the Bill provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person. Clause 194 Pre-arrival reporting – requirement to give additional or corrected information This clause requires an operator of an aircraft or vessel that has provided a pre-arrival report under clause 193 to provide additional or corrected information as soon as practicable if he or she becomes aware the original information is incomplete or incorrect. This obligation applies whether or not the person is in Australian territory when he or she becomes aware that the original information is incomplete or incorrect. This means that a person must provide updated information once he or she realises the information provided in the pre-arrival report is incomplete or where circumstances have changed resulting in the information previously provided no longer being correct. This ensures that biosecurity officers are provided with the most accurate information possible to assess (or re-assess) and manage biosecurity risks. A person who contravenes the requirement to provide additional or corrected information commits an offence and is liable to a civil penalty. The maximum penalty for a contravention is two years imprisonment, or 120 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 of this Bill create offences and civil penalties for providing false or misleading information or documents. This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as ensuring the information contained in a pre-arrival report is correct and complete will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and put appropriate biosecurity measures in place to address any risk. Allowing a person to use the privilege and withhold correct or further information, could result in a significant biosecurity risk being mismanaged. It would also undermine the management of biosecurity risks, as officers would be forced to rely on warrants to obtain correct or further information relating to the pre-arrival report. This is impractical and time consuming. Whilst the privilege against self-incrimination is abrogated in relation to this clause, the Bill provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person. 164


Clause 195 Power to obtain extra information relating to an aircraft or vessel covered by a pre-arrival report This clause provides a biosecurity officer with the power to require additional information in relation to a pre-arrival report under clause 193, prior to the aircraft or vessel becoming subject to biosecurity control. This will allow biosecurity officers to make a preliminary assessment of the level of biosecurity risks associated with the aircraft or vessel, ensuring that appropriate resources can be allocated to assess the risks once the aircraft or vessel arrives in Australian territory. This clause provides biosecurity officers with the power to require a person to: answer questions or provide information in writing in relation to the aircraft or vessel, where a biosecurity officer suspects on reasonable grounds that the person has information in relation to the aircraft or vessel, or produce documents in relation to the aircraft or vessel, where a biosecurity officer suspects on reasonable grounds that the person has custody or control of specific documents in relation to the aircraft or vessel. A biosecurity officer may make copies of, or take extracts from any document that has been produced, and may remove the document from the place at where it was produced in order to make copies or take extracts. These powers are required to ensure that if a person has provided a pre-arrival report under clause 193 and there is insufficient information to allow a biosecurity officer to accurately assess the biosecurity risk posed, that officer can request that additional information be provided. This clause provides that the obligation to provide additional information applies and is required to be complied with, regardless of whether the person is in Australian territory or overseas. This ensures that biosecurity officers will have access to the information when required to make an assessment of the level of biosecurity risk associated with the aircraft or vessel. A person who contravenes the requirement to answer questions, provide information or produce documents commits an offence and is liable to a civil penalty. The maximum penalty for a contravention is two years imprisonment, or 120 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 of this Bill create offences and civil penalties for providing false or misleading information or documents. This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as ensuring the information contained in a pre-arrival report is correct and complete will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and put appropriate biosecurity measures in place to address any risk. Allowing a person to use the privilege and refuse to answer questions, give information or produce documents relating to the aircraft or vessel that are the subject of a report in clause 193, could result in a significant biosecurity risk remaining unmanaged. It would also undermine the management of biosecurity risks, as officers would be forced to rely on warrants to obtain further information to assess the level of biosecurity risk associated with the goods. This is impractical and time consuming. Whilst the privilege against self-incrimination is abrogated in relation to this clause, the Bill provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person. 165


Clause 196 Persons on incoming aircraft or vessel may be required to provide information to assess biosecurity risk This clause provides that a person who enters, or intends to enter, Australian territory on an incoming aircraft or vessel and is included in a prescribed class of persons, must provide information required by, and in a manner approved by the Director of Biosecurity. This allows the Director of Biosecurity to determine specific categories of persons entering Australian territory that will be required to provide specific information about themselves or their goods for the purpose of assessing biosecurity risk. For example, a person arriving from a country where there has been a biosecurity risk outbreak might be required to provide additional information about where he or she has travelled and the goods being brought back into Australia to enable a more detailed assessment of the potential biosecurity risk. A person who contravenes the requirement to provide information is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. In addition, section 137.1 of the Criminal Code and clause 532 of this Bill create an offence and civil penalty for providing false or misleading information. This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as collecting accurate and timely information from individuals who may be exposed to, or carrying goods from specific area known to pose a biosecurity risk, will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and whether biosecurity measures are required. Allowing a person to use the privilege and refuse to provide important information, could result in a significant biosecurity risk remaining unmanaged. It would also undermine the management of biosecurity risks, as officers would be forced to rely on warrants to obtain the routine information required from incoming passengers. This is impractical and time consuming. Whilst the privilege against self-incrimination is abrogated in relation to this clause, the Bill provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person. Division 4–Assessment of level of biosecurity risk Clause 197 Biosecurity risk assessment powers This clause provides that the assessment powers in this Division apply and can be exercised in relation to a conveyance that is subject to biosecurity control for the purposes of assessing the level of biosecurity risk. Clause 198 Securing conveyance This clause provides a biosecurity officer with the power to secure the conveyance in a specified manner – for example, by giving a direction to ensure that the conveyance not be moved. A biosecurity officer may direct the person in charge or the operator of the conveyance to secure the conveyance. This period must not exceed 48 hours, but another direction can be given once this period expires under subsection 33(1) of the Acts Interpretation Act 1901. Placing a time period over how long a conveyance can be secured ensures that the conveyance is only secured for as long as is necessary to assess the level of biosecurity risk and inconveniences the person in charge or the operator as little as possible. 166


This will allow a biosecurity officer to exercise the other assessment powers in this Division to assess the level of biosecurity risk in relation to the conveyance, and will limit the possibility that any biosecurity risk associated with the conveyance will spread. A direction to secure a conveyance may include a direction that restricts the movement of the conveyance, restricts access to the conveyance or restricts access to a specified part of the conveyance (such as an area where food is stored). A direction to secure a conveyance does not prevent a person on board from leaving the conveyance. A person who contravenes a direction to secure a conveyance is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. In addition, a person may be liable for a civil penalty for moving, dealing with or interfering with a conveyance that has been secured in accordance with a direction given under this clause (see clause 204). If judicial review is sought in relation to a direction under this clause, the direction will remain in force until a court determines the validity of the direction (clause 538). This ensures that any biosecurity risk remains secure while a final decision is made. Clause 572 applies to this clause, allowing a biosecurity officer to issue a direction orally or in writing (including electronically). It also ensures that any later directions override an earlier one if there is any inconsistency. Clause 199 Inspecting conveyance This clause provides a biosecurity officer with the power to conduct a physical inspection of a conveyance. This ensures that an officer can gather information and assess the level of biosecurity risk associated with the conveyance. For example, inspecting the hull of a vessel to assess whether there is any biofouling present. Clause 200 Asking questions about conveyance This clause provides a biosecurity officer with the power to require a person to answer questions or provide information in writing in relation to a conveyance, if the biosecurity officer suspects on reasonable grounds that the person has that information. This will ensure that the biosecurity officer has access to all the necessary information to make an accurate and timely assessment of biosecurity risk associated with the conveyance. For example, a biosecurity officer may ask questions or seek information about the previous movements of the conveyance to determine whether the conveyance has been in a location known to have specific biosecurity risk, such as a location known to be infested with Giant African snails. A person who contravenes the requirement to answer questions or provide information is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. In addition, section 137.1 of the Criminal Code and clause 532 of this Bill create an offence and a civil penalty for providing false or misleading information. This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as it will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and put appropriate biosecurity measures in place to address that risk. Allowing a person to use the privilege and refuse to answer questions or provide important information, could result in a significant biosecurity risk remaining unmanaged. It would also undermine the management of biosecurity risks, as officers would be forced to rely on warrants to obtain the routine information about the conveyance. This is impractical and time consuming. 167


Whilst the privilege against self-incrimination is abrogated in relation to this clause, the Bill provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person. Clause 201 Requiring documents relating to conveyance to be produced This clause provides a biosecurity officer with the power to require a person to produce specified documents in relation to a conveyance. Where the biosecurity officer suspects on reasonable grounds that a person has custody or control of specific documents in relation to a conveyance, the biosecurity officer may require the person to produce those documents. A biosecurity officer may make copies of, or take extracts from a document that has been produced and may remove the document from the place where it was produced in order to make copies or take extracts. Similar to clause 200, this power assists a biosecurity officer to assess the level of biosecurity risk associated with a conveyance, by ensuring that the biosecurity officer has access to all the necessary information to determine the level of biosecurity risk. A person who contravenes the requirement to produce documents is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. In addition, section 137.2 of the Criminal Code and clause 533 of this Bill create an offence and civil penalty for providing false or misleading documents. This clause is not subject to the privilege against self-incrimination (see clause 635). Similarly to the justification provided in clause 200, the privilege against self-incrimination is abrogated to give biosecurity officers timely access to documents to effectively assess risks and ensure that appropriate biosecurity measures are in place to manage identified biosecurity risks (see clause 635 for further discussion of the privilege against self-incrimination). Clause 202 Movement of conveyance This clause provides a biosecurity officer with the power to give directions to the person in charge or the operator of the conveyance to: not move, deal with or interfere with the conveyance move the conveyance as soon as practicable to a specified place (except outside of Australian territory), or comply with any other direction relating to the movement of the conveyance. Biosecurity officers can also cause the conveyance to be moved to another place (except outside of Australian territory). This will allow a biosecurity officer to issue movement directions in relation to a conveyance to ensure that appropriate biosecurity risk assessment and management activities can be carried out. For example, a vessel that has travelled from a location that is known to have Asian gypsy moth may be directed to move to an area away from other vessels. The vessel can then be assessed at a place where there is no risk of any infestation spreading and where management activities can quickly be conducted if they are required. The power to issue a direction under this clause has been restricted to ensure that an aircraft or vessel cannot be directed outside of Australian territory for the purpose of assessing biosecurity risk. This is because such a direction is more invasive in nature and is not appropriate, as it has not been established whether there is an unacceptable level of biosecurity risk associated with the aircraft or vessel. A direction to move a conveyance does not prevent a person on board the conveyance from leaving that conveyance. 168


A person who contravenes a direction in relation to the movement of a conveyance is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. In addition, a person may be liable to a civil penalty for moving, dealing with or interfering with a conveyance that has been secured in accordance with a direction given under this clause (see clause 204). Clause 572 applies to this clause, allowing a biosecurity officer to issue a direction orally or in writing (including electronically). It also ensures that any later directions override an earlier one if there is any inconsistency. Clause 203 Biosecurity control notice may be affixed to conveyance or given to person in charge of conveyance This clause provides a biosecurity officer with the power to affix a biosecurity control notice to, or near to a conveyance, or to give a biosecurity control notice to the person in charge of the conveyance. This notice is used to inform the person that the movement of the conveyance is restricted, so that a biosecurity officer can carry out an assessment of the biosecurity risk associated with the conveyance. A person must not interfere with, remove or deface the notice affixed to a conveyance, unless the person: is authorised to do so under an approved arrangement (see clause 10) has been given a direction under this Act by a biosecurity official, or has permission under clause 557. An unauthorised person who interferes with, removes or defaces the notice is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. In addition, a person may be liable to a civil penalty for moving, dealing with or interfering with a conveyance that has been secured in accordance with a direction given under clause 204. It is an exception if the person is authorised to engage in the conduct under this Act or under another Australian law. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. Clause 204 Unauthorised persons must not move etc. conveyance in relation to which direction has been given This clause applies to a conveyance: that has been secured in accordance with a direction given under clause 198 in relation to which a direction relating to movement has been given that has been moved under clause 202, or that a biosecurity control notice has been affixed to under clause 203. A person must not move, deal or interfere with these conveyances unless the person: is authorised to do so under an approved arrangement has been given a direction under this Act by a biosecurity official, or has permission under clause 557. An unauthorised person who moves, deals or interferes with the conveyance is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. 169


It is an exception if the person is authorised to engage in the conduct under this Act or under another Australian law. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. Division 5–Biosecurity measures to manage unacceptable level of biosecurity risk Clause 205 Biosecurity measures may be required in relation to conveyance This clause provides that where a biosecurity officer suspects, on reasonable grounds, that the level of biosecurity risk associated with a conveyance that is subject to biosecurity control is of an unacceptable level, the officer may require biosecurity measures to be taken in relation to the conveyance as set out in this Division. Clause 206 Movement of certain aircraft and vessels This clause applies in relation to aircraft and vessels that are subject to biosecurity control because they have entered or re-entered Australian territory (see clause 191). A biosecurity officer may direct the person in charge or the operator of the aircraft or vessel: not to move, deal with or interfere with the aircraft or vessel to move the aircraft or vessel, as soon as practicable, to a specified place (which may be outside of Australian territory), or comply with any other direction relating to the movement of the aircraft or vessel. A biosecurity officer can also cause an aircraft or vessel to be moved to another place, which may be outside of Australian territory. This allows biosecurity officers to direct or move a conveyance to a location where risk management activities can be undertaken and help prevent the pest or disease from spreading and establishing in Australian territory. For example, an officer may give a direction to a vessel with a Burnt Pine Longicorn beetle infestation to move to another location where the infestation can be managed with a reduced risk of infesting other vessels. A direction to move an aircraft or vessel, or causing an aircraft or vessel to move outside of Australian territory, can be justified in these circumstances as the level of biosecurity risk has been assessed as unacceptable and removal can be the most effective way to mitigate the risk posed. Before a direction can be given or the conveyance caused to be moved to a place outside of Australian territory, the biosecurity officer must have written approval from the Director of Biosecurity. In making the decision to direct or cause a conveyance to be removed from Australian territory, the Director must consider the principles in clause 32. The application of clause 32 means that the powers in this clause must be exercised in accordance with the principles set out in that clause. This is to ensure that an official with the appropriate level of responsibility is making a decision that is potentially invasive and may impact upon his or her rights (see clause 32 for further information). The person in charge or the operator of the aircraft or vessel who has been given a direction and does not comply with the direction commits an offence and is liable to a civil penalty (see clause 215). In addition, the person in charge of the aircraft or vessel commits an offence and is liable to a civil penalty if the operator of the aircraft or vessel contravenes this clause, and the operator of the aircraft or vessel commits an offence and is liable to a civil penalty if the person in charge of the aircraft or vessel contravenes this clause. The maximum penalty for a contravention 170


is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. Making the person in charge and the operator jointly liable ensures that both persons who are responsible for the conduct of the aircraft or vessel can be given a direction in relation to the aircraft or vessel and be held responsible if that direction is not complied with. For example, the person in charge might be an airline carrier staff member who is responsible for scheduling flights and determining where an aircraft lands, while the operator might be a pilot who lands the aircraft. Both are responsible for the movement of the aircraft and for ensuring that any directions are complied with. Clause 572 applies to this clause, allowing a biosecurity officer to issue a direction orally or in writing (including electronically). It also ensures that any later directions override an earlier one if there is any inconsistency. Clause 207 Movement of exposed conveyances This clause applies in relation to an exposed conveyance that is subject to biosecurity control because it has been exposed to another conveyance that is subject to biosecurity control (clause 192). A biosecurity officer has the power to give to the person in charge or operator of the conveyance: a direction not to move, deal with or interfere with the conveyance a direction to move the conveyance, as soon as practicable, to a specified place (except outside of Australian territory), or any other direction relating to the movement of the conveyance. A biosecurity officer can also cause the conveyance to be moved to another place, except outside of Australian territory. Similar to clause 206, this power is required to ensure that biosecurity officers can move a conveyance to a place where biosecurity measures can be carried out. A direction must not be given to move the vessel outside Australian territory. The power to issue a direction under this clause has been restricted to ensure that an aircraft or vessel cannot be directed outside of Australian territory for the purpose of assessing biosecurity risk. This is because such a direction is more invasive in nature and this is not appropriate, as it has not been established whether there is an unacceptable level of biosecurity risk associated with the aircraft or vessel. A direction to move a conveyance does not prevent a person on board the conveyance from leaving that conveyance. The person in charge or the operator of the conveyance who has been given a direction and does not comply with the direction commits an offence and is liable to a civil penalty (clause 215). In addition, the person in charge of the conveyance commits an offence and is liable to a civil penalty if the operator of the conveyance contravenes this clause, and the operator of the conveyance commits an offence and is liable to a civil penalty if the person in charge of the conveyance contravenes this clause (the policy reasoning for joint liability is the same as for clause 206). The maximum penalty for a contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. Clause 572 applies to this clause, allowing a biosecurity officer to issue a direction orally or in writing (including electronically). It also ensures that any later directions override an earlier one if there is any inconsistency. 171


Clause 208 Treatment of conveyance This clause provides a biosecurity officer may require a conveyance to be treated in a specified manner. If the conveyance is a high-value conveyance – that is the value of the conveyance is greater than the amount prescribed in the regulations – the conveyance must not be treated in a way that the biosecurity officer suspects may damage the conveyance without the written approval of the Director of Biosecurity. This extra step reflects the impact ordering such a treatment might have on the owner of the conveyance and the potential loss of value caused by the treatment. Regardless of the value of the conveyance, if the treatment might damage the conveyance, the person in charge or the operator of the conveyance must be asked to agree to the treatment (see clause 209). This power ensures that a biosecurity officer can order necessary treatments to manage biosecurity risks and reduce those risks to an acceptable level. For example, a biosecurity officer may require a conveyance with infestation to be fumigated or disinsected. Clause 209 Treatment that may damage conveyance This clause outlines the requirements for notifying the person in charge or the operator of a conveyance where a biosecurity officer suspects on reasonable grounds that the treatment required under clause 208 is likely to damage the conveyance. Before any treatment is carried out on the conveyance, a biosecurity officer must, by notice in writing, inform the person in charge or operator of the conveyance that the conveyance is required to be treated in a specified manner, which is likely to result in damage to the conveyance and request the person in charge or operator to agree to the treatment of the conveyance. However, if a biosecurity officer suspects on reasonable grounds that there is a high level of biosecurity risk associated with the conveyance that must be treated as soon as practicable, the officer can carry out the specified treatment without having to provide the notification. If a notice is given to the person in charge or operator of the conveyance requesting their agreement to the treatment, and the person does not respond or does not agree to the treatment within 30 days, a biosecurity officer may in writing request that the person arrange for the conveyance to be dealt with or destroyed in a specified manner, or removed from Australian territory, within the period in the request. Notice requirements ensure that a biosecurity officer can take steps to address biosecurity risks, while still giving the person in charge or the operator of a conveyance the choice of any available options for how those risks can be managed and a reasonable opportunity to carry it out. However, if the person in charge or the operator of the conveyance does not comply with the notice by dealing with a conveyance as specified in the notice and within the required timeframe, the biosecurity officer can take further action to ensure that the risk is managed. A biosecurity enforcement officer may, with the written approval of the Director of Biosecurity, take possession of the conveyance and then a biosecurity officer can cause the conveyance to be removed from Australian territory, destroyed or otherwise disposed of. Before providing written approval, the Director must consider the principles in clause 32. The application of clause 32 means that the powers in this clause must be exercised in accordance with the principles set out in that clause. This ensures that a more invasive decision to require treatment that might damage a conveyance, remove a conveyance from Australian territory or destroy a 172


conveyance (which is likely to be high value), more appropriately sits at a higher level of responsibility and must be made in light of protections designed to ensure a person`s rights are adequately considered (see clause 32). A biosecurity enforcement officer must not take possession of the conveyance unless the owner has consented in writing or the taking of possession is authorised by a conveyance possession warrant. This ensures that the officer has an appropriate level of authority before he or she can take possession of a conveyance and exercise powers. (See Parts 3 and 4 of Chapter 9 for the obligations and powers of biosecurity enforcement officers in taking possession of a conveyance under warrant). If a conveyance is to be destroyed, a biosecurity officer can cause any goods on board the conveyance to be removed before it is destroyed. This ensures that the officer can make sure goods on board are not unnecessarily damaged or destroyed while treating the biosecurity risk associated with the conveyance. Clause 213 provides the power for a biosecurity officer to direct the person in charge or the operator of the conveyance to carry out this biosecurity measure. Clause 210 Destruction of conveyance This clause provides a biosecurity officer may require that a conveyance be destroyed. If the biosecurity officer considers on reasonable grounds that the conveyance cannot be effectively treated to reduce the biosecurity risk to an acceptable level, the biosecurity officer may, subject to notification and approval requirements, require the conveyance to be destroyed. A biosecurity officer must have written approval from the Director of Biosecurity before requiring a conveyance to be destroyed. Before providing written approval the Director must consider the principles in clause 32. The application of clause 32 means that the powers in this clause must be exercised in accordance with the principles set out in that clause. The same policy reasoning in clause 209 applies. The decision to require conveyance to be destroyed is a reviewable decision under clause 574. The conveyance must not be destroyed until after any review of related proceeding (including appeal) has been finalised (see clause 211), unless the owner or operator of the conveyance chooses to destroy the conveyance, or the owner or operator cannot be located. Before a biosecurity officer can require or cause a conveyance to be destroyed under clause 213, the officer must give written notice to the owner or operator of the conveyance stating that the conveyance is required to be destroyed, the reasons why and requesting that the owner or operator arrange for the conveyance to be removed from Australian territory or destroyed in the manner specified in the notice, within the period specified in the notice. However, a biosecurity officer is not required to provide this written notice, if, despite making reasonable efforts, the officer has been unable to locate the person in charge or operator of the conveyance and certifies in writing to this effect. This ensures that biosecurity officers are not prevented from exercising powers to adequately manage unacceptable biosecurity risk if the person in charge or operator of the conveyance cannot be found. Similar to clause 209, if a biosecurity officer suspects on reasonable grounds that there is a high level of biosecurity risk associated with the conveyance that must be treated as soon as practicable, the officer can cause the conveyance to be destroyed without having to notify the owner or the operator of the conveyance. This is to ensure that biosecurity officers can quickly and effectively manage biosecurity risks if they cannot be contained. The biosecurity officer will still 173


be required to seek the written approval of the Director, who will be required to apply the principles in clause 32. If the owner or the operator of the conveyance is given written notice, and the conveyance is not destroyed or removed from Australian territory within the period specified in the notice, a biosecurity enforcement officer may take possession of the conveyance and a biosecurity officer can cause the conveyance to be destroyed (this can also take place if a biosecurity officer has issued a certificate certifying that the owner or operator of the conveyance cannot be found or if there is a high level of biosecurity risk that cannot be contained). The biosecurity officer cannot cause the conveyance to be destroyed without the written permission of the Director, who must consider the principles in clause 32. This is a second level of approval (in addition to the approval for requiring a conveyance to be destroyed), that ensures the decision whether an officer will cause the destruction of a conveyance more appropriately sits at a higher level of responsibility and must be made in light of protections designed to ensure a person`s rights are adequately considered (see clause 32). The decision by the Director to allow a biosecurity officer to cause the destruction of a conveyance is not subject to review, as the decision has already been made that destruction is required and this decision is subject to review. The second decision concerns who carries out the destruction, not whether destruction is warranted. A biosecurity enforcement officer must not take possession of the conveyance unless the owner has consented in writing or the officer is authorised under a conveyance possession warrant. This ensures that the officer has appropriate level of authority before he or she can take possession of a conveyance and powers are exercised. (See Parts 3 and 4 of Chapter 9 for the obligations and powers of biosecurity enforcement officers in taking possession of a conveyance under warrant). If a conveyance is to be destroyed, a biosecurity officer can cause any goods on board the conveyance to be removed before it is destroyed. This ensures that an officer can make sure that goods on board are not unnecessarily destroyed with the conveyance. Clause 213 allows a biosecurity officer to direct the operator or owner to carry out this biosecurity measure. Clause 211 Conveyance must not be destroyed during review period This clause provides that if a biosecurity officer has given a notice in relation to a conveyance under subclause 210(3) (destruction of conveyance), the officer must not require or cause the conveyance to be destroyed under clause 213, until after the period in which an application can be made for review of the decision to require the conveyance to be destroyed. If an application for review has already been made, the officer must not require or cause the conveyance to be destroyed until after the review or related proceedings have been finally determined. However, a biosecurity officer does not need to wait for the application period to finish or review to be to completed, if the biosecurity risk associated with the conveyance is high and cannot be managed for long enough to allow applications to be made or reviews to be finally determined. This ensures that uncontainable and high levels of biosecurity risk can be managed immediately, without destruction being delayed by review proceedings. If such a delay were to take place, this would increase the chances of a significant biosecurity risk spreading and causing damage. If a biosecurity officer causes a conveyance to be destroyed before the end of the period in which an application can be made, and no application for review was made before the conveyance was destroyed, an application for a review of the decision cannot be made. This is because once a 174


conveyance has been destroyed, the decision cannot be remade and there are no longer grounds for a review. If an application for the review of a decision to destroy a conveyance has been made and a biosecurity officer causes the conveyance to be destroyed before the proceeding has been finally determined, the review or related proceeding is taken to be discontinued. Again, this is because once a conveyance has been destroyed, the decision cannot be remade and there are no longer grounds for a review. Clause 212 Regulations may provide for other biosecurity measures This clause provides for the regulations to prescribe additional biosecurity measures that a biosecurity officer may use in relation to a conveyance. The clause limits the biosecurity measures that can be prescribed by the regulations. The biosecurity measures in the regulations must not be: a biosecurity measure of a kind set out in Division 4 of this Part (biosecurity risk assessment powers) a biosecurity measure of a kind set out in this Division (managing an unacceptable biosecurity risk), and a biosecurity measure of a kind set out in Subdivision B of Division 2 of Part 4 of Chapter 10 (decontamination of persons and personal effects). This ensures that the regulations do not contain biosecurity measure already available in the Act. It also ensures that any notification or processes in place in the legislation are not circumvented. This clause also allows for other matters relating to a prescribed biosecurity measure to be set out in the regulations. This can include matters such as notification requirements that a prescribed biosecurity measure is required to be taken and limitations on carrying out prescribed biosecurity measures during review periods, if the exercise of the prescribed biosecurity measure is a reviewable decision. Clause 213 allows a biosecurity officer to direct the person in charge, the operator or owner of the conveyance to carry out the biosecurity measures. Clause 213 Powers of biosecurity officer if biosecurity measures are required This clause provides that where a biosecurity officer requires biosecurity measures to be taken in relation to a conveyance under clauses 208 (treatment), 209 (treatment that might damage), 210 (destruction) or a regulation made under clause 212 (prescribed biosecurity measure), the biosecurity officer may: direct the person in charge of the conveyance to carry out the biosecurity measure, except for destruction of the conveyance direct the operator of the conveyance to arrange the biosecurity measure to be carried out direct the owner of the conveyance to arrange for the biosecurity measure to be carried out, if the measure is destruction of the conveyance carry out the biosecurity measure, or arrange for a person with appropriate qualifications or expertise to carry out the biosecurity measure. This means that if a biosecurity officer can require a measure to be taken, the officer can direct the person in charge or the operator of the conveyance to carry it out, carry it out himself or herself, or arrange for a person with appropriate qualification and expertise to carry it out. This ensures that biosecurity risk can be carried out in the most efficient way possible, by the most appropriate person in the circumstances. For example, if a conveyance is in a remote location that would 175


require extensive travel for a biosecurity officer, the officer may arrange for a more conveniently located, qualified person to carry out the biosecurity measure. Where the biosecurity officer gives a direction to a person to carry out a biosecurity measure or arranges for someone to carry the biosecurity measure, the officer may supervise the person carrying out the biosecurity measure. This ensures that the biosecurity measures are carried out properly, and where they have not been carried out in accordance with the directions, the biosecurity officer can take action to manage the biosecurity risks. A person who is given a direction and does not comply with the direction commits an offence and is liable to a civil penalty (see also clause 215). Clause 572 applies to this clause, allowing a biosecurity officer to issue a direction orally or in writing (including electronically). It also ensures that any later directions override an earlier one if there is any inconsistency. Clause 214 Biosecurity officer may affix notice to conveyance This clause provides that a biosecurity officer may affix a notice to a conveyance in relation to which biosecurity measures have been required under Division 5 of this Chapter (biosecurity management powers), or a regulation made under clause 212. The notice must state that the level of biosecurity risk associated with the conveyance is unacceptable, that biosecurity measures have been required in relation to that conveyance and that a person may be liable to an offence or civil penalty, if the person removes, defaces or interferes with the conveyance to which the notice relates (see also clause 216). This notice is designed to inform a person not to remove, deface or interfere with the conveyance. If it is not possible to affix the notice to the conveyance, the person exercising the power may fix the notice as near to the conveyance as reasonable practicable. A person must not move, deal or interfere with these conveyances unless the person: is authorised to do so under an approved arrangement has been given a direction under this Act by a biosecurity official, or has permission under clause 557. An unauthorised person who interferes with, removes or defaces the notice is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. It is an exception if the person is authorised to engage in the conduct under this Act or under another Australian law. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. Clause 215 Person must comply with direction to take biosecurity measures This clause provides that a person must comply with a direction to take biosecurity measures in relation to an aircraft, vessel or an exposed conveyance under this Division (clauses 206, 207 or 213). The person in charge or the operator or the owner of an aircraft or vessel who is given a direction and does not comply with the direction commits an offence and is liable to a civil penalty. In 176


addition, the person in charge commits an offence and is liable to a civil penalty if the operator is given a direction (other than to arrange for destruction of a conveyance) that is not complied with, and the operator commits an offence or is liable to a civil penalty if the person in charge is given a direction that is not complied with. The operator also commits an offence and is liable to a civil penalty if the owner of the conveyance is given a direction for destruction of the aircraft or vessel that is not complied with, and the owner commits an offence and is liable to a civil penalty if the operator of the aircraft or vessel is given a direction to arrange for destruction of the conveyance that is not complied with. The maximum penalty for a contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. Making the person in charge and the operator jointly liable ensures that both persons who are responsible for the conduct of the aircraft or vessel can be given a direction in relation to the aircraft or vessel and be held responsible if that direction is not complied with. For example the person in charge might be an airline carrier staff member who is responsible for scheduling flights and determining where an aircraft lands, while the operator might be a pilot who lands the aircraft. Both are responsible for the movement of the aircraft and for ensuring that any directions are complied with. Similarly, making the owner and operator jointly liable ensures that both persons who are responsible for the conduct of the aircraft or vessel can be given a direction in relation to the destruction of the aircraft or vessel and be held responsible if that direction is not complied with. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If a direction is not complied with, significant biosecurity risk may be realised and result in serious damage to human, plant and animal health, Australia`s local industries, the economy and the environment. A court would still be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. Clause 216 Unauthorised persons must not move etc. conveyance in relation to which biosecurity measures have been required This clause provides that a person must not move, deal or interfere with a conveyance where a notice has been affixed under subclause 214(1), unless the person is authorised to do so under an approved arrangement (see clause 10), or he or she has been given a direction by a biosecurity official or otherwise has permission under clause 557. An unauthorised person who moves, deals or interferes with a conveyance commits an offence and is liable to a civil penalty. The maximum penalty for a contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If a direction is not complied with, significant biosecurity risk may be realised and result in serious damage to human, plant and animal health, Australia`s local industries, the economy and the environment. A court would still be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. 177


It is an exception if the person is authorised to engage in the conduct under this Act or under another Australian law. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. These powers are required to ensure biosecurity officers can carry out functions under this Part by affixing notices to conveyances restricting their movement so that biosecurity measures can be conducted to manage any identified biosecurity risks. Division 6–Leaving conveyances Clause 217 Person in charge of conveyance may leave conveyance unless directed not to do so This clause provides that the person in charge of the conveyance that is subject to biosecurity control may leave the conveyance, unless a biosecurity officer directs the person not to do so. If the person is in charge of an incoming aircraft or vessel arriving in Australian territory, he or she may not leave the aircraft or vessel unless pratique has been granted or authorised to do so under this Act or another Australian law (see also clauses 48 and 49). A biosecurity officer may direct the person in charge of the conveyance not to leave the conveyance for a specified period, which can be no longer than 24 hours. This ensures that the person in charge of a conveyance can be required to stay on the conveyance if he or she is required to assist with the management of biosecurity risks. This may include moving the conveyance, or assisting a biosecurity officer when exercising powers in relation to the conveyance. A maximum timeframe has been imposed to ensure that the person in charge is only inconvenienced for as long as is required to assist the officer. Clause 572 applies to this clause, allowing a biosecurity officer to issue a direction orally or in writing (including electronically). It also ensures that any later directions override an earlier one if there is any inconsistency. A person who contravenes a direction not to leave a conveyance commits an offence and is liable to a civil penalty. The maximum penalty for a contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If a direction is not complied with, significant biosecurity risk may be realised and result in serious damage to human, plant and animal health, the environment and the economy. A court would still be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. 178


Division 7–Release of conveyances from biosecurity control Clause 218 When conveyance is released from biosecurity control This clause provides that a conveyance subject to biosecurity control is released from biosecurity control if: a biosecurity officer notifies the person in charge of the conveyance, the owner of the conveyance or the operator of the conveyance that the conveyance is released from biosecurity control a written notice releasing the conveyance from biosecurity control is given to the person in charge of the conveyance by a biosecurity industry participant who is authorised to release the conveyance in accordance with an approved arrangement the conveyance is destroyed, or the conveyance leaves Australian territory. This ensures that a conveyance can be released from biosecurity control if it has been assessed by a biosecurity officer (or a biosecurity industry participant), and it is determined that the conveyance does not pose a biosecurity risk. It also ensures that if a conveyance is destroyed or leaves Australian territory, effectively removing any biosecurity risks associated with it, the conveyance is considered to be released from biosecurity control. When a conveyance has been released from biosecurity control, biosecurity officers can no longer exercise the assessment and management powers under this Chapter. If the conveyance is released from biosecurity control by leaving Australian territory and that conveyance is on a journey between places in Australian territory, the conveyance becomes subject to biosecurity control again when the conveyance returns to Australian territory during that journey (clause 191). This is required, as the biosecurity risk associated with the conveyance has not been assessed or managed to an acceptable level, simply by leaving Australian territory. A notice releasing a conveyance from biosecurity control from a biosecurity officer or a biosecurity industry participant is not a legislative instrument because it is for an administrative purpose. Clause 219 Notice releasing conveyance from biosecurity control This clause provides that a notice issued under clause 218 for the release of a conveyance from biosecurity control may be issued in writing or orally. This clause also allows for notices that are issued by an automated electronic system to release conveyances from biosecurity control. The automated system must comply with the requirements in the regulations. An automated notice is taken to be issued by a biosecurity officer so that the practical effect of this notice is to release the conveyances under clause 218. This provision also makes it clear that an automated release notice in relation to conveyances has no effect to the extent that it is inconsistent with an earlier direction given in relation to the conveyances by a biosecurity officer under this Act. 179


Division 8–Miscellaneous Clause 220 Information about biosecurity requirements must be given to persons on board incoming aircraft or vessels This clause provides that the person in charge or the operator of a conveyance that is subject to biosecurity control because of clause 191, must ensure that every person on board is given information about biosecurity requirements under the laws of the Commonwealth. This information is required to ensure that every person on board is aware of Australia`s biosecurity requirements and can comply with them when they enter Australian territory. A person who contravenes the requirement to provide information on biosecurity requirements is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. The content and form of the information must have been approved by the Director of Biosecurity or the Director of Human Biosecurity. The information may be given in writing or orally, including by means of audio or audio visual recording. Clause 221 Quarantine signal This clause provides that the person in charge of a vessel within Australian territory must ensure that the prescribed quarantine signal is displayed on the vessel in the circumstances and in the manner prescribed by the regulations. Quarantine signals are used on vessels to provide a warning that there may be a high level of biosecurity risk associated with the vessel, the people, or things on board. It is important that these signals are correctly displayed so that biosecurity officers are aware of the risk and can undertake measures to manage it to an acceptable level and other relevant persons can avoid unnecessarily interacting with that vessel. This requirement only applies to vessels, because it is operationally impractical to require an aircraft to display a quarantine signal while in flight. A person commits a strict liability offence if the person contravenes this clause. The maximum penalty for a contravention is 50 penalty units. This means that the prosecution will have to prove that the person contravened the provision, but not the fault elements of the offence (intention, knowledge, recklessness or negligence). However, the accused person will still be able to rely on the defence in the Criminal Code (section 9.2) of honest and reasonable mistake of fact. See the Human Rights Compatibility Statement for further information on this strict liability offence. Quarantine signals are used worldwide to communicate the presence of human and animal disease; therefore the person in charge of a vessel can reasonably be expected to know they are required to warn other parties of potential biosecurity risks on board. 180


Part 3–First points of entry and biosecurity entry points Division 1–Introduction Clause 222 Simplified outline of this Part This outline sets out the Part`s objectives. This Part provides the Director of Biosecurity and the Director of Human Biosecurity with the powers to determine whether a landing place or port is a first point of entry for aircraft, vessels and goods that are subject to biosecurity control. It also provides for an area of a landing place or port that is a first point of entry to be designated as a biosecurity entry point for certain aircraft, vessels and goods that are subject to biosecurity control. Division 2–First points of entry and biosecurity entry points for incoming aircraft and goods Clause 223 Determination of landing places that are first points of entry for aircraft or goods that are subject to biosecurity control This clause provides the Director of Biosecurity or Director of Human Biosecurity with the power to determine that a specified landing place in Australian territory is a first point of entry for: aircraft generally or a specified class of aircraft that are subject to biosecurity control, and specified goods or a specified class of goods that are subject to biosecurity control or are subject to an exposed goods order (see clause 160). First points of entry are required to ensure that overseas aircraft and any goods on board enter Australia at a designated place that has the appropriate facilities to effectively manage any biosecurity risk. Overseas aircraft and goods have the potential to bring with them a range of different biosecurity risks that, if not managed appropriately, may result in foreign pests and diseases establishing or spreading and negatively impacting upon Australia`s human, plant and animal health, the environment and the economy. A Director may only make a determination in relation to a landing place if he or she is satisfied that the requirements (if any) prescribed in the regulations are met and the level of biosecurity risk associated with the operations at the landing place is acceptable. For the purpose of being satisfied, a Director may have regard to any matter he or she considers relevant. A Director can consider a range of factors when determining whether he or she is satisfied that the level of biosecurity risk associated with the operations at the landing place is acceptable. This may include: the location of the landing place (a landing place in Queensland might experience higher temperatures than one in Victoria, which would allow particular types of pests or disease to flourish that would otherwise be destroyed by the cold) the surrounding environment (a landing place close to trees or an area of high wind increases the risk of wood-based pests or plant spores establishing and spreading), o the facilities available to manage biosecurity risk (some landing places might have treatment options on site, while others require specific goods to travel inland, increasing the level of biosecurity risk). Other matters the Director might think are relevant in determining whether he or she is satisfied may include matters of national interest, economic or defence considerations. 181


Clause 224 Biosecurity entry points for aircraft and goods that are subject to biosecurity control This clause allows a determination of a landing place as a first point of entry under clause 223 to also designate a biosecurity entry point for: aircraft generally or a specified class of aircraft referred to in clause 223, and specified goods or a specified class of goods that are referred to in clause 223. Where a biosecurity entry point has been designated, it is a specified area within a landing place that is a first point of entry, where an aircraft or goods to which the biosecurity entry point relates must enter as soon as practicable upon arrival. This is an optional tool that can be used to assist with the management of biosecurity risk by ensuring aircraft and goods are brought to a specified place with the facilities to assess and if necessary, treat a biosecurity risk. They may be used for a range of reasons, such as the size and location of the landing place or the types of biosecurity risk associated with its operations. For example, a Director may determine under clause 223 that a landing place to be a first point of entry that can accept live animals, but may also determine that the biosecurity risk associated with live animals needs to be managed at a specific location within the landing place (such as a location with the appropriate facilities to assess and treat biosecurity risk, as well as house the animals). Under clause 224, the Director can designate that location to be a biosecurity entry point for live animals and all aircraft that import live animals must take them there as soon as practicable after they arrive. This might involve the aircraft landing, unloading the live animals and then transporting them to the biosecurity entry point. Clause 225 Determination may be subject to conditions This clause provides that a determination making a landing place a first point of entry may also specify conditions that must be met. A Director can impose any condition he or she considers necessary. These conditions can relate to (but are not limited to), an owner or lessee of the landing place, a person or body that is responsible for carrying out operations at the landing place or the operations carried out at the landing place. Conditions allow a Director to permit a landing place to accept overseas aircraft, while maintaining control over how specific risks are dealt with and ensure they are managed to an acceptable level. This provides a higher level of flexibility in the management of biosecurity risks at the first point of entry. For example, a first point of entry may be determined, with a condition that it can only receive timber products during winter, when timber-based pests find it more difficult to establish and spread. This is on the basis that the landing place has some facilities to manage the biosecurity risk associated with timber, but not extensive ones. Clause 226 Determination may have effect for specified period This clause provides that the determination of a first point of entry may be expressed to have effect for a specified period. If there is a specified period, the Director who determined the first point of entry may vary the determination to extend or shorten the period. Not all first points of entry are required to be in place indefinitely. For example, the owner or lessee of a landing place may wish to have that landing place determined as a first point of entry to allow goods and equipment required for a nearby mining operation to be more easily imported. In these situations, a Director may determine the landing place to be a first point of entry only for the length of time the mine is expected to be constructed or operational. 182


This provides a higher level of flexibility in the management of biosecurity risks. It also prevents first points of entry from being determined and then retaining their status when it is no longer required and the biosecurity risks are no longer been managed appropriately. For example, if a landing place is determined to be a first point of entry but is no longer in use, it is likely that it will not have the infrastructure or personnel available to adequately assess and manage risk. If the determination were to last indefinitely, aircraft could legally enter Australia through this landing place and significant biosecurity risks could go unassessed and unmanaged. Clause 227 Variation and revocation of determination etc. This clause provides that a Director who determined a landing place to be a first point of entry may vary or revoke the determination, or a condition specified in the determination, if he or she is satisfied that: one or more of the requirements prescribed by the regulations in relation to the landing place are no longer being met the level of biosecurity risk associated with the operations at the landing place has become unacceptable a condition specified in the determination has not been or is not being met the landing place is no longer required to be a first point of entry for aircraft or goods to which the determination relates, or a circumstance prescribed by the regulations has occurred. This ensures that if a Director assesses the biosecurity risk associated with the operations at a landing place that is a first point of entry and determines that the operations cannot or are not being appropriately managed (for any of the reasons above), there are options available to reduce those operations or revoke the determination and cease all operations. Clause 228 Determination is a legislative instrument This clause states that a determination made under clause 223 or an instrument that varies or revokes a determination made under clause 223 is a legislative instrument, but is not subject to disallowance under section 42 of the Legislative Instruments Act 2003. The decision to determine, vary or revoke a first point of entry determination is a technical and scientific decision based on whether the biosecurity risk is able to be satisfactorily managed. Therefore it is appropriate for the Parliament to delegate to the Director of Biosecurity or Director of Human Biosecurity the power to make this determination. Subjecting these determinations to disallowance could undermine the technical and scientific based decision making and frustrate risk management processes. In addition, disallowance of a determination made under this clause could lead to inadequate management of the biosecurity risks posed to human, plant and animal health, Australia`s local industries, the environment and the economy. Disallowance could be of inconvenience to the industry relying on the availability of the first point of entry and could potentially increase the cost to industry for having to change aircraft landing destination. Division 3–First points of entry and biosecurity entry points for incoming vessels and goods Clause 229 Determination of ports that are first points of entry for vessels or goods that are subject to biosecurity control This clause provides that the Director of Biosecurity or Director of Human Biosecurity may determine that a specified port in Australian territory is a first point of entry for: vessels generally or a specified class of vessels that are subject to biosecurity control, specified goods or a specified class of goods that are subject to biosecurity control or are subject to an exposed goods order (clause 160). 183


A Director may only make a determination in relation to a port if he or she is satisfied that the requirements (if any) prescribed in the regulations are met and the level of biosecurity risk associated with the operations at the port is acceptable. For the purpose of being satisfied, a Director may have regard to any matter he or she may consider relevant. The same policy reasoning and examples in clause 223 apply to determining first points of entry for vessels. Clause 230 Biosecurity entry points for vessels and goods that are subject to biosecurity control This clause provides that the determination of a specified port as a first point of entry under clause 229 may also designate a biosecurity entry point for: vessels generally or a specified class of vessels referred to in clause 229, and specified goods or a specified class of goods that are referred to in clause 229. The same policy reasoning and examples in clause 224 apply to determining biosecurity entry points for vessels. Clause 231 Determination may be subject to conditions This clause provides that a determination making a port a first point of entry may also specify conditions that must be met. A Director can impose any condition he or she considers necessary. These conditions can relate to (but are not limited to) an owner or lessee of the port, a person or body that is responsible for carrying out operations at the port or the operations carried out at the port. The same policy reasoning and examples in clause 225 apply to the conditions contained in a determination of a first point of entry for a vessel. Clause 232 Determination may have effect for specified period This clause provides that the determination of a first point of entry may be expressed to have effect for a specified period. If there is a specified period, the Director who determined the first point of entry may vary the determination to extend or shorten the period. The same policy reasoning in clause 226 applies to the determination of a first point of entry for a vessel. Clause 233 Variation and revocation of determination etc. This clause provides that a Director who determined a port to be a first point of entry may vary or revoke the determination, or a condition specified in the determination, if he or she is satisfied that: one or more of the requirements prescribed by the regulations in relation to the port are no longer being met the level of biosecurity risk associated with the operations at the port has become unacceptable a condition specified in the determination has not been or is not being met the port is no longer required to be a first point of entry for vessels or goods to which the determination relates, or a circumstance prescribed by the regulations has occurred. The same policy reasoning in clause 227 applies to varying or revoking the determination for a vessel. 184


Clause 234 Determination is a legislative instrument This clause states that a determination made under clause 229 or an instrument that varies or revokes a determination made under clause 229 is a legislative instrument, but is not subject to disallowance under section 42 of the Legislative Instruments Act 2003. The same policy reasoning in clause 228 applies to a determination for a vessel. Part 4–Entry points for incoming aircraft and vessels Division 1–Introduction Clause 235 Simplified outline of this Part This outline sets out the Part`s objectives. This Part provides the requirements for incoming aircraft and vessels to land or be moored at a first point of entry and if relevant, brought to a biosecurity entry point. It also provides an overview of powers for biosecurity officials to enter ports and landing places to exercise powers and functions. Division 2–Entry points for aircraft that intend to land in Australian territory Clause 236 Application of this Division This Division applies in relation to an aircraft that intends to land at a landing place in Australian territory. Clause 237 Aircraft must land at first point of entry This clause provides that an aircraft must not land at a landing place in Australian territory that is not a first point of entry, unless permission has been given under clause 239 (permission from a Director) or a direction has been given under clauses 240 or 242 (direction from a biosecurity officer, chief human biosecurity officer or human biosecurity officer). This is intended to ensure that aircraft and goods that arrive in Australian territory from overseas, arrive at a location that has the facilities available to assess any biosecurity risk and manage it to an acceptable level. Aircraft or goods arriving at a landing place that is not a first point of entry, and which does not have the capacity to manage the biosecurity risk, pose a threat that a disease or pest may enter, establish or spread and cause harm to Australia`s human, plant and animal health, the environment and the economy. The person in charge or the operator of an aircraft that is subject to biosecurity control, who permits the aircraft to land at a landing place that is not a first point of entry for the aircraft without permission (under clause 239) or being directed to do so (under clause 240 or 242), commits an offence and is liable to a civil penalty. In addition, the person in charge commits an offence and is liable to a civil penalty if the operator contravenes this clause and the operator commits an offence and is liable to a civil penalty if the person in charge contravenes this clause. The maximum penalty for a contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. Making the person in charge and the operator jointly liable ensures that both persons who are responsible for the conduct of the aircraft can be held responsible for the landing of the aircraft. For example the person in charge might be an airline carrier staff who is responsible for scheduling flights and determining where an aircraft lands, while the operator might be a pilot who lands the aircraft. Both are responsible for the movement of the aircraft and for ensuring that any directions are complied with. 185


The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If an aircraft lands at a landing place that is not a first point of entry, that landing place is unlikely to have the facilities or operational capacity to manage the potential biosecurity risk satisfactorily and a significant biosecurity risk may establish and spread. This could result in serious damage to human, plant and animal health, the economy and the environment. A court would still be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. Clause 238 Aircraft must be brought to relevant biosecurity entry point (if any) at first point of entry This clause provides that if an aircraft that is subject to biosecurity control has landed at a first point of entry for the aircraft and there is a biosecurity entry point for that aircraft, the aircraft must be brought to that biosecurity entry point (see clause 224) as soon as practicable. The person in charge or the operator of the aircraft that is subject to biosecurity control, who permits the aircraft to land at a first point of entry with a designated biosecurity entry point for the aircraft, but does not ensure the aircraft is brought to that point as soon as practicable, commits an offence and is liable to a civil penalty. In addition, the person in charge commits an offence and is liable to a civil penalty if the operator contravenes this clause and the operator commits an offence and is liable to a civil penalty if the person in charge contravenes this clause (the policy reasoning for joint liability is the same as clause 237). The maximum penalty for a contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. The reasoning is consistent with clause 237. A court would still be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. Clause 239 Permission for aircraft to land at landing place that is not first point of entry for aircraft This clause provides that the person in charge or the operator of an aircraft may request (in writing) permission from the Director of Biosecurity or the Director of Human Biosecurity for the aircraft to land at a specified landing place in Australian territory that is not a first point of entry for that aircraft. The person in charge or operator may also request permission for goods to be unloaded at the specified landing place (see clause 146). The relevant Director may grant permission and provide a written notice to the person in charge or operator to inform them of this. A Director may consider any relevant factors he or she considers appropriate in deciding whether or not to grant permission for an aircraft to land at a landing place that is not a first point of entry. This may include whether the biosecurity risk associated with the aircraft can be managed to a satisfactory level, the location of the landing place, the surrounding environment, the facilities available, the accessibility of biosecurity officers to the landing place and any national interest, economic or defence considerations. The permission may be for one arrival or multiple arrivals over a specified period of time. This is intended to allow for greater flexibility, so that a person in charge or operator of an aircraft can 186


apply for a standing permission and not be required to make multiple applications for entry at the same location if the activities being undertaken and the biosecurity risks are the same. For example, an offshore gas and petroleum company has built a new drilling platform and seeks a standing permission to allow its aircraft (such as a helicopter), to travel between the platform and mainland Australia without being required to seek permission to arrive at a landing place that is not a first point of entry. The company and the department agree on a risk management strategy that ensures any biosecurity risks on board the installation are managed and will not be transported with the aircraft when it travels to the mainland. On this basis, the standing permission to enter a non-first point of entry is approved. The permission can also be given subject to any conditions specified in the notice. This allows the Director to maintain control over how a specific biosecurity risk is dealt with and ensure it is managed to an acceptable level. An example might be a light aircraft that only operates three months of the year and requires access to landing places that are not first points of entry. A Director may give the aircraft permission to arrive at those landing places within the three month period and unload passengers, subject to a condition that the aircraft arrives at a specified location within the landing place where biosecurity officers are available to assess and manage the biosecurity risk associated with the people and goods on board. The operator or person in charge who is given permission under this clause that is subject to a condition and he or she contravenes the condition, commits an offence and is liable to a civil penalty. In addition, the person in charge commits an offence if the operator contravenes this clause and the operator commits an offence if the person in charge contravenes this clause (the policy reasoning for joint liability is the same as clause 237). The maximum penalty for a contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. The reasoning is consistent with clause 237. A court would still be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. Clause 240 Direction requiring aircraft to land, or not land, at specified landing place This clause provides a biosecurity officer with the power to give a direction to the person in charge or the operator of an aircraft requiring the aircraft to land at a specified landing place or not to land at one or more specified landing places in Australian territory. The landing place is not required to be a first point of entry. A direction can only be given if the biosecurity officer is satisfied that it is necessary to manage the biosecurity risk associated with the aircraft or any person or thing on board the aircraft. This ensures that a direction can only be given if there is a relevant biosecurity risk that needs to be managed via a direction. This clause allows a biosecurity officer to prevent an aircraft from entering a particular landing place, or require an aircraft to enter a specific landing place, if it is necessary to manage a biosecurity risk on board. A direction will apply even if the landing place is otherwise approved to accept that class of aircraft or goods. This allows a biosecurity officer to make an independent assessment of the relevant biosecurity risk, particularly in unusual circumstances and direct an aircraft accordingly. 187


An example might be if a landing place temporarily does not have the facilities required to manage a particular type of biosecurity risk, or there are temporary environmental conditions (such as a large storm), that affect the level of biosecurity risk. A biosecurity officer can direct the aircraft to enter another landing place where the biosecurity risk can be managed to an acceptable level. Another example is if an aircraft is determined to have an unusual type of biosecurity risk that can only be managed at a particular landing place. A biosecurity officer can direct that aircraft to enter that landing place only. A direction must not be given that requires the aircraft not to land at any landing place in Australian territory. This type of direction can only be given by the Director of Biosecurity (see clause 241). The person in charge or the operator of the aircraft who does not comply with the direction commits an offence and is liable to a civil penalty (see clause 243). A biosecurity officer must revoke a direction for an aircraft not to land at one or more specified landing places, if he or she is satisfied that it is no longer necessary to manage the biosecurity risk associated with the aircraft or any person or thing on board the aircraft. This ensures that if the biosecurity risk that led to the direction being given no longer exists or has been managed to an acceptable level, the aircraft is once again free to travel to any first point of entry. This requirement does not, by implication, acts as a limit on the power of a biosecurity officer to revoke a direction given under this clause for an aircraft not to land at one or more specified landing places. Clause 241 Direction requiring aircraft not to land at any landing place in Australian territory This clause provides a biosecurity officer with the power to give the person in charge or the operator of an aircraft a direction not to land at any landing place in Australian territory. This may or may not be a first point of entry. A decision not to allow an aircraft to enter any landing place effectively denies that aircraft the right to enter Australian territory. As a result, a biosecurity officer must not give a direction under this clause without the written approval of the Director of Biosecurity. Before giving approval, the Director must consider the principles in clause 32. The application of clause 32 means that the powers in this clause must be exercised in accordance with the principles set out in clause 32. This is to ensure that such an invasive decision is approved at the appropriate level, allowing for the consideration of more stringent requirements, such as whether a direction is necessary and proportionate and what the effect will be upon the health and safety of the persons on board (see clause 32). The Director must not give approval unless he or she is satisfied on reasonable grounds that the level of biosecurity risk associated with the aircraft or any person or thing on board the aircraft is unacceptable and biosecurity measures cannot be taken to reduce that level of biosecurity risk to an acceptable level. A direction will apply, even if the landing place is otherwise approved to accept that class of aircraft or goods. This allows a biosecurity officer to undertake an independent assessment of the relevant biosecurity risk and direct the movement of an aircraft on a case by case basis, if it is required. A direction by the Director not to enter any landing place cannot be given only for the purpose of managing a human health risk. This ensures that any direction given is compliant with Australia`s international obligations under the International Health Regulations. 188


The person in charge or the operator who fails to comply with a direction commits an offence and is liable to a civil penalty (see clause 243). The defence of sudden and extraordinary emergency in Division 10.3 of the Criminal Code applies to this clause. A biosecurity officer must revoke a direction given under this clause if the Director is satisfied that the biosecurity risk associated with the aircraft or any person or thing on board the aircraft is no longer unacceptable, biosecurity measures can be taken to reduce the level of biosecurity risk associated with the aircraft or any person or thing onboard to an acceptable level, or the direction should be revoked for any other reason. This ensures that if the biosecurity risk that led to the direction being given no longer exists or can be managed to an acceptable level, the aircraft is once again free to travel to any first point of entry. Clause 572 applies to this clause, allowing a biosecurity officer to issue a direction orally or in writing (including electronically). It also ensures that any later directions override an earlier one if there is any inconsistency. Clause 242 Direction requiring aircraft to land, or not land, at specified landing place – management of human health risks This clause provides a chief human biosecurity officer or a human biosecurity officer with the power to give the person in charge or the operator of an aircraft, a direction requiring the aircraft to land at a specified landing place in Australian territory or not to land at one or more specified landing places in Australian territory. The landing place is not required to be a first point of entry. This power can only be exercised by a chief human biosecurity officer or a human biosecurity officer, if the officer is satisfied on reasonable grounds that the direction is necessary to manage a human health risk associated with the aircraft or any person or thing on board the aircraft. A direction must not be given by a chief human biosecurity officer or a human biosecurity officer requiring the aircraft not to land at any landing place in Australian territory. Similar to clause 241, this ensures that any direction given is compliant with Australia`s international obligations under the International Health Regulations. The person in charge or the operator who fails to comply with a direction commits an offence and is liable to a civil penalty (see clause 243). A chief human biosecurity officer or human biosecurity officer must revoke a direction requiring an aircraft not to land in one or more specified landing places, if he or she is satisfied that it is no longer necessary to manage the human health risk associated with the aircraft or any person or thing on board the aircraft. Similar to clause 241, this ensures that if the human health risk that led to the direction being given no longer exists or has been managed to an acceptable level, the aircraft is once again free to travel to any first point of entry. This requirement does not, by implication, acts as a limit on the power of a chief human biosecurity officer or human biosecurity officer to revoke a direction given under this clause for an aircraft not to land in one or more specified landing places. Clause 243 Person who is given direction must comply with it This clause provides that a person who does not comply with a direction given under Division 2 of Part 4 (entry points for aircraft), commits an offence and is liable to a civil penalty. The maximum penalty for a contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. 189


The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. The same policy reasoning as clause 237 applies. A court would still be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. Division 3–Entry Points for vessels that intend to be moored in Australian territory Clause 244 Application of this Division This Division applies in relation to vessels that intend to be moored at a port in Australian territory. Clause 245 Vessel must be moored at first point of entry This clause provides that a vessel must not be moored at a port in Australian territory that is not a first point of entry for the vessel, unless permission has been given under clause 247 (permission from a Director) or a direction has been given under clauses 248 or 250 (direction from a biosecurity officer, chief human biosecurity officer or human biosecurity officer). This is intended to ensure that vessels and goods that arrive in Australian territory from overseas, arrive at a location that has the facilities available to assess any biosecurity risk and manage it to an acceptable level. Vessels or goods arriving at a landing place that is not a first point of entry, and which does not have the capacity to manage the biosecurity risk, pose a threat that a disease or pest may enter, establish or spread and cause harm to Australia`s human, plant and animal health, the environment and the economy. The person in charge or the operator of the vessel that is subject to biosecurity control, who permits the vessel to be moored at a port in Australian territory that is not a first point of entry for that vessel without permission (under clause 247) or being directed to do so (under clause 248 or 250), commits an offence and is liable to a civil penalty. In addition, the person in charge commits an offence if the operator contravenes this clause and the operator commits an offence if the person in charge contravenes this clause. The maximum penalty for a contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. Making the person in charge and the operator jointly liable ensures that both persons who are responsible for the conduct of the vessel can be held responsible for the mooring of the vessel. For example, the person in charge might be a shipping company staff member who is responsible for scheduling vessels and determining which port the vessel travels to, while the operator might be a ship`s pilot who brings the vessel into the port. Both are responsible for the movement of the vessel and for ensuring that any directions are complied with. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If a vessel is moored a port that is not a first point of entry, that port is unlikely to have the facilities or operational capacity to manage the potential biosecurity risk satisfactorily and a significant biosecurity risk may establish and spread. This could result in serious damage to human, plant and animal health, the environment and the economy. A court would still be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. 190


Clause 246 Vessel must be brought to relevant biosecurity entry point (if any) at first point of entry This clause provides that if a vessel subject to biosecurity control is moored at a first point of entry for the vessel and there is a biosecurity entry point for that vessel, the vessel must be brought to that biosecurity entry point (see clause 230) as soon as practicable. The person in charge or the operator of the vessel that is subject to biosecurity control, who permits the vessel to be moored at a first point of entry with a designated biosecurity entry point for the vessel, but does not ensure that the vessel is brought to that entry point as soon as practicable, commits an offence and is liable to a civil penalty. In addition, the person in charge commits an offence if the operator contravenes this clause and the operator commits an offence if the person in charge contravenes this clause (see the policy explanation for joint liability in clause 245). The maximum penalty for a contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. The reasoning for this is consistent with the policy justification in clause 245. A court would still be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. Clause 247 Permission for vessel to be moored at port that is not first point of entry for vessel This clause provides that the person in charge or the operator of a vessel may request (in writing) permission from the Director of Biosecurity or the Director of Human Biosecurity for the vessel to be moored at a specified port in Australian territory that is not a first point of entry for that vessel. The person in charge or operator may also request permission for goods to be unloaded at the specified port (see clause 146). The relevant Director may grant permission and provide a written notice to the person in charge or the operator to inform them of this. A Director may consider any relevant factors he or she considers appropriate in deciding whether or not to grant permission for a vessel to be moored at a port that is not a first point of entry. This may include whether the biosecurity risk associated with the vessel can be managed to a satisfactory level, the location of the port, the surrounding environment, the facilities available, the accessibility of biosecurity officers to the port and any national interest, economic or defence considerations. The permission may be for one arrival or multiple arrivals over a specified period of time. The policy reasoning for this is the same as that for aircraft in clause 239. The permission can also be given subject to any conditions specified in the notice. This is intended to allow for greater flexibility, so that a person in charge or operator of a vessel can apply for a standing permission and not be required to make multiple applications for entry at the same location if the activities being undertaken and the biosecurity risks are the same. The permission can also be given subject to any conditions specified in the notice. This allows the Director to maintain control over how a specific biosecurity risk is dealt with and ensure it is managed to an acceptable level. An example might be a cargo vessel that only requires access to ports that are not first points of entry for several months of the year. A Director may give the vessel permission to arrive at those ports within the specified period and unload goods, subject to a condition that the vessel arrives at a specified location within the port where biosecurity officers are available to assess and manage the biosecurity risk associated with the people and goods on board. For example, an offshore gas and petroleum company has built a new drilling platform and 191


seeks a standing permission to allow its vessels to travel between the platform and mainland Australia without being required to seek permission to arrive at a port that is not a first point of entry. The company and the department agree on a risk management strategy that ensures that any biosecurity risks on board the installation are managed and will not be transported with the vessel when it travels to the mainland. On this basis, the standing permission for entry into a non-first point of entry is approved. The person in charge or the operator of the vessel, who has been given permission subject to a condition under this clause and contravenes the condition commits an offence and is liable to a civil penalty. In addition, the person in charge commits an offence if the operator contravenes this clause and the operator commits an offence if the person in charge contravenes this clause (the policy reasoning for joint liability is the same as clause 245). The maximum penalty for a contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. The reasoning is consistent with clause 245 above. A court would still be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. Clause 248 Direction requiring vessel to be moored, or not to be moored, at specified port This clause provides a biosecurity officer with the power to give a direction to the person in charge or the operator of a vessel, requiring the vessel to be moored at a specified port in Australian territory, or not to be moored at one or more specified ports in Australian territory. These may or may not be a first point of entry. A direction can only be given if the biosecurity officer is satisfied that it is necessary to manage the biosecurity risk associated with the vessel or any person or thing on board the vessel. This ensures that a direction can only be given if there is a relevant biosecurity risk that needs to be managed via a direction. This clause allows a biosecurity officer to prevent a vessel from entering a particular port, or require a vessel to enter a specific port, if it is necessary to manage a biosecurity risk on board. A direction will apply even if the port is otherwise approved to accept that class of vessel or goods. This allows a biosecurity officer to make an independent assessment of the relevant biosecurity risk, particularly in unusual circumstances and direct a vessel accordingly. An example might be if a port temporarily does not have the facilities required to manage a particular type of biosecurity risk, or there are temporary environmental conditions (such as a large storm), that affect the level of biosecurity risk. A biosecurity officer can direct the vessel to enter another port where the biosecurity risk can be managed to an acceptable level. Another example is if a vessel is determined to have an unusual type of biosecurity risk that can only be managed at a particular port. A biosecurity officer can direct that vessel to enter that port only. A direction must not be given that requires a vessel not to be moored at any port in Australian territory. This type of direction can only be given by the Director of Biosecurity (see clause 249). The person in charge or the operator who fails to comply with a direction commits an offence and is liable to a civil penalty (see clause 251). 192


A biosecurity officer must revoke a direction for a vessel not to be moored at one or more specified ports, if he or she is satisfied that it is no longer necessary to manage the biosecurity risk associated with the vessel or any person or thing on board the vessel. This ensures that if the biosecurity risk that led to the direction being given no longer exists or has been managed to an acceptable level, the vessel is once again free to travel to any first point of entry. This requirement does not, by implication, act as a limit on the power of a biosecurity officer to revoke a direction given under this clause for a vessel not to be moored at one or more specified ports. Clause 249 Direction requiring vessel not to be moored at any port in Australian territory This clause provides a biosecurity officer with the power to give the person in charge or the operator of a vessel, a direction not to moor at any port in Australian territory. This may or may not be a first point of entry. A decision not to allow a vessel to enter any port effectively denies that vessel the right to enter Australian territory. As a result, a biosecurity officer must not give a direction under this clause without the written approval of the Director of Biosecurity. Before giving approval, the Director must consider the principles in clause 32 (the same policy reasoning in clause 241 applies). The application of clause 32 means that the powers in this clause must be exercised in accordance with the principles set out in that clause. This is to ensure that such an invasive decision is approved at the appropriate level, allowing for the consideration of more stringent requirements, such as whether a direction is necessary and proportionate and what the effect will be upon the health and safety of the persons on board (see clause 32). The Director must not give approval unless he or she is satisfied on reasonable grounds that the level of biosecurity risk associated with the vessel or any person or thing on board the vessel is unacceptable and biosecurity measures cannot be taken to reduce that level of biosecurity risk to an acceptable level. A direction will apply, even if the port is otherwise approved to accept that class of vessel or goods. This allows a biosecurity officer to undertake an independent assessment of the relevant biosecurity risk and direct the movement of a vessel on a case by case basis if it is required. A direction by the Director not to enter any port cannot be given only for the purpose of managing a human health risk. This ensures that any direction given is compliant with Australia`s international obligations under the International Health Regulations. The person in charge or the operator who fails to comply with a direction commits an offence and is liable to a civil penalty (see clause 251). The defence of sudden and extraordinary emergency in Division 10.3 of the Criminal Code applies to this clause. A biosecurity officer must revoke a direction given under this clause if the Director is satisfied that the biosecurity risk associated with the vessel or any person or thing on board the vessel is no longer unacceptable, biosecurity measures can be taken to reduce the level of biosecurity risk associated with the vessel or any person or thing onboard to an acceptable level, or the direction should be revoked for any other reason. This ensures that if the biosecurity risk that led to the direction being given no longer exists or can be managed to an acceptable level, the vessel is once again free to travel to any first point of entry. Clause 572 applies to this clause, allowing a biosecurity officer to issue a direction orally or in writing (including electronically). It also ensures that any later directions override an earlier one if there is any inconsistency. 193


Clause 250 Direction requiring vessel to be moored, or not to be moored, at specified port – management of human health risks This clause provides a chief human biosecurity officer or a human biosecurity officer with the power to give the person in charge or the operator of a vessel, a direction requiring the vessel to be moored at a specified port in Australian territory, or not to be moored at one or more specified ports in Australian territory. The port is not required to be a first point of entry. This power can only be exercised by a chief human biosecurity officer or a human biosecurity officer if the officer is satisfied on reasonable grounds that the direction is necessary to manage a human health risk associated with the vessel or any person or thing on board the vessel. A direction must not be given by a chief human biosecurity officer or a human biosecurity officer requiring the vessel not to land at any port in Australian territory. Similar to clause 249, this ensures that any direction given is compliant with Australia`s international obligations under the International Health Regulations. The person in charge or the operator who does not comply with a direction commits an offence and is liable to a civil penalty (see clause 251). A chief human biosecurity officer or human biosecurity officer must revoke a direction requiring a vessel not to be moored at one or more specific ports, if he or she is satisfied that it is no longer necessary to manage the human health risk associated with the vessel or any person or thing on board the vessel. Similar to clause 249, this ensures that if the human health risk that led to the direction being given no longer exists or has been managed to an acceptable level, the vessel is once again free to travel to any first point of entry. This requirement does not, by implication, act as a limit on the power of a chief human biosecurity officer or human biosecurity officer to revoke a direction given under this clause for a vessel not to be moored at one or more specific ports. Clause 251 Person who is given direction must comply with it This clause provides that a person who does not comply with a direction given under Division 3 of Part 4 (entry points for vessels), commits an offence and is liable to a civil penalty. The maximum penalty for a contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. The same policy reasoning clause 245 applies. A court would still be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. Division 4–Miscellaneous Clause 252 Biosecurity officer etc. may enter landing places or ports This clause provides that a biosecurity officer or a biosecurity enforcement officer may enter premises at a landing place or port that an aircraft or vessel subject to biosecurity control has landed or moored or intends to land or to be moored, at any time. Entry must be for the purpose of performing functions or exercising powers under the Act. This ensures that an officer can only enter for relevant purposes under the Act. For the purpose of this clause, a premise does not include a conveyance. Before entering premises at a landing place or port, the biosecurity official must be satisfied of the principles outlined in clause 32. The application of clause 32 means that the powers in this clause 194


must be exercised in accordance with the principles set out in that clause. This ensures that the decision to enter premises without a warrant or consent must be made in light of protections designed to ensure a person`s rights are adequately considered (see clause 32). A biosecurity officer is not authorised to enter premises at a landing place or port (first point of entry) unless he or she is accompanied by a biosecurity enforcement officer. This ensures that an officer with the appropriate level of training and expertise is responsible for establishing entry. The obligations and powers of biosecurity enforcement officers entering premises under this clause are contained in Part 5 of Chapter 9. Biosecurity officers require the ability to enter premises at a port or landing place without a warrant or consent in order to establish whether a biosecurity risk exists, and if so, undertake biosecurity measures that are necessary to address the risk. Those premises are the subject of a regulatory arrangement with the Commonwealth, where the first point of entry is approved to be a place where goods, people and conveyances can arrive in Australia from overseas. As a result, premises at a first point of entry are an area of high risk for biosecurity risks entering, establishing and spreading in Australia and causing damage to human, animal and plant health, the environment, local industries and the economy. It is important that these risks are managed as quickly and efficiently as possible. Part 5–Ship sanitation Division 1–Introduction Clause 253 Simplified outline of this Part This outline sets out the Part`s objectives. The Part provides for the regulations of the Ship Sanitation Certification Scheme, a requirement of the International Health Regulations, to control the international spread of disease through the surveillance and inspection of international vessels. Division 2–Ship sanitation Clause 254 Application of this Division This clause defines international vessels` for the purposes of the scheme. An international vessel is a vessel that has arrived from a voyage outside Australia or intends to leave Australia. Clause 255 Regulations may prescribe scheme in relation to ship sanitation This clause allows for the making of regulations to prescribe the detail of the scheme. The regulations may provide for: the meaning of sanitation health risk determining the level of vessel sanitation health risk associated with an international vessel circumstances in which the level of vessel sanitation health risk is deemed to be unacceptable the issuance of internationally recognised certification relating to sanitary conditions on board an international vessel recognition of certificates issued by, or on behalf of, competent authorities (e.g. authorities of foreign countries) designation of ports where inspections may be performed for the purposes of the scheme measures which may be taken to manage vessel sanitation health risks associated with the vessel, and the sharing of information obtained under the scheme with other States party to the International Health Regulations. 195


Articles 19 and 20 of the International Health Regulations require States party to the International Health Regulations to designate landing places and ports with the capacity to manage and respond to public health risks and public health emergencies of international concern. This includes the capability to perform inspections and issue Ship Sanitation certificates. The International Health Regulations sets out a scheme with two different certificates. A Ship Sanitation Control Exemption certificate is issued when sanitary conditions aboard a vessel do not present a public health risk. A Ship Sanitation Control Certificate is issued when there is evidence of factors which present a public health risk, and control measures have been undertaken to manage those risks. Consistent with Articles 24 and 27 of the International Health Regulations, the regulations will provide the Commonwealth with the capability to inspect ships and apply measures such as disinfect, disinsect, de-rat or decontaminate the conveyance in order to manage potential risks to human health. The regulations will provide for the issuance of Ship Sanitation certificates at Australian ports consistent with Annex 3 (Model Ship Sanitation Exemption Certificate/Ship Sanitation Control Certificate) and Article 39 of the International Health Regulations. Clause 256 Declaring ports at which vessels may be inspected for the purposes of the scheme This clause allows the Director of Human Biosecurity to designate those ports in Australia where inspections may be performed, and certificates issued, in accordance with the scheme. Articles 19 and 20 of the IHR require each State party to the International Health Regulations to designate landing places and ports with the capacity to manage and respond to public health risks and public health emergencies of international concern. This includes designation of ports with the capability to perform inspections and issue Ship Sanitation certificates. Article 20 of the IHR also requires that member states provide the World Health Organization with a list of ports authorised to offer ship sanitation certificates. The list of authorised ports is published to inform both member states and operators of international vessels regarding ports where inspections may be performed and certificates issued. This clause states that a declaration made under this clause is a legislative instrument, but is not subject to disallowance under the Legislative Instruments Act 2003. The decision to declare a port where vessels may be inspected for the purposes of the scheme is a technical and scientific decision based on whether the sanitation health risk is able to be assessed and satisfactorily managed. Therefore, it is appropriate for the Parliament to delegate to the Director of Human Biosecurity the power to make this declaration. Subjecting these declarations to disallowance could undermine the technical and scientific based decision making and frustrate risk management processes. In addition, disallowance of a declaration made under this clause could lead to inadequate management of the risks posed to human health. Clause 257 Assessing and managing sanitation health risks This clause links the Ship Sanitation Certification Scheme to the powers and functions in Part 2 of Chapter 4, which provide for inspection and treatment of international vessels. Where there is evidence of a human biosecurity risk, the powers in Part 2 of Chapter 4 give the Commonwealth the power to inspect vessels and require measures to be taken to manage human health risks. Some clauses contained in Part 2 of Chapter 4 which apply to vessels generally are specifically excluded from the operation of the Ship Sanitation Certification Scheme. These are expressly 196


excluded as they are not required for the operation of the scheme and they are outside the scope of the scheme provided for by the International Health Regulations. Chapter 5–Ballast water and sediment Part 1–Application and interpretation Division 1–Introduction Clause 258 Simplified outline of this Part This outline sets out the Part`s objectives. The Part outlines how the scheme for the management of ballast water and sediment will operate. This Part also sets out special measures for this Chapter and outlines the relationship between these provisions and the operation of other Commonwealth, state and territory laws relating to managing biosecurity risks associated with ballast water and sediment. Division 2–Application and interpretation Clause 259 Extension of Chapter to every external Territory This clause provides that this Chapter extends to all external territories of Australia. This includes Ashmore and Cartier Islands, Christmas Island, the Cocos (Keeling) Islands, the Coral Sea Islands, Heard Island the McDonald Islands and Norfolk Island. It does not however include the Australian Antarctic Territory, which is specifically excluded under clause 261. Clause 260 Vessels in dry dock in Australia This clause outlines that the ballast water management scheme applies to a vessel in dry dock in Australia. A dry dock in Australia is taken to be in Australian seas. Dry docks are docks that can be drained to allow the vessel to come to rest on a dry platform. They are used for the construction, maintenance, and repair of vessels. Clause 261 Foreign vessels in waters adjacent to Australian Antarctic Territory This clause provides that a vessel within the outer limits of the territorial sea (12 nautical mile zone) of the Australian Antarctic Territory is not in Australian seas. This is consistent with Australia`s obligations pursuant to Article 4 of the Antarctic Treaty 1961. Clause 262 References to the person in charge of a vessel do not include persons exercising certain powers This clause provides that references to a person in charge of a vessel in this Chapter do not include a person exercising powers under an Australian law. The purpose of this clause is to exempt Commonwealth, state and territory officers who are in control of a vessel–such as a ship`s pilot or a person piloting a ship in a law enforcement or maritime rescue capacity–from the requirements in this Chapter. Clause 263 Permanent ballast water in sealed tanks not subject to this Chapter This clause provides that the ballast water management scheme does not apply to permanent ballast water which is in a sealed tank of a vessel and cannot be discharged from the vessel. It is not appropriate to include this type of ballast water in the scheme as it cannot be discharged and therefore does not pose an unacceptable biosecurity risk to Australia`s marine environment. Clause 264 Relationship with other Commonwealth laws This clause provides that the Chapter complements other Commonwealth laws and does not substitute other current Commonwealth laws. This clarifies that this Chapter does not replace other Commonwealth marine environmental laws and recognises that there is a broader scheme of 197


Commonwealth laws that protect the marine environment from pollution from vessels in Australian seas such as the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 and the Protection of the Sea (Harmful Anti-fouling Systems) Act 2006. Clause 265 Relationship with State and Territory laws This clause indicates Parliament’s intention that Chapter 5 covers the field in relation to biosecurity risks associated with ballast water or sediment. Accordingly, the Act will operate to exclude any state or territory law that purports to deal with ballast water or sediment. The clause does not exclude or limit the concurrent operation of state or territory laws in respect of the treatment or disposal of ballast water or sediment after it has been removed from a vessel. This is to recognise that state and territory environmental protection laws may impose additional requirements once the ballast water or sediment has been released or removed from the vessel. Section 109 of the Constitution invalidates a state law to the extent that it is inconsistent with a Commonwealth law. Determining whether a state law is inconsistent with a Commonwealth law involves interpreting both laws. If the Commonwealth law is interpreted as operating to the exclusion of state law, the state law will be inconsistent with the Commonwealth law and invalid. A provision such as clause 265, which sets out Parliament’s intention to exclude the operation of state laws will be used in interpreting the Commonwealth law to determine whether it does exclude a particular state law. It is intended that ballast water will be managed under an Australian-wide ballast water and management regime, providing a comprehensive system for ballast water management that covers both international and domestic vessels, ensuring that Australia can give effect to the Ballast Water Convention. This clause applies to territory laws in the same way as it applies to state laws. While section 109 of the Constitution does not apply to territory laws, similar principles apply in relation to the inconsistency or repugnancy of territory laws with Commonwealth laws. Part 2–Notice of discharge of ballast water in Australian seas Division 1–Introduction Clause 266 Simplified outline of this Part This outline sets out the Part`s objectives. This Part outlines the circumstances in which an operator of a vessel must give a report. These circumstances are if it is intended that the vessel discharge, or the vessel discharges, ballast water in Australian seas. The operator must ensure the report is correct after giving the report by providing additional or corrected information, if necessary. Division 2–Reporting ballast water discharges Clause 267 Reporting ballast water discharges in Australian seas This clause provides that the operator of a vessel must give a report if the vessel intends to discharge or does discharge ballast water in Australian seas, to allow for any associated biosecurity risks to be managed more efficiently and effectively. The obligation to provide a report rests with the operator of the vessel as he or she is the person who has access to the required information. (Clause 21 provides that the operator of a conveyance also includes the body corporate or unincorporated body responsible for the operation of the conveyance). 198


A report must: include the information in relation to the vessel that is prescribed by the regulations be given in the manner, and to the person prescribed by the regulations be given during the period prescribed by the regulations (which may end at any time before or after the vessel enters Australian seas), and be in a form or forms approved by the Director of Biosecurity. Details of each of these requirements are prescribed in the regulations, as this gives the Commonwealth flexibility to amend the information required as well as how and when that information is to be given. This may change over time in response to changes in the different levels of biosecurity risk associated with the ballast water. In recognition that different classes of vessels may pose different levels of biosecurity risk, the regulations may also prescribe different requirements for reports for different classes of vessels. A person will be required to give the report regardless of whether they are in Australian territory or overseas when the report is required to be given. This ensures that biosecurity officers will have access to the report when required to make an assessment of the level of biosecurity risk associated with the ballast water. A person who contravenes the requirement to give a report commits an offence and is liable to a civil penalty. The maximum penalty for a contravention is two years imprisonment, or 120 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 of this Act create offences and civil penalties for providing false or misleading information or documents. The regulations may also prescribe exceptions to the requirement for a report to be provided. This allows reporting by exception to occur, where a report is only required if certain criteria are met. For example, vessels may be exempted from repeatedly reporting intended discharges where they only travel between certain ports and the uptake and discharge of ballast water is similar for each journey. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as collecting accurate and timely information through a notice will allow biosecurity officers to determine whether ballast water poses an unacceptable biosecurity risk and ensure that any ballast water intended for discharge is managed to address any risk. Allowing a person to use the privilege and refuse to provide important information, could result in a significant biosecurity risk remaining unmanaged. It would also undermine the management of biosecurity risks, as officers would be forced to rely on warrants to obtain routine information required in a report. This is impractical and time consuming, particularly given the significant number of vessel capable of carrying ballast water within Australian seas (this includes both international and domestic vessels). 199


Whilst the privilege against self-incrimination is abrogated in relation to this clause, the Bill provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person. Clause 268 Reporting ballast water discharges in Australian seas–requirement to give additional or corrected information This clause requires an operator of a vessel that has reported under clause 267 to provide additional or corrected information as soon as practicable if he or she becomes aware the information provided in the original report is incomplete or incorrect. A person who contravenes the requirement to provide additional or corrected information as soon as practicable, commits an offence and is liable to a civil penalty. The maximum penalty for contravention of this clause is two years imprisonment, or 120 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. In addition, sections 137.1 and 137.2 of the Criminal Code and clauses 532 and 533 of this Act create offences and civil penalties for providing false or misleading information or documents. A person will be required to give additional or corrected information regardless of whether they are in Australian territory or overseas when the report is required to be given. This ensures that biosecurity officers will have access to the report when required to make an assessment of the level of biosecurity risk associated with the ballast water. This information will allow a more accurate assessment of biosecurity risks associated with ballast water that is intended to be discharged in Australian seas. As this requirement relates specifically to the report provided under clause 267, the requirement to provide additional or correct information is also not subject to the privilege against self-incrimination (the same reasoning in clause 267 above applies). Part 3–Management of discharge of ballast water Division 1–Introduction Clause 269 Simplified outline of this Part This outline sets out the Part`s objectives. The Part creates an offence of discharging ballast water in Australian seas. There are six exceptions available to the offence which are provided for in Divisions 3 to 8 in this Part. Division 2–Offence of discharging ballast water Clause 270 Offence–discharging ballast water in Australian seas This clause creates a fault-based offence where the person in charge or operator of a vessel discharges ballast water from the vessel in Australian seas. The maximum penalty for contravention is 2000 penalty units. A person commits a strict liability offence if the person contravenes this clause. The maximum penalty for a contravention is 500 penalty units. This clause imposes a higher maximum penalty which departs from the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This is appropriate as it reflects the severity of the potential consequences of an offence. It should be noted that the offence and level of penalty are consistent with the offences in section 21 of the Protection of the Sea (Prevention of Pollution from Ships) Act which relate to discharging 200


substances into the sea. These provisions are consistent with the Australian Government`s international obligations to protect the marine environment. A court would still be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. A strict liability offence is appropriate as there are public safety and public interest benefit in ensuring that this requirement is met, and the person in charge or operator of a vessel can be reasonably expected to know about the restrictions imposed on the discharge of ballast water because of their professional expertise. For this strict liability offence to apply, the prosecution will have to prove the conduct of the accused person in charge or operator of a vessel, but not the fault elements of the offence (intention, knowledge, recklessness or negligence). However, the accused person will still be able to rely on the defence in the Criminal Code (Section 9.2) of honest and reasonable mistake of fact, or the exceptions provided in this chapter. To allow vessels to discharge ballast water in Australian seas, there are a number of exceptions to the offence in this clause outlined in clauses 271, 276, 277, 279, 282 and 283 which are discussed below. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. The provisions have been drafted as exceptions, rather than defences, as this reflects the evidentiary burden being placed on the defendant to adduce evidence of the exception and not a legal burden to prove the defence. Division 3–Exceptions: ballast water management Subdivision A–Exception Clause 271 Exception–ballast water has been managed for discharge This clause provides that an exception to the offence in clause 270 is that the ballast water discharged from the vessel has been managed for discharge` in accordance with this Division. Subdivision B of this Division sets out a range ways that ballast water can be managed for discharge. This exception recognises where appropriate management techniques have been applied to ballast water discharge, risks of harmful organism or pathogens being in the ballast water can be sufficiently reduced to an acceptable level. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. 201


Subdivision B–Methods of ballast water management Clause 272 Approved method of ballast water management This clause provides one definition of managed for discharge` for the purposes of ballast water management (see also clause 275). For ballast water to be considered to be managed for discharge under this clause, the vessel must: use a method of ballast water management approved by the Director of Biosecurity (see clauses 273 and 274) have a current ballast water management plan, a ballast water management certificate that is in force and appropriate ballast water records have carried out the management of the ballast water in accordance with the ballast water management plan, and meet any requirements prescribed in the regulations about managing and discharging ballast water. In line with the Ballast Water Convention, meeting these requirements will contribute to the management of the transfer of harmful aquatic organisms and pathogens by assuring that ballast water is managed in an appropriate way. Clause 273 Method of ballast water management–application for approval This clause sets out the process for an application to be made to the Director of Biosecurity for approval of a method of ballast water management. Ballast water management may be a ballast water treatment system, a prototype ballast water treatment system or some other method. This clause will enable new methods of ballast water management to be approved and utilised to manage the biosecurity risk associated with ballast water in Australian seas. An application for approval of a method of ballast water management must be made in accordance with the regulations. On receiving an application the Director of Biosecurity must make a decision within 28 days of the application being made and in accordance with the process set out in regulations. The decision of the Director to reject a method of ballast water management is a reviewable decision under clause 574. If a decision is not made within 28 days, the application is taken to be refused. This ensures that the applicant can seek an internal review of the decision. If the Director of Biosecurity requests additional information regarding the application, the 28 day period stops on the day the notice is given, the period begins again on the day the information is provided. This ensures that if the Director requires additional information in order to properly assess an application (particularly applications for complex ballast water treatment systems) and make a decision regarding whether to approve or reject the system, he or she has time to request and receive this information before the 28 day period runs out and a decision to refuse the application is considered to have been made. As the methods of ballast water management may be used by other vessels, this clause requires that a notice of approval is published on the Agriculture Department`s website. This ensures efficiency in assessing applications and will reduce costs for industry as they will be able to use an approved method without having to go through the approval process again. Clause 274 Method of ballast water management–approval of method approved by foreign country This clause provides the Director of Biosecurity with the ability to approve methods of ballast water management which have been approved by foreign countries in accordance with the Ballast Water Convention (whether or not the foreign country has signed the Convention). The Director must make this decision in accordance with the regulations. This approval process ensures that the 202


Director and Parliament have appropriate oversight of all methods of ballast water management used in Australian seas. This approval is a legislative instrument for the purposes of section 5(1) of the Legislative Instruments Act 2003. Subdivision C–Ballast water exchange Clause 275 Management by ballast water exchange This clause provides another definition of managed for discharge` for the purposes of ballast water management (see also clause 272). For ballast water to be considered to be managed for discharge under this clause, the vessel must: ensure that the prescribed proportion (by volume) of the ballast water in the tank immediately before the discharge had been taken up in an acceptable ballast water exchange (that is, the ballast water in the tank of a vessel is discharged at an acceptable location` and replaced by refilling the ballast water tank), and have appropriate ballast water records. The clause also defines the concept of an acceptable ballast water exchange` as one where the exchange is conducted in an area declared by the Director of Biosecurity as an acceptable location` for ballast water exchange and in any prescribed circumstances for that area as set out in the declaration. This means that the Director can consider and provide particular areas where the discharging and taking up of ballast water is adequately controlled, or where the risks of harmful organisms or pathogens spreading is low, consistent with the Ballast Water Convention. A declaration made under this clause is a legislative instrument for the purposes of section 5(1) of the Legislative Instruments Act. The regulations may also prescribe any other additional requirements for an acceptable ballast water exchange including the circumstances in which the prescribed proportion (by volume) of the ballast water in the tank of a vessel is taken to have been taken up in an acceptable ballast water exchange. In line with the Ballast Water Convention, meeting these requirements will contribute to the management of the transfer of harmful aquatic organisms and pathogens by assuring that ballast water is managed in an appropriate way. This clause allows a vessel to conduct a ballast water exchange without having a ballast water management plan or ballast water management certificate as required by clause 272. This provides an option for managing ballast water without having to have a ballast water treatment system or another method of ballast water management. This will assist with the implementation of this Chapter, as it provides an option for vessels to manage ballast water for discharge and provides time for these vessels to install a method of ballast water management or be surveyed in order to get a ballast water management certificate. 203


Division 4–Exception: discharge as part of acceptable ballast water exchange Clause 276 Exception–discharge as part of acceptable ballast water exchange This clause provides an exception to the offence under clause 270 where the discharge of ballast water is carried out as part of an acceptable ballast water exchange in accordance with clause 275. This clause ensures that a vessel is able to discharge ballast water in conducting a ballast water exchange (the ballast water initially discharged as part of an acceptable ballast water exchange will not meet the requirements as managed for discharge` under clause 275). The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. Division 5–Exception: approved discharge to ballast water reception facility Clause 277 Exception–approved discharge to ballast water reception facility This clause provides an exception to the offence under clause 270 where the discharge of ballast water is made to a ballast water reception facility approved under clause 278. The ballast water must be treated or disposed of at the facility in accordance with the approval. A ballast water reception facility may include a land based facility or a vessel (see clause 9 for definition of ballast water reception facility). The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. Clause 278 Discharge to ballast water reception facility–application for approval This clause outlines the process for an application to be made to the Director of Biosecurity for approval of a discharge of ballast water to a ballast water reception facility and the manner in which the ballast water is to be treated or disposed of at the facility. A ballast water reception facility may include a vessel. This clause allows the person in charge or operator of a vessel which is unable to make use of other exceptions to propose ways for managing their ballast water for discharge at a ballast water reception facility. An application for approval of a discharge to a ballast water reception facility must be made in accordance with the regulations. On receiving an application the Director of Biosecurity must make a decision within 28 days of the application being made and in accordance with the process set out in regulations. The decision to reject the application is a reviewable decision under clause 574. If a decision is not made within 28 days, the application is taken to be refused. This ensures that the applicant can seek an internal review of the decision. There is an obligation on the Director of Biosecurity to not approve a manner of treating or disposing of ballast water that would contravene a law of a state or territory. This is in recognition 204


that a ballast water reception facility may be on the land or in coastal waters of a state or territory and subject to environmental protection laws. If the Director of Biosecurity requests additional information regarding the application from the applicant, the 28 day period stops on the day the notice is given, and the period begins again on the day the information is provided. This ensures that if the Director requires additional information in order to properly assess an application and make a decision regarding whether to approve or reject the ballast water reception facility, he or she has time to request and receive this information before the 28 day period runs out and a decision to refuse the application is considered to have been made. Division 6–Exception: discharge covered by exemption Clause 279 Exception–discharge covered by exemption This clause provides an exception to the offence under clause 270 where the discharge of ballast water is exempt under clause 280 and any conditions of the exemption have been complied with. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. Clause 280 Director of Biosecurity may grant exemptions This clause outlines the process for making an application to the Director of Biosecurity for an exemption of one or more discharges of ballast water that are part of a vessel`s voyage between specified ports or locations, where the ballast water is taken up in one or more of those ports of locations. For example, the Director may grant an exemption to a vessel which only travels between ports that have a low risk of harmful aquatic organisms and pathogens. Exemptions may only be granted for a specified period, may be in whole or in part, and may be subject to conditions. On receiving an application the Director must make a decision within 28 days of the application being made and in accordance with the process set out in the regulations. The decision to refuse to grant an exemption under this clause is a reviewable decision under clause 574. If a decision is not made within 28 days, the application for an exemption is taken to be refused. This ensures that the applicant can seek an internal review of the decision. The clause also provides that the Director may use a computer program to make a decision to grant an exemption or impose any conditions on an exemption. Clause 281 Variation and revocation of exemption This clause outlines the grounds on which the Director of Biosecurity can vary or revoke an exemption granted under clause 280. This must be done in writing, to the owner, person in charge or operator of the vessel or an agent of the vessel. This clause provides the flexibility for the Director to actively manage biosecurity risks of ballast water in situations where significant non-compliance with the conditions of the exemption has occurred or an unacceptable biosecurity risk has been identified after the exemption has been granted. Decisions made under this clause are reviewable decisions under clause 574. 205


This clause is intended to exclude the general powers of variation and revocation under section 33(3) of the Acts Interpretation Act 1901 (as it is intended that an exemption will only be varied or revoked under this clause, and that a decision to use the power in this clause is reviewable). Division 7–Exception: taking up and discharging ballast water at same place Clause 282 Exception–taking up and discharging ballast water at same place This clause provides an exception to the offence under clause 270 where the discharge of ballast water occurs in the same port or point where the ballast water had been taken up. This exception is available because ballast water from the same port or point poses a low risk of spreading harmful aquatic organisms or pathogens. For the exception to apply, the ballast water taken up must not be mixed with ballast water that has not been managed in accordance with Division 3 of this Part. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. Division 8–Exceptions and reporting requirements relating to safety, accidents and pollution Clause 283 Exceptions–safety, accidents and pollution This clause provides an exception to the offence under clause 270 where the discharge has occurred for reasons of safety, an accident or avoiding or minimising pollution. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. It will be an exception to the offence in clause 270 to discharge ballast water for reason of ensuring the safety of the vessel in an emergency, or for saving life at sea. An example of this would be where a vessel is in distress due to extreme weather conditions and the release of the ballast water would ensure the vessel would remain seaworthy. It will also be an exception to the offence in clause 270 to discharge ballast water as a result of damage to the vessel or equipment on the vessel. To establish the exception the owner, person in charge or operator of the vessel must demonstrate that all reasonable precautions to prevent or minimise the discharge were taken before and after; occurrence of the damage, the discovery of the damage and the discovery of the discharge. The person in charge, owner and operator of the vessel must not have intentionally caused the damage or been reckless as to the occurrence of the damage. An example of being reckless as to the occurrence of the damage would be where the owner of the vessel does not ensure the proper maintenance of the ballast water tanks and ballast water treatment systems resulting in damage to the tanks or system. It will also be an exception to the offence in clause 270 to discharge ballast water where the discharge has occurred to avoid or minimise pollution from the vessel. An example of this would 206


be vessel carrying oil or hazardous substances that were in danger of capsizing or breaking up due to extreme weather conditions. In this instance releasing ballast water to enable the vessel to be stabilised or to reduce structural stresses on the vessel would be acceptable. Clause 284 Report of discharge relating to safety, accident or pollution This clause outlines the requirement to provide a report to the Director of Biosecurity in the event of a discharge of ballast water in Australian seas under clause 283 due to an emergency or accident or to avoid or minimise pollution. This clause includes a strict liability offence where the person in charge or operator of the vessel does not make a report as required. The maximum penalty for contravention is 500 penalty units. It is acknowledged that the penalties available are higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. It should be noted that the offence and level of penalty are consistent with the offence in section 22 of the Protection of the Sea (Prevention of Pollution from Ships) Act which relate to reporting discharges. These provisions are consistent with the Australian Government`s international obligations to protect the marine environment. A court would still be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. A strict liability offence is appropriate in this context as there are public safety and public interest benefits in ensuring that this requirement is met and the person in charge or operator of a vessel can be reasonably expected to know about the about the requirement to report the discharge of ballast water because of their professional expertise. For this offence, the prosecution will have to prove the conduct of the accused person in charge or operator of a vessel, but not the fault elements of the offence (intention, knowledge, recklessness or negligence). However, the accused person will still be able to rely on the defence in the Criminal Code (Section 9.2) of honest and reasonable mistake of fact, or the exceptions provided in this Chapter. The report must set out the reasons for the discharge and must be made as soon as practicable, and in any case within 24 hours, after a member of the vessel`s crew becomes aware of the discharge. A report is not required if the discharge of ballast water is covered by one of the exceptions in clauses 271, 276, 277, 279 or 282, as these discharges are managed and pose a low risk. Discharges under these clauses will also be recorded in the ballast water records of the vessel (see Part 5 of this Chapter). The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. 207


Part 4–Ballast water management plans and ballast water management certificates Division 1–Introduction Clause 285 Simplified outline of this Part This outline sets out the Part`s objectives. The Part provides for ballast water management plans and ballast water management certificates for vessels to be issued, endorsed and recognised. Division 2 outlines the requirements of ballast water management plans and provides a regulation- making power to prescribe a scheme for the Director of Biosecurity to approve ballast water management plans for Australian vessels. Division 3 outlines the requirements of ballast water management certificates and provides a regulation-making power to prescribe a scheme for the Director and survey authorities to survey vessels for the purposes of certification. Division 2–Ballast water management plans Clause 286 Ballast water management plan This clause outlines the requirements of ballast water management plans for Australian and foreign vessels. For an Australian vessel, a management plan deals with both the ballast water management for the vessel and the disposal of sediments from the vessel`s ballast water. The plan must be approved by the Director of Biosecurity (see clause 287 for approval of ballast water management plans). For a foreign vessel, a management plan deals with ballast water management for the vessel and the disposal of sediments from the ballast water which meets the requirements prescribed by the regulations and has been approved by the Administration of the vessel (see clause 9 for the definition of Administration). A ballast water plan is required to be onboard the ship and available to guide personnel in safe operation of the ballast water management system employed on a particular ship. It will provide a detailed description of how the ballast water will be managed including safety procedures for the ship and the crew associated with managing ballast water using the treatment system. Clause 287 Approval of ballast water management plan for Australian vessel This clause provides that regulations may prescribe a scheme for the Director of Biosecurity to approve, amend or cancel a ballast water management plan of an Australian vessel. A decision made by the Director to approve, amend or cancel a ballast water manage plan is a reviewable decision under clause 574. It is envisaged that ballast water management plans will be approved, amended or cancelled consistent with any International Maritime Organization guidelines under the Ballast Water Convention. The approval of ballast water management plans under this clause is highly technical and specialised and will be based on the guidance and standards developed by the International Maritime Organization. It is appropriate that this scheme is prescribed in the regulations as the guidelines may be subject to change as technology and systems relating to ballast water develop. Division 3–Ballast water management certificates Clause 288 Ballast water management certificate This clause outlines the requirements for ballast water management certificates for Australian and foreign vessels. A ballast water management certificate verifies that a vessel has an approved ballast water management plan under clause 287, and that any equipment on the vessel, such as ballast water treatment systems, is capable of giving effect to the plan. For foreign vessels, the regulations may also prescribe additional requirements. It is envisaged that ballast water 208


management certificates will be consistent with any International Maritime Organization guidelines under the Ballast Water Convention. This ensures that all certificates are issued in accordance with the Ballast Water Convention. A ballast water management certificate can be issued or endorsed by the Director of Biosecurity or a survey authority, or in the case of a foreign vessel, by their Administration (see clause 9 for definition of Administration`). Clause 289 Director of Biosecurity may authorise person to be survey authority This clause provides the Director of Biosecurity with the power to authorise, in writing, a person to be a survey authority. In making this decision, the Director must be satisfied that the person has suitable qualifications to perform the functions of a survey authority. Authorisation of survey authorities under this clause will enable certain activities to be undertaken by a survey authority on behalf of the Commonwealth (see clause 290). It is appropriate that the Director can authorise a person to be survey authority as they will have the facilities, skills and technical expertise required to survey a vessel. An example of a survey authority may be a member of a vessel`s classification society (a society that collects and records technical data relevant to ships). The clause clarifies that an authorisation is not a legislative instrument for the purposes of section 5(1) of the Legislative Instruments Act. This is to recognise the fact that authorisation is administrative in nature. A survey authority will be able to charge a fee for any services and activities they carry out under this Division, such as surveying a vessel to verify that a ballast water treatment system is properly installed. This ensures that a survey authority can receive reasonable payment in return for its services. Although the survey authority can charge a fee under this Division, it cannot amount to taxation. Clause 290 Issue or endorsement etc. of ballast water management certificate on behalf of the Commonwealth This clause sets out a regulation-making power to prescribe a scheme for the Director of Biosecurity or a survey authority to do any of the following in relation to an Australian vessel, on behalf of the Commonwealth: survey a vessel to determine whether a ballast water management certificate should be issued or endorsed for the vessel issue, endorse or withdraw a ballast water management certificate for the vessel extend the period the ballast water management certificate is in force, and amend the expiry date on a ballast water management certificate. The regulations may also prescribe a scheme for the Director or a survey authority to do, on behalf of the Commonwealth, any of the following in relation to a foreign vessel, on request by the vessel`s Administration (see clause 9 for definition of Administration`): survey a vessel to determine whether a ballast water management certificate should be endorsed for the vessel, and issue or endorse a ballast water management certificate for the vessel. For instance, a foreign vessel`s Administration may make a request for a ballast water management certificate to be issued when the vessel is undergoing repairs in Australia. It is appropriate that a survey authority is able to perform these tasks on behalf of the Commonwealth given the facilities, skills and technical expertise required. 209


The issuing of ballast water management certificates under this clause is highly technical and specialised and is based on the guidance and standards developed by the International Maritime Organization. It is appropriate that this scheme is prescribed in the regulations as the guidelines may be subject to change as technology and systems relating to ballast water develop. Decisions made by the Director of Biosecurity or a survey authority to refuse to issue, endorse or amend a ballast water management certificate or to refuse to extend the period during which such a certificate is in force or a decision to withdraw such a certificate for an Australian vessel are reviewable decisions under clause 574. Decisions made by the Director or a survey authority to refuse to issue or endorse a ballast water management certificate for a foreign vessel are also reviewable decisions under clause 574. The clause clarifies that a ballast water certificate is not a legislative instrument for the purposes of section 5(1) of the Legislative Instruments Act. This is to recognise the fact that certificate is administrative in nature and providing evidence that any equipment on the vessel, such as ballast water treatment systems, is capable of giving effect to the vessel`s ballast water management plan. Part 5–Ballast water records Division 1–Introduction Clause 291 Simplified outline of this Part The outline sets out the Part`s objectives. This Part sets out how vessels are to keep records of their ballast water operations and that there are different record-keeping requirements for Australian and foreign vessels (see clause 9 for definition of Australian vessel` and foreign vessel`). Australian and foreign vessels will have different record keeping requirements reflecting the jurisdictional limitations of the Bill. Australian vessels will be required to record any ballast water operation whether or not the vessel is outside Australian seas. It is inappropriate to require foreign vessels to record ballast water operations. However, in order to discharge ballast water in Australian seas, foreign vessels will be required to keep records of ballast water operations to allow biosecurity officers to appropriately assess any biosecurity risks. This Part imposes strict liability offences, which is appropriate in this context as there are public safety and public interest benefit in ensuring that this requirement is met, and the person in charge or operator of a vessel can be reasonably expected to know about the requirements to record ballast water operations because of their professional expertise. For these offences, the prosecution will have to prove the conduct of the accused person in charge or operator of a vessel, but not the fault elements of the offence (intention, knowledge, recklessness or negligence). However, the accused person will still be able to rely on the defence in the Criminal Code (Section 9.2) of honest and reasonable mistake of fact, or the exceptions provided in this Chapter. It is acknowledged that the penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. It should be noted that the offence and level of penalty are consistent with offences in sections 12 and 14 of the Protection of the Sea (Prevention of Pollution from Ships) Act which relate to record keeping requirements. These provisions are consistent with the Australian Government`s international obligations to protect the marine environment through strict enforcement of a verifiable record-keeping scheme. 210


A court would still be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. Division 2–Australian vessels Clause 292 Australian vessel must have ballast water record system This clause requires Australian vessels capable of carrying ballast water to have onboard a ballast water record system` that complies with the requirements (if any) prescribed by the regulations. The clause notes that a ballast water record system is a system for making and keeping records of details about the vessel`s ballast water and ballast water operations (see clause 9 for definition of ballast water record system). This clause creates an offence of strict liability against the person in charge of an Australian vessel if the vessel does not have a compliant ballast water record system onboard. The maximum penalty for contravention is 200 penalty units. See clause 291 for further information on this strict liability offence. Clause 293 Recording ballast water operations and disposal of sediment This clause provides the mandatory record-keeping requirements for an Australian vessel conducting ballast water operations` or disposing of sediment. A vessel conducts a ballast water operation if ballast water is taken up into the vessel, discharged from the vessel, or treated or circulated on the vessel for the purposes of ballast water management (see clause 9 for definition of ballast water operation). A record required to be kept by this clause must: be made using the vessel`s ballast water record system be made as soon as practicable after the operation is conducted or the sediment is disposed of, and comply with any requirements prescribed by the regulations. The clause creates an offence of strict liability where the person in charge of an Australian vessel does not make a ballast water record in accordance with this clause. The maximum penalty for contravention is 200 penalty units. See clause 291 for further information on this strict liability offence. The clause also provides that a person may commit a fault-based offence if they make a false or misleading record using an Australian vessel`s ballast water record system. The maximum penalty for contravention of this offence is 200 penalty units. Clause 294 Records must be retained This clause requires that ballast water records must be retained for a total of five years–including that the records must be retained onboard the vessel for two years after a record is made. After this two year period, records can be retained either onboard the vessel or in the control of the owner of the vessel. The retention of ballast water records allows for the tracing of uptake and discharge of ballast water and assists in carrying out risk assessments on the vessel`s ballast water. To ensure that an Australian vessel being towed by another vessel can meet its ballast water record obligation in situations where there is no crew on board the vessel to maintain the ballast water records, a record on board the towing vessel is taken to be on board the Australian vessel. This clause creates an offence of strict liability against the owner of an Australian vessel if the clause requires a record to be retained and it is not retained in accordance with this clause. The 211


maximum penalty for contravention of this offence is 200 penalty units. See clause 291 for further information on this strict liability offence. The clause provides an exception to the offence in circumstances where the record was lost or destroyed, and the loss or destruction was beyond the control of the present owner of the vessel or the person who was the owner of the vessel at that time. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. Clause 295 Appropriate ballast water records for Australian vessel This clause outlines the circumstances in which an Australian vessel has appropriate ballast water records`. The clause defines appropriate ballast water records as records that: are made in accordance with clause 293that are sufficient to allow any biosecurity risk associated with the vessel`s ballast water or sediment to be identified and assessed, and are not false or misleading. By having onboard appropriate ballast water records, an Australian vessel can use certain methods of ballast water management to deal with ballast water discharged in Australian seas under Division 3 of Part 3 of this Chapter. To ensure that an Australian vessel being towed by another vessel can meet its ballast water record obligation in situations where there is no crew on board the vessel to maintain the ballast water records, a record on board the towing vessel is taken to be on board the Australian vessel. Division 3–Foreign vessels Clause 296 Appropriate ballast water records for foreign vessel This clause outlines the circumstances in which a foreign vessel has appropriate ballast water records`. The clause defines appropriate ballast water records as records that: are sufficient to allow any biosecurity risk associated with the vessel`s ballast water or sediment to be identified and assessed meet the requirements (if any) that are prescribed by the regulations, and are not false or misleading. This clause provides a regulation-making power for any additional requirements for an appropriate ballast water record for foreign vessels. This will ensure that the records are in the appropriate format and contain the correct information to allow for an assessment of biosecurity risks associated with the ballast water. The jurisdiction of the Bill does not extend to foreign vessels outside Australian seas. However, this requirement will apply to foreign vessels in Australian seas and will ensure that by having onboard appropriate ballast water records, the requirements of this Chapter will be met. Where a foreign vessel has appropriate ballast water records they can use certain methods of ballast water management to deal with ballast water discharged in Australian seas. To ensure that a foreign vessel being towed by another vessel in Australian seas can meet its ballast water record obligation in situations where there is no crew on board the vessel to maintain 212


the ballast water records, a record on board the towing vessel is taken to be on board the foreign vessel. Part 6–Offence of disposing of sediment Division 1–Introduction Clause 297 Simplified outline of this Part This outline sets out the Part`s objectives. The Part creates an offence of disposing of sediment in Australian seas and the exceptions to the offence. Division 2–Offence of disposing of sediment Clause 298 Offence–disposing of sediment in Australian seas This clause creates a fault-based offence and a strict liability offence where the person in charge or operator of a vessel discharges sediment from the vessel in Australian seas. The maximum penalty for contravention of the fault-based offence is 2000 penalty units. The maximum penalty for contravention of the strict liability offence is 500 penalty units. Sediment includes all matter settled out of ballast water within the ships tanks (see clause 9 for definitions of sediment` and tank). It is acknowledged that the penalties available are higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. It should be noted that the offence and level of penalty are consistent with the benchmarks under the Protection of the Sea (Prevention of Pollution from Ships) Act. These provisions are consistent with the Australian Government`s international obligations to protect the marine environment. A court will still be able to consider the significance of the offence and the intent of the person to determine whether a lesser penalty than the maximum should be applied. A strict liability offence is appropriate in this context as there are public safety and public interest benefits in ensuring that this requirement is met and the person in charge or operator of a vessel can be reasonably expected to know about the restrictions imposed on the discharge of sediment because of their professional expertise. For this offence, the prosecution will have to prove the conduct of the accused person in charge or operator of a vessel, but not the fault elements of the offence (intention, knowledge, recklessness or negligence). However, the accused person will still be able to rely on the defence in the Criminal Code (Section 9.2) of honest and reasonable mistake of fact, or the exceptions provided in this Chapter. Clause 299 Exception–safety, accidents and pollution This clause provides a number of exceptions to the offence under clause 298. These exceptions provide that it will not be an offence to dispose of sediment due to an emergency, accident or to avoid or minimise pollution. It will be an exception to the offence to dispose of sediment under clause 298 if the disposal has occurred for reason of ensuring the safety of the vessel in an emergency or saving life at sea. It will also be an exception to the offence under clause 298 if the disposal has been accidental or as a result of damage to the vessel, or equipment on the vessel. To establish the exception, the person in charge, owner and the operator of the vessel must demonstrate that all reasonable 213


precautions to prevent or minimise the discharge were taken and that the damage was not intentional or reckless. It will also be an exception to the offence under clause 298 if the disposal of the sediment has occurred to avoid or minimise pollution from the vessel. An example of this would be a vessel carrying oil or hazardous substances that were in danger of capsizing or breaking up due to extreme weather conditions. In this instance releasing sediment to enable the vessel to be stabilised or to reduce structural stresses on the vessel would be acceptable. The defendant bears the evidential burden in relation to these exceptions, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. Part 7–Compliance and enforcement Division 1–Introduction Clause 300 Simplified outline of this Part This outline sets out the Part`s objectives. Under this Part the Director of Biosecurity and biosecurity officers are conferred enforcement powers, to require the production of ballast water records; issue directions not to discharge ballast water; and issue directions on the movement of the vessel. Division 2–Power to require owner of Australian vessel to provide ballast water records Clause 301 Power to require owner of Australian vessel to provide ballast water records This clause provides that a biosecurity officer may require the owner of an Australian vessel to provide a ballast water record that is required to be retained under clause 294. A biosecurity officer may make copies of, or take extracts from, a record and may remove the record for this purpose. A person who is required to produce a record under this clause must do so as soon as reasonably practicable. Australian vessels are subject to this requirement whether they are in Australian seas or not. The clause creates strict liability offence for failing to comply with the requirement to provide ballast water records. The maximum penalty for contravention is 80 penalty units. It is acknowledged that the penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. It should be noted that the offence and level of penalty are consistent with the offence in subsection 27(2) of the Protection of the Sea (Prevention of Pollution from Ships) Act which relates to complying with requirements of inspectors. These provisions are consistent with the Australian Government`s international obligations to protect the marine environment. A court would still be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. 214


A strict liability offence in is appropriate in this context as there are public safety and public interest benefit in ensuring that this requirement is met, and the person in charge or operator of a vessel can be reasonably expected to know about the restrictions imposed on the discharge of sediment because of their professional expertise. For this offence, the prosecution will have to prove the conduct of the accused person in charge or operator of a vessel, but not the fault elements of the offence (intention, knowledge, recklessness or negligence). However, the accused person will still be able to rely on the defence in the Criminal Code (Section 9.2) of honest and reasonable mistake of fact, or the exceptions provided in this Chapter. Division 3–Directions powers Clause 302 Directions not to discharge ballast water This clause provides that the Director of Biosecurity or a biosecurity officer may issue a direction to the person in charge of a vessel in Australian seas not to discharge ballast water. This power can be exercised if the Director or a biosecurity officer is satisfied that a sample of the ballast water indicates that the ballast water poses an unacceptable level of biosecurity risk, or if the procedures required in the ballast water management plan have not been implemented by the person in charge of the vessel or crew. There is a corresponding power to revoke or vary the direction. The Director of Biosecurity or biosecurity officer may direct the person in charge of the vessel not to discharge ballast water until conditions specified in the direction are met. These conditions must be for the purposes of reducing the biosecurity risks associated with the vessel to an acceptable level. These conditions may include, for example, carrying out a maintenance check on any ballast water treatment system to ensure that the system is working or requiring the person in charge of the vessel or crew demonstrate any ballast water procedures. This clause provides that the person in charge of the vessel must comply with the direction. A person who fails to comply with a direction given under this clause may commit an offence under clause 305. A direction may also be varied or revoked under clause 306. Clause 303 Directions about movement of vessel This clause provides that if the Director of Biosecurity has clear grounds for believing that an offence against this Chapter (except against clauses 267 or 268) has been committed by an Australian vessel; or a foreign vessel in, or proceeding to, a port in Australian territory then the Director can direct the person in charge of the vessel in certain ways. Directions can relate to: removing a vessel from a port as soon as practicable keeping the vessel out of a port taking the vessel to a repair yard or sediment reception facility as soon as practicable, and keeping the vessel in a specified location. A direction will be given to ensure the appropriate management of biosecurity risks associated with ballast water. For example, if a vessel`s ballast water treatment system is damaged, the Director may give a direction to take the vessel to a repair yard to have the ballast water treatment system repaired. The direction power will not apply in relation to offences against clauses 267 or 268 as these clauses assist with the assessment of risks associated with ballast water. Before issuing a direction under this clause the Director must take into account the principles affecting decisions to exercise certain powers (clause 32). The person in charge of the vessel must comply with the direction. A person who fails to comply with a direction given under this clause may commit an offence under clause 305. A direction issued under this clause is a reviewable decision under clause 574. 215


Clause 304 Directions about movement of vessel–variation or revocation This clause permits the Director of Biosecurity to either vary or revoke a direction in relation to the movement of the vessel made under clause 303. A decision to vary or revoke a decision under this clause is a reviewable decision under clause 574. See clause 306 for the manner of giving directions under this clause. This clause also permits the Director to require payment of a security by the person in charge of the vessel as a prerequisite for the variation or revocation of a direction. The criteria for the amount of security are also specified. A security may cover the cost of all penalties, and other costs and expenses that could be payable by the owner or person in charge of the vessel, in respect of each offence that was the basis of the direction given under clauses 302 or 303. Securities may be used to ensure that penalties or expenses payable in relation to a vessel are recoverable. For example, if a foreign vessel discharges untreated ballast water due to a faulty treatment system, a security may be obtained to cover the penalty, and the direction varied to allow the vessel to continue to a port outside of Australian territory for repairs. If the person in charge or operator is found to be at fault, the security could be used to cover the penalty (for a fault-based offence). If the person or operator is found to not be at fault, the security would be returned to the person or operator. Clause 305 Offence–contravening a direction This clause provides that a contravention of a direction from the Director of Biosecurity or a biosecurity officer under this Division is a strict liability offence. The maximum penalty for contravention is 2000 penalty units. It is acknowledged that the penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. It should be noted that the offence and level of penalty are consistent with the offence in subsection 27A(5) of the Protection of the Sea (Prevention of Pollution from Ships) Act. These provisions are consistent with the Australian Government`s international obligations to protect the marine environment. A court would still be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. A strict liability offence is appropriate in this context as there are public safety and public interest benefit in ensuring that this requirement is met, and the person in charge or operator of a vessel can be reasonably expected to know about the direction. For this offence, the prosecution will have to prove the conduct of the accused person in charge or operator of a vessel, but not the fault elements of the offence (intention, knowledge, recklessness or negligence). However, the accused person will still be able to rely on the defence in the Criminal Code (Section 9.2) of honest and reasonable mistake of fact, or the exceptions provided in this Chapter. This clause outlines the exceptions available for the person in charge of a vessel for reasons of safety, or saving life at sea. This clause also outlines that an offence does not occur if the contravention was accidental and resulted from damage to the vessel or its equipment, all reasonable efforts were made to comply with the direction and that the damage was not intentional or reckless. The defendant bears the evidential burden in relation to these exceptions, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable 216


possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. Clause 306 Manner of giving directions etc. This clause sets out that a direction or notice of revocation of a direction may be given or varied by any means of communication (including electronic means). If the direction is given, varied or revoked by a means other than in writing, a written notice setting out the direction, variation or revocation must be provided to the recipient. The clause clarifies that a written direction is not a legislative instrument for the purposes of section 5(1) of the Legislative Instruments Act. This is to recognise the fact that notice is administrative in nature. Part 8–Miscellaneous Clause 307 Compensation for undue detention or delay of vessel This clause implements Article 12 of the Ballast Water Convention which requires a reasonable amount of compensation to be paid to the owner of a vessel where a vessel is unduly detained or delayed under this Chapter (see clause 9 for definition of unduly detained or delayed). The purpose of this clause is to safeguard owners against financial loss if the vessel is detained longer than was required to ensure compliance or if there was no basis for the detention. The delay or detention of a vessel may cost the owner of the vessel a large amount of money for each day the vessel is not in service. This clause ensures that where a vessel is unduly detained or delayed the owner of the vessel can seek compensation for any costs of the delay, for example, any costs associated with not meeting delivery deadlines. This clause also provides that the owner may institute proceedings in a relevant court if the owner of the vessel and the Commonwealth do not agree on the amount of compensation (see clause 9 for the definition of relevant court). The court would then determine the reasonable amount of compensation for recovery from the Commonwealth. Clause 308 Prescribing matters by reference to other instruments This clause sets out an exception to the limitation on the incorporation by reference rule in section 14(2) of the Legislative Instruments Act as in force or existing from time to time. This is to allow the incorporation by reference of international instruments from the International Maritime Organization (such as guidelines issued under the Ballast Water Convention that are updated after meetings of the technical committees) into regulations. These may include guidelines on assessing methods of ballast water management, approving ballast water management plans or issuing ballast water management certificates. This is important as all decisions will be based on the latest guidelines, ensuring that Australia remains compliant with the Ballast Water Convention. It will also ensure that the regulations do not need to be amended each time an International Maritime Organization guideline changes. Instruments incorporated in the regulations under this clause are available on the International Maritime Organization`s website. 217


Chapter 6–Managing biosecurity risks: monitoring, control and response Part 1–Introduction Clause 309 Simplified outline of this Part This outline sets out the Part`s objectives. This Part modifies the definition of biosecurity risk for this Chapter only, sets out the main objects of this Chapter and provides that this Chapter does not apply in relation to certain goods and conveyances. This outline also notes that this Chapter may apply in a modified way during a biosecurity emergency period. Clause 310 Modified meaning of biosecurity risk This clause amends the definition of biosecurity risk` for the purposes of this Chapter to include the concept of emergence of a disease or pest`. The addition of emerge` in the definition of biosecurity risk will expand the coverage of the powers available in this Chapter to cover emerging pests and diseases that are found or already established in some parts of Australia and spread to other parts of Australia, such as Hendra virus. This Part also includes a separate definition of biosecurity risk relating to invasive pests. The amended definition of biosecurity risk relating to invasive pests` is consistent with the Convention on Biological Diversity 1992 (Biodiversity Convention). In particular, the clause refers to the potential for invasive pests to cause harm to ecosystems habitats or species`. This definition gives effect to Articles 7 and 8 of the Biodiversity Convention and allows the Commonwealth`s post-border powers to deal with quarantine pests and invasive pests (with some limitations–see clauses 25 and 26). The wording of this amended definition has been agreed to by the Department of Foreign Affairs and Trade and the Attorney-General`s Department`s Office of International Law. Clause 311 Objects of this Chapter This clause provides a concise overview of the Chapter`s objectives. The Chapter provides powers to assess, monitor and manage biosecurity risks posed by a disease or pest that may be present in or on goods and premises within Australian territory. The powers in this Chapter will not apply to all goods or conveyances in Australian territory (see clause 312). Note 2 outlines that unless otherwise stated in the provision, a reference to premises also includes conveyances or a part thereof (see paragraph (a) of the definition of premises` in clause 9). Note 4 outlines that before exercising a power under this Chapter a biosecurity official must be satisfied of the matters referred to in clause 32 (the principles). Clause 312 Application of this Chapter This clause limits the circumstances in which the powers in this Chapter can be used. This Chapter does not apply to goods which are subject to biosecurity control; the biosecurity risks associated with these goods will be managed under the provisions in Chapter 3, nor exposed goods in relation to which an exposed goods order is in force (see Division 9 of Part 1, Chapter 3). The biosecurity risks associated with conveyances which are subject to biosecurity control will be managed under Chapter 4. This limitation reflects the additional powers available in Chapter 3 and Chapter 4 and the different sources of risk caused by goods and conveyances that come into Australia from overseas (and are subject to biosecurity control). The powers in this Chapter may be used in relation to all other goods, conveyances and premises where a biosecurity officer suspects on reasonable grounds that a disease or pest may pose an 218


unacceptable level of biosecurity risk. For example, the powers would be available to assess and manage biosecurity risk associated with a horse stable that a biosecurity officer reasonably suspects may be contaminated with Hendra virus. Part 2–Assessment of level of biosecurity risk Division 1–Introduction Clause 313 Simplified outline of this Part The outline sets out the Part`s objectives. The Part provides powers to assess the level of biosecurity risk posed by a disease or pest that may be in or on goods or premises in Australian territory. This Part also sets out the circumstances in which the powers may be exercised, the threshold test for exercising the powers and the purposes for which the powers can be exercised. In addition, it provides offences for contravening directions or requirements made in line with the biosecurity risk assessment powers. Division 2–Circumstances in which biosecurity risk assessment powers may be exercised Clause 314 Reasonable suspicion that disease or pest may pose unacceptable level of biosecurity risk This clause outlines the circumstances in which a biosecurity officer can use the powers within Division 3 of this Part to establish the presence of a disease or pest, identify the disease or pest (if possible) or assess the level of biosecurity risk posed by the disease or pest. Before a power can be exercised under Division 3 of this Part, a biosecurity officer must suspect on reasonable grounds that a disease or pest is present in or on goods or premises and that the disease or pest may pose an unacceptable level of biosecurity risk. The threshold test for using the assessment powers in this Chapter is different from the tests in Chapter 3 and Chapter 4, where a biosecurity officer can assess a good or conveyance because it is subject to biosecurity control without having to form a suspicion about the risk associated with that particular good or conveyance. The higher threshold reflects that the powers in this Part are used to assess biosecurity risks associated with goods and premises within Australian territory and has been set at a level that considers the impact of the powers on an individual, goods or premises. In exercising the powers set out in Division 3 of this Part, a biosecurity officer or a biosecurity enforcement officer may be assisted by other people, for example, someone can assist by setting up monitoring equipment (see note 4 of this clause, and clause 536). The application of clause 312 means that the assessment powers in this Chapter must not be exercised in relation to goods or conveyances that are subject to biosecurity control or goods in relation to which an exposed goods order is in force. The application of clause 32 means that the powers in this Division must be exercised in accordance with the principles set out in that clause. Clause 315 Exercise of biosecurity risk assessment powers in premises This clause outlines that a biosecurity officer or biosecurity enforcement officer may enter any premises in Australian territory (noting that a premises may include a conveyance which is not subject to biosecurity control), for the purposes outlined in clause 314. These purposes are to establish whether a disease or pest is present in or on the goods or premises, to identify the disease or pest (if possible) and to assess the level of biosecurity risk posed by the disease or pest. 219


This clause also provides that a biosecurity officer or a biosecurity enforcement officer will not be authorised to enter a premises unless the occupier of the premises has consented to the entry, or where the entry is made under a biosecurity risk assessment warrant (see Part 3 and Division 3 of Part 4, of Chapter 9). If the occupier of the premises has required that identification be shown, an officer cannot enter premises by consent unless the officer has shown their identity card. This is intended to assure an occupier of the identity of the officer. This clause notes that if the premises can only be accessed by entering other premises, the officer may require an adjacent premises warrant (see Division 2 of Part 4, Chapter 9). This type of warrant will allow an officer to enter adjacent premises to get to other premises where the officer needs to exercise biosecurity risk assessment powers. Division 3–Biosecurity risk assessment powers Clause 316 Application of this Division This clause provides that the biosecurity risk assessment powers set out in this Division may be exercised in relation to goods or premises for any of the purposes referred to in clause 314. The powers can be used to: establish whether a disease or pest is present in or on the goods or premises; identify the disease or pest (if possible), and assess the level of biosecurity risk posed by the disease or pest. Clause 317 Directions to secure goods or conveyance This clause provides a biosecurity officer with the power to secure goods or a conveyance. A biosecurity officer may direct the person in charge of goods or a conveyance to secure the goods or conveyance in accordance with the biosecurity officer`s instructions. Securing the goods or conveyances will allow a biosecurity officer to exercise the other assessment powers in this Division and ensures that any biosecurity risks associated with the goods or conveyance do not spread. A direction to secure a conveyance must not be for a period longer than 48 hours, but another direction can be given once this period expires under subsection 33(1) of the Acts Interpretation Act 1901. Placing a time period over how long a conveyance can be secured ensures that the conveyance is only secured for as long as is necessary to assess the level of biosecurity risk and inconveniences the person in charge or the operator as little as possible. This power cannot be exercised in relation to premises (other than a conveyance) such as a building, structure or piece of land. Entry and exit requirements for premises (other than a conveyance) can only be imposed when managing biosecurity risks–either through a biosecurity control order (see subclause 353(2)) or if a biosecurity response or activity zone has been determined (see subclauses 365(2) and 399). A person who contravenes a direction to secure the goods or conveyance is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. Where a person is given a direction to secure the goods or conveyance in accordance with a biosecurity control order or a biosecurity response zone determination and the person contravenes that direction, he or she may commit an offence under clause 327. 220


Clause 318 Inspections and taking samples of goods or premises This clause provides a biosecurity officer with the power to inspect and take samples of goods and premises (including a conveyance). It allows a biosecurity officer to inspect goods or premises. The meaning of inspect is not defined in the legislation so has its ordinary dictionary meaning. A biosecurity officer may inspect, search and physically examine the goods or premises. This clause allows a biosecurity officer to take samples of the goods or premises personally. Alternatively, the officer may direct a person in charge of the goods or premises to deliver samples of the goods or premises, or arrange for a person with appropriate qualifications or expertise to take samples of the goods or premises. For example, where a premises or goods are in a remote location, the biosecurity officer may arrange for a person to take samples and send them to the biosecurity officer to be tested. A person in charge of a premise (other than a conveyance) means the owner or the occupier of the premises. See clause 22 for definition of person in charge of goods or a conveyance. This clause also allows for a biosecurity officer, or another appropriately qualified person as arranged by a biosecurity officer, to carry out tests on any samples taken or delivered as directed A person who contravenes a direction to provide or deliver a sample as directed is liable to a civil penalty. The maximum civil penalty for a contravention of this clause is 120 penalty units. Where a person in charge of goods or premises is given a direction to take a sample of a good or premises in accordance with a biosecurity control order or a biosecurity response zone determination and the person contravenes that direction, he or she may also commit an offence under clause 327. Clause 319 Asking questions about goods or premises This clause provides a biosecurity officer with the power to require a person to answer questions or provide information in writing in relation to goods or premises (including conveyances) where the biosecurity officer reasonably suspects the person has information in relation to the goods or premises. This power will be used to gather relevant information that may contribute to the effective identification of the pest or disease, assessment of whether the pest or disease is present in or on the goods or premises or the management of the level of biosecurity risk posed by the pest or disease. For example, a biosecurity officer may ask questions or seek information about the previous movements of goods or a conveyance in order to determine where the suspected pest or disease came from, or whether the disease or pest has spread to these locations. A person who contravenes the requirement to answer questions or provide information is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. In addition, section 137.1 of the Criminal Code and clause 532 of this Act create an offence and civil penalty for providing false or misleading information. This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this provision is high, as it will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and put appropriate biosecurity measures in place to address that risk. Given the potential seriousness of the biosecurity risk and the need for a timely response it is not preferable to wait for a warrant to be issued to obtain this information. For example, an outbreak of a disease such as foot-and-mouth has the potential to cause significant and long term damage to the reputation of Australian industries and the reputation of Australia overseas. This could also 221


have adverse impacts on other industries and communities not affected by the initial outbreak. It may also result in increased costs associated with controlling pests and diseases. Whilst the privilege against self-incrimination is abrogated in relation to this clause, the Bill provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person (see clause 635). Where a person is required to answer questions or provide information in writing in accordance with a biosecurity control order or a biosecurity response zone determination and the person contravenes that requirement, he or she may also commit an offence under clause 328. Clause 320 Requiring documents relating to goods or premises to be produced This clause provides biosecurity officers with the power to require a person to produce documents in relation to goods or premises (including conveyances). Where a biosecurity officer suspects on reasonable grounds that a person has custody or control of documents in relation to the goods or premises, the biosecurity officer may require that person to produce those documents to the biosecurity officer. This power will be used to gather relevant documents relating to the goods or premises (such as previous import permits, or receipts providing proof of purchase) that will contribute to the purposes of the Chapter outlined in clause 312. A person who contravenes the requirement to produce documents is liable to a civil penalty. The maximum civil penalty for a contravention of this clause is 120 penalty units. In addition, section 137.2 of the Criminal Code and clause 533 of this Act create an offence and civil penalty for providing false or misleading information. Clause 320 is not subject to the privilege against self-incrimination (see clause 635). For the reasons discussed in clause 319, the privilege against self-incrimination is abrogated to allow biosecurity officers to effectively assess risks by ensuring timely access to documents and information to ensure that appropriate measures are in place to manage the entry, emergence, establishment or spread of the disease or pest. The protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person also applies (clause 635). Where a person is required to produce documents in accordance with a biosecurity control order or a biosecurity response zone determination and the person contravenes that requirement, he or she may commit an offence under clause 329. Clause 321 Movement etc. of goods or conveyance This clause provides a biosecurity officer with the power to give directions to a person in charge of goods or a conveyance. A biosecurity officer will be able to give a direction to not move, deal with or interfere with the goods or a conveyance. This power will be used to ensure that the biosecurity risk posed by any potential pests or diseases in or on the goods or conveyance are contained and not spread. In addition, a biosecurity officer may give a direction that the goods or conveyance be moved, as soon as practicable, to a place specified by a biosecurity officer, or any direction relating to the movement of the goods or conveyance. This will allow a biosecurity officer to direct goods or a conveyance be moved to any area to lower the level of biosecurity risk posed (such as directing timber products to be moved away from forested areas). 222


A biosecurity officer will also have the ability to cause goods or a conveyance to be moved. This means that a biosecurity officer will be able to direct another person to carry out the movement instruction. This power can be used where a person in charge contravenes a direction to move the good or conveyance. This clause does not apply to premises (other than a conveyance), such as a building or areas of land, as it is not possible for these premises to be moved to another location. A person who contravenes a direction to relating to the goods or conveyance is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. Where a person in charge of goods or a conveyance is given a movement direction in relation to the goods or conveyance in accordance with a biosecurity control order or a biosecurity response zone determination and the person contravenes that direction, he or she may also commit an offence under clause 327. Clause 322 Biosecurity officer may affix notice to goods or conveyance Clause 323 Unauthorised persons must not move etc. goods or conveyance to which notice has been affixed Clause 322 allows a biosecurity officer to affix a notice to, or as near as reasonably practicable to, goods or conveyances that are subject to a direction to be secured or a movement direction (see subclauses 317(1) or, paragraphs 321(1)(a) or (b)). Under clause 322 the notice is required to state that: a disease or pest may be present in or on the goods or conveyance the disease or pest may pose an unacceptable biosecurity risk the goods or conveyance have been secured or moved in accordance with this Chapter, to enable a biosecurity officer to exercise powers under this Chapter, and a person may be liable to a civil penalty or offence if that person does any of the conduct that is outlined under subclauses (3) and (4) of this clause, clause 323 or clause 330 (for example remove or deface the notice without authorisation). The notice is designed to inform people that a good or conveyance may pose a biosecurity risk and to provide a mechanism to communicate to people that the good or conveyance is subject to a direction to be secured, or subject to a movement direction. The notice also ensures that a person is aware of the potential penalties associated with contravention of this clause and related clauses. The clauses also provides that a person who interferes with, removes or defaces the notice (clause 322), or moves, deals or interferes with goods or conveyances to which a notice is affixed (clause 323) without authorisation or permission is liable to a civil penalty. The maximum civil penalty for a contravention is 120 penalty units. It will be an exception to be authorised under this Act or another Australian law to move, interfere or deal with the goods. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. Where a notice has been affixed to, or as near as practicable to, goods or a conveyance in accordance with a biosecurity control order or a biosecurity response zone determination and the person moves or interferes with the good or conveyance, he or she may also commit an offence under clause 330. 223


Clause 324 Operating electronic equipment on premises This clause provides for a biosecurity enforcement officer to operate electronic equipment on the premises for a purpose for which the premises was entered and use a disk, tape or other storage device that is on the premises and can be used with the equipment or is associated with it. If any relevant data is found on the electronic equipment or associated or compatible disk, tape or other storage device, a biosecurity enforcement officer can exercise the powers outlined in subclause (4). Relevant data` means information relevant to a purpose for which the premises were entered. The data stored or accessed through electronic equipment may be relevant to assessing the level of biosecurity risk. Additional powers of biosecurity enforcement officers are outlined in subclause (4), which also allows a biosecurity enforcement officer to: operate electronic equipment on the premises to put the relevant data into documentary form and remove the documents from the premises, and operate electronic equipment on the premises to transfer the relevant data to a disk, tape or other storage device (that is brought to the premises for the exercise of the power or is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises) and remove the disk, tape or other storage device from the premises. Under subclause (4) a biosecurity enforcement officer may only operate electronic equipment as outlined above if the officer believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment. This ensures that officers take due care with equipment that is likely to be valuable to the occupier of the premises when obtaining the information required to effectively assess biosecurity risks. If a biosecurity enforcement officer causes damage to electronic equipment, clause 326 outlines the circumstances when the Commonwealth is liable to pay compensation. Clause 325 Expert assistance to operate electronic equipment This clause allows a biosecurity enforcement officer to exercise the power to secure electronic equipment on the premises if the officer enters premises under a relevant warrant (that is, a biosecurity risk assessment, biosecurity control order or biosecurity response zone warrant) and that warrant authorises the officer to exercise those powers. A biosecurity enforcement officer may secure electronic equipment on premises if the officer suspects on reasonable grounds that: there is relevant data on the premises the relevant data may be accessible by operating the equipment expert assistance is required to operate the equipment, and the relevant data may be destroyed, altered or otherwise interfered with if action to secure the equipment is not taken. The equipment may be secured by locking it up, placing it under guard or any other means. This allows a biosecurity enforcement officer to secure equipment that may have relevant information on it but requires a person with a higher level of expertise than the officer to access it. A biosecurity enforcement officer must give notice to the occupier of the premises, or another person who apparently represents the occupier, of the intention to secure the equipment and the fact that it may be secured for up to 24 hours. This ensures that the occupier of the premises is informed about what actions are being taken with regard to their property and for how long. This also gives the biosecurity enforcement officer time to locate an expert and for that expert to 224


access the relevant information the officer suspects is on the premises or accessible by operating the equipment. The equipment may then be secured for up to 24 hours, or until it has been operated by an expert, whichever occurs earlier. This ensures that the equipment is only secured, and the occupier inconvenienced, for as long as is necessary to obtain the relevant information. If a biosecurity enforcement officer causes damage to electronic equipment, clause 326 outlines the circumstances when the Commonwealth is liable to pay compensation. A biosecurity enforcement officer may apply to an issuing officer for an extension of the 24-hour period if the officer believes on reasonable grounds that the equipment needs to be secured for longer than 24 hours. Before making an application for an extension, the biosecurity enforcement officer must give notice to the occupier of the premises, or another person who apparently represents the occupier, of the officer`s intention to apply for an extension. The occupier or other person is entitled to be heard in relation to that application. Allowing the occupier a chance to be heard in relation to an application ensures procedural fairness by allowing the occupier to provide information that might be relevant to the issuing officer`s final decision. The 24-hour period may be extended more than once. An extension to the 24-hour period is intended to give the biosecurity enforcement officer more time to locate an expert and for that expert to access the information if it is required. Clause 326 Compensation for damage to electronic equipment This clause provides for the circumstances in which persons can be paid reasonable compensation for damage done to electronic equipment. The Commonwealth is liable to pay a reasonable amount of compensation where electronic equipment has been operated as mentioned in this Division and as a result: the equipment is damaged data recorded on the equipment is damaged programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted, or damage or corruption occurs: because insufficient care was exercised in selecting the person who was to operate the equipment, or because insufficient care was exercised by the person operating the equipment. If the Commonwealth and the owner, or user, of the equipment, data, or programs cannot agree to the compensation amount, the owner, or user, may institute proceedings in a relevant court, for the Court to determine the reasonable amount to be recovered from the Commonwealth. This ensures fair procedures are in place if the owner or user disagrees with a determination of the compensation amount by the Commonwealth. However, in determining the amount of compensation payable regard is to be had to whether the occupier provided any appropriate warning or guidance on the operation of the equipment. This ensures that the occupier provides sufficient warning or guidance when electronic equipment is being operated so as to minimise the circumstances when damage would occur and compensation would then become payable. 225


Division 4–Offences Clause 327 Contravention of direction Clause 328 Contravention of requirement to answer questions etc. Clause 329 Contravention of requirement to produce documents Clause 330 Unauthorised persons must not move etc. goods or conveyance to which notice has been affixed This Division creates offences for contravening a direction or requirement under this Part. These clauses modify the civil penalty provisions within Division 3 of this Part to create fault based offences in certain circumstances (see subclauses 317(2), 318(4), 319(2), 320(3), 321(2) and 323(1) for civil penalties). These offences only apply in relation to contraventions relating to powers that are exercised in accordance with a biosecurity control order or a biosecurity response zone determination. For example, it will be an offence to contravene a direction to secure a good where that direction was given in relation to a biosecurity response zone. This distinction reflects the greater potential consequences for not complying with a requirement or direction when a biosecurity officer is using their powers to manage biosecurity risk rather than using their powers to assess whether there is a risk to manage. A person who contravenes one of these clauses commits an offence. The maximum penalty for contravention of these clauses is five years imprisonment, or 300 penalty units, or both. It will be an exception to be authorised under this Act or another Australian law to move, interfere or deal with the goods. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. The criminal penalties available are higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If directions are not complied with, significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia`s local industries, the environment and the economy. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. Part 3–Biosecurity measures to manage unacceptable level of biosecurity risk Division 1–Introduction Clause 331 Simplified outline of this Part This outline sets out the Part`s objectives. This Part provides a list of powers, including biosecurity measures, which may be used for the purpose of managing biosecurity risks posed by a disease or pest that may be present in or on the goods or premises in Australian territory. These powers include the ability to impose entry or exit requirements in relation to premises, to direct treatment and destruction of goods and premises, powers provided for in the regulations and other powers. These powers can only be exercised if the power is specified in a: 226


biosecurity control order that relates to the goods or premises, or biosecurity response zone determination that relates to the goods or premises (and the goods or premises are within the biosecurity response zone). The application of clause 32 means that the powers in this Division must be exercised in accordance with the principles set out in that clause. Additionally, the Part sets out offences and civil penalty provisions that apply for contraventions of the clauses in this Part. Division 2–Powers that may be exercised: general Subdivision A–Circumstances in which powers may be exercised Clause 332 Circumstances in which powers set out in this Division may be exercised This clause outlines that powers can be exercised in relation to goods or premises in Australian territory under a biosecurity control order, or goods and premises within a biosecurity response zone. In order to exercise these powers, the powers must relate to the goods or premises and be listed in the biosecurity control order (see clause 353) or in the biosecurity response zone determination (see clause 365). A power that is listed in a biosecurity control order or a biosecurity response zone determination must be exercised for the purpose of managing the biosecurity risks posed by a disease or pest to which the order or zone determination relates. The application of clause 32 means that the powers in this Division must be exercised in accordance with the principles set out in that clause. Subclause (2) notes that this clause has effect subject to subclause 399(2) which allows the powers set out in clauses 333 and 334 relating to entry and exit requirements to be exercised in a biosecurity activity zone. Subdivision B–Powers relating to entry to and exit from premises Clause 333 Entry and exit etc. requirements–persons This clause outlines the powers that a biosecurity officer may exercise in relation to premises (including conveyances). This clause provides that a biosecurity officer may, by notice in writing, impose requirements, in relation to the premises including that: people enter or leave the premises at specific places specified classes of people not enter the premises people entering or in the premises wear specified clothing or equipment or both, and people not interfere with the premises. A notice under this clause must be affixed at each entry and exit point of the premises. This clause clarifies that the notice is not a legislative instrument for the purposes of section 5(1) of the Legislative Instruments Act 2003. This is to recognise the fact that the notice is administrative in nature. If there is a requirement imposed that people wear specified clothing or equipment it must be designed to prevent a disease or pest from emerging, establishing itself or spreading in the premises, the notice advising of this requirement must also specify the circumstances and the timing or period the person is required to wear the clothing or equipment, or both (for example, disposable covers to place over a person`s shoes). This power will be used to manage the risks associated with people spreading a pest or disease from the premises. 227


This clause also imposes a limitation on the exercise of this power. Except as permitted by this clause, a notice cannot require an individual to be subject to a measure of a kind that is set out in Subdivision B of Division 3 of Part 3, Chapter 2. The measures in that subdivision can only be included in a human biosecurity control order. These limitations ensure that the processes and safeguards in relation to requiring biosecurity measures under Chapter 2 remain in place. The Director of Biosecurity or biosecurity officers will be able to require decontamination measures under Subdivision B of Division 2 of Part 4 of Chapter 10. A person may commit an offence or be liable to a civil penalty for contravention of a requirement under this clause (see clause 349). Clause 334 Entry and exit etc. requirements–goods and conveyances This clause outlines the powers that a biosecurity officer may exercise in relation to premises (including conveyances). This clause provides that a biosecurity officer may, by notice in writing, impose requirements in relation to the premises including that: a person brings goods on to the premises at specified places specified classes of goods not be brought on to the premises conveyances enter or leave the premises at specified places, and specified classes of conveyances are not to enter the premises. Similar to clause 333, this power will be used to manage the risks associated with people spreading a pest or disease from premises. A notice under this clause must be affixed at each entry and exit point of the premises. The clause clarifies that an exposed goods order is not a legislative instrument for the purposes of section 5(1) of the Legislative Instruments Act 2003. This is to recognise the fact that the notice is administrative in nature. A person may commit an offence or be liable to a civil penalty for contravention of a requirement under this clause (see clause 349). Subdivision C–Powers relating to treatment of goods, conveyances and other premises Clause 335 Treatment of goods This clause provides biosecurity officers with the power to require goods to be treated in a specified manner. If the goods are high-value goodsthat is the value of the goods is greater than the amount prescribed in the regulationsthe goods must not be treated in a way that the biosecurity officer reasonably suspects may damage the goods without the written approval of the Director of Biosecurity. This extra step reflects the impact that ordering such a treatment might have on the owner of the goods and the potential loss of value caused by the treatment. Regardless of the value of the goods, if the treatment might damage the goods, a person in charge must be asked to agree to the treatment (see clause 336). This power ensures that biosecurity officers can order necessary treatments for goods to manage biosecurity risks and reduce those risks to an acceptable level. For example, a biosecurity officer may require goods with an ant infestation to be fumigated. Clause 336 Treatment that may damage goods This clause outlines the notification requirements where treatment may damage goods. Where a biosecurity officer suspects on reasonable grounds that a treatment specified under clause 335 may damage goods, the officer must provide a notice in writing to a person in charge of the goods 228


informing them that the goods are required to be treated and the goods may be damaged. The notice will also request that the person agree to the treatment. A biosecurity officer will be able to carry out the specified treatment without having to meet the notification requirements if: the officer suspects, on reasonable grounds, that a disease or pest that may be present in or on the goods poses an high level of biosecurity risk, and the officer is satisfied that the goods must be treated as soon as practicable to reduce the biosecurity risk to an acceptable level. This recognises that in certain circumstances, the delay caused by following the notification process outlined in this clause would mean that pests or diseases that potentially pose a high biosecurity risk may have the opportunity to emerge, establish or spread in Australian territory. If a notice is given requesting agreement to treatment and a person in charge of the goods does not agree to the treatment in writing within 30 days of receiving the notice, a biosecurity officer may request in writing that the person arrange for the goods to be dealt with, or destroyed, in a manner and within the period specified in the request. This period allows adequate time for the person in charge of the goods to decide how to deal with the notice and any subsequent request. If the goods are not dealt with, or destroyed, in a manner and within the period specified in the request then a biosecurity officer may take possession of the goods and cause them to be destroyed or otherwise disposed of. These notification processes give a person in charge of goods a reasonable opportunity to address the biosecurity risks associated with the goods, with appropriate consequences if the biosecurity risks have not been managed as required. This clause excludes a biosecurity industry participant from the definition of person in charge` of goods, if the biosecurity industry participant is in possession or control of goods only because of a direction given to the participant by a biosecurity officer. This reflects that it would not be appropriate for the biosecurity industry participant to agree to treatment that may damage goods where they do not have a relationship to the owner of the goods and the goods are only in their possession because of the actions of the biosecurity officer. Clause 337 Treatment of conveyance This clause provides a biosecurity officer with the power to require a conveyance to be treated in a specified manner. If the conveyance is a high-value conveyancethat is the value of the conveyance is greater than the amount prescribed in the regulationsthe conveyance must not be treated in a way that the biosecurity officer reasonably suspects may damage the conveyance without the written approval of the Director of Biosecurity. This extra step reflects the impact that ordering such a treatment might have on the owner of the conveyance and the potential loss of value caused by the treatment. Regardless of the value of the conveyance, if the treatment might damage the conveyance, a person in charge or operator of the conveyance must be asked to agree to the treatment (see clause 338). Clause 338 Treatment that may damage conveyance This clause outlines the notification requirements where treatment may damage a conveyance. Where a biosecurity officer suspects on reasonable grounds, that a treatment specified under clause 337 may damage a conveyance, the officer must provide a notice in writing to a person in 229


charge or the operator of the conveyance informing them of the treatment requirement and that the conveyance may be damaged. The notice will also request that the person agree to the treatment. A biosecurity officer will be able to carry out the specified treatment without having to meet the notification requirements if: the officer suspects, on reasonable grounds, that a disease or pest that may be present in or on the conveyance which poses an high level of biosecurity risk, and the officer is satisfied that the conveyance must be treated as soon as practicable to reduce the biosecurity risk to an acceptable level. This recognises that in certain circumstances, the delay caused by following the notification process outlined in this clause would mean that pests or diseases that potentially pose a high biosecurity risk have the opportunity to emerge, establish or spread in Australian territory. If a notice is given requesting agreement to treatment and a person in charge or operator of a conveyance does not agree to the treatment in writing within 30 days of receiving the notice, a biosecurity officer may request in writing that the person in charge or the operator arrange for the conveyance to be dealt with, or destroyed, in a manner and within the period specified in the request. This period allows adequate time for the person in charge or operator to decide how to deal with the notice and any subsequent request. If the conveyance is not dealt with, or destroyed, in a manner and within the period specified in the request then a biosecurity enforcement officer may take possession of the conveyance. Once a biosecurity enforcement officer is in possession of the conveyance, a biosecurity officer may cause the conveyance to be disposed of or–with the written approval of the Director of Biosecurity–destroyed. However, a biosecurity enforcement office must not take possession of a conveyance unless the owner of the conveyances has consented to the possession in writing, or the possession is authorised by a conveyance possession warrant (for issue of these warrants see Part 3, and Division 3 of Part 4, of Chapter 9). A biosecurity enforcement officer is required for this process given a warrant may be required. These notification processes give a person in charge or operator of a conveyance a reasonable opportunity to address the biosecurity risks associated with the conveyance, with appropriate consequences if the biosecurity risks have not be managed. If the conveyance is to be destroyed under this clause, a biosecurity officer may cause any goods on board the conveyance to be removed before the conveyance is destroyed. This power may be used in circumstances where the risk posed by the conveyance is not transferred to the goods and also recognises that the goods may be owned by a different person to the conveyance. Clause 339 Treatment of premises (other than a conveyance) This clause provides biosecurity officers with the power to require premises (other than conveyances) to be treated in a specified manner. This clause applies in relation to premises that are a structure or building or part of a structure or building. Conveyances are treated under clause 337. Premises under this clause must not be treated in a way that the biosecurity officer reasonably suspects may damage the premises, without the written approval of the Director of Biosecurity. This extra step reflects the impact ordering such a treatment might have on the owner of the premises and the potential loss of value caused by the treatment. If the treatment might damage the premises, the owner of the premises must be asked to agree to the treatment (see clause 340). 230


Clause 340 Treatment that may damage premises (other than a conveyance) This clause outlines the notification requirements where treatment may damage premises. This clause outlines the requirements for notifying the owner of premises (other than a conveyance) where a biosecurity officer suspects on reasonable grounds that the treatment required under clause 339 is likely to damage the premises. This clause provides that the officer must give notice in writing to the owner of the premises informing them of the requirement of treatment of the premises in a specified manner and the likelihood of damage to the premises. The notice will also request that the owner agree to the treatment of the premises. If a biosecurity officer cannot, despite making reasonable efforts, locate the owner of the premises and the owner of the premises is not the occupier of the premises, then the officer must give the written notice to the occupier. This notice must inform the occupier that the premises is required to be treated in a specified manner and the treatment is likely to damage the premises and request the occupier to agree to the treatment of the premises. A biosecurity officer will be able to carry out the specified treatment without having to meet the notification requirements to either the owner or the occupier if: the officer suspects, on reasonable grounds, that a disease or pest may be present in or on premises which poses an high level of biosecurity risk, and the officer is satisfied that the premises must be treated as soon as practicable to reduce the biosecurity risk to an acceptable level. This recognises that in certain circumstances, the delay caused by following the notification process outlined in this clause would mean that pests or diseases that potentially pose a high biosecurity risk have the opportunity to emerge, establish or spread in Australian territory. If the biosecurity officer cannot, despite making reasonable efforts, give notice to the owner or occupier of the premises, or the treatment must be carried out as soon as practicable due to an unacceptable level of biosecurity risk, the biosecurity officer must affix a notice to, or as near as reasonably practicable to, the premises, stating that: a pest or disease may be present in or on the premises the disease or pest may pose an unacceptable level of biosecurity risk the premises are required to be treated in a specified manner for the purpose of managing the biosecurity risk, and the treatment is likely to damage the premises. This process ensures that there is appropriate notification about a treatment that may damage premises, even if the owner or occupier cannot be given the notice. The notification processes also give an owner or occupier of the premises a reasonable opportunity to address the biosecurity risks associated with the premises, with appropriate consequences if the biosecurity risks have not be managed as required. Clause 341 Dealing with premises (other than a conveyance) if owner does not agree to treatment etc. This clause provides options to a biosecurity officer in a situation where the owner of the premises (other than a conveyance) does not consent to treatment requested in a notice issued under clause 340. If notice is given to an owner requesting agreement to treatment, and the owner does not agree to the treatment or does not respond to the notice within 30 days, a biosecurity officer may request that the owner arrange for the premises to be dealt with, or destroyed, in a manner and within the period specified in the request. This period allows adequate time for the owner to decide how to 231


deal with the notice and any subsequent request. A request to arrange for premises to be destroyed may only relate to premises that are a structure or building or part of a building or structure. If the premises is not dealt with, or destroyed, in a manner and within the period specified in the request then a biosecurity enforcement officer may take possession of the premises. Where notice has been affixed to, or as near as practicable to, the premises in accordance with subclause 340(6) (if the owner or occupier cannot be located), a biosecurity enforcement officer may–at any time after the end of 30 days after the notice is affixed–take possession of the premises. Once a biosecurity enforcement officer is in possession of the premises, a biosecurity officer may cause the premises to be treated or–with the written approval of the Director of Biosecurity– destroyed. However, a biosecurity enforcement officer must not take possession of premises unless the owner of the premises has consented in writing or the taking of possession is authorised by a premises possession warrant (see Part 3, and Division 3 of Part 4, Chapter 9). This extra step is required in the case of premises because of the monetary value of premises and the potential loss of value caused by the treatment. Ensuring that this process is completed with consent, or through a warrant process, provides further protection for the people affected by this decision. A biosecurity enforcement officer is required in these circumstances given a warrant may be required. This clause further provides that if there are goods in or on premises that are going to be destroyed, the biosecurity officer may cause these goods to be removed first. This power may be used in circumstances where the risk that is posed by the premises is not transferred to the goods and also recognises that the goods may be owned by someone different to the premises. These notification processes give an owner reasonable opportunity to address the biosecurity risks associated with the premises, with appropriate consequences if the biosecurity risks have not been managed. Subdivision D–Powers relating to destruction of goods, conveyances and other premises Clause 342 Destruction of goods This clause provides biosecurity officers with the power to require–subject to the notification requirements and review period–that goods be destroyed, where the biosecurity officer suspects on reasonable grounds that the goods cannot be effectively treated to reduce the biosecurity risk to an acceptable level. If the goods are high-value goodsthat is the value of the goods is greater than the amount prescribed in the regulationsthe goods must not be destroyed without the written approval of the Director of Biosecurity. The decision to give approval for high-value goods to be destroyed is a reviewable decision under clause 574. Before taking action under clause 347 for the high-value goods to be destroyed, a biosecurity officer must give notice to the owner of the goods stating that the goods are to be destroyed and the reasons for destruction. However high-value goods may be destroyed without this notice being given to the owner if a biosecurity officer has: not been able, despite making reasonable efforts, to locate the owner of the goods, and certified in writing to that effect. If a biosecurity officer cannot–despite making reasonable efforts–locate the owner of the goods, the goods may be forfeited to the Commonwealth (see clause 627). 232


Unless the biosecurity officer has not been able to locate the owner, high-value goods must not be destroyed until after any review or related proceedings (including any appeal) have been finalised. This reflects the monetary value of high-value goods, and that their destruction may cause monetary loss to the owner (see clause 345). In addition, the owner of the destroyed goods may be entitled to compensation (see clauses 633 and 634). It is appropriate that compensation is available in these situations so that persons are not discouraged from reporting biosecurity risks from concerns over loss of their property. Clause 343 Destruction of conveyance This clause provides biosecurity officers with the power to require–subject to the notification requirements and review period–that a conveyance be destroyed, where the biosecurity officer suspects on reasonable grounds that the conveyance cannot be effectively treated. The conveyance cannot be destroyed without the written approval of the Director of Biosecurity. The decision to give approval for the conveyance to be destroyed is a reviewable decision under clause 574. Before taking action under clause 347 for the conveyance to be destroyed, a biosecurity officer must give notice to the owner or operator of the conveyance stating that the conveyance is to be destroyed, the reasons for destruction and requesting the owner of the operator of the conveyance arrange for the conveyance to be destroyed within the period specified on the notice. However, the conveyance may be destroyed without this notice being given to the owner or operator if a biosecurity officer has: not been able, despite making reasonable efforts, to locate the owner or operator of the conveyance, and certified in writing to that effect. If a biosecurity officer cannot–despite making reasonable efforts–locate the owner or operator of the conveyance, the conveyance may be forfeited to the Commonwealth (see clause 630). Unless the biosecurity officer has not been able to locate the owner or operator of the conveyance, the conveyance must not be destroyed until after any review or related proceedings (including any appeal) have been finalised (see clause 345). This reflects the monetary value of the conveyance and that its destruction may cause monetary loss to the owner. In addition, the owner of the destroyed conveyance may be entitled to compensation (see clauses 633 and 634). It is appropriate that compensation is available in these situations so that persons are not discouraged from reporting biosecurity risks from concerns over loss of their property. If notice has been given to an owner or operator of the conveyance and the conveyance has not been destroyed in the specified manner, or a biosecurity officer has certified the owner or operator cannot be located, a biosecurity enforcement officer may take possession of the conveyance and with the written approval of the Director of Biosecurity– take action under clause 347 for the conveyance to be destroyed. A biosecurity enforcement officer will only be able to take possession of a conveyance–to destroy the conveyance–with the consent of the owner or operator of the conveyance or under a conveyance possession warrant (see Part 3, and Division 4 of part 4, Chapter 9). This requirement does not apply in relation to a conveyance which has been forfeited to the Commonwealth. Ensuring that this process is completed with consent or oversighted through a warrant process provides further protection for the people affected by a decision to destroy a conveyance. 233


Before the conveyance is destroyed, a biosecurity officer may cause any goods on board the conveyance to be removed. This power may be used in circumstances where the risk posed by the conveyance is not transferred to the goods. This power recognises that the goods on board the conveyance may be owned by a different person to the conveyance. Clause 344 Destruction of premises This clause applies to structures, buildings or a part of a structure or building. It does not apply to a place that is not enclosed or built on or a place situated underground or under water. This recognises that those premises` that are excluded cannot be destroyed. This clause provides biosecurity officers with the power to require–subject to the notification requirements and review period–that a premises be destroyed, where the biosecurity officer suspects on reasonable grounds that the premises cannot be effectively treated to lower the biosecurity risk associated with the premises to an acceptable level. The premises cannot be destroyed without the written approval of the Director of Biosecurity. The decision to give approval for the premises to be destroyed is a reviewable decision under clause 574. Before taking action under clause 347 for the premises to be destroyed, a biosecurity officer must give notice to the owner of the premises stating that premises are to be destroyed and the reasons for destruction. However, the premises may be destroyed without this notice being given to the owner or operator if a biosecurity officer has: not been able, despite making reasonable efforts, to locate the owner of the premises, and certified in writing to that effect. Unless the biosecurity officer has not been able to locate the owner of the premises after making reasonable efforts and has certified this fact in writing, the premises must not be destroyed until after any review or related proceedings (including any appeal) have been finalised (see clause 345). This reflects the monetary value of the premises and that its destruction may cause monetary loss to the owner. In addition, the owner of the destroyed premises may be entitled to compensation (see clauses 633 and 634). It is appropriate that compensation is available in these situations so that persons are not discouraged from reporting biosecurity risks from concerns over loss of their property. A biosecurity enforcement officer will only be able to take possession of premises–to destroy the premises–with the consent of the owner of the premises or under a premises possession warrant (Part 3, and Division 3 of Part 4, of Chapter). Before premises are destroyed, a biosecurity officer may cause any goods in or on the premises to be removed. This power may be used in circumstances where the risk posed by the premises is not transferred to the goods. This power recognises that the goods in or on the premises may be owned by a different person to the premises. Clause 345 High-value goods, conveyances or premises must not be destroyed during review period This clause applies if a biosecurity officer has given a notice in relation to high-value goods, a conveyance or other premises in accordance with subclauses 342(3), 343(5) or 344(4). These notices must be given to the owner (or operator in the case of conveyances), notifying them of the requirement and reasons for destruction. 234


This clause provides that a biosecurity officer must not take action under clause 347 for destruction of high-value goods, conveyances or premises until the end of the period which an application may be made for review and if an application is made–after the review or any related proceeding has been finally determined. This includes applications for both merits and judicial review. A biosecurity officer will be able take action under clause 347 for the destruction of the high-value goods, conveyance or premises without having to wait for the end of the review period or the final determination, if the biosecurity officer is satisfied that: a disease or pest that may be present in or on the goods, conveyance or premises poses a high level of biosecurity risk, and the biosecurity risk cannot be managed for long enough to allow a review of the destruction of the goods, conveyance or premises, and any related proceedings to be finally determined. If the goods, conveyance or premises have been destroyed because the biosecurity risks cannot be managed for the duration of any review or appeal, no application for review can be made and any review or related proceedings is taken to be discontinued. Once the goods or premises have been destroyed, there is no value in continuing such proceedings as the destruction has taken place and the decision cannot be changed. Division 3–Powers provided by regulations Clause 346 Regulations may provide for other biosecurity measures This clause outlines that the regulations may provide that a biosecurity officer may require a specified kind of biosecurity measure (a prescribed biosecurity measure) in relation to goods or premises. In this clause, a premise includes a conveyance. These measures cannot apply to certain goods or conveyances as outlined in clause 312. Subclause (2) limits the biosecurity measures that can be prescribed in the regulations. This subclause precludes the listing of any of the following types of biosecurity measures: those measures that may be included in a human biosecurity control order (Division 3 of Part 3, Chapter 2) those measures that are named as biosecurity risk assessment powers (Division 3 of this Part) those measures that provide powers to require measures to be taken (Division 2 of this Part, and those measures relating to decontamination (Division 2 of Part 4, Chapter 10). This ensures that the regulations do not contain biosecurity measures already available in the primary legislation. It also ensures that any notification or processes in place already in the legislation are not circumvented (for example certain timeframes for notification or requirements to affix notices). This clause also allows for other matters relating to a prescribed biosecurity measure to be set out in the regulations. This can include matters such as notification requirements and limitations on measures during review periods. An example of an additional biosecurity measure that may be prescribed in the regulations is the power to impose movement restrictions in relation to animals during an outbreak (for example, equine influenza). This may mean that no domestic or livestock animals are able to move within a biosecurity response zone while the zone determination is in place (see Part 5 of this Chapter for biosecurity response zones). 235


The powers in this clause can only be exercised in relation to goods or premises if the power is specified in a biosecurity control order that relates to the goods or premises or the power is specified in a biosecurity response zone determination that relates to goods or premises within a biosecurity response zone. Division 4–Other powers Clause 347 Powers of a biosecurity officer if biosecurity measures are required This clause provides that a biosecurity officer can direct the person in charge, owner or operator, or arrange for an appropriately qualified person or expert, to carry out the biosecurity measures required under Subdivision C (treatment powers) or Subdivision D (destruction powers) of Division 2 of this Part, or under a regulation made for the purposes of clause 346. The biosecurity officer can also carry out the biosecurity measure themselves. A biosecurity officer may require biosecurity measures are carried out by: in relation to goods–the person in charge of the goods in relation to conveyances–person in charge or operator of the conveyance or if the biosecurity measure is destruction, the operator or owner of the conveyance, and in relation to premises–direct the owner of the premises. Where a biosecurity officer gives a direction to a person to carry out a biosecurity measure, or arranges for an appropriately qualified person or expert to carry out the biosecurity measure, the biosecurity officer may supervise the taking of the biosecurity measure. This ensures that the biosecurity measures are carried out properly, and where they have not been carried out in accordance with the directions, the biosecurity officer can take action to manage the biosecurity risks. A person who is given a direction to carry out biosecurity measures, and contravenes that direction, may be liable to a civil penalty and may commit an offence (see clause 350). Clause 348 Biosecurity officer may affix notice to goods or premises This clause allows a biosecurity officer to affix a notice to, or as close as reasonably practical to, goods or premises (including a conveyance) when biosecurity measures to manage unacceptable levels of biosecurity risk (Division 2 of Part 3 of this Chapter) or a regulation made for the purposes of clause 346 have been required. The notice affixed to goods or premises must state that: a pest or disease may be present in or on the goods or premises the disease or pest may pose an unacceptable level of biosecurity risk biosecurity measures have been required to manage biosecurity risks posed by the disease or pest associated with the goods or premises, and a person may be liable for a civil penalty or offence if they move or interfere with the goods or premises to which the notice relates under this clause or clause 351. This requirement ensures that there is appropriate notification, even if the person in charge, owner or occupier cannot be located. If it is not possible to affix the notice to the goods or premises, the person exercising the power may affix the notice as near as reasonably practicable. The notice is designed to inform people that a good or premises may pose a biosecurity risk and to provide a mechanism to communicate to people that biosecurity measures are required. The notice also ensures that a person is aware of the potential penalties associated with contravention of this and related clauses. 236


A person who interferes with, removes or defaces the notice is liable for a civil penalty (unless the person is authorised to do so under an approved arrangement or he or she has been given a direction by a biosecurity official or permission under clause 557). The maximum civil penalty for a contravention is 120 penalty units. It will be an exception to be authorised by an Australian law to interfere with, remove or deface a notice. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. Division 5–Offences and civil penalty provisions Clause 349 Contravention of requirement relating to entering or leaving etc. premises This clause creates an offence for contravening an entry or exit requirement issued under clause 333 or 334. A person who contravenes entry or exit requirements commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If directions are not complied with, significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia`s local industries, the environment and the economy. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. Clause 350 Person must comply with direction This clause creates an offence for contravening a direction given under clause 347. A person who does not comply with a direction under clause 347 commits an offence and is liable to civil penalty. The maximum penalty for contravention is five years imprisonment, 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If directions are not complied with, significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia`s local industries, the environment and the economy. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. Clause 351 Unauthorised persons must not move etc. goods or conveyance to which notice has been affixed Where a notice has been affixed to or as near as reasonably practicable to, goods or a conveyance under subclause 348(1) a person will contravene this clause if the person moves, deals with or interferes with the goods or conveyance. This will be a contravention unless the person is 237


authorised to do so under an approved arrangement or he or she has been given a direction by a biosecurity official or permission under clause 557. It will be an exception to be authorised by an Australian law to move, deal or interfere with goods or conveyances to which a notice is affixed. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. A person who moves, deals or interferes with a good or conveyance to which a notice is affixed commits an offence and is liable to civil penalty. The maximum penalty for contravention is five years imprisonment, 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. These powers are required to ensure a biosecurity officer can restrict the movement of goods and conveyances so that assessment and biosecurity activities can be conducted. This will allow the officer to establish the level of biosecurity risk posed and manage risks to reduce the threat or harm, The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If directions are not complied with, significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia`s local industries, the economy and the environment. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. Part 4–Biosecurity control orders Division 1–Introduction Clause 352 Simplified outline of this Part This outline sets out the Part`s objectives. A biosecurity control order can be made where a biosecurity officer suspects on reasonable grounds that a pest or disease may be present in or on goods or premises within Australian territory and that pest or disease poses an unacceptable level of biosecurity risk. The Director of Biosecurity must also be satisfied that measures need to be taken to manage the risk before making a biosecurity control order. The biosecurity control order will specify the particular biosecurity measures or powers that a biosecurity officer can use to manage the identified risk (see Part 3 of this Chapter). In making a biosecurity control order, the Director will have the flexibility to select the most appropriate powers to manage the specific risk. This means that the response can be tailored to the specific disease or pest. The application of clause 32 means that the powers in this Division must be exercised in accordance with the principles set out in that clause. 238


Division 2–Making, varying and revoking biosecurity control orders Clause 353 The Director of Biosecurity may make biosecurity control order to manage an unacceptable level of biosecurity risk This clause provides the Director of Biosecurity with the power to make a biosecurity control order in relation to goods or premises (including conveyances) in Australian territory. This order can be made where a biosecurity officer suspects on reasonable grounds that: a disease or pest may be present in or on goods or premises in Australian territory, and the disease or pest poses an unacceptable level of biosecurity risk. The order can only be made where the Director is satisfied that biosecurity measures are necessary to manage the biosecurity risk posed by the disease or pest. The ability to make a biosecurity control order is given to the Director rather than a biosecurity officer to ensure that there is appropriate oversight of the exercise of powers under an order. A biosecurity control order can relate to more than one disease or pest if the above tests are satisfied in relation to those diseases or pests. The application of clause 312 means that powers in a biosecurity control order must not be used in relation to goods or conveyances that are subject to biosecurity control or exposed goods in relation to which an exposed goods order is in force. A biosecurity control order may be varied under clause 358 to add or remove additional powers, or may be revoked under clause 359 where the pest or disease no longer poses an unacceptable level of biosecurity risk. To limit the circumstances in which a biosecurity control order can be varied or revoked, subsection 33(3) of the Acts Interpretation Act 1901 does not apply in relation to this clause. Clause 354 Content of a biosecurity control order This clause outlines the content requirements of a biosecurity control order made under clause 353. The biosecurity control order must state that: a biosecurity officer suspects on reasonable grounds that a disease or pest may be present in or on the goods or premises and that the disease or pest poses an unacceptable level of biosecurity risk, and the Director of Biosecurity is satisfied that biosecurity measures need to be taken in relation to the goods or premises for the purposes of managing the biosecurity risks posed by the disease or pest. In addition, the biosecurity control order must specify the goods or premises to which the order relates, each disease or pest which poses an unacceptable level of biosecurity risk which has been identified and the nature of the biosecurity risks to be managed. The inclusion of details about the nature of the biosecurity risks to be managed means that a biosecurity control order can be used where the disease or pest has not been identified and all that can be identified are the signs and symptoms of the disease or pest. This will allow an order to be made in relation to a newly discovered or unidentifiable disease or pest or in circumstances where the tests have proved inconclusive or are yet to be finalised. The biosecurity control order must also specify each of the powers that will be used to assess and manage the risk. Powers which must be included, if they may be exercised in relation to the goods or premises in accordance with the listed division or relevant regulations, are biosecurity risk assessment powers (Division 3 of Part 2), powers to require biosecurity measures to be taken (Division 2 of Part 3) and powers set out in a regulation made for the purposes of clause 344. 239


Listing the powers which are available each time a biosecurity control order is made means that only the powers which are necessary for those particular circumstances are allowed to be exercised. The notice will also provide notification to the public about the powers which are available to biosecurity officers in relation to the goods or premises. A biosecurity control order can be in force for up to 12 months, but must not be in force for any longer than the Director of Biosecurity considers necessary to manage the biosecurity risk to which the biosecurity control order relates. The period for a biosecurity control order cannot be extended. If the biosecurity risk posed after 12 months is still unacceptable, another biosecurity control order will need to be made. This clause puts an obligation on the Director to consider whether the biosecurity risk posed still justifies a biosecurity control order in order to manage it to an acceptable level. The potentially invasive nature of powers that can be exercised under a biosecurity control order, such as the power to stop people from entering a premises (potentially their residence or place of business) should only be available for as long as is necessary to manage the biosecurity risks associated with the disease or pest specified on the control order. This clause also outlines that a power must not be listed in the order unless the Director is satisfied that the exercise of that power is appropriate and adapted to managing the biosecurity risk posed by the disease or pest. This means that the use of the power is a proportionate response to the management of biosecurity risk. Where the biosecurity control order is made in relation to a conveyance, it will also apply to all the goods in or on the conveyance. Similarly where the biosecurity control order is made in relation to premises, it will also apply to all the conveyances and goods in or on the premises. Clause 355 Form of a biosecurity control order This clause outlines the form of the biosecurity control order made under clause 353, which must be in writing and be in a form approved by the Director of Biosecurity. The clause clarifies that a biosecurity control order is not a legislative instrument for the purposes of section 5(1) of the Legislative Instruments Act 2003. This is to recognise the fact that the order is administrative in nature. Clause 356 Biosecurity control order to be given to person in charge etc. of goods or premises or affixed to goods or premises This clause outlines the notice requirements for a biosecurity control order. For a biosecurity control order made in relation to goods or conveyances, a biosecurity officer mustwhere it is practicable to do sogive a copy of the order to the person in charge of the goods or conveyance. Where it is not practicable to do so, a biosecurity officer must affix a copy of the order, as near as practicable to the goods or conveyance. For biosecurity control orders made in relation to premises other than a conveyance, a biosecurity officer mustif practicable to do sogive a copy of the order to the occupier of the premises or a person who apparently represents the occupier. Where it is not practicable to do so, a biosecurity officer must affix a copy of the order, as near as practicable to the premises. This notification requirement is intended to notify the person in charge or the occupier about the biosecurity control notice. The notice will also provide notification to the public about risk and the powers to manage the risk which are available in relation to the goods or premises. A person who interferes with, removes or defaces a biosecurity control order may be liable to a civil penalty (see clause 363). 240


Clause 357 Circumstances in which biosecurity control order ceases to be in force This clause sets out the circumstances in which a biosecurity control order ceases to be in force. An order will cease to be in force if the order expires or is revoked. Alternatively, a biosecurity control order ceases to be in force when the goods or premises to which the order relates have been destroyed. This ensures that a biosecurity control order is only in place for as long as it is required to manage biosecurity risks posed by the disease or pest to which it relates. Clause 358 Variation of a biosecurity control order This clause provides that the Director of Biosecurity may vary a biosecurity control order in certain circumstances if the Director is satisfied that the level of biosecurity risk posed by the disease or pest is no longer unacceptable, or to vary the powers available in the order to manage the biosecurity risk posed by the disease or pest. This allows for flexibilityif a particular approach has not effectively managed the riskto include additional powers to achieve that purpose. For example, the original order may not have restricted the movement of goods into or out of a property, however the disease or pest has now spread so that power is now required to effectively manage the risk. Additionally, a biosecurity control order can be varied where another disease or pest, posing an unacceptable level of biosecurity risk, may be present in or on the goods or premises to which the order relates and biosecurity measures are required to manage the biosecurity risks associated with the new disease or pest. The ability to add additional diseases or pests to a biosecurity control order ensures that biosecurity risks can be managed efficiently, through allowing action in a timely manner by having a single biosecurity control order. The order may also be varied if the variation is of a minor technical nature to ensure administrative changes can be made. Any additional powers listed in the varied biosecurity control order must be deemed appropriate by the Director for managing the biosecurity risk posed by the disease or pest to which the biosecurity control order relates. A variation to a biosecurity control order must be in writing, is not a legislative instrument and will take effect immediately after it is made. The notification requirements for a variation of a biosecurity control order are the same as those set out in clause 356–with notices given to the person in charge or occupier as relevant or affixed to or as near as practicable to the goods, conveyance or premises. A biosecurity officer must remove all copies of the original order that were affixed to, or as near as reasonably practicable to, the goods, conveyance or premises when replacing with the varied biosecurity control order. A person, who interferes with, removes or defaces a biosecurity control order which is affixed to, or as near as practicable to may be liable to a civil penalty (see clause 363). Clause 359 Revocation of a biosecurity control order This clause provides that the Director of Biosecurity must revoke a biosecurity control order when the risk posed by each disease or pest to which the order relates is no longer unacceptable. The potentially invasive nature of powers that can be exercised in a biosecurity control order, such as the power to stop people from entering a premises (potentially their residence or place of business) should only be available for as long as is necessary to manage the biosecurity risks. A revocation must be in writing, is not a legislative instrument and will take effect immediately after it is made. 241


This clause also outlines the notice requirements for the revocation of the biosecurity control order. The revocation notice must be given to the person in charge of the goods or conveyance, or to the occupier of the premises. A biosecurity officer must remove any copies of the original order that were affixed to, or as near as reasonably practicable to the goods, conveyance or premises. This ensures that if the Director determines that there is no longer an unacceptable level of biosecurity risk posed by the diseases or pests to which the order relates, the order is revoked, rather than allowing the order to lapse. This reflects the potentially invasive nature of powers that can be exercised under a control order. Division 3–Powers that may be exercised under biosecurity control order Clause 360 Powers that may be exercised-general This clause outlines the powers that may be exercised in relation to goods or premises (including a conveyance) under a biosecurity control order. For the purpose of managing the biosecurity risk posed by the disease or pest, powers specified in the order under paragraphs 352(2)(d), (e) or (f) or a power set out in Division 4 of Part 3 (clauses 347 and 348) may be exercised. The application of clause 312 means that powers in a biosecurity control order must not be used in relation to goods or conveyances that are subject to biosecurity control or exposed goods in relation to which an exposed goods order is in force. In exercising the powers set out in Division 3 of this Part, a biosecurity officer or a biosecurity enforcement officer may be assisted by other persons (for example, someone setting up monitoring equipment). The application of clause 32 means that the powers in this Division must be exercised in accordance with the principles set out in that clause. Clause 361 Exercise of powers in premises This clause outlines that a biosecurity officer or biosecurity enforcement officer may enter any premises (including a conveyance) within Australian territory for the purpose of exercising powers in accordance with clause 360. This clause provides that a biosecurity officer or a biosecurity enforcement officer will not be authorised to enter a premises unless the occupier of the premises has consented to the entry, or where the entry is made under a biosecurity control order warrant (see Part 3, and Division 3 of Part 4, of Chapter 9). If the occupier of the premises has required that identification be shown, an officer cannot enter premises by consent unless the officer has shown their identity card. This is intended to assure an occupier of the identity of the officer. This clause notes that if the premises can only be accessed by entering other premises, the officer may require an adjacent premises warrant (see Division 3 of Part 4, Chapter 9). This type of warrant will allow an officer to enter adjacent premises to get to other premises where the officer needs to exercise biosecurity risk assessment powers. Clause 362 Power to secure goods or premises to deal with another disease or pest This clause outlines the circumstances in which a biosecurity officer will be able to secure a good or premises to deal with another disease or pest. If a biosecurity control order is in force under clause 353 in relation to goods or premises and a biosecurity officer enters in accordance with the requirements of clause 361, then the biosecurity officer may secure those goods or premises. 242


A biosecurity officer may secure goods or premises that are subject to a biosecurity control order for up to 24 hours if: the biosecurity officer suspects, on reasonable grounds, that another disease or pest (other than which the biosecurity control order relates) may be present that the other disease or pest may pose an unacceptable level of biosecurity risk, and the biosecurity officer believes, on reasonable grounds, that it is necessary to secure these goods or premises, without the authority of a biosecurity risk assessment warrant or a biosecurity control order warrant, in order to manage the biosecurity risks posed by the other disease or pest. This ensures, that where a biosecurity officer suspects that another disease or pest is present in or on a good or premises, these goods or premises can be secured until the biosecurity control order is varied (see clause 358). Where entry to premises is made under a warrant, a new warrant may be needed to authorise the biosecurity officer to exercise the powers specified in the varied biosecurity control order. Division 4–Civil penalty provision Clause 363 Unauthorised persons must not interfere with etc. biosecurity control order affixed to goods or premises The clause states that if a person interferes with, removes or defaces a biosecurity control order the person is liable for a civil penalty (unless the person is authorised to do so under an approved arrangement or, or he or she has been given a direction by a biosecurity official or permission under clause 557). The maximum civil penalty for a contravention is 120 penalty units. It will be an exception to be authorised by an Australian law. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. Part 5–Biosecurity response zones Division 1–Introduction Clause 364 Simplified outline of this Part This outline sets out the Part`s objectives. This Part allows the Director of Biosecurity to determine an area of Australian territory as a biosecurity response zone to manage the unacceptable level of biosecurity risk posed by a disease or pest in relation to the area and the conditions under which the Director may establish a zone. The biosecurity response zone determination will specify the particular biosecurity measures or powers that a biosecurity officer can use to manage the identified risk (see Parts 2 and 3 of this Chapter and clause 367 for a list of powers). In determining a biosecurity response zone, the Director will have the flexibility to select the most appropriate powers to deal with the pest or disease. 243


Division 2–Biosecurity response zone determinations Clause 365 Director of Biosecurity may determine biosecurity response zone This clause provides that the Director of Biosecurity may determine that a specified area in Australian territory is a biosecurity response zone if: a biosecurity officer suspects on reasonable grounds that a disease or pest may be present in or on goods or premises (including a conveyance) in the area, and the disease or pest poses an unacceptable level of biosecurity risk, and the Director is satisfied that it is necessary to make the determination for the purposes of managing the biosecurity risk posed by the disease or pest. The zone determination may also relate to more than one disease or pest if the above tests are also satisfied in relation to those diseases or pests. The Director may determine that a specified area in Australian territory is part of a biosecurity response zone, even if the area is already part of another biosecurity response zone, a monitoring zone or a biosecurity activity zone. The ability to determine a biosecurity response zone is given to the Director rather than a biosecurity officer to ensure that there is appropriate oversight over the exercise of powers under a zone determination. The application of clause 312 means that powers in a biosecurity response zone determination must not be used in relation to goods or conveyances that are subject to biosecurity control or exposed goods in relation to which a biosecurity response zone determination is in force. A zone determination will be able to be varied or revoked in line with section 33(3) or the Acts Interpretation Act 1901. A determination made under clause 365 is exempt from disallowance under section 42 of the Legislative Instruments Act 2003. It is appropriate for the Parliament to delegate to the Director the power to make this determination as it involves technical and scientific decisions to manage risks to Australia`s biosecurity. Subjecting this determination to disallowance could undermine the technical and scientific based decision making involved in this process and frustrate risk management processes. A determination made under this clause is critical to the adequate and timely management of biosecurity risks. If this determination were to be disallowed, the Commonwealth`s ability to manage biosecurity risks relating to a disease or pest incursion will be limited. This could have a significant impact on the economy and could likely lead to restrictions being put on Australia`s exports by Australia`s trading partners. In addition, disallowance of a determination made under this clause could lead to inadequate management of the biosecurity risks posed to human, plant and animal health, Australia`s local industries, the environment and the economy. Clause 366 Content of a biosecurity response zone determination This clause outlines the content requirements of a biosecurity response zone determination made under clause 365. The biosecurity response zone determination must state that: a biosecurity officer suspects on reasonable grounds that a disease or pest may be present in or on goods or premises in the zone and the disease or pest poses an unacceptable level of biosecurity risk, and the Director of Biosecurity is satisfied that it is necessary to make the determination for the purposes of managing the biosecurity risk posed by the disease or pest. Additionally, the determination must specify each disease or pest which has been identified and poses an unacceptable level of biosecurity risk and the nature of the biosecurity risks to be managed. The inclusion of details about the nature of the biosecurity risks to be managed means 244


that a biosecurity response zone can be used where the disease or pest has not been identified and all that can be identified are the signs and symptoms of the disease or pest. This will allow a biosecurity response zone to be determined in relation to a newly discovered or unidentifiable disease or pest or in circumstances where the tests have proved inconclusive or are yet to be finalised. The determination must also specify each of the powers that will be used to assess and manage the risk. Powers which may be included are biosecurity risk assessment powers (Division 3 of Part 2), powers to require biosecurity measures to be taken (Division 2 of Part 3), powers set out in a regulation made for the purposes of clause 346 and the additional biosecurity response zone powers set out in clause 367. The determination must also set out the period for which the determination is to be in force. Listing the powers which are available each time a biosecurity response zone determination is made means that only the powers which are necessary for those particular circumstances are allowed to be exercised. The notice will also provide tangible communication to the public about the powers which are available in relation to the zone. A biosecurity response zone determination can be in force for up to 12 months, but must not be in force for any longer than the Director of Biosecurity considers necessary to manage the biosecurity risk. A determination cannot be extended. If the biosecurity risk posed after 12 months is still unacceptable, another biosecurity response zone determination will need to be determined. This clause puts an obligation on the Director to consider whether the risk posed still justifies a biosecurity response zone determination. The potentially invasive nature of powers that can be exercised in a biosecurity response zone, such as the power to stop people from entering a premises (potentially their residence or place of business) should only be available for as long as is necessary to manage the biosecurity risks. Additionally, this clause outlines that a power must not be listed in the determination unless the Director is satisfied that the exercise of this power is appropriate and adapted to managing the biosecurity risk posed by the disease or pest. This means that the use of the power is a proportionate response to the management of biosecurity risk. Clause 367 Additional powers that may be specified in a biosecurity response zone determination This clause outlines additional powers that can be used in a biosecurity response zone. These powers include: the power to cause the biosecurity response zone to be identified (including by affixing notices or markings) the power to cause goods or premises (including conveyances) within the zone to be identified (including by affixing notices or markings) the power to direct a person in the biosecurity response zone to leave the zone for up to 24 hours, and the power to set up traps or set up equipment or other structures within the zone. These powers will assist with the management of biosecurity risk. By identifying the zone and the goods and premises within the zone identified, a biosecurity officer will be able to quickly identify any goods or premises which may have a pest or disease present. In addition, the notice will inform the public of the potential biosecurity risks associated with the area, goods or premises. The power to direct persons out of the zone will assist with treatment or destruction of goods and premises within the zone. The 24 hour time period is adequate to ensure that biosecurity measures can be carried out. 245


Clause 368 Consultation requirements This clause outlines the requirement to consult with relevant state and territory government bodies. Before determining a biosecurity response zone, the Director of Biosecurity must consult the head of the body in each of the states or territories that are responsible for biosecurity matters in which the proposed biosecurity zone will lie. This clause provides for a mechanism to reduce jurisdictional uncertainties and facilitate activities where matters cross state and territory boundaries. However, a failure by the Director of Biosecurity to consult as required in this clause, does not affect the validity of the determination. Clause 369 Notification requirements This clause requires the Director of Biosecurity to ensure that the biosecurity response zone determination is made public in any way that he or she sees fit. This is in addition to the requirements for registration under the Legislative Instruments Act 2003. For example, the Director may advertise in the local media in the area where the zone has been determined or may put the determination on the Agriculture Department`s website. This ensures that the public will be aware of the biosecurity response zone and any powers or requirements associated with it. A biosecurity response zone determination is not invalidated by a failure to meet the notification requirements in this clause. Division 3–Powers that may be exercised in biosecurity response zones Clause 370 Powers that may be exercised–general This clause outlines the powers that may be exercised when a biosecurity response zone determination is in force. For the purpose of managing the biosecurity risk posed by the disease or pest specified in the determination, the powers specified in the order under paragraphs 366(2)(c), (d), (e) or (f) or a power set out in Division 4 of Part 3, Chapter 6 (clauses 347 and 348) may be exercised. The application of clause 312 means that powers in a biosecurity response zone must not be used in relation to goods or conveyances that are subject to biosecurity control or goods in relation to which an exposed goods order is in force. In exercising the powers set out in Division 3 of this Part, a biosecurity officer or a biosecurity enforcement officer may be assisted by other persons (for example, someone setting up monitoring equipment). The application of clause 32 means that the powers in this Division must be exercised in accordance with the principles set out in that clause. If an area within a biosecurity response zone overlaps with part of a biosecurity monitoring or activity zone that has been previously determined, then the powers available under that other zone determination can be still be exercised in the overlapping area. This makes it clear that the determination of a biosecurity response zone does not affect the powers that were previously available under the original zone determination. Division 4 of this Part sets out offences and civil penalty provisions in relation to biosecurity response zones. 246


Clause 371 Exercise of powers in premises This clause outlines that a biosecurity officer or biosecurity enforcement officer may enter premises in a biosecurity response zone for the purpose of exercising powers in accordance with clause 370. This clause provides that a biosecurity officer or a biosecurity enforcement officer will not be authorised to enter a premises unless the occupier of the premises has consented to the entry, or where the entry is made under a biosecurity response zone warrant (see Part 3, and Division 3 of Part 4, Chapter 9). If the occupier of the premises has required that identification be shown, an officer cannot enter premises by consent unless the officer has shown their identity card. This is intended to assure an occupier of the identity of the officer. Clause 372 Power to secure goods or premises to deal with another disease or pest This clause outlines the circumstances in which a biosecurity officer will be able to secure a good or premises to deal with another disease or pest which is suspected by the officer to be present in or on the relevant goods or premises. A biosecurity officer may secure relevant goods or premises for up to 24 hours in accordance with this clause if: a biosecurity officer enters premises in a biosecurity response zone as authorised by clause 371–for the purpose of exercising powers in accordance with clause 370 the biosecurity officer suspects, on reasonable grounds, that another disease or pest (other than which the biosecurity response zone determination relates) may be present and that the other disease or pest may pose an unacceptable level of biosecurity risk, and the biosecurity officer believes, on reasonable grounds, that it is necessary to secure these goods or premises, without the authority of a biosecurity risk assessment warrant or a biosecurity response zone warrant, in order to manage the biosecurity risks posed by the other disease or pest. This ensures that where a biosecurity officer suspects that another disease or pest is present in or on a good or premises where a biosecurity zone determination is already in force, these goods or premises can be secured until the zone determination is varied (see subsection 33(3) of the Acts Interpretation Act 1901). Alternatively, a biosecurity control order can be made in relation to the goods or premises. Where entry to premises is made under a warrant, a new warrant may be needed to authorise the biosecurity officer to exercise the powers specified in the varied biosecurity response zone determination to manage the biosecurity risk posed by the other disease or pest. Division 4–Offences and civil penalty provisions This division creates offences and civil penalties relating to the biosecurity response zone powers listed in clause 367. The offences and civil penalty provisions within Division 4 of Part 2 and Division 5 of Part 3 will also apply within a biosecurity response zone. Clause 373 Unauthorised persons must not interfere with etc. notices or markings identifying biosecurity response zone Clause 374 Unauthorised persons must not interfere with etc. notices or markings identifying goods or premises in biosecurity response zone These clauses states that if a person interferes with, removes or defaces a notice or markings identifying the biosecurity response zone (clause 373) or goods or premises within the zone (clause 374)–the person is liable to a civil penalty (unless the person is authorised to do so under an approved arrangement and has been given a direction by a biosecurity official or permission 247


under clause 557). The maximum civil penalty for a contravention of either clause is 120 penalty units. It will be an exception to be authorised by an Australian law. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. Clause 375 Person must comply with direction This clause creates an offence for contravening a direction to leave a biosecurity response zone (paragraph 367(c)). A person who fails to comply with a direction commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If directions are not complied with, significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia`s local industries, the environment and the economy. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. Clause 376 Unauthorised persons must not interfere with etc. equipment etc. set up in biosecurity response zone This clause outlines the circumstances when a person is prohibited from interfering with equipment set up within a biosecurity response zone (see paragraph 367(d)). The clause provides that if a person interferes with, removes or defaces any trap equipment or structure set up in a biosecurity response zone–the person commits an offence and is liable to a civil penalty (unless the person is authorised to do so under an approved arrangement, or has been given a direction by a biosecurity official or permission under clause 557). The maximum penalty for contravention is five years imprisonment, 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. It will be an exception to be authorised by an Australian law. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If directions are not complied with, significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia`s local industries, the environment and the economy. 248


A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. Part 6–Biosecurity monitoring zones Division 1–Introduction Clause 377 Simplified outline of this Part This outline sets out the Part`s objectives. This Part allows the Director of Biosecurity to determine a biosecurity monitoring zone to establish whether a disease or pest which poses an unacceptable level of biosecurity is likely to or has entered, emerged, established itself or spread in, the zone. The outline explains there are two types of biosecurity monitoring zones; permanent biosecurity monitoring zones and temporary biosecurity monitoring zones and briefly describes the difference. Division 2–Permanent biosecurity monitoring zones Subdivision A–Areas that are permanent biosecurity monitoring zones Clause 378 Permanent biosecurity monitoring zones This clause outlines the areas within Australian territory which are permanent biosecurity monitoring zones. Permanent biosecurity monitoring zones will be established at areas which have an elevated level of biosecurity risk, such as first points of entry (See Part 3 of Chapter 4), international mail centres, biosecurity activity zones and other places as prescribed by the regulations. This clause outlines that permanent biosecurity monitoring zones can be established at the places described and includes both the area within the place of high biosecurity risk and the area within the permissible distance of the outer boundary of these areas. Permissible distance means 400 metres or a greater distance as prescribed in the regulations. The permanent monitoring zone covers the area within these locations as well so that biosecurity officers can exercise their monitoring powers in relation to any biosecurity activities taking place inside or outside these locations. The regulations must not prescribe an additional place as a biosecurity monitoring zone under the regulations, unless the Director of Biosecurity is satisfied that there is a high level of biosecurity risk associated with the area. It is appropriate that places with a high level of biosecurity risk should be permanently monitored. Subdivision B–Powers that may be exercised in permanent biosecurity monitoring zones Clause 379 Powers that may be exercised–general This clause outlines the powers that may be exercised in a permanent biosecurity monitoring zone in relation to goods and premises. Biosecurity risk assessment powers (Division 3 of Part 2, Chapter 6) may be exercised–excluding the powers available under clauses 321, 324 and 325 which relate to movement of goods and conveyances and operating electronic equipment. As there is not necessarily a risk present, it would be inappropriate for biosecurity officers to move goods or conveyances in the zone, or operate electronic equipment in the zone. If additional powers are required because of a biosecurity risk, alternative management measures (such as a biosecurity control order or biosecurity response zone) will need to be established. This clause outlines additional powers which can be exercised in a permanent biosecurity monitoring zone. These powers include: 249


the power to cause the permanent biosecurity monitoring zone to be identified (including by affixing notices or markings) the power to cause goods or premises (including conveyances) within the zone to be identified (including by affixing notices or markings) the power to set up traps or set up equipment or other structures within the zone, and any powers prescribed in the regulations for the purposes of this clause. These powers will assist with the assessment and monitoring of biosecurity risk in areas which have a higher biosecurity risk because of the nature of activities undertaken at that location. Additionally, demarking the zone will notify the public of the potential biosecurity risks associated with the area, goods or premises. Subclause (3) limits the biosecurity measures that can be prescribed in the regulations. This subclause precludes the listing of: those measures that may be included in a human biosecurity control order (Division 3 of Part 3, Chapter 2) those measures that are named as biosecurity risk assessment powers (Division 3 of Part 2, Chapter 6) those measures that provide powers to require measures to be taken (Division 2 of Part 3, Chapter 6) of this Part, and those measures relating to decontamination (Division 2 of Part 4, Chapter 12). This ensures that the regulations do not contain provisions for biosecurity measures already available in the Act. It also ensures that any notification or processes in place already in the legislation are not circumvented (for example, certain timeframes for notification or requirements to affix notices). The powers in this clause may only be exercised in relation to goods or premises within a permanent biosecurity monitoring zone for the purposes of monitoring whether a disease or pest that a biosecurity officer suspects on reasonable grounds may pose an unacceptable level of biosecurity risk and has or is likely to enter, emerge, establish itself or spread in the zone. The application of clause 32 means that the powers in this Division must be exercised in accordance with the principles set out in that clause. Clause 380 Exercise of powers in premises This clause outlines that a biosecurity officer or biosecurity enforcement officer may enter any premises within a permanent biosecurity monitoring zone for the purposes of exercising powers in accordance with clause 379. This clause provides that a biosecurity officer or a biosecurity enforcement officer will not be authorised to enter a premises unless the occupier of the premises has consented to the entry, or where the entry is made under a biosecurity monitoring zone warrant (see Part 3 and Division 3 of Part 4, Chapter 9). If the occupier of the premises has required that identification be shown, an officer cannot enter premises by consent unless the officer has shown their identity card. This is intended to assure an occupier of the identity of the officer. Subdivision C–Civil penalty provisions This division creates civil penalties relating to the permanent biosecurity monitoring zone powers listed in subclause 379(2). The offences in Division 2 of Part 3 will also apply within a permanent biosecurity monitoring zone. 250


Clause 381 Unauthorised persons must not interfere with etc. notices or markings identifying permanent biosecurity monitoring zone Clause 382 Unauthorised persons must not interfere with etc. notices or markings identifying goods or premises in a permanent biosecurity monitoring zone Clause 383 Unauthorised persons must not interfere with etc. equipment etc. set up in a permanent biosecurity monitoring zone These clauses state that a person who interferes with, removes or defaces a notice or markings identifying the permanent biosecurity monitoring zone (clause 381) or goods or premises within the zone (clause 382) or any trap equipment or structure set up in a permanent biosecurity monitoring zone (clause 383) is liable to a civil penalty (unless the person is authorised to do so under an approved arrangement or has been given a direction by a biosecurity official or permission under clause 557). The maximum civil penalty for a contravention is 120 penalty units. These powers are required to ensure that a biosecurity officer can carry out his or her functions, by setting up equipment and affixing notices to goods or conveyances restricting their movement so that assessment and monitoring can be conducted to determine if a pest or disease has or is likely to enter, emerge, establish itself or spread in the zone. It will be an exception if the conduct is authorised by an Australian law. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. Division 3–Temporary biosecurity monitoring zones Subdivision A–Temporary biosecurity monitoring zone determinations Clause 384 Director of Biosecurity may determine temporary biosecurity monitoring zone This clause allows the Director of Biosecurity to determine, by legislative instrument, a temporary biosecurity monitoring zone. The Director may determine an area if satisfied that it is necessary for the purpose of monitoring whether a disease or pest that may pose an unacceptable level of biosecurity risk, has or is likely to, enter, emerge, establish itself or spread in the area. For example, it is envisaged that temporary biosecurity monitoring zones will be determined around biosecurity response zones, to ensure that the disease or pest has not spread. The temporary biosecurity monitoring zone may cover the whole or part of specified premises–but cannot include a conveyance. A zone can be declared over an area which is part of another temporary biosecurity monitoring zone. The ability to determine a temporary biosecurity monitoring zone is given to the Director rather than a biosecurity officer to ensure that there is appropriate oversight over the exercise of powers under a zone determination. A zone determination will be able to be varied or revoked in line with section 33(3) or the Acts Interpretation Act 1901. A determination made under clause 384 is exempt from disallowance under section 42 of the Legislative Instruments Act 2003. 251


It is appropriate for the Parliament to delegate to the Director the power to make this determination as it involves technical and scientific decisions to manage risks to Australia`s biosecurity. Subjecting this determination to disallowance could undermine the technical and scientific based decision making process and frustrate risk management processes. A determination made under this clause is critical to the management of biosecurity risks. If this determination were to be disallowed, the Commonwealth`s ability to manage biosecurity risks relating to a disease or pest incursion will be limited. This would have a significant impact on the economy and would likely lead to comparable restrictions being put on Australia`s exports by Australia`s trading partners. In addition, disallowance of a determination made under this clause could lead to inadequate management of the biosecurity risks posed to human, plant and animal health, Australia`s local industries, the environment and the economy. Clause 385 Content of a temporary biosecurity monitoring zone determination This clause outlines the content requirements of a temporary biosecurity monitoring zone determination. The determination must specify each of the powers that will be used to monitor the risk. Powers which may be included in a determination are biosecurity risk assessment powers (Division 3 of Part 2) and powers in clause 386 that may be exercised in relation to goods or premises (including conveyances). However, the powers set out in clauses 321, 324 and 325 relating to the movement of goods and conveyances and the operation of electronic equipment must not be specified in the determination. As there is not necessarily a risk present it would be inappropriate for biosecurity officers to move goods or conveyances in the zone, or operate electronic equipment in the zone. The determination must also set out the period for which it is to be in force. Listing the powers which are available each time a temporary biosecurity response zone determination is made means that only the powers which are necessary for those particular circumstances are allowed to be exercised. The notice will also provide notification to the public about the powers which are available in relation to the zone. A temporary biosecurity monitoring zone can be in force for up to 12 months, but must not be in force for any longer than the Director of Biosecurity considers necessary to monitor the biosecurity risk. A temporary monitoring zone determination cannot be extended. If the biosecurity risk posed after 12 months still requires monitoring, this clause outlines that another zone determination can be made over the same area. This clause puts an obligation on the Director to consider whether the risk posed still justifies a temporary biosecurity monitoring zone. The potentially invasive nature of powers that can be exercised in a zone, such as the power to leave a premise for up to 24 hours, should only be available for as long as is necessary to monitor the biosecurity risks. Additionally, this clause outlines that a power must not be listed in the determination unless the Director is satisfied that the exercise of these powers is appropriate and adapted to managing the biosecurity risk posed by the disease or pest. This means that the use of the power is a proportionate response to the management of biosecurity risk. Clause 386 Additional powers that may be specified in a temporary biosecurity monitoring zone determination This clause outlines additional powers that may be exercised in a temporary biosecurity monitoring zone. These include: the power to cause the biosecurity monitoring zone to be identified the power to cause goods or premises (including conveyances) within the zone to be identified 252


the power set up traps or set up equipment or other structures within the zone, and any powers set out in the regulations. These powers will assist with the assessment and monitoring of biosecurity risk. Subclause (2) limits the biosecurity measures that can be prescribed in the regulations. The powers in the regulations must not be measures that may be included in a human biosecurity control order in Division 3 of Part 3 of Chapter 2, the biosecurity risk assessment powers in Division 3 of Part 2 of this Chapter, the powers to require biosecurity measures to be take in Division 2 of this Part, a biosecurity measure listed in the regulations made under clause 346 and the decontamination powers in Division 2 of Part 4 of Chapter 10. This ensures that the regulations do not contain biosecurity measures already available in the legislation. It also ensures that any notification or processes required by other provisions in the legislation are not circumvented. Clause 387 Consultation requirements This clause outlines the requirement to consult with relevant state and territory bodies. Before determining a temporary monitoring zone, the Director of Biosecurity must consult the head of the body in each of the states or territories that are responsible for biosecurity matters, in which the proposed biosecurity zone will lie. This clause provides for a mechanism to reduce jurisdictional uncertainties and facilitate activities where matters cross state and territory boundaries. However, a failure by the Director to consult as required in this clause, does not affect the validity of the determination. Clause 388 Notification requirements This clause requires the Director of Biosecurity to ensure that the temporary biosecurity monitoring zone determination is made public in any way that he or she sees fit. This is in addition to the requirements for registration under the Legislative Instruments Act 2003. For example, the Director may advertise in the media local to the area where the zone has been determined. This ensures that the public will be aware of the temporary biosecurity monitoring zone and any powers or requirements associated with it. A temporary biosecurity monitoring zone determination is not invalidated by a failure to meet the notification requirements in this clause. Subdivision B–Powers that may be exercised in temporary biosecurity monitoring zones Clause 389 Powers that may be exercised–general This clause outlines the powers that may be exercised when a biosecurity response zone is in force. For the purpose of monitoring biosecurity risk that may be posed by entry, emergence, establishment or spread of the disease or pest, the powers specified in the temporary biosecurity monitoring zone determination made under paragraphs 385(1)(a) or (b) may be exercised. The application of clause 312 means that powers in a biosecurity monitoring zone must not be used in relation to goods or conveyances that are subject to biosecurity control or goods in relation to which an exposed goods order is in force. In exercising the powers set out in Division 3 of this Part, a biosecurity officer or a biosecurity enforcement officer may be assisted by other persons (for example, someone setting up monitoring equipment). In addition, the application of clause 32 means that powers in this Division must be exercised in accordance with the principles set out in that clause. 253


Clause 390 Exercise of powers in premises This clause outlines that a biosecurity officer or biosecurity enforcement officer may enter premises within a temporary biosecurity monitoring zone for the purpose of exercising powers in accordance with clause 389. This clause provides that a biosecurity officer or a biosecurity enforcement officer will not be authorised to enter a premises unless the occupier of the premises has consented to the entry, or where the entry is made under a biosecurity monitoring zone warrant (see Part 3 and Division 3 of Part 4, Chapter 9). If the occupier of the premises has required that identification be shown, an officer cannot enter premises by consent unless the officer has shown their identity card. This is intended to assure an occupier of the identity of the officer. Subdivision C–Civil penalty provisions Clause 391 Unauthorised persons must not interfere with etc. notices or markings identifying temporary biosecurity monitoring zone Clause 392 Unauthorised persons must not interfere with etc. notices or markings identifying goods or premises in temporary biosecurity monitoring zone Clause 393 Unauthorised persons must not interfere with etc. equipment etc. set up in a temporary biosecurity monitoring zone These clauses state that a person who interferes with, removes or defaces a notice or markings identifying the temporary biosecurity monitoring zone (clause 391) or goods or premises within the zone (clause 392) or any trap equipment or structure set up in a temporary biosecurity response zone (clause 393) is liable to a civil penalty (unless the person is authorised to do so under an approved arrangement or has been given a direction by a biosecurity official or permission under clause 557). The maximum civil penalty for a contravention is 120 penalty units. It will be an exception to be authorised by an Australian law. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. These powers are required to ensure a biosecurity officer can carry out his or her functions, by setting up equipment and affixing notices to goods or conveyances restricting their movement so that assessment and monitoring can be conducted to monitor biosecurity risks. Part 7–Biosecurity activity zones Division 1–Introduction Clause 394 Simplified outline of this Part This outline sets out the Part`s objectives. This Part allows the Director of Biosecurity to determine a biosecurity activity zone where powers are exercised or functions or duties are performed by, or on behalf of, the Commonwealth. The Director must be satisfied it is necessary for the purpose of managing biosecurity risk before making a determination. Biosecurity activity zones may be determined over premises such as an approved arrangement premises or over a biosecurity facility (such as a quarantine station). 254


Division 2–Biosecurity activity zone determinations Clause 395 Director of Biosecurity may determine biosecurity activity zone This clause provides that the Director of Biosecurity may determine that a specified area in Australian territory is a biosecurity activity zone if: the area is a place where powers are exercised or functions or duties are performed under the Act by the Commonwealth or on behalf of the Commonwealth (for example, a place where an approved arrangement is located), and the Director is satisfied that it is necessary to make the determination for the purposes of managing the biosecurity risk associated with exercising those powers or performing those functions or duties. The Director may determine that a specified area of Australian territory is part of a biosecurity activity zone even if the area is already part of a biosecurity response zone or a biosecurity monitoring zone. The biosecurity activity zone may consist of the whole or part of specified premises (other than a conveyance), including premises on which a biosecurity industry participant carries out biosecurity activities as authorised by an approved arrangement covering the biosecurity industry participant. The ability to determine a biosecurity activity zone is given to the Director rather than a biosecurity officer to ensure that there is appropriate oversight over the exercise of powers under a zone determination. A zone determination will be able to be varied or revoked in line with section 33(3) or the Acts Interpretation Act 1901. A determination made under clause 395 is exempt from disallowance under section 42 of the Legislative Instruments Act 2003. It is appropriate for the Parliament to delegate to the Director the power to make this determination involving technical and scientific decisions in order to manage risks to Australia`s biosecurity. Subjecting this determination to disallowance could undermine the technical and scientific based decision making process and frustrate risk management processes. A determination made under this clause is critical to the management of biosecurity risks. If this determination were to be disallowed, the Commonwealth`s ability to manage biosecurity risks relating to a disease or pest incursion will be limited. This would have a significant impact on the economy and would likely lead to comparable restrictions being put on Australia`s exports by Australia`s trading partners. In addition, disallowance of a determination made under this clause could lead to inadequate management of the biosecurity risks posed to human, plant and animal health, Australia`s local industries, the environment and the economy. Clause 396 Consultation requirements This clause outlines the requirement to consult with relevant state and territory bodies. Before determining a biosecurity activity zone, the Director of Biosecurity must consult the head of the body in each of the states or territories that are responsible for biosecurity matters in which the proposed biosecurity zone will lie. This clause provides for a mechanism to reduce jurisdictional uncertainties and facilitate activities where matters cross state and territory boundaries. However, a failure by the Director to consult as required in this clause, does not affect the validity of the determination. 255


Clause 397 Notification requirements This clause requires the Director of Biosecurity to ensure that the biosecurity activity zone determination is made public in any way that he or she sees fit. This is in addition to the requirements for registration under the Legislative Instruments Act 2003. For example, the Director may advertise in the local media in the area where the zone has been determined. This ensures that the public will be aware of the biosecurity activity zone and any powers or requirements associated with it. A biosecurity activity zone determination is not invalidated by a failure to meet the notification requirements in this clause. Clause 398 Revocation of biosecurity activity zone determination The Director of Biosecurity must revoke a biosecurity activity zone determination, where it is no longer necessary for powers to be exercise in a zone in accordance with clause 399. For example, the Director may revoke a biosecurity activity zone determination if an approved arrangement no longer operates in a specified area. The Director would not revoke the determination until all the biosecurity risks have been managed to an acceptable level. A revocation of a biosecurity activity zone determination will be a legislative instrument, but is exempt from disallowance under section 42 of the Legislative Instruments Act 2003. This is consistent with the disallowance exemption for the determination itself. It will take effect immediately after it is made. Division 3–Powers that may be exercised in biosecurity activity zones Clause 399 Powers that may be exercised This clause outlines the powers that may be exercised in a biosecurity activity zone in relation to goods and premises. This clause outlines additional powers which can be exercised in a biosecurity activity zone. These powers include: the power to cause the biosecurity activity zone to be identified (including by affixing notices or markings) the power to cause goods or premises (including conveyances) within the zone to be identified (including by affixing notices or markings) the power to direct a person in the zone to leave the zone for up to 24 hours, and any powers prescribed in the regulations for the purposes of this clause. The powers provided in relation to entry and exit requirements (see clauses 333 and 334) may also be exercised in a biosecurity activity zone. These powers will assist with the assessment and monitoring of biosecurity risk in areas which have a higher biosecurity risk because of the nature of activities undertaken at that location. Additionally, demarking the zone will notify the public of the potential biosecurity risks associated with the area, goods or premises. Subclause (3) limits the biosecurity measures that can be prescribed in the regulations. This subclause precludes the listing of: those measures that may be included in a human biosecurity control order (Division 3 of Part 3, Chapter 2) those measures that are named as biosecurity risk assessment powers (Division 3 of Part 2, Chapter 6) 256


those measures that provide powers to require measures to be taken (Division 2 of Part 3, Chapter 6) those measures relating to decontamination (Division 2 of Part 4, Chapter 10), and those measures provided for by the regulations made under clause 346. This ensures that the regulations do not contain biosecurity measures already available in the Act. It also ensures that any notification or processes already in the Act are not circumvented (for example, certain timeframes for notification or requirements to affix notices). The powers in this clause may only be exercised in relation to goods or premises within a biosecurity activity zone for the purposes of managing biosecurity risk. In addition, the application of clause 32 means that powers in this division must be exercised in accordance with the principles set out in that clause. Clause 400 Use of force This clause provides for the use of force by a biosecurity enforcement officer performing functions and exercising powers in a biosecurity activity zone against things must be necessary and reasonable in the circumstances. The use of force may allow, for example, the forceful opening of a door or the movement of things to assist with the execution of a warrant. This clause does not authorise the use of force against a person. This is to ensure protection to individuals and to clarify that physical force on an individual cannot be used in the exercise of powers authorised by a warrant under this Act. Division 4–Offences and civil penalty provisions Clause 401 Unauthorised persons must not interfere with etc. notices or markings identifying biosecurity activity zone Clause 402 Unauthorised persons must not interfere with etc. notices or markings identifying goods or premises in a biosecurity activity zone These clauses state that if a person interferes with, removes or defaces a notice or markings identifying the biosecurity activity zone (clause 401) or goods or premises within the zone (clause 402), the person is liable to a civil penalty (unless the person is authorised to do so under an approved arrangement or has been given a direction by a biosecurity official or permission under clause 557). The maximum civil penalty for a contravention is 120 penalty units. It will be an exception if the conduct is authorised by an Australian law. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. Clause 403 Person must comply with direction A person who fails to comply with a direction given under paragraph 399(1)(c) to leave a biosecurity activity zone commits an offence and is liable to a civil penalty. The maximum penalty for contravention is five years imprisonment, 300 penalty units, or both. The maximum civil penalty for a contravention is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement 257


Powers. This reflects the severity of the potential consequences of an offence. If directions are not complied with, significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia`s local industries, the environment and the economy. A court would be able to consider the significance of the offence, the intent of the person and determine whether a lesser penalty than the maximum should be applied. Chapter 7–Approved arrangements Part 1–Introduction Clause 404 Simplified outline of this Chapter This clause provides an overview of the approved arrangements scheme (see clause 9 for the definition of approved arrangement). Key provisions include approving, varying and suspending approved arrangements, the powers and obligations of biosecurity industry participants (BIPs) and audit powers. Part 2–Approval of proposed arrangement Clause 405 Person may apply to relevant Director for approval of proposed arrangement to carry out biosecurity activities This clause allows a person (including a non-natural person such as a corporation) to apply to the Director of Biosecurity or the Director of Human Biosecurity (relevant Director) for approval of an arrangement that allows the person to carry out specified activities (biosecurity activities) to manage the biosecurity risks associated with specified goods, premises or other things (see clause 9 for the definition of relevant Director). The nature of activities covered by an arrangement will be consistent with the rest of the Act. For example an arrangement should not allow a biosecurity industry participant to manage an invasive pest onshore in a way that is not consistent with the Convention on Biological Diversity (consistent with Chapter 6). Clause 406 Relevant Director must decide whether or not to approve proposed arrangement This clause allows the relevant Director, upon receiving an application under clause 405, to approve an arrangement or refuse to approve an arrangement. The relevant Director may approve an arrangement if satisfied that the arrangement meets the requirements set out in the regulations, the applicant is a fit and proper person (see clause 530) and the level of biosecurity risk associated with the arrangement is acceptable. These requirements are intended to ensure that applicants have the relevant facilities and expertise to manage biosecurity risks effectively and that the applicants are suitable persons to be entering into an agreement with the Commonwealth. When deciding whether he or she is satisfied, the relevant Director can consider any relevant matter. The relevant Director may also approve an arrangement subject to any conditions he or she considers appropriate. For example, a condition may be that goods are treated to an agreed upon standard and that suitable records are kept to verify that this has occurred. The conditions that are put in place will depend upon the nature and level of biosecurity risk associated with the approved arrangement and what measures are required to manage the risks to an acceptable level. Clause 407 Proposed arrangement may be approved subject to condition requiring security to be given This clause allows the relevant Director–having regard to the criteria (if any) prescribed by the regulations–to require a security be given as a condition of approval for an approved arrangement 258


(for example, a monetary amount). This means that the arrangement is not considered valid until the BIP has provided the security. Providing a security is a compliance tool that ensures if a BIP does not manage biosecurity risks in accordance with its arrangement, the security may be forfeited to the Commonwealth. For example, if a BIP with a history of low-level non-compliance proposes an arrangement (such as non-compliance with administrative requirements) the relevant Director may approve the arrangement subject to a security being paid. The BIP then enters into an arrangement that requires the BIP to maintain accurate records that demonstrate biosecurity risks are being managed to an acceptable level. If the BIP is non-compliant with these requirements, the security may be forfeited to the Commonwealth. The regulations may set out criteria that the relevant Director must have regard to when requiring that a security to be given. The form of the security, the amount, who must give the security, when the security must be given, the circumstances in which the security may be retained and the circumstances in which the security, or any part of the security must be repaid, will also be set out in the regulations. Clause 408 Notice of decision This clause requires the relevant Director to notify an applicant for a proposed arrangement whether or not the application has been approved. The notification must be in writing. If the arrangement has been approved, it must specify any conditions to which the approved arrangement is subject and the period for which the approved arrangement is to be in force. If the arrangement has not been approved, the notice must state the reasons why the arrangement was not approved. This ensures that if an application is approved, the BIP knows exactly when the approved arrangement commences and any conditions that it must be compliant with when operating under the approved arrangement. If the application has been refused, the notification ensures procedural fairness by informing the applicant that the application has been refused, the reasons for that refusal and information notifying the application about any relevant appeal processes. Clause 409 Period of effect of approved arrangement This clause provides that an approved arrangement takes effect on the day that the notice is given by the relevant Director to the BIP under clause 408 (the date of the signature on the notice) or if applicable, a later day specified in that notice. An approved arrangement remains in force for the period of time specified in the notice, unless it is revoked earlier. This clause provides clarity on when an approved arrangement comes into effect. It also allows the relevant Director to determine that an approved arrangement should take effect immediately or at a later date, depending upon the nature of the biosecurity activities under the arrangement. Clause 410 Restrictions on applications for approval of proposed arrangements etc. This clause provides that if a person`s application for an arrangement is refused or a BIP`s approved arrangement is revoked under Part 5, (referred to as the first person`), the relevant Director may do both or either of the following on one or more occasions: refuse an application for a proposed arrangement under clause 405 by an associate of the first person, or issue an associate of the first person who is a BIP or becomes a BIP with a notice requesting he or she show cause within 14 days why his or her approved arrangement should not be suspended in whole or in part, or revoked. 259


This clause allows the relevant Director to consider whether a person who applies for an approved arrangement is an associate of the first person. If the person is an associate (see clause 11 for the definition of associate), the relevant Director can use this as a basis to refuse his or her application for a proposed arrangement. If the associate already has an arrangement, the relevant Director can commence the process of suspending or revoking his or her arrangement by issuing a notice to show cause why the approved arrangement should not be suspended or revoked. The purpose of this clause is to prevent the first person (a person that the relevant Director has determined is not a suitable person to hold an approved arrangement) from obtaining a new arrangement through an associate acting on his or her behalf. It also ensures that a person involved in the original behaviour that resulted in the non-compliance of the first person, can be refused an arrangement or have his or her approved arrangement suspended or revoked. A notice issued under this clause must be in writing, state the grounds upon which the notice is given and request that the associate provides a written statement to the relevant Director within 14 days showing cause why the approved arrangement or part thereof, should not be suspended or revoked. The notice must also include a statement setting out the associate`s right to seek review of a decision to suspend or revoke his or her approved arrangement. Issuing a notice ensures that the process for decision making is fair and transparent, by informing the associate of the basis for a potential decision affecting his or her interests and allowing him or her to bring further information to the relevant Director`s attention that might impact upon the final decision. It also informs the associate of his or her right to appeal the decision if he or she chooses. Clause 411 Transfer of approved arrangement This clause provides that an approved arrangement cannot be transferred to another person except in the circumstances outlined in the regulations. This is to ensure that, except under specified circumstances, every BIP is required to meet fit and proper person requirements in clause 530 to establish whether he or she is a suitable person to enter into an arrangement with the Commonwealth. Part 3–Variation of approved arrangement Division 1–Application by biosecurity industry participant Clause 412 Application for approval of varied arrangement This clause allows a BIP to apply to the relevant Director to vary an approved arrangement. The BIP must not implement a varied arrangement it has applied for unless the relevant Director has approved the arrangement and given the BIP written notice of the approval. This is to ensure that a BIP does not change its operations before the relevant Director has determined whether the biosecurity risks associated with the proposed variation can be managed to an acceptable level. An application for a variation will be assessed using the same considerations and criteria for a new application in clauses 406-409. This allows the relevant Director to assess whether the proposed variation to the approved arrangement will continue to manage the biosecurity risks associated with the relevant biosecurity activities to an acceptable level (with or without conditions), and refuse to approve the variation if it does not. It also allows the relevant Director to require a security under clause 407 if it is warranted by the variation and requires the relevant Director to provide notice under clause 408. 260


Division 2–Variation required by relevant Director Clause 413 Relevant Director may vary or require variation of approved arrangement This clause allows the relevant Director to give the BIP a written notice varying the conditions of its approved arrangement (including imposing new conditions), or requiring the BIP to vary its approved arrangement as specified in the notice. The relevant Director can give the BIP a notice if he or she is satisfied: the arrangement no longer meets the requirements on the basis of which the approval was given the BIP is no longer a fit and proper person (clause 530) a condition of the arrangement has been contravened the level of biosecurity risk associated with the operation of the arrangement has changed a change needs to be made to the arrangement to correct a minor or technical error in the arrangement, or the arrangement needs to be varied for any other reason. Allowing the relevant Director to require variations to an arrangement and its conditions is intended to ensure that the biosecurity risks associated with the biosecurity activities under the approved arrangement continue to be managed to an acceptable level. If the relevant Director is not satisfied that this is the case, he or she can require that a BIP`s arrangement be varied. If a person no longer meets the fit and proper person requirements, contravenes a condition of approval, or is an associate of a first person, the relevant Director may determine that the BIP is still a suitable person to hold an agreement with the Commonwealth, but in a reduced capacity, and require the approved arrangement be varied to reflect this. In addition, a change in the level of biosecurity risk associated with the approved arrangement may mean that measures previously used to manage the biosecurity risk to an acceptable level are no longer achieving this aim. This clause allows the relevant Director to require that an arrangement is varied to reflect this. For example a pest or disease outbreak in another country may increase the level of biosecurity risk associated with the importation of a particular good and additional measures are required to reduce that risk to an acceptable level. The approved arrangement may be varied to include conditions that additional measures are carried out. This clause also allows the relevant Director to vary the arrangement to correct minor or technical errors. These variations are intended to be administrative in nature, such as correcting the spelling of a name or the address details of where the biosecurity activities will take place. Clause 414 Notice varying conditions of approved arrangement This clause provides that a notice varying the conditions of an approved arrangement issued under paragraph 413(1)(a) must specify the conditions that are to be varied, details of the variation and any new conditions that will be imposed on the approved arrangement (if applicable). This ensures that the BIP is aware of any changes to the conditions that apply to the operation of the approved arrangement. 261


Clause 415 Date of effect of variation of conditions of approved arrangement This clause provides that a variation of an approved arrangement by notice under paragraph 413(1)(a) takes effect on the day that notice is given (the date of the signature on the notice) or, if applicable, a later day specified in the notice. This clause provides clarity on when a variation to the arrangement comes into effect. It also allows the relevant Director to determine that a variation should take effect immediately or at a later date, depending upon the nature of the biosecurity activities under the arrangement and the variation made. Clause 416 Notice requiring approved arrangement to be varied This clause provides that a notice under paragraph 413(1)(b) requiring a BIP to vary its approved arrangement, must state the variations required and require the BIP to give the relevant Director a varied arrangement by a specified date. This ensures that the BIP is aware that it needs to vary its arrangement, how the arrangement needs to be varied and when the proposed variation is required by. This is intended to allow the relevant Director to identify that a particular arrangement needs to be varied, but then provide flexibility by allowing the BIP to propose how this can be achieved in the most cost effective way within its business operations. This also reflects the voluntary nature of the approved arrangements scheme. The varied arrangement will be treated similarly to a new application and subject to the requirements in clauses 406-409. This allows the relevant Director to assess the BIP`s varied arrangement and determine whether it will manage the biosecurity risks to an acceptable level and whether any further conditions are required. It also allows the relevant Director to require a security under clause 407 and requires the relevant Director to provide notice of the decision to the BIP under clause 408. This allows the relevant Director to assess whether the proposed variation to the approved arrangement will continue to manage the biosecurity risks associated with the relevant biosecurity activities to an acceptable level and refuse to approve a variation if it does not. Part 4–Suspension of approved arrangement Division 1–Suspension requested by biosecurity industry participant Clause 417 Biosecurity industry participant may request relevant Director to suspend all or part of approved arrangement This clause allows a BIP to request that the relevant Director suspends all or part of its approved arrangement. This request must be in writing, specify whether the whole arrangement or part of an arrangement is to be suspended, the proposed date the suspension is to take effect, the period of the suspension and include any other information prescribed by the regulations. The proposed suspension date cannot take place before the end of a notice period specified in the regulations. This is to ensure that the relevant Director has adequate time to consider the application before the BIP changes its operations and ensure that biosecurity risks continue to be managed appropriately. If the relevant Director receives a request from the BIP to suspend its approved arrangement, the Director must, by written notice, suspend the approved arrangement. If the BIP requests that the relevant Director suspend part of its approved arrangement, the relevant Director must decide whether to suspend the approved arrangement as requested and notify the BIP in writing of his or her decision. 262


The relevant Director must approve a request from a BIP to suspend its approved arrangement. This reflects the voluntary nature of the approved arrangements scheme. This may be because the BIP no longer has the facilities or expertise to manage the biosecurity risks or the BIP determines there is no longer a financial or commercial advantage in continuing to operate under its approved arrangement. The relevant Director can determine exactly when the suspension of the approved arrangement will take effect. This ensures that the relevant Director can assess any biosecurity risks associated with the suspension and make certain risks continue to be managed to an acceptable level after the arrangement is suspended. However, the relevant Director may refuse a request from a BIP to suspend part of its approved arrangement. Suspending part of an arrangement is essentially a variation and may change how biosecurity risks are managed under the arrangement as a whole. It is appropriate that the relevant Director can refuse to approve the suspension of part of an arrangement if he or she is not satisfied that biosecurity risks can continue to be managed to a satisfactory level under the remaining arrangement. The BIP will still have the option to apply for its approved arrangement to be suspended in a different way, suspended completely or to have its arrangement revoked if it is not satisfied with the relevant Director`s decision. If a relevant Director receives a request from a BIP to suspend part of an approved arrangement covering the BIP and does not make a decision within the period prescribed by the regulations, the relevant Director is taken to have refused the request at the end of that period. This is to ensure there is a definitive point where a decision is taken to have been made and the BIP can apply for a review of the decision under clause 574if it chooses. Division 2–Suspension by relevant Director Clause 418 Relevant Director may suspend approved arrangement Clause 419 Notice of suspension Clause 420 Period of suspension Clause 418 allows the relevant Director–of his or her own initiative–to suspend all or part of an approved arrangement for a period if the Director is satisfied that: the arrangement or part of the arrangement no longer meets the requirements on the basis of which the approval was given the BIP is no longer a fit and proper person (see clause 530) a condition of the arrangement has been contravened the level of biosecurity risk associated with the arrangement has changed the BIP is liable to pay a cost-recovery charge that is due and payable, or the BIP is an associate of a either a person who has been refused an approved arrangement or a person who was a BIP covered by an approved arrangement that has been revoked (for the definition of associate` see clause 11). The relevant Director must not suspend an approved arrangement unless he or she has given written notice to the BIP that specifies the grounds upon which the arrangement or part of the arrangement is to be suspended, requests that the BIP provide a written statement within 14 days showing cause why the arrangement or part of the arrangement should not be suspended and includes a statement setting out the BIP`s right to seek a review of the decision. If the relevant Director is satisfied that the grounds for the suspension of all or part of an approved arrangement are serious or urgent, he or she does not have to issue a notice and delay taking action until after the BIP`s period of time to show cause. This ensures that the relevant Director can take 263


action immediately to manage any biosecurity risks that pose a high level of risk, in order to reduce the threat or harm posed as quickly and efficiently as possible. Clause 419 provides that if the relevant Director decides to suspend an approved arrangement or part of an approved arrangement under clause 418, the Director must give the BIP written notice stating that the arrangement or part of the arrangement is suspended for the period specified in the notice. This ensures that the BIP is aware that its arrangement has been suspended and that it is no longer authorised to operate in accordance with its agreement. Clause 420 provides that the suspension of an approved arrangement, or part of an approved arrangement, takes effect on the day the notice is given under clause 419 (the date of the signature on the notice) or, if applicable, a later day specified in the notice. If the relevant Director issued the BIP with a notice requesting the BIP provide a written statement showing cause under clause 418, or issues the BIP with a notice under clause 410, the suspension must not take effect until 14 days after that notice was given. This is to ensure that the BIP has enough time to respond in writing to the relevant Director, and for its response to be considered, before any suspension takes effect. The relevant Director may further vary the period during which an approved arrangement or part of an approved arrangement is suspended, or revoke the suspension of an approved arrangement or part of an approved arrangement by issuing the BIP with a written notice. This ensures the relevant Director can extend the suspension of an arrangement or remove the suspension if required. Division 3– Management of biosecurity risks during suspension Clause 421 Management of biosecurity risks during suspension Clause 421 provides that if an approved arrangement or part of an approved arrangement covering a BIP is suspended (regardless of whether the BIP or the relevant Director initiated the suspension), the relevant Director may issue the former BIP with a direction in writing to take a specified action within a specified period to manage any biosecurity risks associated with the goods, premises or other thing the former BIP would have been authorised to deal with if the approved arrangement had not been suspended. This clarifies that even though the BIP`s arrangement has been suspended, the relevant Director can still direct a former BIP to manage the biosecurity risks associated with goods, premises or other things under the BIP`s control. If the relevant Director issues a former BIP with a direction to take specified action to manage biosecurity risks, the former BIP does not take the action within the period and the former BIP is not the owner of the goods, premises or other thing, the relevant Director may instead direct the owner in writing to take the specified action within a specified period. This ensures that if the former BIP does not comply with a direction, there is another person with responsibility for the goods, premises or other thing that can be directed to undertake the action and manage the biosecurity risk posed. A person who does not comply with a direction given under this clause commits an offence and is liable to a civil penalty. The maximum penalty is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If directions are not complied with, significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia`s local industries, the economy and the environment. 264


Part 5–Revocation of approved arrangement Division 1–Revocation requested by biosecurity industry participant Clause 422 Biosecurity industry participant may request relevant Director to revoke approved arrangement This clause allows a BIP to request that the relevant Director to revoke its approved arrangement. This request must be in writing, specify a proposed date the revocation is to take effect and include any other information prescribed by the regulations. The proposed revocation date cannot be before the end of a notice period specified in the regulations. This is to ensure that the relevant Director has adequate time to consider the request before the BIP ceases its operations and ensures that biosecurity risks continue to be managed appropriately. The relevant Director must approve a request from a BIP to revoke its approved arrangement. This reflects the voluntary nature of the approved arrangements scheme. This may be because the BIP no longer has the facilities or expertise to manage the biosecurity risks or the BIP determines there is no longer a financial or commercial advantage in continuing to operate under its arrangement. The relevant Director can determine the date that the revocation of the arrangement will take effect. This ensures that the arrangement is not revoked before the relevant Director has considered any outstanding risks biosecurity risks associated with the arrangement and make sure they are appropriately managed. Division 2–Revocation by relevant Director Clause 423 Relevant Director may revoke approved arrangement Clause 424 Notice of revocation Clause 425 Date of effect of revocation Clause 423 allows the relevant Director–of his or her own initiative–to revoke an approved arrangement if satisfied of any of the following: that the arrangement no longer meets the requirements on the basis of which the approval was given the BIP is no longer a fit and proper person (see clause 530) a condition of the arrangement has been contravened the level of biosecurity risk associated with the operation of the arrangement has changed the BIP is liable to pay cost-recovery charge that is due and payable, or the BIP is an associate of either a person who has been refused an approved arrangement or a person who was a BIP covered by an approved arrangement that has been revoked (for the definition of associate` see clause 11). The relevant Director must not revoke an approved arrangement unless he or she has given written notice to the BIP that specifies the grounds upon which the arrangement is to be revoked, requests that the BIP provide a written statement within 14 days showing cause why the arrangement should not be revoked and includes a statement setting out the BIP`s right to seek a review of the decision. If the relevant Director is satisfied that the grounds for the revocation of an approved arrangement are serious or urgent, he or she does not have to issue a notice and delay taking action until after the BIP`s period of time to show cause. This ensures that any biosecurity risks that pose a high level of risk can be managed immediately in order to reduce the threat or harm posed as quickly and efficiently as possible. 265


Clause 424 provides that if the relevant Director decides to revoke an approved arrangement under clause 423, the relevant Director must give the BIP written notice stating that the arrangement is revoked. This ensures that the BIP is aware that its arrangement has been suspended and that it is no longer authorised to operate in accordance with its agreement. Clause 425 provides that the revocation of an approved arrangement takes effect on the day the notice is given under clause 424 (the date of the signature on the notice) or, if applicable, a later day specified in the notice. If the relevant Director issues the BIP a notice requesting the provision of a written statement showing cause under clause 423, or provides the BIP with a notice under clause 410, the revocation must not take effect until 14 days after the notice is given. This is to ensure that the BIP has enough time to respond in writing to the relevant Director, and for the BIP`s response to be considered, before any revocation takes effect. Division 3– Management of biosecurity risks after revocation Clause 426 Management of biosecurity risks after revocation Clause 426 provides that if an approved arrangement covering a BIP is revoked (regardless of who instigated the revocation), the relevant Director may issue the former BIP with a direction in writing to take a specified action within a specified period of time to manage any biosecurity risks associated with the goods, premises or other thing the former BIP would have been authorised to deal with. This ensures that even though the former BIP`s arrangement has been revoked, the relevant Director can still direct the former BIP to manage the biosecurity risks associated with goods, premises or other things under its control. If the relevant Director issues the former BIP with a direction to take specified action to manage biosecurity risks, the former BIP does not take the action within the specified period and the former BIP is not the owner of the goods, premises or other thing, the relevant Director may issue the owner with a direction in writing to take the specified action within a specified period. This ensures that if the former BIP does not comply with a direction, there is another person with responsibility for the goods, premises or other thing that can be directed to undertake the action and manage the biosecurity risk posed. A person who does not comply with a direction given under this clause commits an offence and is liable to a civil penalty. The maximum penalty is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If directions are not complied with, significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia`s local industries, the economy and the environment. 266


Part 6–Powers and obligations of biosecurity industry participants Division 1–General Clause 427 Authorisation to carry out biosecurity activities in accordance with approved arrangement Clause 428 Biosecurity industry participant must carry out biosecurity activities in accordance with approved arrangement etc. Clause 427 provides that a BIP is authorised to carry out biosecurity activities in accordance with the approved arrangement for the purposes of the Act, except for the extent to which its approved arrangement is suspended under Part 4 or if carrying out the activities is inconsistent with a direction given to the BIP by a biosecurity officer under clause 429 or a written direction by a relevant Director under subclause 421(2). If the BIP`s approved arrangement has been revoked under Part 5, the former BIP is not authorised to carry out biosecurity activities in accordance with the approved arrangement for the purposes of the Act at any time after the revocation takes effect unless directed by a relevant Director under subclause 426(2). This clarifies that a BIP is only authorised to carry out biosecurity activities in accordance with its approved arrangement when the arrangement is in effect and covering the BIP, not during a period when it has been suspended or if it has been revoked (unless the BIP is specifically directed to by a biosecurity officer or the relevant Director). Clause 428 provides that if a BIP is authorised to carry out biosecurity activities by an approved arrangement covering the BIP and the BIP fails to carry out those biosecurity activities in accordance with its arrangement or contravenes any requirements or conditions specified in the arrangement, the BIP commits an offence and is liable to a civil penalty. The maximum penalty for a contravention is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for contravention is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If requirements or conditions are contravened, significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia`s local industries, the economy and the environment. Clause 429 Biosecurity officer may give direction to biosecurity industry participant to manage biosecurity risks Clause 429 allows a biosecurity officer to give a direction to a BIP in relation to the operation of its approved arrangement, if the biosecurity officer is satisfied it is necessary to do so to manage the biosecurity risks associated with the operation of the arrangement. A direction may require the BIP to carry out an activity that is not covered by its approved arrangement or require the BIP not to carry out an activity in accordance with its approved arrangement. A biosecurity officer may not however require a BIP to carry out an activity that it does not have the qualifications, expertise or resources to. This means that regardless of what biosecurity activities have been authorised in a BIP`s approved arrangement, the BIP is still required to follow the direction of a biosecurity officer in relation to the operation of an arrangement. This is the case, even if the direction is not consistent with the BIP`s approved arrangement. This ensures that biosecurity officers have ultimate responsibility for the management of biosecurity risks and can require a BIP to manage the risks associated with the operation of its approved arrangement in a different way if the biosecurity officer deems it necessary. A biosecurity officer can only issue a direction however if the BIP has the facilities and 267


expertise to comply with the direction. This ensures that a BIP is not given a direction outside the scope and capacity of its arrangement that it is unable to comply with. A BIP commits an offence and is liable to a civil penalty if the BIP does not comply with a direction given under this clause. The maximum penalty is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If directions are not complied with, significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia`s local industries, the economy and the environment. Clause 430 Biosecurity industry participant may charge fee in relation to biosecurity activities carried out This clause allows a BIP who is authorised to carry out biosecurity activities under an approved arrangement to charge a fee in relation to those activities. A BIP may also charge a fee for any activities carried out when complying with a direction from a biosecurity officer under clause 429. This is to ensure that a BIP can receive reasonable payment in return for its services. Consistent with the Bill, any fees charged by the BIP for functions performed on behalf of the Commonwealth must not amount to taxation. Division 2–Biosecurity Incidents Clause 431 Reporting biosecurity incidents This clause provides that if an act, omission or event occurs (known as a reportable biosecurity incident), that is specified in a BIP`s approved arrangement or is a condition of its approved arrangement; the BIP must report the incident to the relevant Director. An example of a reportable biosecurity incident might be the detection of a particular pest in goods that are being managed under the approved arrangement. Requiring biosecurity incidents to be reported ensures that the Commonwealth is made aware of the biosecurity risk posed and can direct the BIP or undertake urgent actions to manage that risk to an acceptable level if required. The way the report must be made and the information that must be included in the report will be determined by the relevant Director by legislative instrument. If the report does not comply with these requirements, the report is taken not to have been made. A BIP may commit an offence or be liable to a civil penalty if the BIP fails to comply with any requirements specified in an approved arrangement covering the BIP or a condition of an approved arrangement (see clause 428). This clause does not limit the operation of Division 8 of Part 1 of Chapter 3, which deals with the reporting of biosecurity incidents in relation to goods that are subject to biosecurity control. BIPs will still be required to comply with these requirements, if applicable. Clause 432 Costs of dealing with biosecurity incidents This clause allows the relevant Director to apply to a relevant court for a costs order if a current or former BIP: failed to carry out biosecurity activities in accordance with its arrangement a biosecurity incident occurred in relation to the operation of the arrangement this was caused by the BIP`s failure to comply with its arrangement, and the Commonwealth incurred costs dealing with the biosecurity incident. The court may, upon the application of the relevant Director, make a costs order and require the BIP to pay to the Commonwealth all or part of the costs incurred by the Commonwealth. The 268


relevant Director must apply for a costs order within six years of the biosecurity incident occurring. This ensures that there is a set period of time during which the BIP may be held liable. In deciding whether to make a costs order, the relevant court may have regard to: the nature and extent to which the BIP failed to comply with its approved arrangement the circumstances in which the biosecurity incident occurred the nature and extent of any damage caused by the BIP`s failure to comply the level of biosecurity risk associated with the incident the amount of costs incurred by the Commonwealth in dealing with the incident whether the BIP has previously had a costs order made against it in relation to a biosecurity incident, or any other matter the court considers relevant. This ensures that the court can consider a range of different factors relevant to the BIP`s level of responsibility and how the Commonwealth`s costs were incurred when making its decision. Part 7–Other provisions Division 1–Applications for approval Clause 433 Applications to which this Division applies Clause 434 Requirements for applications These clauses state that an application for an approved arrangement, made under Part 2 or an application to vary an approved arrangement under Division 1 of Part 3, must be in the form approved by the relevant Director (if any), and include the information prescribed in the regulations. The application must also be accompanied by a copy of the arrangement or varied arrangement that is to be approved and any other documents prescribed by the regulations (this may include personal information required under subclause 531(1)). This ensures that the relevant Director receives all of the relevant information required to determine if he or she is satisfied the applicant can manage the biosecurity risks associated with its proposed arrangement and that the applicant is a suitable person to enter into an agreement with the Commonwealth. An application for an approved arrangement may require an application fee, as outlined in paragraph 592(4)(e). This allows the Commonwealth to recover any costs incurred when administering the approval process. The relevant Director may approve different requirements for different types of applications. This is intended to allow the relevant Director to differentiate between more straight forward and complex categories of approved arrangements and establish different requirements for each. This reflects the broad nature of the approved arrangements scheme, which allows for a diverse range of biosecurity activities to be managed under an arrangement. Clause 435 Dealing with applications This clause provides that the relevant Director must make a decision in relation to an application within a consideration period prescribed by the regulations for an application of that kind. This allows the relevant Director to identify a specific period of time in which a category of applications must be considered. This is required because of the broad nature of activities that can be applied for under the approved arrangements scheme. Some applications will be straight forward and require a shorter consideration period. Others will cover facilities at different 269


locations with different risk management activities and require a longer consideration period for the relevant Director to consider whether the biosecurity risks can be managed appropriately. The consideration period begins on the day the application was received by the relevant Director. If the relevant Director does not make a decision within the consideration period, he or she is taken to have refused the application. This is to ensure there is a definite end point where a decision is taken to have been made and the applicant can apply for a review of the decision if they choose. For the purpose of making a decision regarding an application, the relevant Director can issue a written notice requesting that the applicant, or any other person the relevant Director considers may have information relevant to the application, provide specified information or documents relevant to the application within a specified period. The initial consideration period identified in the regulations is extended every time the relevant Director makes a request for information. The period of time for the extension commences when the additional request is made and ends the day the additional information or documents are received by the relevant Director, or the last day of the period identified by the relevant Director in his or her request if the information or documents are not received. This ensures that if the relevant Director requires additional information in order to properly assess an application (particularly more complex applications) and make a decision regarding whether the biosecurity risks can be managed to a satisfactory level, he or she has time to request and receive this information before the consideration period runs out and a decision to refuse the application is considered to have been made (which attracts review rights under clause 574). Division 2–Audit powers Clause 436 Relevant Director may require audit to be carried out This clause provides that the relevant Director may require an audit to be carried out: in relation to whether a BIP is acting in accordance with, or complying with any requirements or conditions for an approved arrangement that covers the BIP, or for the purposes of considering: an application under clause 405 for approval of a proposed arrangement, or an application under clause 412(1) for approval of a varied arrangement. The ability to conduct an audit of an approved arrangement is an important compliance tool. It can be used by the relevant Director to determine whether the BIP is being compliant with the requirements or conditions of its existing arrangement and managing its biosecurity risks appropriately. If the BIP is not compliant, the relevant Director may decide to start the process of suspending or revoking its arrangement. Auditing powers can also be used to assess an application for a new arrangement or a varied arrangement and help the relevant Director determine whether, if approved, a BIP has the appropriate facilities or personnel to manage biosecurity risks appropriately. An audit must be carried out by a biosecurity officer or an auditor approved in writing by the relevant Director. All approved auditors must be appropriately qualified and experienced. This is intended to ensure auditors have the skills required to conduct audit activities correctly. For example, the appropriate skills to complete an audit that involves highly specialised equipment in a university research laboratory. 270


The regulations may include requirements in relation to audits. This may include reporting requirements to the relevant Director by the auditor carrying out an audit. This ensures that the relevant Director is aware of any outcomes from the audit and can take appropriate action if required. Clause 437 Powers of auditors This clause states that a person carrying out an audit under clause 436 may require any person to produce any documents, records or things that the auditor is satisfied are relevant to the audit. This ensures that the auditor has access to all the relevant information that he or she needs in order to conduct a comprehensive and effective audit. A person who fails to produce any documents, records or things as required commits an offence and is liable to a civil penalty. The maximum penalty is six months imprisonment or 30 penalty units, or both. The maximum civil penalty is 30 penalty units. In addition, section 137.2 of the Criminal Code and clause 533 of this Act create an offence and civil penalty for providing false or misleading documents. This clause is not subject to the privilege against self-incrimination (see clause 635). Removing the privilege in these circumstances is justified, because there is a strong public interest in ensuring that auditors are able to obtain accurate and timely information to determine whether biosecurity risks are or can be managed appropriately. Allowing a person to use the privilege against self-incrimination and refuse to provide important information, could result in a significant biosecurity risk not being identified and remaining unmanaged. Whilst the privilege against self-incrimination is abrogated in relation to this clause, the Bill provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person (see clause 635). An auditor may also require any person to provide the auditor with reasonable facilities and assistance for the effective exercise of powers under this Division. This ensures that the auditor can efficiently carry out the audit without undue delay caused by seeking facilities elsewhere or requiring other persons to provide assistance. A person commits an offence and is liable to a civil penalty if the person contravenes this requirement. The maximum penalty for a contravention is six months imprisonment or 30 penalty units, or both. The maximum civil penalty for a contravention is 30 penalty units. Division 3–Miscellaneous Clause 438 Giving false or misleading information to a biosecurity industry participant Clause 439 Giving false or misleading documents to a biosecurity industry participant These clauses provide that a person is liable to a maximum civil penalty of 120 penalty units if that person knowingly gives false and misleading information or documents to a BIP and the information is given in connection with biosecurity activities that are being, or are to be, carried out by the BIP in accordance with an approved arrangement. The person is also liable to the same civil penalty if he or she omits any matter or thing without which the information or documents are misleading. This ensures that a person is required to provide the same accurate information and documents to a BIP operating under an approved arrangement that he or she would be required to provide to a 271


biosecurity officer. This ensures that biosecurity risks can be assessed and managed appropriately by the BIP and that a person can be held liable if he or she provides inaccurate or misleading information or documents. If a BIP relies upon false or misleading information, this has the potential to increase the level of biosecurity risk associated with its activities and may cause serious consequences. A person is not liable for a civil penalty if the information that he or she provides is not false or misleading in a material particular. This means that a person will not be liable for providing false or misleading information which is trivial or inconsequential. An exception also applies if person omitted information but the exclusion of that information did not result in the overall information being misleading in a material particular. A person is also not liable if the BIP does not take reasonable steps to inform the person that he or she may be liable to a civil penalty if the information provided is false or misleading before he or she provides the information. This ensures that the person is aware of his or her obligation to provide accurate information or documents at the time it is provided and the potential consequences of failing to do so. A person is also not liable if he or she produces a document that is accompanied by a written statement stating that to his or her knowledge the document is false or misleading in a material particular and identifying where it is false or misleading. This is to ensure that if a person is required to provide a document, the person knows it contains false or misleading material but he or she does not have the ability to produce a document with the correct information, that person is not liable if he or she took steps to provide the correct information together with the required document. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. Clause 440 Obstruction or hindrance of person acting in accordance with approved arrangement This clause provides that it is an offence for a person to obstruct or hinder another person carrying out biosecurity activities in accordance with an approved arrangement, a person under an approved arrangement acting in accordance with a direction from a biosecurity officer, or a person acting in accordance with the relevant Director in relation to an approved arrangement that has been suspended or revoked. A person who contravenes this clause commits an offence and is liable to a civil penalty. The maximum penalty is five years imprisonment, or 300 penalty units, or both. The maximum civil penalty is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If a person hinders or obstructs compliance with an approved arrangement, significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia`s local industries, the economy and the environment. 272


This ensures that a BIP operating under an approved arrangement is able to carry out biosecurity activities in accordance with its arrangement, free from interference. If a BIP or former BIP is hindered, this may result in biosecurity risks not being identified or managed appropriately and has the potential to cause serious consequences. Clause 441 Protection from civil proceedings This clause provides that no civil proceedings may lie against the Commonwealth, or a person who is or was a BIP, for anything done or omitted to be done in good faith when carrying out biosecurity activities in accordance with an approved arrangement, complying with a direction from a biosecurity officer under clause 429 or by another person who was providing assistance to the BIP or former BIP in carrying out the activities or complying with the direction. In addition, no civil proceedings may lie against the Commonwealth, or a person who is or was a BIP, in relation to anything done by an animal used to carry out biosecurity activities under an approved arrangement or when complying with a direction from a biosecurity officer under clause 429. This ensures that a BIP is able to carry out biosecurity activities under its approved arrangement without being subjected to civil proceedings, as long as it performed those activities in good faith. A BIP is considered to have acted in good faith when acting in accordance with its approved arrangement or a valid direction given under the Act. This clause is subject to clause 27 (acquisition of property), clause 307 (undue detention or delay of vessel) and clause 326 (damage to electronic equipment). This is consistent with the Commonwealth`s obligations under the Act, where particular conduct may lead to reasonable compensation being paid. Chapter 8–Biosecurity emergencies and human biosecurity emergencies Part 1–Biosecurity emergencies Division 1–Introduction Clause 442 Simplified outline of this Part This outline sets out the Part`s objectives. The Part provides powers to deal with biosecurity emergencies of national significance. This Part also sets out the circumstances in which the powers may be exercised, the requirements for using the powers and the purposes for which the powers can be exercised. These powers include the power to make a declaration of a biosecurity emergency, to make emergency requirements, take action and give directions, to declare national response agencies to assist with managing biosecurity emergencies and entry permissions to premises during a declared biosecurity emergency period. This Part also sets out the modifications of the Act in the case of a declared biosecurity emergency period. Division 2–Declaration of biosecurity emergency Clause 443 Governor-General may declare that a biosecurity emergency exists This clause allows the Governor-General to declare that a biosecurity emergency exists, known as a biosecurity emergency declaration (see clause 9). The biosecurity emergency declaration must only be made if the Agriculture Minister is satisfied that: a disease or pest is posing a severe and immediate threat, or is causing harm, to animal or plant health, the environment, or economic activities related to animals, plants or the environment the threat or harm must be on a nationally significant scale, and 273


the declaration is necessary` to prevent or control the spread or establishment of the disease or pest in Australian territory, or a part of Australian territory. The threshold test is consistent with the World Trade Organization SPS Agreement, in particular the reference to economic activities related to animals, plants or the environment.` This means that an assessment has been made that a particular disease or pest poses a nationally significant threat or is causing nationally significant harm and the activation of emergency powers is necessary to manage it. The intent of this test is to ensure that emergency powers under clauses 445, 446, 450 and 451 are exercised only when they are necessary to prevent or control the spread or establishment of the pest or disease that is specified in the declaration. A biosecurity emergency declaration must specify the disease or pest that led to the declaration (the declaration disease or pest), the nature of the biosecurity emergency and the conditions that gave rise to the emergency and specify the period (known as the biosecurity emergency period) during which the emergency declaration is in force. A biosecurity emergency period must be no longer than the Minister considers necessary to prevent or control the establishment or spread of the declaration disease or pest in Australian territory, or a part of Australian territory, or in any case, no longer than three months. This period can be extended under clause 444. The biosecurity emergency period is limited to a maximum of three months to ensure there is a fixed point in time where the emergency declaration is evaluated to determine whether the circumstances that led to the declaration still exist and emergency powers provided by the declaration are still required. The potentially invasive nature of powers that can be exercised during an emergency period, such as the power for a biosecurity officer to enter premises without a warrant or consent, mean that a biosecurity emergency declaration should only be in force for as long as is necessary to manage the nationally significant threat or harm posed by the disease or pest. The Governor-General must revoke a biosecurity emergency declaration if the Minister is no longer satisfied that the declaration disease or pest poses a severe and immediate threat or is causing harm on a nationally significant scale to animal or plant health; the environment; economic activities related to animals, plants or the environment, or; the declaration is no longer necessary to prevent or control the establishment or spread of the disease or pest in Australian territory or part of Australian territory. This ensures that if the Minister determines that the circumstances that led to the biosecurity emergency declaration no longer exist, the declaration is revoked rather than allowing the biosecurity emergency period to lapse. As discussed above, this reflects the potentially invasive nature of powers that can be exercised during a biosecurity emergency period, which should only be available for as long as is necessary to manage the nationally significant threat or harm posed by the disease or pest. The clause notes that biosecurity emergency declarations cannot be made in relation to invasive pests (see subclause 25(2)). This is because invasive pests, by definition, are not capable of infesting humans, animals or plants or acting as a vector for disease and do not warrant the use of the potentially invasive powers in Chapter 8. A biosecurity emergency declaration is a legislative instrument, but disallowance under section 42 of the Legislative Instruments Act 2003 does not apply. This is because the decision whether to declare an emergency should be scientifically based and made in accordance with an assessment of the relevant biosecurity risks. If an emergency declaration was disallowed, nationally significant biosecurity risks could go unmanaged and the Commonwealth would be unable to take 274


the fast and urgent action necessary to manage a threat or harm to Australia`s local industries, economy and the environment. Clause 444 Governor-General may extend biosecurity emergency period This clause allows the Governor-General to vary a biosecurity emergency declaration in order to extend the biosecurity emergency period for up to three months if recommended to do so by the Agriculture Minister. In making this recommendation, the Minister must be satisfied that: the declaration disease or pest continues to pose a severe and immediate threat, or is continuing to cause harm, to animal or plant health the environment; economic activities related to animals, plants or the environment on a nationally significant scale, and the extension is necessary to prevent or control the establishment or spread of the disease or pest in Australian territory or part of Australian territory. The Governor-General may extend a biosecurity emergency period more than once. This means that if the Minister evaluates the biosecurity emergency declaration at the end of the biosecurity emergency period and determines that the circumstances that led to the declaration still exist and emergency powers are still required, the biosecurity emergency period can be extended for up to three months. Depending on the nature of the declaration disease or pest and the level of biosecurity risk posed by that disease or pest, an extended period of time might be required to manage the threat or harm posed. For example, a nationally significant scale outbreak of foot-and- mouth disease may require a biosecurity emergency period of 12 months or more to manage. On this basis there is no limit on the number of extensions that can be made by the Governor-General. An emergency declaration variation under this clause is a legislative instrument, but disallowance under section 42 of the Legislative Instruments Act 2003 does not apply. This is because the decision whether to extend an emergency period should be scientifically based and made in accordance with an assessment of the relevant biosecurity risks. If an emergency declaration to extend the emergency period was disallowed, nationally significant biosecurity risks could go unmanaged and the Commonwealth would be unable to take the fast and urgent action necessary to manage a threat or harm to Australia`s local industries, economy and the environment. Division 3–Emergency requirements, directions and actions Clause 445 Agriculture Minister may determine emergency requirements during biosecurity emergencies This clause provides for the Agriculture Minister, during a declared biosecurity emergency period, to determine any requirement that the Minister is satisfied is appropriate and adapted to preventing or controlling the establishment or spread of the declaration disease or pest in Australian territory or a part of Australian territory. Requirements are broad directions issued by the Minister to manage the response to a declaration disease or pest. Requirements may include: specifying how people, goods or conveyances enter or leave a specified place restricting their movement between specified places evacuation or removal of goods and/or conveyances from specified places, and treatment or destruction of goods. For example, the Minister may determine that every person inside a biosecurity response zone wear protective shoes and when leaving a biosecurity response zone discards those shoes and exits through a foot bath. 275


The Minister is not limited in the requirements he or she can make during a declared biosecurity emergency period as long as the Minister is satisfied the requirement is appropriate and adapted to preventing or controlling the establishment or spread of the declaration disease or pest. The power to determine biosecurity emergency requirements is intended to allow the Minister to determine any requirement that is needed to manage the declaration disease or pest on a national scale. The specific requirements that are determined by the Minister will depend upon a range of factors such as the origin, nature and scale of biosecurity risk associated with the declaration disease or pest and its location within Australian territory. Some examples are listed under subclause (3) to give an indication of the types of requirements that might be determined by the Minister, but this is not intended to limit the types of requirements that may be determined. The words appropriate and adapted` have been used to create the appropriate link between the Minister exercising the power to determine an emergency requirement and the quarantine constitutional head of power (section 51(ix) of the Constitution). Appropriate and adapted` also incorporates the international law principle of proportionality. The use of these words is further intended to ensure that the exercise of the power to give directions or take actions is consistent with Australia`s international human rights obligations, such as the right not to be subjected to arbitrary or unlawful interferences with a person`s privacy under Article 17 of the International Covenant on Civil and Political Rights. The determination of a biosecurity emergency requirement is a legislative instrument, but disallowance under section 42 of the Legislative Instruments Act 2003 does not apply. This is because the decision of whether to impose an emergency requirement should be scientifically based and made in accordance with an assessment of the relevant biosecurity risks. If an emergency requirement was disallowed, nationally significant biosecurity risks could go unmanaged and the Commonwealth would be unable to take the fast and urgent action necessary to manage a threat or harm to Australia`s local industries, economy and the environment. This power may be delegated to the executive head of a national response agency (see clause 453). Limitations apply to the exercise of powers in relation to individuals (see clause 448), and failure to comply with a determined requirement under this clause may constitute an offence or incur a civil penalty (see clause 449). 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. The determination of a biosecurity emergency requirement will have effect until the end of the biosecurity emergency period, unless the requirement is revoked earlier. This is to ensure that when a biosecurity emergency period ends, people are no longer required to comply with requirements specifically determined to address the threat or harm posed by the declared disease or pest. 276


Clause 446 Agriculture Minister may give directions and take actions during biosecurity emergencies This clause allows the Agriculture Minister, during a biosecurity emergency period, to give a direction to any person or take any action the Minister is satisfied is appropriate and adapted to prevent or control the establishment or spread of the declaration disease or pest in Australian territory or a part of Australian territory. This power may be delegated to the executive head of a national response agency and subdelegated to a national response agency employee. Clauses 447 and 448 set out limitations to this power. Directions related to the management of the declaration disease or pest can be issued directly to a person by the Minister or by a delegate. For example, a direction can be given to a person requiring them to secure a good or conveyance so it can be treated. Actions` refers to specific actions to give effect to a requirement or a direction, for example, moving goods or a conveyance. The words appropriate and adapted` have been used to create the appropriate link between the Minister exercising the power to give directions or take action and the quarantine constitutional head of power (section 51(ix) of the Constitution). Appropriate and adapted` also incorporates the international law principle of proportionality. The use of these words is further intended to ensure that the exercise of the power to give directions or take actions is consistent with Australia`s international human rights obligations, such as the right not to be subjected to arbitrary or unlawful interferences with a person`s privacy under Article 17 of the International Covenant on Civil and Political Rights. The power to issue directions or undertake actions is intended to allow the Minister to give any direction or take any action that is necessary to manage the declaration disease or pest on a national scale. The specific directions issued or actions undertaken by the Minister will depend upon a range of factors such as the origin, nature and scale of biosecurity risk associated with the declaration disease or pest and its location within Australian territory. Some examples are listed under subclauses (2) and (3) to give an indication of the types of direction or actions that might be issued or undertaken by the Minister, but this is not intended to limit the types of actions or directions available to the Minister. This clause allows the Minister to give a direction of a general or specific nature to the Director of Biosecurity or an officer or employee of the Commonwealth (including a biosecurity enforcement officer or a biosecurity officer) about the performance of his or her functions or exercise of his or her powers. This 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. The power to give directions or take action in this way cannot be delegated (see clause 453), as it would not be appropriate for the executive head of a national response agency or a national response agency employee to be able to issue the Director, a biosecurity enforcement officer or a biosecurity officer with a direction about how he or she performs his or her functions or exercise his or her powers. A direction may be given or an action taken despite any provision of any other Australian law. This ensures that any person who acts in accordance with a direction given under this clause, or undertakes an action in accordance with this clause, will not be liable for an offence or non- compliance under another Australian law. However, this clause does not override any other Australian law, which means that unless compliance with the direction or undertaking the action conflicts with another law, that law will continue to be in force. 277


A direction under this clause to a biosecurity officer or a biosecurity enforcement officer can be given despite any restriction specified in the officer`s instrument of authorisation under subclauses 550(2) or 551(2). This is to ensure that officers can be given additional functions and powers that are usually restricted, but required during a biosecurity emergency, to respond to the threat or harm posed by the declaration disease or pest. A direction ceases to have effect at the end of the biosecurity emergency period, unless revoked earlier. This ensures that once a biosecurity emergency period has ended, people are no longer required to comply with directions specifically given to address the threat or harm posed by the declared disease or pest. Merits review to the Administrative Appeals Tribunal is not available for a decision to issue an emergency direction or undertake an action during a biosecurity emergency. This is to ensure the Commonwealth can undertake the fast and urgent actions necessary to manage the threat or harm posed by the declaration disease or pest to Australia`s local industries economy and environment without waiting for a review period to pass. Clause 447 Limits on power to give directions and take actions This clause establishes limitations over the Agriculture Minister`s power to give a direction or undertake an action under clause 446. Before exercising this power, the Minster must be satisfied that: exercising the power is likely to be effective in, or contribute to, achieving the purpose for which it is being exercised that the manner in which it is exercised is no more restrictive or intrusive than required in the circumstances that, when exercised in relation to an individual, it is no more restrictive or intrusive than required in the circumstances that, if exercised during a period, the period is only for as long as necessary, and that, if exercised in relation to a conveyance, the Minister has considered the impact upon the health and safety of any persons on board the conveyance. These limitations also apply to a person who exercises a power in accordance with a delegation or subdelegation (see clauses 453 or 454) from the Minister. The limitations do not apply to directions of either a general or specific nature given to the Director of Biosecurity and other Commonwealth officers or employees about the performance of his or her functions or the exercise of his or her powers, because this type of direction does not directly impact upon a person or his or her rights. Limitations have been inserted to ensure that any direction given or action undertaken is necessary and proportionate and does not impact on a person or his or her rights any more than is necessary to manage the level of biosecurity risk posed. This is consistent with international treaties such as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights. The person exercising the power provided for in this clause must be satisfied that any direction given or action undertaken is likely to be effective in or contribute to achieving its purpose (paragraph (1)(a)) and that the period in which it is exercised is only for as long as necessary (paragraph(1)(d)). The direction given or action undertaken must also be no more intrusive or restrictive than is required under the circumstances (paragraph (1)(b)). While already covered by paragraph (1)(b), for clarity a separate paragraph (1)(c) has been included requiring that, when exercised in relation to an individual, a direction given or action undertaken is no more intrusive or restrictive than is required under the circumstances. This ensures that a person`s rights and the 278


impact of the decision upon them are one of the factors considered when the decision to issue a direction or undertake an action is made. The person exercising the power must also be satisfied that when giving a direction or undertaking an action the impact upon the health and safety of the people on board is considered (subclause (2)). This is consistent with Article 6 of the ICCPR which provides for the right to life. For example, the decision to issue a direction for an aircraft or vessel not to enter Australia should consider whether the conveyance has adequate fuel and supplies to comply with this direction and whether any persons on board require life saving medical treatment. Clause 448 Limit on requiring individuals to be subject to certain biosecurity measures This clause prevents the Agriculture Minister (or delegate or subdelegate as allowed for in this Act) from requiring or directing, under clause 445 or 446, an individual to be subject to a human biosecurity measure of a kind set out in Subdivision B of Division 3 of Part 3 of Chapter 2. These are measures that may be included in a human biosecurity control order, such as examinations, requiring body samples for analysis and receiving vaccinations, medications or treatment. These types of biosecurity measures should not be implemented during a biosecurity emergency period as they are specifically designed to manage human health risks, not biosecurity risks relevant to a declared disease or pest. If such a measure does need to be implemented, it will be provided for using the powers in Chapter 2 (human health) or the powers in Part 2 (human biosecurity emergencies) of this Chapter. This clause does not prevent a requirement being made or a direction given by the Agriculture Minister (or delegate or subdelegate), for an individual to wear specified clothing or equipment (or both), designed to prevent a disease or pest from establishing or spreading. It also does not prevent the Director of Biosecurity or a biosecurity officer from exercising his or her powers under Subdivision B of Division 2 of Part 4 of Chapter 10. Those powers allow for an individual to be decontaminated or for an individual`s clothing and/or personal effects to be decontaminated and are not specific to addressing a human health risk. Decontamination may be required in a declared biosecurity emergency to manage the threat or harm posed by the declaration disease or pest. Clause 449 Person must comply with emergency requirements and directions A person must comply with a requirement determined under clause 445 or a direction given under clause 446 that applies to that person. If the person is subject to a requirement or a direction under those clauses and engages in conduct that contravenes the requirement or the direction, the person commits an offence and is liable to a civil penalty. The criminal penalty for contravention of this clause is up to a maximum of five years imprisonment, or 300 penalty units, or both. The maximum civil penalty for a contravention of this clause is 120 penalty units. This clause is intended to ensure people comply with requirements and directions given to them during a declared biosecurity emergency. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If directions are not complied with, significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia`s local industries, the economy and the environment. These penalties reflect the high level of threat or harm posed by the declaration disease or pest and the potential consequences of non-compliance. 279


Clause 450 Asking questions relating to biosecurity emergencies This clause allows the Agriculture Minister to require a person, who is suspected on reasonable grounds of having information relating to the declared biosecurity emergency, to answer questions or provide information in writing. This power may be delegated to the executive head of a national response agency and subdelegated to a national response agency employee. This power is necessary to allow information to be gathered about the declaration disease or pest (such as where a conveyance with a declaration disease or pest onboard has travelled to) and to enable a more informed assessment of whether there is a biosecurity risk, what level of biosecurity risk is posed and what biosecurity measures are required to manage it. A requirement imposed under this clause continues to have effect whether or not the biosecurity emergency period has ended, until the person complies with the requirement or the person is informed by the Minister or a biosecurity officer that the answer or information is no longer required. This ensures that activities to assess and manage the declaration disease or pest can continue if required, even if the biosecurity emergency declaration is no longer in effect. In particular assessment and monitoring activities are likely to be required to determine if the declaration disease or pest is still present or has spread, what level of biosecurity risk is posed and to inform a decision whether an emergency declaration is extended or required in the future. A person who is subject to a requirement under this clause and fails to comply with the requirement commits an offence and is liable to a civil penalty. The penalty for a contravention is up to a maximum of five years imprisonment, or 300 penalty units, or both. The maximum civil penalty is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If information is not provided, significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia`s local industries, the economy and the environment. These penalties reflect the high level of threat or harm posed by the declaration disease or pest and the potential consequences of non-compliance. This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this clause is high as it will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and put appropriate biosecurity measures in place to address that risk. Given the potential seriousness of the biosecurity risk and the need for a timely response, the information being gathered under these clauses is required urgently in a declared biosecurity emergency to allow for the assessment and management of a significant threat or harm to Australia`s local industries, economy and the environment. Whilst the privilege against self-incrimination is abrogated in relation to this clause, the Act provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person (see clause 635). In addition, section 137.1 of the Criminal Code and clause 532 of this Act create an offence and civil penalty for providing false or misleading information. 280


Clause 451 Requiring documents relating to biosecurity emergencies This clause allows the Agriculture Minister to require a person whom the Minister suspects on reasonable grounds has the custody or control of documents relating to a declared biosecurity emergency to produce those documents as specified to the Minister. The Minister or a biosecurity officer may also make copies of or take extracts from the documents produced and may remove the original documents from the place at which it was produced to make copies or take extracts. These powers may be delegated to an executive head of a national response agency or subdelegated to a national response agency employee. A requirement imposed under this clause continues to have effect whether or not the biosecurity emergency period has ended, until the person complies with the requirement or the person is informed by the Minister or a biosecurity officer that the specified document is no longer required. This ensures that activities to assess and manage the declaration disease or pest can continue if required, even if the biosecurity emergency declaration is no longer in effect. In particular assessment and monitoring activities are likely to be required to determine if the declaration disease or pest is still present or has spread, what level of biosecurity risk is posed and to inform a decision whether an emergency declaration is extended or required in the future. A person who is subject to a requirement under this clause and fails to comply with the requirement commits an offence and is liable to a civil penalty. The penalty for a contravention is up to a maximum of five years imprisonment, or 300 penalty units, or both. The maximum civil penalty is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If documents are not provided, significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia`s local industries, the economy and the environment. These penalties reflect the high level of threat or harm posed by the declaration disease or pest and the potential consequences of non-compliance. This clause is not subject to the privilege against self-incrimination (see clause 635). The public benefit of abrogating the privilege against self-incrimination in relation to this clause is high as it will allow biosecurity officers to determine whether an unacceptable biosecurity risk is present and put appropriate biosecurity measures in place to address that risk. Given the potential seriousness of the biosecurity risk and the need for a timely response, the information being gathered under these clauses is required urgently in a declared biosecurity emergency to allow for the assessment and management of a significant threat or harm to Australia`s local industries, economy and the environment. Whilst the privilege against self-incrimination is abrogated in relation to this clause, the Act provides individuals with the protection that self-incriminatory disclosures cannot be used against the person who makes the disclosure, either directly in court or indirectly to gather other evidence against the person (see clause 635). In addition, section 137.2 of the Criminal Code and clause 533 of this Act create an offence and civil penalty for providing false or misleading documents. 281


Division 4–National response agencies Clause 452 Agriculture Minister may declare national response agency This clause allows the Agriculture Minister to declare a national response agency for the purposes of the Act. This may include the Australian Defence Force, a Commonwealth body or a part of a Commonwealth body. The Agriculture Department is included in the definition of a national response agency (see clause 9) and therefore the department, including the Director of Biosecurity, biosecurity officers and biosecurity enforcement officers, will automatically become a national response agency when the Act comes into effect. 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, for example, issuing directions, manning biosecurity zones or closing down roads and diverting traffic. Any power exercised must be performed in accordance with the Australian Defence Force`s delegation or subdelegation. Australian Defence Force officers will not be subdelegated powers that are outside of their existing skills or areas of expertise, such as powers to assess biosecurity risk. The clause also requires the Agriculture Minister to consult the Minister responsible for the Australian Defence Force before declaring the Australian Defence Force as a national response agency. This will ensure the Australian Defence Force`s responsibilities as a national response agency do not undermine or hamper its other national priorities. However, a failure by the Director of Biosecurity to consult as required in this clause, does not affect the validity of the determination. This will ensure the Commonwealth has continuous ability to appropriately manage the risks of a biosecurity emergency. A national response agency emergency declaration is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003. This information has been included in the Bill to assist readers and is not intended in itself to provide an exemption. Clause 453 Agriculture Minister may delegate certain emergency powers This clause allows the Agriculture Minister to delegate any or all of the powers to determine emergency requirements, issue directions, take actions, ask questions or require documents to the executive head of a national response agency during a biosecurity emergency. As the Agriculture Department is a national response agency, this may include the Minister delegating powers to the Director of Biosecurity. The executive head of a national response agency can only exercise those powers and functions that have been specifically delegated to them by the Minister. Unlike the Minister, the executive head will not be able to issue a direction of a specific or general nature to the Director of Biosecurity or an officer or employee of the Commonwealth. This is because it would not be appropriate for the executive head of a national response agency to issue the Director of Biosecurity, a biosecurity enforcement officer or a biosecurity officer with a direction about how he or she performs his or her functions or exercises his or her powers. Clause 454 Executive head of national response agency may subdelegate certain emergency powers This clause allows the executive head of a national response agency to subdelegate a power delegated to them by the Agriculture Minister to a person performing duties or functions in his or her agency (a national response agency employee) who has the appropriate qualifications and expertise during a biosecurity emergency. As the Agriculture Department is a national response agency, this may include the Director of Biosecurity subdelegating powers to biosecurity officers 282


or biosecurity enforcement officers. The executive head cannot subdelegate the power to determine requirements during an emergency period, as the power to issue broad requirements on how a biosecurity emergency sits more appropriately at a higher level of authority. The executive head can only subdelegate a power to issue directions, take actions, ask questions or require documents to a national response agency employee if the executive head is specifically authorised by his or her delegation from the Minister and has the appropriate qualifications and expertise. The national response agency employees can only exercise those powers that have specifically been subdelegated to them. This ensures that the Minister retains control over the person or category of person that is delegated and subdelegated each type of power. When performing functions or exercising powers, the national response agency executive head must comply with any direction from the Minister and the national response agency employee must comply with any direction from the Minister or the executive head of their employing agency. This 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 biosecurity emergency, limiting the effectiveness of the response. This delegations scheme has been established to give the Minister access to enough personnel to conduct potentially nation-wide biosecurity activities required to manage the threat or harm posed by an emergency disease or pest as quickly and effectively as possible. When the Minister`s powers are delegated, they will have restrictions placed upon them to ensure they are exercised appropriately. For example, a national biosecurity emergency to address an animal disease outbreak may require personnel on a national scale to assess risks, undertake activities to manage risks, issue directions, manage biosecurity zones and exercise a range of other powers under the Act. The Minister can delegate the ability to give a direction about the management of goods or conveyances during a biosecurity emergency to the executive head of a national response agency. The Minister can limit this delegation by directing that the power can only be exercised in a biosecurity response zone for the purposes of ensuring that animals affected by the declaration disease are not moved. The executive head can then delegate this power (in its limited form) to employees within its agency, but limit it to relevant people who have the appropriate training or skills to use the power. Particular powers may remain solely with biosecurity officers because they have the requisite training and expertise to exercise them (for example, Chapter 6 powers to assess the level of biosecurity risk associated with goods, a conveyance or premises). Other powers can be delegated to agencies that have expertise in a particular area that is useful during a biosecurity emergency response (for example, restricting movement of conveyances). The subdelegation of a power to a biosecurity officer or a biosecurity enforcement officer may state that a restriction specified in the officer`s instrument of authorisation does not apply for the purposes of exercising that power. This is to ensure that during a biosecurity emergency response, biosecurity officers and biosecurity enforcement officers can be given additional functions and powers that are usually restricted, but are required during the biosecurity emergency response. A reference to a person performing duties in a national response agency includes a person performing duties under contract, a person performing temporary duties within the agency and volunteers. This is to ensure that all of the resources of the national response agency are available to assist with the biosecurity emergency response if the relevant person has the necessary skills or qualifications. 283


Clause 455 Delegation does not limit other powers This clause provides that a delegation or subdelegation does not affect any other function or power the executive head or national response agency employee is otherwise authorised to perform. This clarifies that being a national response agency does not prevent a Commonwealth body or part of a Commonwealth body from performing its usual functions or activities. Clause 456 Notice may be affixed to goods or a conveyance This clause allows a person exercising powers or functions under a delegation or a subdelegation during a biosecurity emergency to affix a notice to goods or a conveyance that has been moved, or is the subject of a direction to secure, a direction not to move, be dealt or interfered with, or any other direction relating to its movement under clause 446. This notice must state that a biosecurity emergency has been declared, the nature of the power that has been exercised in relation to the good or conveyance and that civil penalties and a criminal offence (clause 457) apply if a person contravenes the notice. If it is not possible to affix the notice to the goods or conveyance, the person exercising the power may affix the notice as near as reasonably practicable. A person who interferes with, removes or defaces the notice during a biosecurity emergency period commits an offence and is liable to a civil penalty. The penalty for a contravention is up to a maximum of five years imprisonment, or 300 penalty units, or both. The maximum civil penalty is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If the notices are removed, significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia`s local industries, the economy and the environment. The person does not contravene this clause if the person is authorised to interfere with, remove or deface the notice under the Act or another Australian law, or have been given a direction or permission under the Act. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. Clause 457 Moving or interfering with goods or conveyance This clause provides that a person who interferes with, moves or deals with the goods or conveyance specified in a notice (clause 456) without authorisation or permission commits an offence and is liable to a civil penalty. The penalty for a contravention is up to a maximum of five years imprisonment, or 300 penalty units, or both. The maximum civil penalty is 120 penalty units. The criminal penalty available is higher than the maximum penalty stipulated in the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This reflects the severity of the potential consequences of an offence. If the goods or conveyances are moved or interfered with, significant biosecurity risks may ensue and result in serious damage to plant and animal health, Australia`s local industries, the economy and the environment. 284


The person does not contravene this clause if the person is authorised to move or deal with the goods or conveyance under the Act or another Australian law, or have been given a direction or permission under the Act. The defendant bears the evidential burden in relation to this exception, which means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. See the Human Rights Compatibility Statement for further information on this reverse burden provision. The high penalty level reflects the level of threat or harm posed by the declaration disease or pest and the potentially high consequences if a person does not comply with a notice. These powers are required to ensure that national response agency employees are able to assist with a biosecurity emergency response by affixing notices to goods or conveyances to restrict their movement so that biosecurity risk associated with the goods or conveyances can be assessed and managed. Division 5–Exercise of powers during biosecurity emergencies Clause 458 Modification of this Act during biosecurity emergencies During a biosecurity emergency period, this Division allows for particular powers under the Act to be exercised in a specifically modified way. This clause clarifies that any modified powers exercised in a biosecurity emergency under these Divisions may also be exercised during a biosecurity emergency period without that modification. This is because some powers do not require modification in order to be used effectively during a biosecurity emergency period and may be required to manage biosecurity risks unrelated to the declaration disease or pest. This clause also clarifies that any exemptions or modifications made to the Act under clause 616 (exemptions from and modifications of this Act) are not limited by Division 5 of this Chapter. For example, if an exemption or modification is made to the Act to exempt warships and government vessels from the ballast water requirements, these exemptions or modifications will not be limited by any modifications made under this Division (that is, they will continue to operate as they did outside of the emergency period). These exemptions and modifications can continue to operate despite the biosecurity emergency as they will still be required to manage biosecurity risks unrelated to the declaration disease or pest. This clause also provides that the application and limitations set out in clause 312 apply to the exercise of a power under this Division. This means that powers in this Division must not be exercised in relation to goods or conveyances that are subject to biosecurity control or exposed goods in relation to which a biosecurity control order is in force. This is because the relevant powers to deal with those goods or conveyances are located in other provisions of the Act. In exercising the powers set out in Division 5 of this Part, a biosecurity officer or a biosecurity enforcement officer may be assisted by other persons (for example, someone setting up monitoring equipment). In addition the application of clause 32 means that powers in this Division must be exercised in accordance with the principles. 285


Clause 459 Biosecurity risk assessment powers This clause allows a biosecurity officer to exercise biosecurity risk assessment powers contained in Division 3 of Part 2 of Chapter 6 in relation to the declaration disease or pest without having to suspect that a disease or pest may be present on or in the goods or premises and posing an unacceptable level of biosecurity risk. These risk assessment powers have been modified so that during a biosecurity emergency, a biosecurity officer can exercise risk assessment powers (such as inspecting goods or premises and taking samples) without being required to suspect that the declaration disease or pest is present and assess the level of biosecurity risk posed. The reduction of the threshold test for this power in a biosecurity emergency is necessary to allow biosecurity officers to quickly and effectively monitor biosecurity risks to determine whether they have spread to a new location, assess potential biosecurity risks and determine whether biosecurity measures are required to manage them. This reflects the serious and urgent nature of the threat or harm posed to Australia`s local industries, economy and the environment during a biosecurity emergency. Clause 460 Application of offences during emergencies This clause makes a person liable for criminal as well as civil offences during a biosecurity emergency if he or she contravenes a requirement under a biosecurity assessment power in Division 3 of Part 2 of Chapter 6 in relation to a declaration disease or pest. These offences apply even if there is no biosecurity control order or biosecurity response zone determination in force. In non-emergency circumstances an offence in Chapter 6 only applies if the power is exercised in accordance with a biosecurity control order or a biosecurity response zone determination. The application of criminal penalties in these circumstances reflects the more serious and urgent nature of the threat or harm posed during a biosecurity emergency period and the possible consequences of non-compliance. Clause 461 Biosecurity control orders–making orders This clause allows the Director of Biosecurity, during a biosecurity emergency period, to make a biosecurity control order under clause 353 in relation to goods and premises if satisfied that measures are necessary to prevent or control the establishment or spread of the declaration disease or pest in Australian territory or a part of Australian territory. This modifies the test in subclause 353(1) where a biosecurity officer is required to suspect that a disease or pest is present in or on the goods. The reduction of the threshold test in a biosecurity emergency to remove the suspicion that the disease or pest is present is required to allow the Director to more quickly and effectively implement biosecurity measures if satisfied they are necessary to manage the declaration disease or pest. This reflects the serious and urgent nature of the threat or harm posed to Australia`s local industries, economy and the environment. A biosecurity control order can only be made in accordance with this clause if it specifies the declaration disease or pest. This is to ensure that the power is only exercised in a biosecurity emergency for diseases or pests relevant to the biosecurity emergency. This clause does not prevent biosecurity control orders from being made in their unmodified form under Chapter 6 during a biosecurity emergency period. The powers specified in a biosecurity control order can be exercised on premises entered without a warrant or consent in accordance with clause 470. 286


Clause 462 Biosecurity control orders–varying orders This clause allows the Director of Biosecurity to vary a biosecurity control order made in a biosecurity emergency period that relates to the declaration disease or pest. The Director must be satisfied that the powers specified in the order need to be varied to prevent or control the establishment or spread of the declaration disease or pest, or that a power specified in the order no longer contributes to preventing or controlling the establishment or spread of the declaration disease or pest, or managing the biosecurity risk posed by the declaration disease or pest. This clause allows a biosecurity control order that relates to the declaration pest or disease to be varied, whether it was made under the modified or the unmodified Chapter 6 powers. This ensures that the Director can manage all biosecurity control orders relating to the declaration pest or disease during the emergency period and ensure that the most appropriate and effective response is being undertaken. The Director may also vary a biosecurity control order, despite the requirements in subclause 358(1), which the Director must ordinarily be satisfied of outside of an emergency period. Similar to clause 461, this is required to ensure that the Director can more quickly and efficiently implement biosecurity risk measures if satisfied they are necessary to manage the declaration pest or disease. This clause does not prevent biosecurity control orders from being varied in their unmodified form under Chapter 6 during a biosecurity emergency period. Clause 463 Biosecurity control orders–revoking orders This clause allows the Director of Biosecurity to revoke a biosecurity control order made in a biosecurity emergency period that relates to the declaration disease or pest. The Director can do so if he or she is satisfied that the order no longer contributes to preventing or controlling the establishment or spread of the declaration disease or pest, or managing the biosecurity risk posed by the declaration disease or pest. This clause allows a biosecurity control order that relates to the declaration pest or disease to be revoked, whether it was made under the modified or the unmodified Chapter 6 powers. This ensures that the Director can manage all biosecurity control orders relating to the declaration pest or disease during the emergency period and ensure that the most appropriate and effective response is being undertaken. This clause modifies the test in subclause 359(1) which requires the Director to revoke a biosecurity control order under these circumstances, to make it a discretionary power instead. This allows the Director to be more flexible in the response to the emergency disease or pest and reflects the serious and urgent nature of the threat or harm posed to Australia`s local industries, economy and the environment. If the biosecurity control order does not cease to be in force earlier (for example if the three month time limit expires), it ceases to be in force at the end of the biosecurity emergency period, unless that period is extended under clause 444. This ensures that once a biosecurity emergency period has ended, powers can no longer be exercised that are specifically designed to address the threat or harm posed by the emergency circumstances. This clause does not prevent biosecurity control orders from being revoked in their unmodified form under Chapter 6 during a biosecurity emergency period. 287


Clause 464 Modification of Part 4 of Chapter 6 in relation to biosecurity control orders This clause clarifies that the provisions in Part 4 of Chapter 6 (biosecurity control orders) apply in relation to a biosecurity control order that is made, varied or revoked under clauses 461, 462 and 463 as if a reference to managing the biosecurity risk posed by a disease or pest included a reference to preventing or controlling the establishment of the declaration disease or pest. This ensures that provisions in Part 4 of Chapter 6 that are relevant to the content, form and notification of biosecurity control orders, as well as the powers that can be exercised, apply to biosecurity control orders made during a biosecurity emergency. Clause 465 Biosecurity response zones This clause allows the Director of Biosecurity, during a biosecurity emergency, to determine that a specified area in Australian territory is a biosecurity response zone, if satisfied that it is necessary to make the determination to prevent or control the establishment or spread of the declaration disease or pest in Australian territory or a part of Australian territory. This clause modifies the test in subclause 365(1), allowing the Director to determine a biosecurity response zone without having to establish that a pest or disease is present. The reduction of the threshold test in a biosecurity emergency is required to allow the Director to more quickly and effectively declare a biosecurity response zone and implement biosecurity measures if satisfied they are necessary to manage the declaration disease or pest. This reflects the serious and urgent nature of the threat or harm posed to Australia`s local industries, economy and the environment. A biosecurity response zone can only be declared in accordance with this clause if it specifies the declaration pest or disease. This is to ensure that this power is only exercised in a biosecurity emergency for diseases or pests relevant to the biosecurity emergency. This clause also clarifies that the provisions in Part 5 of Chapter 6 apply in relation to a biosecurity response zone that is declared under this clause as if a reference to managing the biosecurity risk posed by a disease or pest included a reference to preventing or controlling the establishment of the declaration disease or pest in Australian territory or a part of Australian territory. This ensures that other relevant provisions in Part 5 of Chapter 6 apply to these declarations during a biosecurity emergency. For example, powers relating to the content of a biosecurity response zone determination and the powers that can be exercised. A biosecurity response zone ceases to be in effect at the end of the biosecurity emergency period if it was made during the biosecurity emergency period, it relates to the declaration pest or disease and the biosecurity emergency period has not been extended under clause 444. This ensures that once a biosecurity emergency period has ended, powers can no longer be exercised that are specifically designed to address the threat or harm posed by the emergency circumstances. There is nothing to prevent a biosecurity response zone from being declared without modification during a biosecurity emergency period or a biosecurity response zone determination being made in relation to the declaration disease or pest after the emergency period has ceased. Clause 466 Setting traps and setting up equipment and other structures This clause allows a biosecurity officer to set up traps, equipment or other structures in relation to the declaration pest or disease during a biosecurity emergency period without a biosecurity response zone having been determined, for the purpose preventing or controlling the establishment of the declaration disease or pest. This is required to allow widespread activities to monitor for the declaration disease or pest to take place during the biosecurity emergency period more quickly and establish whether the biosecurity 288


risk has spread to a new location or the level of biosecurity risk has increased at an existing location. This will help inform a decision whether other emergency powers need to be exercised to address the threat or harm posed. Civil and criminal offences in clause 376 will apply to an unauthorised person who interferes with, removes or defaces the trap, equipment or other structure. Clause 467 Notice requirements during biosecurity emergencies During a biosecurity emergency period, the Director of Biosecurity or a biosecurity officer may give notices, approvals or make requests orally, instead of in writing, relating to the destruction of premises, high-value goods or conveyances; treatments that may damage goods, conveyances or premises; the movement of aircraft and vessels to a place outside Australian territory; decontamination, and; abandoned goods or conveyances. This is required to allow the biosecurity risk management activities to occur as quickly as possible during a biosecurity emergency and help reduce the threat or harm posed by the declaration disease or pest. If a person is given an oral notification, approval or a request is made in accordance with this clause, a written notice must be given to them within 48 hours of an oral notice or approval being given or an oral request being made. This is to ensure that in addition to the oral notification, the relevant person has a written record to inform him or her of exactly what the person is required to do and by when. It also provides physical evidence that the person was notified of the relevant matter. A person who is given notice regarding a treatment that may damage his or her goods, conveyance or premises has seven days from which the first notification was given (whether this was orally or in writing) to notify the Director in writing if he or she agrees to the treatment of the goods, conveyances or premises. The period has been reduced to seven days during a biosecurity emergency to allow biosecurity risk management activities to occur as quickly as possible and help reduce the threat or harm posed by the declaration disease or pest. All other parts of the relevant clauses apply, such as the ability to manage serious and urgent biosecurity risks without providing notice. Clause 468 Other biosecurity measures during biosecurity emergencies This clause allows for regulations to be made to modify any regulations made under clause 346 during a biosecurity emergency period. This allows any other biosecurity measures contained in the regulations made under clause 346 to be modified during a biosecurity emergency period, for example shortening the notice period or allowing notice to be given orally instead of in writing. This is required to allow biosecurity risk management activities to occur as quickly as possible and help reduce the threat or harm posed by the declaration disease or pest. Clause 469 Merits review during biosecurity emergencies During a biosecurity emergency, a person is not entitled to seek review under the Act or the Administrative Appeals Tribunal Act 1975 for certain decisions. These include a decision to require destruction of high value goods under subclause 136(2) or subclause 342(2); a decision requiring a conveyance to be destroyed under clause 210 or subclause 343(2); a decision requiring premises to be destroyed under subclause 344(3); or a decision relevant to approving, varying, placing conditions upon, suspending or revoking a proposed arrangement or a approved arrangement (see items 20-31 of the table in subclause 574(1)). This is required to allow these decisions to be implemented and the biosecurity risks addressed as quickly as possible in a biosecurity emergency. This reflects the serious and urgent nature of the threat or harm posed to Australia`s local industries, economy and the environment. 289


Division 6–Entry to premises without warrant or consent during biosecurity emergencies Clause 470 Entry to premises without warrant or consent during biosecurity emergencies This clause allows biosecurity enforcement officers and biosecurity officers, with the appropriate level of training and qualifications in investigations, during a declared biosecurity emergency period to enter any premises without a warrant or consent for the purposes of: exercising biosecurity risk assessment powers under Division 3 of Part 2 of Chapter 6 in relation to the declaration disease or pest, in the absence of a control order made during the emergency period and relating to the declaration disease or pest exercising powers in relation to premises or goods for orders made under a modified or unmodified biosecurity control order made during the declared emergency period for preventing or controlling the establishment or spread of the declaration disease or pest exercising powers listed in a modified or unmodified biosecurity response zone determination which has been determined during the declared biosecurity emergency period and relates to the declaration disease or pest, and/or setting up traps, equipment or other structures in accordance with clause 466. The power to enter without a warrant or consent in a declared biosecurity emergency is required to allow biosecurity enforcement officers and biosecurity officers to quickly enter premises where they suspect the declaration disease or pest may be present, carry out an assessment of the biosecurity risks associated with the declaration pest or disease and then, if required, urgently manage the biosecurity risks associated with them to help reduce the threat or harm posed. Before exercising any of these powers, a biosecurity officer or biosecurity enforcement officer must be satisfied of the principles affecting decisions to exercise certain powers (clause 32). This is to ensure the use of any powers allowed for in this Division is only as is necessary and proportionate and does not impact on the person who owns the premises or his or her rights any more than is necessary to manage the level of biosecurity risk posed. Outside of a biosecurity emergency, Chapter 6 powers can only be exercised by a biosecurity officer or biosecurity enforcement officer if the occupier of the premises has consented to the entry or the entry is made under a warrant. However in a declared biosecurity emergency period, there is a nationally significant threat or harm is being posed by the declaration disease or pest to Australia`s plant health, animal health, the environment or related economic activities. The severe and immediate threat posed by a declaration pest or disease creates exceptional circumstances where the use of entry powers by suitably trained and qualified officers is justified without a warrant or consent to exercise the biosecurity risk assessment powers provided for in Chapter 6. For example, if there was a relatively small foot-and-mouth disease outbreak in only one state, it is estimated to cost Australia $5.64 billion to $6.26 billion.8 A large multi-state outbreak is estimated to have a total direct cost of $49.62 billion to $52.21 billion.9 Biosecurity officers are only authorised to enter the premises without a warrant or consent if they suspect on reasonable grounds that the declaration disease or pest may be present in or on the premises or goods on the premises and they are accompanied by a biosecurity enforcement officer. 8 Australian Bureau of Agricultural and Resource Economics and Sciences 2013, Potential socio-economic impacts of an outbreak of foot-and-mouth disease in Australia, Department of Agriculture, pp. 9, accessed at: http://data.daff.gov.au/data/warehouse/research_reports/9aab/2013/RR13.11PotSocEcoImpctOfFMD/RR13.11PotSoc EcoImpctOfFMD_v1.0.0.pdf 9 Australian Bureau of Agricultural and Resource Economics and Sciences 2013, Potential socio-economic impacts of an outbreak of foot-and-mouth disease in Australia, Department of Agriculture, pp. 9, accessed at: http://data.daff.gov.au/data/warehouse/research_reports/9aab/2013/RR13.11PotSocEcoImpctOfFMD/RR13.11PotSoc EcoImpctOfFMD_v1.0.0.pdf 290


This restriction ensures that access to premises is gained only for the purposes of managing risks associated with the declaration disease or pest. It also ensures a biosecurity enforcement officer with appropriate training in establishing entry and using force is present for the purposes of assisting in entering the premises and exercising powers. The biosecurity enforcement officer must adhere to the obligations and powers set out for entering premises without a warrant or consent (Division 3 of Part 5 of Chapter 9). For the purposes of this clause, the definition of premises` includes a conveyance. If the premises are a conveyance, then a biosecurity enforcement officer may stop and detain the conveyance for the purposes outlined above. In exercising the powers set out in Division 5 of this Part, a biosecurity officer or a biosecurity enforcement officer may be assisted by other persons, for example, someone setting up monitoring equipment. Administrative arrangements will be put in place to ensure that senior executive authorisation is given before entry powers are exercised and there are appropriate reporting requirements. Further to this, all officers and employees of the Agriculture Department who are to be involved in investigations are required to meet minimum levels of training and/or qualifications and the Department must meet minimum standards for effective and efficient management of investigations, including record keeping, under the Australian Government Investigations Standards. The Agriculture Department is required to meet these standards and comply with the Commonwealth Fraud Control Guidelines. Quality assurance reviews of investigations carried out by departmental officers and employees can be undertaken to establish whether the investigation was conducted in a way that complied with the Australian Government Investigations Standards. A quality assurance review is conducted by the Australian Federal Police in relation to criminal investigations and in relation to non-criminal investigations can be conducted by another agency with the necessary skills and capacity. Clause 471 Modification of Chapter 6 This clause provides that clause 325 (relating to expert assistance to operate electronic equipment) applies in relation to a biosecurity enforcement officer who enters premises without a warrant or consent under clause 470, as if the entry were made under a relevant warrant under clause 325 authorising the biosecurity enforcement officer to exercise listed powers. This ensures that the powers in clause 325 relating to securing electronic equipment for a particular period and seeking extensions to that period can be exercised by biosecurity enforcement officers as if they had entered the premises with a warrant or consent. Similarly, this clause provides that clause 362 (power to secure goods or premises) applies in relation to a biosecurity officer who enters premises under subclause 470, as if the entry were authorised by clause 361. This ensures that a biosecurity officer can secure goods or premises without a warrant in order to manage the biosecurity risks posed by the pest or disease on or in the goods or premises during a biosecurity emergency. This reflects the serious and urgent nature of the threat or harm posed to Australia`s local industries, economy and the environment. 291


Clause 472 Entry to adjacent premises without warrant or consent during biosecurity emergencies This clause allows biosecurity officers and biosecurity enforcement officers, during a declared biosecurity emergency period, to enter adjacent premises without a warrant for the purpose of gaining access to other premises to exercise powers in accordance with clause 470. Premises in this clause do not include a conveyance. Biosecurity officers are only authorised to enter the premises if they are accompanied by a biosecurity enforcement officer. This is to ensure that an officer (the biosecurity enforcement officer) with appropriate training in establishing entry and using force is present. For the obligations and powers of biosecurity enforcement officers in entering premises under this clause, see Division 3 of Part 5 of Chapter 9. Part 2–Human biosecurity emergencies Division 1–Introduction Clause 473 Simplified outline of this Part This clause sets out the Part`s objectives. The Part provides powers and requirements to deal with human biosecurity emergencies of national significance. This Part also sets out the circumstances, the requirements and the purposes in which the powers may be exercised. These include the power to make a declaration of a human biosecurity emergency, to determine emergency requirements and issue directions during a human biosecurity emergency period. The powers in this Part are in addition to those generally available under Chapter 2. Division 2–Human biosecurity emergency powers Clause 474 Health Minister to exercise human biosecurity emergency powers personally This clause expressly requires the Health Minister to exercise human biosecurity emergency powers and prevents the Minister from delegating his or her powers under this Part of the Act. This does not prevent section 34AAB of the Acts Interpretation Act 1901 from having effect, allowing the Health Minister to authorise other Ministers or members of the Executive Council to exercise powers under this Part. Clause 475 Governor-General may declare that a human biosecurity emergency exists This clause permits the Governor-General to declare an emergency on the recommendation of the Health Minister. In making this recommendation, the Health Minister must be 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 proposed declaration is necessary to control, reduce or remove the threat or harm in Australian territory, or a part of Australian territory. Any human biosecurity emergency declaration must specify the listed human disease to which it relates and specify the period in which the human biosecurity emergency declaration is in force (known as the human biosecurity emergency period). The declaration must also specify the nature of the human biosecurity emergency and the conditions that gave rise to it. In the event that a new human disease has emerged, the Director of Human Biosecurity would first be required to declare the disease to be a Listed Human Disease. Once this declaration has been 292


made, the Minister must consider the tests above and, if the Minister is satisfied the tests have been met, he or she may make a recommendation to the Governor-General to declare a human biosecurity emergency. The period of a human biosecurity emergency declaration must be no longer than is necessary to control, reduce or remove the threat or harm, and in any case the declaration must not be more than three months. This period can be extended under clause 476. The human biosecurity emergency period is limited to a maximum of three months to ensure there is a fixed point in time where the human biosecurity emergency declaration is evaluated to determine whether the emergency powers are still required. If a human biosecurity emergency declaration is no longer required, the Governor-General may vary or revoke the declaration using section 33(3) of the Acts Interpretation Act 1901. A human biosecurity emergency declaration may only be varied under clause 476. A human biosecurity emergency declaration is a legislative instrument, but disallowance under section 42 of the Legislative Instruments Act 2003 does not apply. This is because the decision to declare a human biosecurity emergency should be made in accordance with an assessment of the relevant human biosecurity risks. If an emergency declaration was disallowed, nationally significant human biosecurity risks might go unmanaged and the Commonwealth would be unable to take the fast and urgent action necessary to manage a threat or harm to Australia`s human health. Clause 476 Governor-General may extend a human biosecurity emergency period This clause permits the Governor-General to extend the human biosecurity emergency period for up to three months, if recommended to do so by the Health Minister. In making this recommendation, the Minister must reconsider the tests in clause 475 and continue to be satisfied that the declaration of the human biosecurity emergency is necessary. The Governor-General may extend a human biosecurity emergency period more than once. This means that if the Minister evaluates the human biosecurity emergency declaration at the end of the human biosecurity emergency period (no longer than three months) and determines that the emergency powers provided by the declaration are still required, the human biosecurity emergency period can be extended for up to three months. There is no limit on the number of extensions that can be made by the Governor-General. A variation to a human biosecurity emergency declaration is a legislative instrument, but disallowance under section 42 of the Legislative Instruments Act 2003 does not apply. This is because the decision to declare a human biosecurity emergency should be scientifically based and made in accordance with an assessment of the relevant human biosecurity risks. If an emergency declaration was disallowed, nationally significant human biosecurity risks might go unmanaged and the Commonwealth would be unable to take the fast and urgent action necessary to manage a threat or harm to Australia`s human health. Clause 477 Health minister may determine emergency requirements during human biosecurity emergency period This clause provides for the Health Minister, during a declared human biosecurity emergency period, to set requirements to respond to a human biosecurity emergency. The Minister must be satisfied that the proposed requirements are necessary to: control, reduce or remove the threat of harm posed by a Listed Human Disease prevent or control the spread of disease to another country, or 293


give effect to a recommendation given by the WHO under Part III of the International Health Regulations. Requirements are broad directions issued by the Minister to manage the response to a declaration listed human disease. This power allows the Minister to set a requirement that applies to a class of people, goods or conveyances, to manage the disease risk. For example, the Minister may determine requirements that apply to people, goods or conveyances entering or leaving a specified place; restrict or prevent the movement of people, goods or conveyances between specified places; or require a specified place to be evacuated. Some examples are listed under subclause (3) to give an indication of the types of requirements that might be determined by the Minister, but this is not intended to limit the types of requirements that may be determined. In addition, the Minister may set requirements to ensure that Australia does not facilitate the spread of a listed human disease to neighbouring countries. During an emergency, the Director-General of the WHO may issue temporary recommendations under Part III of the International Health Regulations, if it is determined that a public health emergency of international concern is occurring. This determination is made according to Articles 12 and 49, and using the decision tool in Annex 2 of the International Health Regulations. The criteria to be considered by the Director-General when issuing temporary recommendations are outlined in Article 17, and measures which may be included in a temporary recommendation are listed in Article 18. This power allows the Minister to implement temporary recommendations made under Article 15 of the International Health Regulations. These recommendations comprise health measures to prevent or reduce the international spread of disease. Health measures are defined by the International Health Regulations to be measures applied to prevent the spread of disease or contamination, but do not include law enforcement or security measures. Any requirements set by the Minister must not require individuals to be subject to the types of measures that may be included in a human biosecurity control order. If an individual poses a human health risk these measures must still be applied using a human biosecurity control order, and the associated protection of civil rights, and rights to seek review, would continue to apply. The determination of a requirement is a legislative instrument, but disallowance under section 42 of the Legislative Instruments Act 2003 does not apply. This is because the decision to determine a requirement should be made in accordance with an assessment of the relevant human health risks If a requirement was disallowed, nationally significant human health risks might go unmanaged and the Commonwealth would be unable to take the fast and urgent action necessary to manage a threat or harm to Australia`s human health. A human biosecurity emergency requirement determined by the Minister will have effect despite any provision of any other Australian law. This ensures that during a human biosecurity emergency period any person who acts in accordance with a requirement from the Minister will not be liable for an offence under that Australian law in circumstances where their actions would ordinarily be in contravention of that law. The determination of a human biosecurity emergency requirement will have effect until the end of the human biosecurity emergency period, unless the requirement is revoked earlier. This is to ensure that when a human biosecurity emergency period ends, people are no longer required to comply with requirements specifically determined to address the threat or harm posed by the declared listed human disease. 294


Failure to comply with a determined requirement under this clause may constitute an offence or incur a civil penalty (see clause 479). Clause 478 Health Minister may give directions during human biosecurity emergency period This clause allows the Health Minister, during a human biosecurity emergency period, to give a direction to any person to respond to human biosecurity emergency. In giving the direction, the Minister must be satisfied that the proposed direction is necessary: to control, reduce or remove the threat of harm posed by a listed human disease to prevent or control the spread of disease to another country, or to give effect to a recommendation given by the WHO under Part III of the International Health Regulations. This would allow the Minister to give a direction to a person who is in a position to give effect to the requirements in clause 477, such as direct a person in charge to close specified places or prevent public access to specified places. Some examples are listed under subclause (2) to give an indication of the types of direction that might be issued by the Minister but this is not intended to limit the type of directions available to the Minister. Directions must not be given to an officer or employee of a state, territory or state or territor