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2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
BIOSECURITY AMENDMENT (STRENGTHENING BIOSECURITY) BILL 2022
(Amendments to be moved on behalf of the Government)
SUPPLEMENTARY EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Agriculture, Fisheries and Forestry,
Senator the Hon. Murray Watt)
BIOSECURITY AMENDMENT (STRENGTHENING BIOSECURITY) BILL 2022
GENERAL OUTLINE
The government amendment described in this supplementary explanatory memorandum
would amend the Biosecurity Act 2015 (the Biosecurity Act) to provide for a new civil
penalty provision to target the concealment of conditionally non-prohibited goods that are
brought or imported into Australian territory. The new civil penalty provision would also be
subject to the infringement notice scheme under the Biosecurity Act.
Conditionally non-prohibited goods are goods specified in a determination in force under
subsection 174(1) of the Biosecurity Act. Such determinations provide that specified classes
of goods must not be brought or imported into Australian territory unless specified conditions
are complied with.
Conditionally non-prohibited goods pose an unacceptable level of biosecurity risk if specified
conditions are not complied with. There are existing criminal offences and an existing civil
penalty provision under section 186 of the Biosecurity Act, which apply where conditionally
non-prohibited goods are brought or imported into Australian territory and specified
conditions applying to such goods are not complied with.
The new civil penalty provision outlined in this government amendment would apply a
higher maximum civil penalty of 1,200 penalty units in circumstances where the
contravention also includes concealment of the conditionally non-prohibited goods for the
purposes of preventing a biosecurity official from finding the goods or determining the true
nature of the goods. The concealment of goods prevents biosecurity officers from being able
to assess the biosecurity risk associated with the goods, and where necessary, take measures
to manage any such biosecurity risks. This includes risks arising from Foot and Mouth
Disease which could be introduced to Australia by goods that are brought or imported into
Australia by incoming travellers.
Where an infringement officer (as defined under the Biosecurity Act) believes on reasonable
grounds that a person (individual or a body corporate) has contravened the new civil penalty
provision, then the officer may give the person an infringement notice for the alleged
contravention. The amount to be stated in the infringement notice would be 16 penalty units
for an individual or 80 penalty units for a body corporate.
This government amendment would be contained in a new Schedule 8 to the Biosecurity
Amendment (Strengthening Biosecurity) Bill 2022 (the Bill). Schedule 8 would commence
on the day after the Bill receives the Royal Assent.
Consultation has been undertaken with appropriate Commonwealth agencies including the
Department of Health and Aged Care, the Department of the Prime Minister and Cabinet and
the Attorney-General's Department.
FINANCIAL IMPACT STATEMENT
This government amendment would have no financial impact on the Australian Government
Budget.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
This government amendment 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.
The statement of compatibility with human rights for this government amendment is included
in this explanatory memorandum (Attachment A).
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BIOSECURITY AMENDMENT (STRENGTHENING BIOSECURITY) BILL 2022
NOTES ON AMENDMENTS
Amendment (1)
1. This amendment would omit the word "7" and substitute "8" in table item 5 of
section 2 of the Biosecurity Amendment (Strengthening Biosecurity) Bill 2022 (the
Bill).
2. Table item 5 of section 2 of the Bill had initially proposed that Schedules 4 to 7 to the
Bill would commence on the day after the Bill receives the Royal Assent.
3. The effect of this amendment is that Schedules 4 to 8 to the Bill would now commence
on the day after the Bill receives the Royal Assent. The purpose of this amendment is to
provide a commencement provision for new Schedule 8 to the Bill, which is inserted
into the Bill by amendment (2) below.
Amendment (2)
4. This amendment would insert a new Schedule 8 at the end of the Bill. New Schedule 8
to the Bill would make amendments to the Biosecurity Act 2015 (the Biosecurity Act)
relating to the concealment of goods.
Item 1 - Section 9
5. Section 9 provides definitions for the Biosecurity Act. New item 1 of Schedule 8 to the
Bill would insert a new definition of conceal in section 9 of the Biosecurity Act. This
new definition would provide that, to conceal goods, would have a meaning that is
affected by new subsection 186A(2). This would be consequential to the insertion of
new subsection 186A(2), proposed by item 2 of Schedule 8.
Item 2 - After section 186
6. New item 2 of Schedule 8 to the Bill would insert new section 186A in the Biosecurity
Act, which would provide for a new civil penalty provision.
7. New subsection 186A(1) would provide that a person is liable to a civil penalty if:
• the person brings or imports goods into Australian territory (new paragraph
186A(1)(a)); and
• the goods are conditionally non-prohibited goods (new paragraph 186A(1)(b));
and
• a condition in relation to the goods specified in a determination in force under
subsection 174(1) has not been complied with (new paragraph 186A(1)(c)); and
• the goods are concealed for the purpose of preventing the goods from being
found,or preventing the true nature of the goods from being determined, by a
biosecurity official (new paragraph 186A(1)(d)).
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8. Conditionally non-prohibited goods are goods specified in a determination in force
under subsection 174(1) of the Biosecurity Act. Such determinations provide that
specified classes of goods must not be brought or imported into Australian territory
unless specified conditions are complied with. Conditionally non-prohibited goods pose
an unacceptable level of biosecurity risk if specified conditions are not complied with.
9. For the purposes of new paragraph 186A(1)(d), a biosecurity official is defined in
existing section 9 of the Biosecurity Act as a biosecurity officer, a biosecurity
enforcement officer or the Director of Biosecurity. Where conditionally non-prohibited
goods have been concealed for the purposes of preventing a biosecurity official from
finding the goods or determining the true nature of the goods, this represents serious
behaviour that may make it more difficult for unacceptable biosecurity risk to be
managed and is therefore indicative of a higher level of culpability than importing such
goods into Australian territory without attempting to conceal the goods, or non-
compliance with the specified conditions applying to such goods.
10. New subsection 186A(2) would provide a non-exhaustive definition of the conduct that
would be covered if a person were to conceal goods. Such conduct would include any
of the following:
• concealing or disguising the goods on a person, within any clothing worn by the
person, within any other object located on the person or within any other object
not located on the person (including by sewing, gluing, fastening, binding,
wrapping, covering, enveloping or packaging the goods) (new paragraph
186A(2)(a));
• incorrectly marking or labelling the goods or any packaging or container in
which the goods are located (new paragraph 186A(2)(b));
• altering the goods (including by changing or suppressing the appearance,
texture, smell or sound of the goods) (new paragraph 186A(2)(c)).
It is necessary to provide for a broad non-exhaustive definition for the phrase conceal
goods, because there are innumerable ways, in which a person, who wishes to conceal
conditionally non-prohibited goods, might seek to achieve their objective. In the past,
the department has located conditionally non-prohibited goods that have been
concealed on a person, in the person's clothing or in the person's luggage. There have
also been occasions where conditionally non-prohibited goods have been concealed
within a container with incorrect markings or labels, or where the goods have been
altered during its concealment. For example, if a person sought to conceal a
conditionally non-prohibited good that is a live animal, then they may seek to change
the appearance, or suppress the smell or sound of the animal.
11. The policy intention is that new subsection 186A(2) would ensure that any of the
examples identified in the previous paragraph would be covered by the phrase conceal
goods.
12. A person would only be liable to the civil penalty in new subsection 186A(1) where the
elements of new paragraph 186A(1)(d) are met. That is, the goods must be concealed
for the purpose of preventing the conditionally non-prohibited goods from being found,
or preventing the true nature of the goods from being determined, by a biosecurity
official. The policy intention is that the new civil penalty provision should be targeted
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to those situations where goods are concealed in order to evade detection or goods are
disguised to hinder the presence or nature of the goods from being ascertained. Where a
person has placed the goods inside a container or in their luggage, merely for storage or
transportation purposes, then it is intended that new paragraph 186A(1)(d) would not be
met. Instead, in those situations, if the goods are conditionally non-prohibited goods,
the person has brought or imported those goods into Australian territory, and the
specified conditions applying to the goods are not complied with, then the person may
still be liable to the existing civil penalty provision in section 186 of the Biosecurity
Act (discussed below).
13. For the avoidance of doubt, it is not intended that new paragraph 186A(1)(d) would
require proof of the person's intention to conceal goods for the relevant purpose.
Rather, new paragraph 186A(1)(d) would require the evidence to establish that the
goods were concealed for the relevant purpose.
14. The maximum civil penalty that a court may order a person who is an individual to pay
where that person is liable to a civil penalty under new subsection 186A(1) is
1,200 penalty units. If the person is a body corporate, the maximum penalty must not be
more than 5 times the amount specified in each relevant proposed subsection (see
subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014 (the
Regulatory Powers Act), as enabled by section 519 of the Biosecurity Act).
15. There are existing criminal offences and an existing civil penalty provision under
section 186 of the Biosecurity Act, which apply where conditionally non-prohibited
goods are brought or imported into Australian territory and specified conditions
applying to such goods are not complied with. For example, where a person is liable to
a civil penalty under existing subsection 186(3) of the Biosecurity Act, the maximum
civil penalty is 1,000 penalty units. However, where the conditionally non-prohibited
goods have also been concealed for the purposes of preventing a biosecurity official
from finding the goods or determining the true nature of the goods, then it is
appropriate that a higher civil penalty should apply to new subsection 186A(1). The
maximum civil penalty of 1,200 penalty units in new subsection 186A(1) is needed to
deter those who are considering evading detection by concealing conditionally non-
prohibited goods, as such goods could jeopardise Australia's biosecurity status. Under
the Biosecurity Act, the biosecurity risks associated with conditionally non-prohibited
goods, where specified conditions that apply to the goods have not been complied with,
are managed through the implementation of regulatory controls put in place to intercept
such goods. These controls are necessary to reduce the biosecurity risk associated with
the goods to an acceptable level. It is important that persons who are bringing or
importing conditionally non-prohibited goods, through the traveller, mail or cargo
pathways, ensure that the specified conditions have been met, and that the goods are
declared and presented for assessment and inspection. This provision will aim to deter
persons from concealing conditionally non-prohibited goods, where specified
conditions have not been met, and the goods have been concealed for the purposes of
preventing a biosecurity official from finding the goods or determining the true nature
of the goods. This will enable biosecurity officers to manage the biosecurity risk to an
acceptable level.
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16. New subsection 186A(3) would provide that new subsection 186A(1) would not apply
if the person:
• did not do the act, or omit to do the act, that constituted the failure to comply
with the condition referred to in new paragraph 186A(1)(c);
• did not aid, abet, counsel or procure that act or omission; and
• was not in any way knowingly concerned in, or party to, that act or omission
(whether directly or indirectly and whether by any act or omission of the
person).
17. The note following new subsection 186A(3) would clarify that the defendant bears an
evidential burden in relation to the matters in new subsection 186A(3), and refers
readers to section 96 of the Regulatory Powers Act. This is consistent with the
principles set out in the Australian Government Guide to Framing Commonwealth
Offences, Infringement Notices and Enforcement Powers (the Guide), because the
matters outlined in new subsection 186A(3), including the issue of whether the person
did not do, aid, abet, counsel, procure the act or omission, or was not in any way
knowingly concerned in an act or omission, is within the scope of knowledge of the
defendant. It is likely to be significantly more difficult and costly for the prosecution to
disprove this point, than for the defendant to establish this. Further, the evidential
burden that is placed on the defendant is not central to the question of culpability for
the relevant civil penalty in new subsection 186A(1), but rather only applies to a
defendant seeking to rely on the exception to that penalty. This approach is consistent
with the approach taken for exceptions to other existing civil penalty provisions, set out
in subsection 186(7) of the Biosecurity Act.
Item 3 - Subsection 523(1) (after table item 8)
18. Subsection 523(1) of the Biosecurity Act sets out the provisions of the Biosecurity Act
that are subject to an infringement notice under Part 5 of the Regulatory Powers Act.
Part 5 of the Regulatory Powers Act creates a framework for the use of infringement
notices where an infringement officer believes on reasonable grounds that a provision
has been contravened under an Act.
19. Section 101 of the Regulatory Powers Act provides that a person is an infringement
officer for the purposes of exercising powers under Part 5 of the Regulatory Powers
Act in relation to a contravention of a provision if an Act provides that the person is an
infringement officer in relation to that provision for the purposes of Part 5. Subsection
523(2) of the Biosecurity Act provides that the Director of Biosecurity is an
infringement officer for the purposes of Part 5 of the Regulatory Powers Act and, by
operation of subsections 542(1) and (2) of the Biosecurity Act, the powers and
functions of an infringement officer may be subdelegated to biosecurity officials.
20. This item would amend the table in subsection 523(1) to insert new item 8A. This
would have the effect that the civil penalty provision in new subsection 186A(1) would
be subject to an infringement notice under Part 5 of the Regulatory Powers Act. It is
considered appropriate that new subsection 186A(1) be subject to an infringement
notice, as a high volume of contraventions is possible, and an infringement officer
could easily assess whether there has been an alleged contravention. The ability to issue
an infringement notice for contravention of new subsection 186A(1) would allow the
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notice with the stated amount to be issued immediately and to be effective in deterring
non-compliance with the specified conditions applying to conditionally non-prohibited
goods. Further details of the amount to be stated in the infringement notice are
discussed below.
Item 4 - After subsection 524(4)
21. Section 524 of the Biosecurity Act provides for certain modifications of Part 5 of the
Regulatory Powers Act, which are relevant to the context of the biosecurity
infringement notice scheme. Subsection 524(4) of the Biosecurity Act provides that the
amount to be stated in an infringement notice for the purposes of paragraph 104(1)(f) of
the Regulatory Powers Act for the alleged contravention of the provision by the person
must be the least of:
• one-fifth of the maximum penalty that a court could impose on the person for
that contravention; and
• 12 penalty units where the person is an individual, or 60 penalty units where the
person is a body corporate; and
• if the regulations prescribe a different number of penalty units for the alleged
contravention of the provision by the person--that number of penalty units.
22. This item would insert a new subsection 524(4A), which would provide that despite
subsection 524(4) of the Biosecurity Act, the amount to be stated in an infringement
notice for the purposes of paragraph 104(1)(f) of the Regulatory Powers Act for the
alleged contravention of new subsection 186A(1) (as inserted by new Schedule 8 to the
Bill) by a person must be 16 penalty units (for an individual) or 80 penalty units (for a
body corporate). This approach ensures that a set amount is specified in an infringement
notice, to ensure that infringement notices are issued consistently.
The principles in the Guide provide that the amount payable under an infringement
notice scheme should generally not exceed 12 penalty units for a natural person or 60
penalty units for a body corporate. However, the Guide also recognises that if the
amount payable 'is too low it will be an inadequate deterrent and ... may be paid as a
cost of doing business'. It is important that the amount to be stated in an infringement
notice for an alleged contravention of new subsection 186A(1) is set at a level that
provides an adequate deterrent and that any penalty is not seen as a 'cost of doing
business'. If a person conceals conditionally non-prohibited goods of biosecurity
concern when bringing or importing the goods into Australian territory, this may allow
high risk biosecurity risk material to enter Australian territory undetected and without
intervention by a biosecurity officer to assess the level of biosecurity risk and
subsequently manage it to an acceptable level. This action of concealment displays a
serious circumvention of the Biosecurity Act. It is very important to deter this
behaviour to protect Australia's biosecurity status, as such behaviour could affect
Australia's environment, economy, or plant, animal or human health with devastating
effects.
Item 5 - Subsection 633(2)
23. Subsection 633(2) of the Biosecurity Act provides that the Director of Biosecurity must
not approve the payment of compensation under section 633 in respect of goods that
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were brought or imported into Australian territory in contravention of subsection 185(1)
or 186(1).
24. This item would omit the words "or 186(1)", and substitute ", 186(1) or 186A(1)". This
would have the effect that where goods are brought or imported into Australian territory
in contravention of new subsection 186A(1), then the Director of Biosecurity must not
approve the payment of compensation in respect of such goods. This amendment would
be consequential to the insertion of new subsection 186A(1), proposed by item 2 of
Schedule 8.
Item 6 - At the end of subsection 633(2)
25. This item would add a new note 3 at the end of subsection 633(2) of the Biosecurity
Act. New note 3 would assist readers by providing a simplified explanation of when
new subsection 186A(1) is contravened. This note is not intended to be comprehensive,
and it is intended that readers would refer to the substantive provisions of new
section 186A to understand their effect.
Item 7 - Application provision
26. This item would provide that the amendments made by new Schedule 8 to the Bill
would apply in relation to goods brought or imported into Australian territory on or
after the commencement of Schedule 8.
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ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Biosecurity Amendment (Strengthening Biosecurity) Bill 2022
(Amendments to be moved on behalf of the Government)
The government amendment to 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
This government amendment would amend the Biosecurity Act 2015 (the Act) to insert a civil
penalty provision under new subsection 186A(1) to target the concealment of conditionally
non-prohibited goods that are brought or imported into Australian territory, where specified
conditions that apply to the goods are not complied with. This would be in circumstances
where conditionally non-prohibited goods are concealed for the purposes of preventing a
biosecurity official from finding the goods or determining the true nature of the goods.
Conditionally non-prohibited goods are goods specified in a determination in force under
subsection 174(1) of the Biosecurity Act. Such determinations provide that specified classes
of goods must not be brought or imported into Australian territory unless specified conditions
are complied with. Conditionally non-prohibited goods pose an unacceptable level of
biosecurity risk if specified conditions are not complied with. The concealment of goods
prevents biosecurity officers from being able to assess the biosecurity risk associated with the
goods, and where necessary, take measures to manage any such biosecurity risks. This
includes risks arising from Foot and Mouth Disease which could be introduced to Australia
by goods that are brought or imported into Australia by incoming travellers.
There would be an exception to new subsection 186A(1) where the person did not do, aid,
abet, counsel, procure the act or omission, or was not in any way knowingly concerned in an
act or omission (new subsection 186A(3)).
The maximum civil penalty that a court may order a person who is an individual to pay where
that person is liable to a civil penalty under new subsection 186A(1) would be 1,200 penalty
units. If the person is a body corporate, the maximum penalty must not be more than 5 times
the amount specified in each relevant proposed subsection (see subsection 82(5) of the
Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act), as enabled
by section 519 of the Biosecurity Act), which would be 6,000 penalty units.
Under Division 2 of Part 7 of Chapter 9 of the Biosecurity Act, an infringement officer may
give a person an infringement notice under Part 5 of the Regulatory Powers Act for an
alleged contravention of certain provisions of the Biosecurity Act. Subsection 523(2) of the
Biosecurity Act provides that the Director of Biosecurity is an infringement officer for the
purposes of Part 5 of the Regulatory Powers Act and, by operation of subsections 542(1) and
(2) of the Biosecurity Act, the powers and functions of an infringement officer may be
subdelegated to biosecurity officials.
10
The table in subsection 523(1) of the Biosecurity Act lists the provisions in relation to which
an infringement notice may be given. New subsection 186A(1) would be subject to the
infringement notice scheme under the Biosecurity Act. The amount to be stated in the
infringement notice would be 16 penalty units for an individual or 80 penalty units for a body
corporate.
Assessment of Compatibility with Human Rights
This government amendment may engage the right to a fair trial and criminal process rights
under Article 14 of the International Covenant on Civil and Political Rights (ICCPR).
Right to a fair trial
The right to a fair trial and equality before the courts contained in Article 14 of the ICCPR
applies to criminal and civil proceedings. Article 14 provides that, in the determination of any
criminal charge against the person, or of their rights and obligations in a suit of law, everyone
shall be entitled to a fair and public hearing by a competent, independent, and impartial
tribunal established by law.
The insertion of a civil penalty provision under new subsection 186A(1) does not affect the
procedure by which civil proceedings are heard in relation to contraventions of civil penalty
provisions under the Biosecurity Act. In addition, the right of a person to a fair and public
hearing by a competent, independent and impartial tribunal is preserved by the Regulatory
Powers Act, as its provisions allow a person to choose not to pay the amount specified in an
infringement notice in relation to an alleged contravention of new subsection 186A(1),
meaning proceedings may be commenced against the person to have the matter heard by a
court. Additionally, the Regulatory Powers Act outlines that this right must be stated in an
infringement notice issued to a person, ensuring that a person issued with an infringement
notice is aware of their right to have the matter heard by a court.
Criminal process rights
Article 14 of the ICCPR contains criminal process rights, including the minimum guarantees
in criminal proceedings (Articles 14(3) and (5) to (7)).
As discussed in the Guidance Note 2: Offence provisions, civil penalties and human rights
published by the Parliamentary Joint Committee on Human Rights (PJCHR), civil penalty
provisions may engage criminal process rights under Article 14 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 Article 14 of the ICCPR.
For the civil penalty provision in new subsection 186A(1), the assessment is as follows:
• new subsection 186A(1) expressly classifies the penalty as a civil penalty, with solely
court issued pecuniary penalties in the form of a debt payable to the Commonwealth;
• new subsection 186A(1) would not impose criminal liability. A finding by a court that
the provision has been contravened does not lead to the creation of a criminal record.
11
• the maximum civil penalty of 1,200 penalty units in new subsection 186A(1) is
needed to deter those who are considering evading detection by concealing
conditionally non-prohibited goods, as such goods could jeopardise Australia's
biosecurity status. Under the Biosecurity Act, the management of biosecurity risks
associated with conditionally non-prohibited goods, where specified conditions that
apply to the goods have not been complied with, are managed through the
implementation of regulatory controls put in place to intercept such goods. These
controls are necessary to reduce the biosecurity risk associated with the goods to an
acceptable level. It is important that persons who are bringing or importing
conditionally non-prohibited goods, through the traveller, mail or cargo pathways,
ensure that the specified conditions have been met, and that the goods are declared
and presented for assessment and inspection;
• the maximum civil penalty of 1,200 penalty units in new subsection 186A(1) is also
appropriate, having regard to the existing civil penalty provision in subsection 186(3)
of the Biosecurity Act carries a maximum civil penalty of 1,000 penalty units. This is
because new subsection 186A(1) targets more serious contraventions involving the
concealment of the conditionally non-prohibited goods for the purposes of preventing
a biosecurity official from finding the goods or determining the true nature of the
goods;
• where an infringement notice is issued in relation to an alleged contravention of new
subsection 186A(1), the amount of 16 penalty units (for an individual) or 80 penalty
units (for a body corporate) to be stated in the notice, is appropriate. It is set at a level
that provides an adequate deterrent and is not so low that it may be paid as a 'cost of
doing business'. If a person conceals conditionally non-prohibited goods of
biosecurity concern when bringing or importing the goods into Australian territory,
this may allow high risk biosecurity risk material to enter Australian territory
undetected and without intervention by a biosecurity officer to assess the level of
biosecurity risk and subsequently manage it to an acceptable level. This action of
concealment displays a serious circumvention of the Biosecurity Act. It is very
important to deter this behaviour to protect Australia's biosecurity status, as such
behaviour could affect Australia's environment, economy, or plant, animal or human
health with devastating effects.
Overall, having regard to the severity of the penalty, and the context in which they are
applied, the civil penalty under new subsection 186A(1), and the concomitant infringement
notice amount, should not be regarded as being criminal in nature under international human
rights law. However, even if they could be perceived to be criminal in nature, they would be
compatible with the criminal process rights contained in Articles 14 of the ICCPR as the
amendments do not affect the court process, just the penalty that can be imposed by the
courts.
Right to presumption of innocence
Article 14(2) provides that everyone charged with a criminal offence shall have the right to
be presumed innocent until proved guilty according to law.
The PJCHR Guidance notes that placing the burden on the defendant should be limited to
circumstances 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 PJCHR Guidance also notes that a reverse burden
12
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.
The civil penalty provision in new subsection 186A(1) would carry a reverse burden of proof.
However, this only applies to a defendant seeking to rely on the exception in new
subsection 186A(3) that they did not do, aid, abet, counsel, procure the act or omission, or
was not in any way knowingly concerned in an act or omission. This would be peculiarly in
the knowledge of the defendant and is not central to the question of culpability for the civil
penalty in new subsection 186A(1). In the event of a prosecution or civil proceedings, it
would be significantly more difficult and costly to disprove all possible circumstances than it
would be for a defendant to establish the existence of one potential circumstance.
Consequently, in order to target more serious contraventions involving the concealment of
the conditionally non-prohibited goods, it is reasonable, necessary and proportionate to
reverse the burden of proof and limit the right to the presumption of innocence.
In addition, and as discussed above, the right to the presumption of innocence is not engaged
by the giving of infringement notices. This is because, under paragraph 104(1)(i) of the
Regulatory Powers Act, as applied to the Biosecurity Act, an infringement notice must state
that that payment of the infringement notice amount is not an admission of guilt or liability.
Further, the Regulatory Powers Act allows a person to choose not to pay the amount specified
in an infringement notice in relation to an alleged contravention of new subsection 186A(1),
meaning proceedings may be commenced against the person to have the matter heard by a
court.
Conclusion
This government amendment is compatible with human rights because to the extent that it
may limit human rights, those limitations are reasonable, necessary and proportionate.
Senator the Hon. Murray Watt
Minister for Agriculture, Fisheries and Forestry
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