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2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
BIOSECURITY LEGISLATION AMENDMENT
(MISCELLANEOUS MEASURES) BILL 2018
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Agriculture and Water Resources,
the Hon. David Littleproud MP)
BIOSECURITY LEGISLATION AMENDMENT (MISCELLANEOUS MEASURES)
BILL 2018
GENERAL OUTLINE
The Biosecurity Legislation Amendment (Miscellaneous Measures) Bill 2018 (the Bill) will
make amendments to the Biosecurity Act 2015 (the Act) in order to strengthen Australia's
biosecurity system through a number of measures.
The Bill proposes new information gathering provisions under Chapter 6 of the Act, which
deals with monitoring, controlling and responding to biosecurity risks within Australia. The
Bill also proposes to enable instruments made under subsection 174(1) of the Act, including
the Biosecurity (Prohibited and Conditionally Non-prohibited Goods) Determination 2016, to
incorporate publicly available documents as amended from time to time.
The Bill also makes a number of minor amendments, including:
clarifying the definitions of 'commercial-in-confidence information' and 'human
remains'
clarifying provisions relating to the sharing of protected information with National
Focal Points under the International Health Regulations (2005)
(International Health Regulations)
technical amendments to ensure accuracy in references and titles, and
repeal of the redundant Quarantine (Validation of Fees) Act 1985.
These changes will improve the operation of the legislation to ensure Australia's biosecurity
system is continuing to keep pace with the changing biosecurity environment.
FINANCIAL IMPACT STATEMENT
The Bill will have no financial impact on the Australian Government Budget.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
This 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.
The full Statement of Compatibility with Human Rights is at the end of this explanatory
memorandum.
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NOTES ON CLAUSES
Clause 1: Short title
Clause 1 of the Bill provides for the short title of the Act to be the Biosecurity Legislation
Amendment (Miscellaneous Measures) Act 2018.
Clause 2: Commencement
Clause 2 of the Bill provides for the commencement of each provision in the Bill, as set out
in the table.
Subclause 2(1) provides that each provision of this Act specified in column 1 of the table
under this subclause commences, or is taken to have commenced, in accordance with
column 2 of the table.
Item 1 and 4 of the table provides that sections 1 to 3 of the Bill and Schedule 2 to the Bill
commence the day after the Bill receives the Royal Assent.
Item 2 of the table provides that Part 1 of Schedule 1 to the Bill commences the day after the
Bill receives the Royal Assent.
Item 3 of the table provides that Part 2 of Schedule 1 to the Bill will commence on a single day
to be fixed by Proclamation. However if this does not occur within six months of the
commencement of Part 1, this part will commence on the day for the end of that period.
Clause 3: Schedules
Clause 3 of the Bill provides that legislation that is specified in a Schedule to this Bill is
amended or repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to the Bill has effect according to its terms.
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Schedule 1--Amendments
Part 1--Amendments commencing day after Royal Assent
Biosecurity Act 2015
Item 1
Item 1 omits 'a person demonstrates to the Director of Biosecurity' from section 15, and
substitutes 'the Director of Biosecurity is satisfied'.
Current section 15 provides the meaning of commercial-in-confidence information, which is
information that meets the following criteria:
release of the information would cause competitive detriment to the person
information is not in the public domain
information is not required to be disclosed under another Australian law, and
information is not readily discoverable.
Item 1 removes the requirement for a person to demonstrate to the Director of Biosecurity
that information is commercial-in-confidence and provides that for information to be
commercial-in-confidence, the Director of Biosecurity must be satisfied that the information
meets the criteria.
This means that the Director of Biosecurity can determine, at their discretion, if information
is to be considered to be commercial-in-confidence, and therefore protected information
under section 9 of the Act. This amendment does not prevent individuals from providing
information or documents to the Director of Biosecurity to support a particular piece of
information being determined to be commercial-in-confidence.
Item 2
Item 2 replaces 'the person' with 'a person' in paragraph 15(a) of the Act. New
paragraph 15(a) would provide that the information would cause competitive detriment to a
person. In effect, this means that the Director of Biosecurity may be satisfied that the
competitive detriment found can apply to any person, not only the person who may have
made a claim for certain information to be deemed commercial-in-confidence.
As this is a decision pertaining to the status of information, it is an administrative decision of
a procedural nature with no direct impact on the rights of individuals. It is therefore not a
decision suitable for merits review.
Amendments made by items 1 and 2 together aim to reduce the burden on a person having to
demonstrate to the Director of Biosecurity that information may cause them competitive
detriment. These amendments also aim to increase efficiency in the administration of
section 15.
Item 3
Item 3 replaces the heading to section 134 with a new heading to more accurately describe
the content of the section.
Item 4
Item 4 inserts new subsection 174(6) after existing subsection 174(5). New subsection 174(6)
provides that despite subsection 14(2) of the Legislation Act 2003 (Legislation Act), a
determination under subsection 174(1) may make provision in relation to a matter by
applying, adopting, or incorporating any matter contained in an instrument or other writing,
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as in force or existing from time to time, if the instrument or other writing is publicly
available.
Subsection 14(2) of the Legislation Act provides that unless the contrary intention appears, a
legislative instrument or notifiable instrument may not make provision in relation to a matter
by applying, adopting or incorporating any matter contained in an instrument or other writing
as in force or existing from time to time. Subsection 174(1) provides that the Director of
Biosecurity and the Director of Human Biosecurity may jointly determine that specified
classes of goods must not be brought or imported into Australian territory unless specified
conditions are complied with.
New subsection 174(6) would override subsection 14(2) of the Legislation Act such that
determinations made under subsection 174(1) relating to conditionally non-prohibited goods
may incorporate documents by reference as they are amended from time to time. These
determinations include the Biosecurity (Prohibited and Conditionally Non-prohibited Goods)
Determination 2016, and other determinations of the same kind relating to the external
territories of Australia (collectively called the Goods Determinations).
Conditions for classes of goods provided by the Goods Determinations are informed by
biosecurity risk assessments, which often lead to necessary amendments to import conditions.
Risk assessments are conducted frequently to determine whether they would be suitable to be
managed under the Goods Determinations as a conditionally non-prohibited good with
alternative conditions (i.e. importing them will not require import permits).
For example, a new species of seed may be assessed to determine whether biosecurity risk
associated with it could be sufficiently managed by certain conditions. If the biosecurity risk
assessment determines that the new species can be adequately managed through alternative
conditions, it would be added to the list of species covered by the Goods Determinations.
Conversely, if the risk level associated with a previously listed species of seed changes such
that it could no longer be sufficiently managed through alternative conditions, that species
would need to be removed from the list.
The Goods Determinations currently incorporate a number of similar lists which function on
similar principles, such as:
lists of competent authorities and competent institutions that are allowed to perform
specific functions, and
lists of countries that are permitted or prohibited from importing certain goods.
All lists incorporated in the Goods Determinations are published on the Department's website
and readily accessible.
Biosecurity risk assessments may change rapidly due to changes in the biosecurity risk
environment. New subsection 174(6) will allow for lists to be incorporated as they are
updated from time to time, when it is necessary to reflect changes in biosecurity risk
assessments relating to imported goods. This will facilitate more timely and effective
management of biosecurity risks and reduce the regulatory burden where importers are no
longer required to apply for import permits.
There are other documents and writing that are currently incorporated by reference (not as in
force from time to time). These are international agreements or authoritative documents,
including:
the Index Herbariorum, which is a depository of information on the world's herbaria,
maintained by the New York Botanical Garden, accessible at:
http://sweetgum.nybg.org/science/ih/, and
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the International Plant Protection Convention, accessible on the AustLII website at
http://www.austlii.edu.au.
It is therefore appropriate for the Goods Determinations to incorporate documents and other
writing as amended from time to time. As only publicly available documents can be
incorporated, new subsection 174(6) is in line with clearer laws principles, and would not
impede access to legislation. The Department would also ensure stakeholders are notified
when biosecurity risk assessments lead to a necessary change in import conditions, and that
appropriate consultation take place.
Item 5
Item 5 will replace the heading to section 209 with a new heading to more accurately describe
the content of the section.
Item 6
Item 6 inserts new paragraph 311(aa) into section 311, which sets out the objects of Chapter 6
(managing biosecurity risks: monitoring, control and response). New paragraph 311(aa)
provides that objectives of this Chapter also include to enable information to be obtained
about prohibited goods, suspended goods or certain conditionally non-prohibited goods that
have been brought or imported into Australian territory and have been released from
biosecurity control. This additional objective captures proposed provisions in the new
Part 1A of Chapter 6, inserted by item 7.
Item 7
Item 7 inserts a new Part 1A (Locating prohibited or suspended goods etc.) into Chapter 6 of
the Act, which deals with monitoring, controlling and responding to biosecurity risks within
Australia. New Part 1A provides additional powers intended to facilitate the exercise of
Chapter 6 powers to assess and manage biosecurity risk, which may be associated with
certain goods, such as goods of the same kind as suspended or prohibited goods, or
conditionally non-prohibited goods reasonably suspected of breaching applicable conditions.
Division 1--Introduction
Section 312A - Simplified outline of this Part
New section 312A provides a brief outline of Part 1A, which provides for two information
gathering powers:
if goods become suspended or prohibited goods, the Director of Biosecurity, or the
Director of Human Biosecurity in the case of prohibited goods, may require a person
in charge of the same kind of goods as the suspended or prohibited goods, to notify
the Director of the location and other information relating to the goods, and
a biosecurity officer may ask questions or require the production of documents about
prohibited goods, suspended goods, or certain conditional non-prohibited goods that
have been released from biosecurity control.
These powers may be exercised only for the purpose of assessing or managing the level of
biosecurity risk associated with the goods.
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Division 2--Information-gathering powers
Division 2 of Part 1A provides new information gathering powers for certain types of goods.
Section 312B - Requirement to notify of information about goods that have become
suspended goods
Section 312B provides the power for the Director of Biosecurity to require information from
persons in charge of goods that had been imported into Australia in a relevant period prior to
the goods of the same kind becoming suspended goods.
Subsection 312B(1) provides that this section applies if:
the Director of Biosecurity has determined, under subsection 182(1), that specified
goods or a specified class of goods (the suspended goods) must not be brought or
imported into Australian territory for a specified period (the suspension period), and
the suspension period has not ended.
The note under this subsection also provides that the Director of Biosecurity may make a
determination under subsection 182(1) in relation to goods, or class of goods, only if the
Director is satisfied that the level of biosecurity risk associated with the goods, or the class of
goods, is unacceptable (subsection 182(3)). Subsection 182(1) provides for the determination
of suspended goods.
Subsection 312B(2) provides that the Director of Biosecurity may require a person in charge
of goods that:
are of the same kind as the suspended good,
were imported into Australian territory before the suspension period, and
have already been released from biosecurity control
to notify the Director of Biosecurity of the location of the goods and of any other information
specified by the Director that the person has in relation to the goods, within a specified
period.
Note 1 under this subsection explains that a person may commit an offence or contravene a
civil penalty provision if the person provides false or misleading information, as per
section 137.1 of the Criminal Code Act 1995 (Criminal Code) and section 532 of the Act.
Note 2 provides that this section is not subject to the privilege against self-incrimination (see
section 635). Item 12 of this Bill amends section 635 of the Act to take into account new
Part 1A of Chapter 6, and item 12 of this Explanatory Memorandum explains the operation of
that section.
Subsection 312B(2) will allow the Director of Biosecurity to require information such as the
location, or any other relevant information, regarding goods of the same kind as suspended
goods that were imported before the relevant suspension. Only persons in charge of the
relevant goods, who possess such information, would be required to provide information to
the Director of Biosecurity. A person in charge is not required to retain records of imported
goods indefinitely in the event that a class of goods becomes suspended in the future. Rather,
the provision is intended to facilitate gathering available information in the event of a
suspension.
This information will be used to assess if there is a reasonable suspicion that a disease or pest
that may be present in or on the goods, and the disease or pest may pose an unacceptable
level of biosecurity risk (section 314).
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If there is a reasonable suspicion, section 314 provides that Division 3 powers under Part 2,
Chapter 6 of the Act may be used to establish whether the disease or pest is present in or on
the goods, to identify the disease or pest, or to assess the level of biosecurity risk posed by it.
The power provided by new section 312B is necessary because goods of the same kind as
suspended goods that were imported before the suspension may also carry the same risks for
which the relevant goods were suspended. This power ensures that information gathering can
be done speedily, leading to more prompt and accurate identification of goods and assessment
of risk level associated.
This provision implements Recommendation 2 of the Senate Standing Committee on Rural
and Regional Affairs and Transport in its report, the biosecurity risks associated with the
importation of seafood and seafood products (including uncooked prawns and uncooked
prawn meat) into Australia. The report recommended that the Act be amended to provide
appropriate 'advise and secure powers' in relation to specified goods or classes of goods,
such that the Australian Government can respond more quickly and more comprehensively, if
similar biosecurity incidents occur.
The Act currently enables various measures for assessment and management of biosecurity
risk, such as taking samples and treating goods, which may be used if conditions under
section 314 are met. The power provided by new subsection 312B(2), in conjunction with the
existing powers in Chapter 6, achieves the outcome sought by the 'advise and secure' power
recommended by the prawns report.
Subsection 312B(3) provides that the requirement under subsection 312B(2) may be made by
publishing a notice or in any other way the Director of Biosecurity considers appropriate. For
example, the Director may publish a notice on the Department's website and send
notifications to a broad range of stakeholders, or the Director may directly contact industry
members by letters specifically addressed to individuals.
Subsection 312B(4) provides that the power under subsection 312B(2) may be exercised for
the purpose of assessing or managing the level of biosecurity risk associated with the goods.
This means that this power must not be used for any other purpose, and is only intended to be
used for the purpose of assessing or managing biosecurity risk. Further, the proposed power
under subsection 312B(2) can only be exercised if the decision-making principles in
section 32 of the Act are satisfied. The applicable definition of 'biosecurity risk' is provided
by section 310 of the Act, rather than the definition provided by section 9 of the Act.
Subsection 312B(5) is a civil penalty provision, and provides that a person who is aware of
the requirement to notify the Director of Biosecurity of information under
subsection 312B(2), must comply with the requirement. A person contravenes
subsection 312B(2) if that person possesses information of the kind required by the Director
of Biosecurity's notification under that subsection and was aware of the requirement to notify
the Director but did not notify them. A civil penalty of maximum 120 penalty units applies
for those who knowingly contravene subsection 312B(2).
This is consistent with penalties for similar offences relating to information gathering
throughout the Act, such as sections 126 and 200, which provide that a biosecurity officer
may require a person to answer questions if the biosecurity officer suspects, on reasonable
grounds that the person has information in relation to goods which are under biosecurity
control.
The number of penalty units is also reflective of the potential for serious consequences of
deliberate non-compliance, such as pests and diseases establishing themselves in Australia
and adversely affecting animal, plant or human health, the environment and the economy, if
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biosecurity risks associated with same kind of goods as suspended goods are not effectively
managed. This is particularly so as these goods are the same kind of goods as suspended
goods, which would have been determined by the Director of Biosecurity to have an
unacceptable level of risk associated. These goods would have been released from biosecurity
control and are out in the community. Accurate and efficient information gathering is critical
in these circumstances, to ensure any risks that need to be dealt with are effectively assessed
and managed.
Section 312C - Requirement to notify of information about goods that have become
prohibited goods
New section 312C provides for the power to require notification to the Director of
Biosecurity, or the Director of Human Biosecurity, of information relating to goods that have
been imported into Australia in a relevant period prior to the goods becoming prohibited
goods.
Subsection 312C(1) provides that this section applies if the Director of Biosecurity and the
Director of Human Biosecurity have jointly determined, under subsection 172(1), that
specified goods or a specified class of goods (the prohibited goods) must not be brought or
imported into Australian territory.
The note under this subsection also provides that the Director of Biosecurity and the Director
of Human Biosecurity may make a determination under subsection 173(1) in relation to
specified goods, or specified class of goods, only if each Director is satisfied that the level of
biosecurity risk associated with the goods, or the 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 (subsection 173(3)). Subsection 173(1) provides for the determination of
prohibited goods.
Note 1 under this subsection explains that a person may commit an offence or contravene a
civil penalty provision if the person provides false or misleading information, as per
section 137.1 of the Criminal Code and section 532 of the Act. Note 2 provides that this
section is not subject to the privilege against self-incrimination (see section 635). Item 12 of
this Bill amends section 635 of the Act to take into account new Part 1A of the Chapter 6, and
item 12 of this Explanatory Memorandum explains the operation of that section.
Subsection 312C(2) provides that the Director of Biosecurity or the Director of Human
Biosecurity may require a person in charge of goods that:
are of the same kind as the prohibited good
were brought or imported into Australian territory before the goods became prohibited
goods, subject a determination under subsection 173(1), and
have already been released from biosecurity control
to notify the Director of Biosecurity, or the Director of Human Biosecurity (as the case may
be), within a specified period, of the location of the goods and of any other information
specified by the Director that the person has in relation to the goods.
This will allow the Director of Biosecurity, or the Director of Human Biosecurity, to require
information such as the location, or any other relevant information, regarding goods of the
same kind as prohibited goods that were imported before the relevant prohibition. Only
persons in charge of the relevant goods, who possess such information, would be required to
provide information to the Director of Biosecurity or the Director of Human Biosecurity. A
person in charge is not required to retain records of imported goods indefinitely in the event
9
that a class of goods becomes prohibited in the future. Rather, the provision is intended to
facilitate gathering available information in the event of a prohibition.
This information will be used to assess if there is a reasonable suspicion that a disease or pest
that may be present in or on the goods, and if that disease or pest may pose an unacceptable
level of biosecurity risk (section 314). The power provided by new section 312C is necessary
because goods of the same kind as prohibited goods that were imported before the prohibition
may also carry the same risks for which the relevant goods were prohibited. This power
ensures that information gathering can be done speedily, leading to more prompt and accurate
identification of goods and assessment of risk level associated.
Subsection 312C(3) provides that the requirement under subsection 312C(2) may be made by
publishing a notice or in any other way the Director of Biosecurity, or the Director of Human
Biosecurity (as the case may be) considers appropriate. For example, the Director may
publish a notice on the Department's website and send notifications to a broad range of
stakeholders, or the Director may directly contact industry members by letters specifically
addressed to individuals.
Subsection 312C(4) provides that the power under subsection 312C(2) may be exercised for
the purpose of assessing or managing the level of biosecurity risk associated with the goods.
This means that this power may not be used for any other purpose, and is only intended to be
used for the purpose of assessing or managing biosecurity risk. Further, the proposed power
under subsection 312C(2) can only be exercised if the decision-making principles in
section 32 of the Act are satisfied. The applicable definition of 'biosecurity risk' is provided
by section 310 of the Act, rather than the definition provided by section 9 of the Act.
Subsection 312C(5) is a civil penalty provision, and provides that a person who is required to
notify the Director of Biosecurity, or the Director of Human Biosecurity, of information
under subsection 312C(2), and who was aware of the requirement, must comply with the
requirement. A person contravenes subsection 312C(2) if that person possesses information
of the kind required by the Director of Biosecurity's, or the Director of Human Biosecurity's
notification under that subsection and aware of the requirement to notify the Director(s), but
did not notify them. A civil penalty of maximum 120 penalty units applies for those who
knowingly contravene subsection 312C(2).
This is consistent with penalties for similar offences relating to information gathering
throughout the Act, such as sections 126 and 200, which provide that a biosecurity officer
may require a person to answer questions if the biosecurity officer suspects, on reasonable
grounds that the person has information in relation to goods which are under biosecurity
control. The number of penalty units is also reflective of the potential for serious
consequences of deliberate non-compliance, such as pests and diseases establishing
themselves in Australia and adversely affecting animal, plant or human health, the
environment and the economy, if biosecurity risks associated with same kind of goods as
prohibited goods are not effectively managed. This is particularly so as these goods are the
same kind of goods as prohibited goods, which would have been determined by the Director
of Biosecurity and the Director of Human Biosecurity to have an unacceptable level of risk
associated. These goods would have been released from biosecurity control and are out in the
community. Accurate and efficient information gathering is critical in these circumstances, to
ensure any risks that need to be dealt with are effectively assessed and managed.
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Section 312D - Information-gathering powers relating to prohibited goods, suspended goods
and certain conditionally non-prohibited goods
New section 312D provides the applicability of the powers provided by new sections 312D
and 312E.
Subsection 312D(1) provides that a biosecurity officer may exercise the powers under
sections 312E and 312F in relation to goods imported into Australia if, at the time the goods
were imported, the goods were:
prohibited goods, suspended goods or certain conditionally non-prohibited goods, and
if the goods are conditionally-non prohibited goods, the biosecurity officer suspects
on reasonable grounds that the goods have, or may have, breached an import
condition, and
the goods have been released from biosecurity control
For example, the powers may be used where a biosecurity officer discovers goods that breach
conditions at the border, and suspect that goods of the same kind imported by the same
importer may have also breached conditions, and those goods have already been released
from biosecurity control.
Subsection 312D(2) provides that the powers provided by sections 312E and 312F may be
exercised in relation to goods referred to in subsection 312D(1) for the purpose of managing
or assessing the level of biosecurity risk associated with the goods. Similar to
subsection 312B(4) and 312C(4), this means that powers provided by sections 312E and 312F
may not be used for any other purpose, and only intended to be used for the purpose of
assessing or managing biosecurity risk. The applicable definition of 'biosecurity risk' is
provided by section 310 of the Act, rather than the definition provided by section 9 of the
Act. Further, the proposed power can only be exercised if the decision-making principles in
section 32 of the Act are satisfied.
Section 312E - Answering questions about goods
Subsection 312E(1) provides that a biosecurity officer may require the person who brought or
imported goods referred to in subsection 312D(1) into Australian territory, or a person in
charge of the goods, to answer questions, or provide information in writing, in relation to the
goods.
Subsection 312E(2) provides that a person who is required to answer questions or provide
information in writing under subsection 312E(1) must comply with the requirement. A person
who contravenes subsection 312E(1) would be subject to a civil penalty of maximum
120 penalty units.
This is consistent with penalties for similar offences throughout the Act, such as sections 126
and 200. The number of penalty units is also reflective of the potential for serious
consequences of deliberate non-compliance, such as pests and diseases establishing
themselves in Australia and adversely affecting animal, plant or human health, the
environment and the economy, if biosecurity risks associated with the goods are not
effectively managed. These goods of concern, imported in contravention of existing
conditions, would have already been released from biosecurity control and are out in the
community. Accurate and efficient information gathering is critical in these circumstances, to
ensure any risks that need to be dealt with are effectively assessed and managed.
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Section 312F - Requiring documents relating to goods to be produced
Subsection 312F(1) provides that a biosecurity officer may require a person who brought or
imported goods into Australia, or a person in charge of goods referred to in
subsection 312D(1), to produce specific documents. Documents that are required to be
produced to the biosecurity officer may include any documents relating to goods that the
biosecurity officer suspects are in possession or control of the person.
Subsection 312F(2) also allows for the biosecurity officer to make copies of and take extracts
from documents that have been produced, and if necessary, the biosecurity officer may
remove the documents from the place where they was produced for this purpose.
Subsection 312F(3) provides that a person who is required to answer questions or provide
information in writing under subsection 312E(1) must comply with the requirement. A person
who contravenes subsection 312E(1) would be subject to a civil penalty of maximum
120 penalty units.
This is consistent with penalties for similar offences throughout the Act, such as sections 126
and 200. The number of penalty units is also reflective of the potential for serious
consequences of deliberate non-compliance, such as pests and diseases establishing
themselves in Australia and adversely affecting animal, plant or human health, the
environment and the economy, if biosecurity risks associated with the goods are not
effectively managed. These goods of concern, imported in contravention of existing
conditions, would have already been released from biosecurity control and are out in the
community. Accurate and efficient information gathering is critical in these circumstances, to
ensure any risks that need to be dealt with are effectively assessed and managed.
Proposed sections 312E and 312F are also not subject to the privilege against self-
incrimination, which is necessary for the gathering of necessary information to ensure
effective assessment and management of biosecurity risk.
Item 8: Subsection 465(6) (heading)
Item 8 replaces the heading to subsection 465(6) with a new heading to more accurately
describe the content of the subsection following the amendments made by item 9.
Item 9: Subsection 465(6)
Item 9 inserts the word 'determination' after 'biosecurity response zone'. This is to better
align the section to the provisions related to the making of a biosecurity response zone
determination in Part 6 of Chapter 5 of the Act.
Item 10: Subsection 542(3) (table item 1)
Item 10 repeals table item 1 under subsection 542(3) of the Act. Subsection 543(1) enables
the delegation of the Director of Biosecurity's powers and functions under the Act to SES
employees and acting SES employees in the Agriculture Department. Subsection 543(2)
provides subdelegation by employees who have powers delegated under subsection 543(1).
Subsection 542(3) provides that a power under a provision referred to in the table under that
subsection must not be subdelegated under subsection 542(2).
Repealed table item 1 under subsection 542(3) refers to the decision that a person has
demonstrated that information is commercial-in-confidence under section 15. This would
allow for the decision provided by section 15 to be subdelegated under subsection 542(2).
That subsection provides that an SES employee or acting SES employee may delegate a
function or power delegated to them by the Director of Biosecurity to a person who is a
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biosecurity officer, a biosecurity enforcement officer, or who holds, or is acting in, an
Executive Level 1 or 2 (or equivalent) position in the Agriculture Department.
Section 15 currently provides for the definition of information that is
commercial-in-confidence, based on whether a person has demonstrated that information is
commercial-in-confidence according to the criteria in that section. Item 1 of Schedule 1 of
this Bill proposes to amend section 15 such that for information to be
commercial-in-confidence, the Director of Biosecurity must be satisfied that the information
meets the criteria.
It is appropriate for an assessment of whether information meets the criteria set out under
section 15 to be subdelegable. Such a decision is procedural in nature, as it is a determination
as to whether a piece of information is commercial-in-confidence, and the power able to be
subdelegated is narrow in scope.
Item 11: After subparagraph 580(2(a)(iv)
Item 11 inserts a new subparagraph 580(2)(a)(iva) which adds 'the National Focal Point' to
the list of persons who may make a record of, disclose, or otherwise use, protected
information under subsection 580(1).
A 'National Focal Point' refers to the designated point of contact for the sharing of
information with another Member State of the World Health Organization under the
International Health Regulations, as specified in section 9 of the
National Health Security Act 2007.
This item clarifies that protected information may be disclosed by Australia's National Focal
Point to National Focal Points of other Member States of the World Health Organization
under the International Health Regulations. This is necessary for Australia to fulfil its
obligations under the Regulations, such as public health information sharing to enable
surveillance and response activities.
Item 12: Paragraph 635(1)(e)
Item 12 inserts references to sections 312B, 312C, 312E, 312F into paragraph 635(1)(e).
Subsection 635(1) provides that a person is not excused from answering a question, providing
information or producing a document under the provisions listed in this subsection, on the
ground that the answer, the information or the production of the document might tend to
incriminate the person or make the person liable to a penalty. Subsection 635(2) provides that
that the information or document obtained under the relevant provisions are not admissible in
evidence against the individual in any criminal or civil proceedings, except proceedings
under, or arising out of, section 137.1 or 137.2 of the Criminal Code or section 532 or 533 of
this Act (false or misleading information and documents), in relation to answering the
question, providing the information or producing the document.
In effect, this item abrogates the privilege against self-incrimination and provides a derivative
use immunity for the requirement to provide information or documents under proposed
sections 312B, 312C, 312E and 312F. This means that while individuals will not be able to
refuse to provide information or documents on the basis that the information or documents
might tend to incriminate them, any information or document provided will not be admissible
in any criminal or civil proceedings against the individual, other than where they provide
misleading information or documents.
The powers under the proposed sections may only be excised for the purpose of managing
biosecurity risk, which potentially could have very serious consequences for Australia's
animal, plant and human health, environment and economy. To assess and manage potential
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biosecurity risks effectively, it is necessary to gather accurate information in a timely manner.
Upholding the privilege against self-incrimination where individuals may have relevant
information regarding biosecurity risks may lead to that information not being provided,
which could hinder effective assessment and management of biosecurity risks.
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Part 2--Amendments commencing day to be proclaimed
Biosecurity Act 2015
Item 13 Section 9 (definition of human remains)
Item 13 replaces the definition of human remains in section 9 with a new definition. The new
definition provides that human remains means the remains of all or any part of a deceased
human's body, but does not include:
the cremated remains of a deceased human's body; or
hair, teeth or bones of a deceased human's body that have been separated from the
deceased human's body or a part of the deceased human's body.
This amendment inserts an exclusion into the definition of human remains, namely human
hair, teeth and bones that are separated from a deceased person body, for example, wigs made
of human hair, jewellery made of human teeth or bones. This amendment will enable hair,
teeth and bones that are separated from a human body, regardless of whether from a living or
deceased person, to be managed as a good. This will enable operational consistency for the
importation of such items.
The delayed commencement of this item, provided by Clause 2 of the Bill, allows for
appropriate amendments to be made to the relevant subordinate instruments made under
subsection 174(1) and subsections 110(2) and 112(1) to commence at the same time as this
item.
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Schedule 2--Repeals
Quarantine (Validation of Fees) Act 1985
Item 1
Item 1 repeals the Quarantine (Validation of Fees) Act 1985.
As the various provisions have already had their intended effect and/or relate to legislation no
longer in use, the Act is redundant and can be repealed. The Act validated various fees that
were charged during a specified period of time in 1984 and 1985. No other fees are charged
under the Act and no fees from the period are outstanding.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Biosecurity Legislation Amendment (Miscellaneous Measures) Bill 2018
This 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 Biosecurity Legislation Amendment (Miscellaneous Measures)
Bill 2018 (the Bill) is to amend the Biosecurity Act 2015 (Biosecurity Act) to further
strengthen Australia's biosecurity framework.
The Bill proposes new information gathering provisions under Chapter 6 of the Act, which
deals with monitoring, controlling and responding to biosecurity risks within Australia. The
Bill also proposes to enable instruments made under subsection 174(1) of the Act, including
the Biosecurity (Prohibited and Conditionally Non-Prohibited Goods) Determination 2016, to
incorporate publicly available documents as amended from time to time.
The Bill also makes a number of minor amendments, including:
clarifying the definitions of 'commercial-in-confidence information' and 'human
remains'
clarifying provisions relating to the sharing of protected information with National
Focal Points under the International Health Regulations (2005)
(International Health Regulations)
technical amendments to ensure accuracy in references and titles, and
repeal of the redundant Quarantine (Validation of Fees) Act 1985.
These changes will improve the operation of the legislation to ensure that Australia's
biosecurity system is continuing to keep pace with a changing biosecurity environment.
The Bill aims to promote the right to life and health under the International Covenant on
Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and
Political Rights (ICCPR) through the management of the serious risks posed by pests and
disease. The relevant proposed provisions in the Bill will ensure individual liberties and
freedoms are balanced with the need to manage biosecurity risk. The Bill is consistent with
Australia's international obligations under the World Health Organization's
International Health Regulation.
Human rights implications
This Bill engages, or has the potential to engage, the following rights:
Article 14 and 15 of the ICCPR--Rights regarding the engagement of criminal and
civil process
Article 14(3) of the ICCPR--Right to be free from self-incrimination
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Article 17 of the ICCPR--Right to protection from arbitrary interference with
privacy, and
Article 12 of the ICESCR - Right to health.
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 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.
Item 7 of the Bill proposes powers which enable compulsory information gathering. Proposed
sections 312B and 312C provide that the Director of Biosecurity or the Director of Human
Biosecurity may require a person to notify certain information relating to goods that have
been imported into Australia. Proposed sections 312E and 312F provides that a biosecurity
officer may ask questions and require documents to be produced about specific goods which
were imported in contravention of the Biosecurity Act, such as goods that breach import
conditions.
Item 12 amends section 635 of the Biosecurity Act such that the privilege against self-
incrimination is abrogated for proposed sections 312B, 312C, 312E and 312F, and such that a
use/derivative use immunity is also provided for those proposed sections. Information
obtained under the proposed provisions would only be admissible in proceedings for criminal
or civil offences that pertain to providing false or misleading information and documents
(section 137.1 or 137.2 of the Criminal Code Act 1995 or section 532 or 533 of the
Biosecurity Act).
The powers under the proposed sections may only be excised for the purpose of managing
biosecurity risk associated with the relevant goods, which could potentially have very serious
consequences for Australia's animal, plant, and human health, environment and economy. To
assess and manage potential biosecurity risks effectively, it is necessary to gather accurate
information in a timely manner. For example, information could include the location of goods
or other details to enable identification. Upholding the privilege against self-incrimination
where individuals may have important information regarding biosecurity risks may lead to
that information not being provided, which could negatively impact the effective assessment
and management of biosecurity risks.
Further, the following would act as safeguards to prevent the risk of abuse, or arbitrary
exercise of discretion, in particular, that the information gathering is necessary to assess
and/or manage biosecurity risk and that the powers are not used for any other purpose:
Sections 312B and 312C
The powers under sections 312B and 321C may only be exercised while an existing
suspension or prohibition on the relevant goods are in place.
The suspended or prohibited goods would already have been assessed by the Director
of Biosecurity (and the Director of Human Biosecurity for prohibited goods), who
would have to be satisfied that there is an unacceptable level of biosecurity risk
associated with the goods (subsection 182(3) of the Biosecurity Act).
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Sections 312E and 312F
The relevant goods would be reasonably suspected of having been imported in breach
of conditions under the Act, or have been imported while a suspension or prohibition
was in place.
Where the goods are reasonably suspected of having been imported in breach of
conditions, there must be biosecurity risk associated with the breach for the power to
be exercised. For example, the condition(s) may not be administrative in nature.
Therefore, abrogating the privilege against self-incrimination for the proposed sections 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. The
rationale behind the abrogation of the privilege against self-incrimination for the proposed
sections are consistent with the other existing provisions listed under section 635 of the
Biosecurity Act.
Rights regarding the engagement of criminal and civil process
The Parliamentary Joint Committee on Human Rights Practice Note 2 states 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 (Item 7, subsections 312B(5), 312C(5),
312E(2), and 312F(3)) should not be considered 'criminal' for the purposes of human rights
law. While a criminal penalty is deterrent or punitive, these civil penalty provisions are aimed
at objectives that are regulatory in nature. They should be considered 'disciplinary' rather
than 'criminal', aimed at dealing with non-compliance.
Subsections 312E(2) and 312F(3) would largely apply to a sector or class of people who
would reasonably be expected to be aware of their obligations under the Biosecurity Act, for
example, importers of goods, to not import goods which breach import conditions. The
individual would have already been reasonably suspected of having imported goods which
breach conditions, or already have imported suspended or prohibited goods in contravention
of the Act.
While subsection 312B(5) and 312C(5) could potentially apply to the general public,
practically it is much more likely to affect particular sectors or classes of people, or members
of a particular industry. The Agriculture Department would ensure, where relevant, particular
sectors and stakeholders are made aware of the requirement to notify the Department, during
an existing suspension. Further, the civil penalty would only apply to individuals who
deliberately did not provide information, i.e. the individual would have possessed relevant
information, and had been aware of the request to notify.
The severity of the civil penalties should be considered low, as they are all pecuniary
penalties and there is no sanction of imprisonment for non-payment. The maximum amount
for each civil penalty is the same as similar penalties already existing in the Biosecurity Act,
such as sections 126 and 200, which enable a biosecurity officer to ask questions about goods
and conveyances subject to biosecurity control if they suspect on reasonable grounds that a
person has relevant information.
Therefore, the cumulative effect of the nature and severity of the civil penalties in the Bill
should not be considered 'criminal' for the purposes of human rights law.
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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. The right to privacy can be
limited to achieve a legitimate objective where the limitations are lawful and not arbitrary. In
order for an interference with the right to privacy to be permissible, the interference must be
authorised by law, and be reasonable in the circumstances. The United Nations Human
Rights Committee has interpreted the requirement of 'reasonableness' as implying that any
interference with privacy must be proportionate to a legitimate end and be necessary in the
circumstances.
Items 1, 2, 7 and 11 contain provisions that may operate to limit this right. To the extent that
these items may operate to interfere with the right to privacy, the interference would be
limited, proportionate to a legitimate objective and necessary in the circumstances.
Items 1 and 2 of the Bill amend the definition of what information is to be considered
commercial-in-confidence under section 15 of the Biosecurity Act, to clarify that the Director
of Biosecurity may make a decision on whether information is considered to be
commercial-in-confidence. These amendments do not prohibit individuals from informing the
Department if certain information would cause them a competitive disadvantage if released.
Therefore, practically, there would be minimal to no impact on the right to privacy, even
where commercial-in-confidence information does contain personal information. Provisions
for the disclosure of personal information have not been altered by this Bill.
The proposed amendments under item 7 enables information gathering, including asking
questions and requesting documents, relating to specific goods that have been imported into
Australia. It is possible that the collection of this information may include private and
personal information, however, practically they are expected to relate to details of particular
imported goods. As such, the collection, use, storage and sharing of personal information
would be incidental to the operation of these proposed provisions, and the relevant provisions
under the Privacy Act 1988 would apply, as they do across the Commonwealth.
Item 11 inserts 'National Focal Points' to the list of people who can record, disclose and use
protected information under subsection 580(2) of the Act, when the information is used for a
permissible purpose. A National Focal Point is provided by Article 4 of the
International Health Regulations and are is a contact point designated by each country that is
a party to the Regulations, which is to be accessible for all communications with the
World Health Organization.
Information that is considered to be protected information under the Biosecurity Act is only
to be shared with specified people and organisations, for permissible purposes. Chapter 11,
Part 2, Division 1 of the Act outlines these restrictions on the collection and sharing of
protected information.
Right to health
Article 12 of the ICESCR protects 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
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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.
As noted above, item 11 inserts 'National Focal Points' to the list of people who are
authorised for the recording, disclosure and use of protected information for permissible
purposes. The sharing of protected information with National Focal Points under the
International Health Regulations enables the prevention, treatment and control of
communicable diseases across national boundaries.
The Bill seeks to further implement Australia's obligations as a signatory to the
International Health Regulations 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. Consistent with the requirements of the
International Health Regulations and Article 12 of the ICESCR, the Bill proposes powers to
enable information sharing for prevention, protection against and control of communicable
disease.
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.
(Circulated by authority of the Minister for Agriculture and Water Resources,
the Hon. David Littleproud MP)
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