BILLS DIGEST NO. 6, 2020–21              13 August 2020

Biosecurity Amendment (Traveller Declarations and Other Measures) Bill 2020

Karen Elphick
Law and Bills Digest Section

Date introduced: 17 June 2020

House:  House of Representatives

Portfolio: Agriculture, Water and the Environment

Commencement: 1 January 2021.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at August 2020.

Purpose of the Bill

The purpose of the Biosecurity Amendment (Traveller Declarations and Other Measures) Bill 2020 (the Bill) is to amend the Biosecurity Act 2015 (the Act) to allow the Director of Biosecurity to set amounts payable under an infringement notice to differentiate infringements relating to specified goods or classes of goods according to their relative biosecurity risk. The changes aim to deter non-compliance with the Act in order to mitigate biosecurity risks.

Structure of the Bill

The Bill has one Schedule which will:

•       amend the Act to permit the Director of Biosecurity to make a legislative instrument to specify goods or classes of goods that can attract a higher infringement notice amount

•       amend the Act to:

–      allow the Biosecurity Regulation 2016 (the Regulations) to specify different penalty amounts for infringement notices issued for different kinds of alleged contraventions of provisions of the Act

–      clarify that the Regulations may prescribe different periods of time to pay an infringement notice depending on the kind of goods or class of goods to which an alleged contravention of the Act relates

•       provide that the legislative instrument made by the Director of Biosecurity is not subject to parliamentary disallowance due to the technical and scientific nature of underlying risk assessments and is made for a period of not longer than 12 months

•       permit the Regulations to incorporate references to the legislative instrument as in force from time to time.

Background

The Act provides a legislative framework for prohibiting import or prescribing conditions on import of goods and classes of goods to minimise the risk of exotic pests and diseases entering Australia. The biosecurity measures protect agriculture export industries worth $32 billion as well as Australia’s unique environment, native flora and fauna, tourism industries and lifestyle.[1] Information about current pest, disease and weed threats, as well as protective measures, is available on the Department of Agriculture, Water and the Environment (DAWE) website.[2]

DAWE screens, inspects and clears millions of people, mail parcels, baggage, ships, animals, plants and cargo containers entering Australia every year. The level of biosecurity risk associated with a person coming into Australia, and any goods the person has with them, is assessed on entry, usually via an Incoming Passenger Card or Crew Declaration. Non-compliance with the Act can result in issue of an infringement notice.

A minor infringement of the Act is usually dealt with by an infringement notice issued under Part 5 of the Regulatory Powers (Standard Provisions) Act 2014, as modified by section 524 of the Act.

Committee consideration

Senate Rural and Regional Affairs and Transport Legislation Committee

The Bill was referred to the Senate Rural and Regional Affairs and Transport Legislation Committee for inquiry and report by 30 July 2020. Details of the Senate Inquiry are at the Inquiry webpage. The Committee unanimously recommended the Bill be passed.[3]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills expressed concerns about excluding determinations made under the proposed changes from disallowance.[4] This is examined under the heading ‘Preventing disallowance of the determination’ below.

Policy position of non-government parties/independents

Senator Urquhart (Australian Labor Party) requested the Bill be referred to a committee suggesting the following principal issues for consideration:

•       the effectiveness of the Bill to deter non-compliance with the Act

•       whether it is appropriate that legislative instruments made by the Director of Biosecurity should not be subject to a parliamentary disallowance

•       the cost of implementing enforcement and payments systems and

•       how coordinated training to biosecurity officers and Australian Border Force officers will be undertaken.[5]

There were no dissenting or additional remarks made in the Report of the Senate Rural and Regional Affairs and Transport Legislation Committee.[6]

Position of major interest groups

Tasmanian Farmers and Graziers Association

The Tasmanian Farmers and Graziers Association (TFGA) is the leading representative body for Tasmanian primary producers. TFGA members are responsible for generating approximately 80 per cent of the value created by the Tasmanian agricultural sector.

The TFGA support the amendments if:

•       changes are based on scientific opinion and consultation with stakeholders

•       any increased revenue generated is invested back into biosecurity and

•       extensive education campaigns to inform passengers of the penalty changes are in place.[7]

Australian Pork Limited

Australian Pork Limited (APL) is the peak national representative body for Australian pork producers. The pork industry employs more than 36,000 people nationally and contributes $5.2 billion in gross domestic product. APL is supportive of the Government’s decision to issue infringement notices with increasing penalties based on the risk of the biosecurity material, noting that an effective infringement system must constantly evaluate the effectiveness of the interventions.[8]

APL recommends that the Government allocate funds received via the increased penalties to testing and surveillance for animal diseases at the border because Australian pork producers are currently threatened by African Swine Fever.[9] A study commissioned by APL last year estimates that if the disease became established in Australia, it would cost the economy $2.03 billion.[10] The National Farmers Federation (NFF) told a Senate committee:

…testing by the Australian Animal Health Laboratory revealed that of the pork products seized from incoming passengers and mail in a 13- day period in September 2019, an alarming 48% tested positive for African swine fever virus.[11]

WoolProducers Australia

WoolProducers Australia (WoolProducers) is the peak industry council for the wool industry. Their membership is comprised of the industry’s commercial, superfine and stud breeding sectors. WoolProducers supports the Bill and the infringement penalties but recommends measures to support commencement including:

•       training of biosecurity officers and Australian Border Force officers to ensure they are prepared to use the amendments

•       education and awareness campaigns communicating the goods listed in the Regulations and targeting inadvertent non-compliance and deliberate contraventions of the Act

•       an appropriate recording system to ensure incoming passengers who have outstanding infringement notice amounts payable, can be identified and non-citizens or non-residents refused entry if they do not pay

•       Australian residents and citizens who do not pay infringement notice amounts within the 28 day payment period under the Regulatory Powers (Standard Provisions ) Act 2014 should attract more serious penalties for their non-payment.[12]

National Farmers Federation

The National Farmers Federation (NFF) is the national peak body representing farmers and the agriculture sector more broadly across Australia. The NFF's membership comprises all of Australia's major agricultural commodities. The NFF strongly supports the intent of the Bill to deter non-compliance with the Act and mitigate biosecurity risk.[13]

It is the view of the NFF:

Ongoing issues with incoming passengers failing to declare goods are of great concern to Australia's farm sector, and it is clear that existing compliance and enforcement tools are inadequate.[14]

Financial implications

The Government does not expect the measures in the Bill to have an impact on the Australian Government Budget.[15]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[16]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights has no comment in relation to the Bill.[17]

Key issues and provisions

Outline of the scheme

Existing section 524 of the Act sets out requirements for infringement notices under the Act and enables such notices to be tailored to specific circumstances of biosecurity infringement. The Explanatory Memorandum summarises the current penalties for minor infringements:

•       where the alleged contravention of specified provisions occurs at a first point of entry (such as an airport), the infringement notice amount is two penalty units

•       usually the period for paying the infringement notice ends when the person first leaves the first point of entry, but the period can be extended on request to 28 days

•       infringement notices issued outside the airport context usually attract the default 12 penalty units (where the person is an individual) and the payment period is 28 days after the notice is given.[18]

From 1 July 2020, but only for offences committed on or after that date, a penalty unit under the Crimes Act 1914 is equivalent to $222.[19]

Proposed subsection 524(6) permits the Regulations to prescribe differing penalties for infringements depending on the kind of goods or class of goods to which an alleged contravention relates.[20] The kind of goods or class of goods need not be prescribed in the Regulations, instead these can be separately prescribed in a non-disallowable instrument. Proposed section 524A empowers the Director of Biosecurity to determine, by legislative instrument, a list of goods or classes of goods for the purposes of section 524.[21]

The effect is to incorporate a list made by a section 524A determination into the Regulations, a practice normally prevented by subsection 14(2) of the Legislation Act 2003.

The Bill proposes certain conditions for the section 524A determination:

•       the Director of Biosecurity must be reasonably satisfied that there is a high level of biosecurity risk associated with the goods or the class of goods (proposed subsection 524A(2))

•       the determination must be for a specified period no longer than 12 months (proposed subsection 524A(3))

•       the determination is a legislative instrument,[22] so it must be lodged for registration as soon as practicable after the instrument is made, along with an explanatory statement[23] but it is not a disallowable legislative instrument[24] and cannot be disallowed under section 42 of the Legislation Act 2003 (proposed subsection 524A(4)).

Incorporation of another legislative instrument or document

Subsection 14(2) of the Legislation Act 2003 provides that unless an Act contains a contrary intention, a legislative instrument – such as the Regulations – cannot apply, adopt or incorporate any matter contained in another legislative instrument or other writing. Proposed subsection 524(7) provides that the Regulations may apply, adopt or incorporate any matter contained in a determination made under proposed section 524A.

The purpose of subsection 14(2) is to support adequate access to the law so that a person subject to the law can clearly identify what conduct is prohibited:

The argument runs that a person should be able to obtain all the requisite information from the one instrument, and, if this is not possible, then the instrument is uncertain as to its operation.[25]

No question of invalidity due to uncertainty of the Regulation arises if the incorporation of a document is authorised by legislation. However, if it is necessary for a document to be incorporated, it is important to uphold the rule of law that the incorporated document is readily and freely available to the public. Professor Pearce suggests in Delegated Legislation in Australia:

It should not be sufficient to be able to identify the incorporated document when it comes into existence. Incorporation should only be permitted of an existing document …

There is surely a requirement that the law be available for consultation by persons concerned with it. Regulations should not, therefore, incorporate other documents that are unavailable to the public at large… the instrument so incorporated should be available to the public (and continue to be available) from the same source from which regulations can be obtained.[26]

The Explanatory Memorandum states the section 524A determination will be easily accessible at no cost:

The determination will be registered on the Federal Register of Legislation and made available through the Department of Agriculture, Water and the Environment’s website. In addition, information about the determination and goods or classes of goods listed will be publicised through education and awareness campaigns, including inflight videos, material displayed at points of entry such as airports, and targeted social media.[27]

Preventing disallowance of the determination

The Government explains that it is necessary for the Director of Biosecurity to have the flexibility to apply a risk-based compliance response by differentiating the penalties that will be applied to infringements relating to particular goods or classes of goods.

The Director of Biosecurity will determine which goods or classes of goods will attract higher penalties (proposed subsection 524A(4)); however, the differing penalties will not be set in the determination, they will be contained in the Regulations (proposed subsection 524(6)) and are therefore disallowable. The Explanatory Memorandum suggests:

•       having the goods listed in a determination rather than a Regulation will still be transparent and therefore acceptable

•       preventing disallowance is acceptable due to the technical nature of the determination and the risks that must be balanced:

The identification of kinds of goods or classes of goods posing a high level of biosecurity risk is a technical and scientific decision based on whether the biosecurity risk is satisfactorily managed. Potential disallowance would have a significant impact on decision-making, the risk management process and the broader management of biosecurity risks.[28]

The Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) raised concerns about the non-disallowance of a determination made under proposed section 524(A). The Scrutiny Committee noted it:

… does not consider that the need for a flexible and adaptable approach is a sufficient justification for exempting delegated legislation from the usual disallowance process. The committee's consistent scrutiny view is that the need for flexibility alone, or the fact that a certain approach is consistent with other legislative provisions, does not, of itself, provide an adequate justification for delegated legislation not being subject to the usual parliamentary disallowance process.[29]

The Scrutiny Committee further noted that ‘providing for higher infringement notice amounts is a significant matter that should be subject to effective parliamentary oversight’ and expressed the view:

… it is not clear how providing for the usual disallowance process to apply to determinations made under proposed subsection 524A(1) would 'have a significant impact on decision-making, the risk management process and the broader management of biosecurity risks'. In this regard, the committee notes that such determinations could come into effect the day after the instrument is registered on the Federal Register of Legislation, and that the risk that the Parliament would disallow a determination well-supported by technical and scientific advice is extremely low.[30]

The Scrutiny Committee requested detailed advice from the Minister regarding:

•       why it is considered necessary and appropriate for determinations listing goods or classes of goods for the purpose of infringement notice amounts under section 524 to be exempt from disallowance and

•       whether the Bill can be amended to omit proposed subsection 524A(4) so that instruments made under proposed subsection 524A(1) are subject to the usual parliamentary disallowance process.[31]

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[1].              Department of Agriculture, Water and the Environment (DAWE), ‘Biosecurity in Australia’, DAWE website, last reviewed 7 August 2020.

[2].              DAWE, ‘Pests, diseases and weeds’, DAWE website, last reviewed 4 November 2019. DAWE also issues a regular newsletter, Biosecurity Matters.

[3].              Senate Rural and Regional Affairs and Transport Legislation Committee, Biosecurity Amendment (Traveller Declarations and Other Measures) Bill 2020, The Committee, Canberra, July 2020, pp. vii, 11.

[4].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 9, 2020, 6 August 2020, pp. 1–2.

[5].              Senate Standing Committee for the Selection of Bills, Report, 6, 2020, The Senate, Canberra, 18 June 2020 at Appendix 2.

[6].              Senate Rural and Regional Affairs and Transport Legislation Committee, Biosecurity Amendment (Traveller Declarations and Other Measures) Bill 2020, op. cit., pp. vii, 11.

[7].              Tasmanian Farmers and Graziers Association (TFGA), Submission to the Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry into the Biosecurity Amendment (Traveller Declarations and Other Measures) Bill 2020 (the Senate Inquiry), [Submission no. 1], 1 July 2020.

[8].              Australian Pork Limited (APL), Submission to the Senate Inquiry [Submission no. 2], 3 July 2020.

[9].              APL, Submission to the Senate Inquiry [Submission no. 2], 3 July 2020, p. 2; for more information see: DAWE, ‘African swine fever’, Emergency Animal Disease Bulletin, no. 120, last reviewed 4 February 2020.

[10].              APL, Submission to the Senate Inquiry [Submission no. 2], op. cit., p. 1.

[11].              National Farmers Federation (NFF), Submission to the Senate Inquiry [Submission no. 4], 3 July 2020, p. 2.

[12].              WoolProducers Australia (WoolProducers), Submission to the Senate Inquiry [Submission no. 3], 3 July 2020.

[13].              NFF, Submission, op. cit., p. 1.

[14].              Ibid., p. 1.

[15].              Explanatory Memorandum, Biosecurity Amendment (Traveller Declarations and Other Measures) Bill 2020, p. 2.

[16].              The Statement of Compatibility with Human Rights can be found at page 2 of the Explanatory Memorandum to the Bill.

[17].              Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 8, 2020, 1 July 2020, p. 37.

[18].              Explanatory Memorandum, p. 2.

[19].              Prior to 1 July 2020 a penalty unit was $210, but the amount was recently indexed: Notice of the indexation of the penalty unit amount, 14 May 2020.

[20].              Biosecurity Amendment (Traveller Declarations and Other Measures) Bill 2020, Item 2 of Schedule 1.

[21].              Biosecurity Amendment (Traveller Declarations and Other Measures) Bill 2020, Item 3 of Schedule 1.

[22].              As defined in sections 4 and 8 of the Legislation Act 2003 (and adopted by section 2B of the Acts Interpretation Act 1901).

[23].              Subsection 15G of the Legislation Act 2003.

[24].              As defined in section 4 of the Legislation Act 2003.

[25].              DC Pearce and S Argument, Delegated legislation in Australia, 5th edn, LexisNexis Butterworths, Chatswood, 2017, p. 405.

[26].              Ibid., p. 410.

[27].              Explanatory Memorandum, p. 6.

[28].              Ibid., p. 7.

[29].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 9, 2020, op. cit., p. 2.

[30].              Ibid.

[31].              Ibid.