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Inspector-General of Biosecurity Bill 2012

Introduced into the Senate on 28 November 2012
Portfolio: Agriculture, Fisheries and Forestry

1.1        This bill is introduced together with the Biosecurity Bill 2012 (discussed above). It establishes the Inspector-General of Biosecurity (Inspector-General) as a statutory body to review and report on:

(a) (i) the performance of functions and the exercise of powers by the Director of Biosecurity, biosecurity officers and biosecurity enforcement officers; and

(b) (ii) the process for conducting Biosecurity Import Risk Analyses.

Compatibility with human rights

1.2        The bill is accompanied by a self-contained statement of compatibility.[1] It identifies the following rights as engaged by the bill: the right to privacy (article 17 of the International Covenant on Civil and Political Rights (ICCPR)), the right not to incriminate oneself (article 14(3)(g) of the ICCPR) and freedom of expression (article 19 of the ICCPR).

1.3        The explanatory memorandum notes that the bill establishes the Inspector-General of Biosecurity (Inspector-General) as a statutory body to review the performance of functions and exercise of powers by the Director of Biosecurity (and biosecurity officers and biosecurity enforcement officers), including a review of the process for conducting Biosecurity Import Risk Analyses (BIRAs). The bill provides the Inspector-General with a range of powers to undertake independent assessments and evaluations of the functions and processes of the Director of Biosecurity and other officers.

Powers to enter onto premises for the purposes of the bill – right to privacy

1.4        The bill contains a number of provisions that permit the Inspector-General or authorised officer to enter onto premises for the purpose of the bill. The statement of compatibility states that these provisions are necessary in order for the Inspector-General to be able to collect information required to carry out the functions of the Inspector-General under the bill.[2] The bill provides that the Inspector-General may enter onto relevant biosecurity premises and conduct a search without a warrant. The bill provides for special protection of private premises which can only be entered by consent of the occupier or under a warrant.

1.5                 The committee considers that these provisions are likely to be compatible with the right to privacy in article 17 of the ICCPR.

Right not to incriminate oneself

1.6        Clause 10 empowers the Inspector-General to require a person who the Inspector-General has reason to believe has information or documents relevant to a review, to provide the information or produce the document, or attend to answer questions. If a person fails to comply with the requirement, they are liable to a civil penalty, with a maximum penalty of 30 penalty units.[3]

1.7        Clause 17 provides that a person is not excused from providing information or producing a document on the ground that to do so might tend to incriminate the person or make the person liable to a penalty. This is an encroachment on the right not to incriminate oneself guaranteed by article 14(3)(g) of the ICCPR.

1.8        However, clause 17(2) provides for both use immunity and derivative use immunity so that the answer, information or document or any information, document or thing obtained as a direct or indirect consequence of their provision, are not admissible against the individual in any criminal or civil proceedings. There are limited exceptions to the use and derivative use immunity in clause 17 in relation to proceedings under or arising out of sections 137.1, 137.2 (false and misleading information and documents) or 149.1 (obstruction of Commonwealth public officials) of the Criminal Code.

1.9        The statement of compatibility notes that the purpose of collecting information for the purposes of the overview of biosecurity processes is a legitimate goal, and the fact that only civil liability is imposed, with a relatively small maximum fine, and the bill guarantees against use or derivative use of the material or information means that the encroachment is a permissible one.

1.10             The committee considers that, in light of the provision of use and derivative use immunity in relation to information or documents produced pursuant to the power conferred, and the fact that the immunity applies both to criminal and civil proceedings against the person compelled to respond, these provisions are likely to be compatible with the right not to incriminate oneself (article 14(3)(g) of the ICCPR) and the right to a fair hearing (article 14(1) of the ICCPR).

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