Overview
2.1
This chapter outlines issues raised by witnesses and submitters. The inquiry participants were broadly supportive of the amendments made by the bill, particularly provisions that improve pre-reporting requirements and increase penalties for non-compliance. One matter of concern for some stakeholders is the bill's provision for enabling human biosecurity group directions. This matter, along with reporting requirements and increased penalties are considered further in this chapter. Other matters raised by stakeholders, but not explored in detail by the committee, include:
the need to differentiate between types of vessel, for example cargo and cruise ships;
the need for the Biosecurity Act 2015 (Biosecurity Act) to prescribe the use of protective clothing at earlier stages of the arrival, berthing, and stevedoring process, and the type of clothing to be used; and
Australia's obligations under international maritime labour and health law to provide a basic right to healthcare for seafarers that cannot be interfered with in any way, including by group directions or other biosecurity measures.
Issues raised
Human biosecurity group direction
2.2
The bill would amend the Biosecurity Act to complement the existing mechanism to impose a human biosecurity control order on an individual. Under the amendments, provisions will be added to allow a human biosecurity group direction for a group or class of individuals where the individuals have, or have been exposed to, a listed human disease. Biosecurity measures that would apply to individuals under a human biosecurity group direction include:
requirement to provide certain contact information, including that of other individuals that the person may have been in contact with;
remain at, or go to and remain at, a specified place for a specified period;
wearing of protective clothing and equipment;
undergo testing to determine if the individual has traces of a listed human disease;
provision of body samples, with consent of the individual; and
prevention of loading or unloading of goods from the vessel or aircraft.
2.3
In its submission, the Department of Agriculture, Water and the Environment (DAWE) pointed out that under the current Biosecurity Act provisions for human biosecurity control order are only imposed on individuals. DAWE argued that this limitation is not a practical or effective way to manage human biosecurity risks posed by a larger group of individuals, such as that of a large passenger ship. The bill, in DAWE's view, would establish a new mechanism 'for managing groups of people where individuals in that group display signs or symptoms of a listed human disease, or have been exposed to such a disease'. The human biosecurity group direction, when applied, would:
...require individuals within the specified class to comply with certain biosecurity measures that would assist human biosecurity officers and chief human biosecurity officers to manage risks of entry, establishment or spread of a listed human disease in [an] Australian territory.
2.4
Other submitters have argued that amendments relating to human biosecurity group directions create responsibilities that are potentially onerous and that it is unclear who will be accountable for their implementation. Whilst supportive of human biosecurity officers being authorised to make group direction, Cruise Lines International Association Australasia (CLIA) reported that it is unclear as to what extent the vessel operator is expected to be involved in ensuring a group complies with an order. This can include orders for the taking of samples, requesting consent for the taking of samples and potentially also transporting them.
2.5
Similarly, Carnival Australia raised a number of concerns about the application of human biosecurity group directions. Specific matters raised include:
the potential for an 'information management problem' between Commonwealth and state/territory authorities, particularly when Commonwealth-conferred powers are delegated to state/territory officials;
the risk of a breach of privacy laws, particularly given the potential for a variety of privacy laws from different countries to apply on a ship engaged on international cruising; and
how a vessel operator can be expected to comply with an order to wear certain protective clothing or equipment when they are offshore and cannot be boarded.
2.6
Additionally, the Maritime Union of Australia (MUA) in its submission claimed that it is the responsibility of federal and state/territory governments to provide a safe working environment for maritime workers. As such, maritime workers should not bear the brunt of any biosecurity failures by either their employer or government bodies and should be protected from 'becoming the subject of such a Group Direction when it would be unfair and unreasonable to do so simply because they were present (in whatever capacity and at whatever distance) at a Port where a human biosecurity risk was deemed to exist.'
2.7
Representatives of the MUA used the recent case of port workers in Darwin being ordered to quarantine as an example. Mr Jamie Newlyn, Assistant National Secretary, informed the committee that the vessel berthed in Darwin less than 14 days after leaving South-East Asia. The vessel was given pratique, meaning there were no quarantine issues, and was boarded by a pilot to assist in navigating the harbour. Port workers also accessed the vessel 'as is usual custom and practice, to start the discharging process'. The Chief Biosecurity Officer or a deputy at the time observed the workers boarding the vessel without appropriate personal protective equipment, including masks or gowns. The workers themselves did not deem the equipment necessary due to pratique being given. Mr Newlyn went on to report to the committee the ensuing actions taken:
they were subsequently removed, the whole ship's panel or gang, and sent immediately to the Howard Springs quarantine facility for 14 days. They weren't given any opportunity to pack clothes or do anything, just off they went. They remonstrated with the police and the direction. It was captured on video that the police had said, 'Look, we understand this is over the top. This is a direction of the chief health officer.'
2.8
During questioning from the committee regarding the potential for port workers to be affected by a group direction, officials from DAWE responded that diseases do not discriminate and that port workers may be at a heightened risk of contracting a disease due to close contact with an ill passenger.
Ms Kristin Sykes, Director of the Analytics and Innovation Branch, informed the committee that orders will be no more restrictive than necessary:
The human biosecurity officer who makes the direction must be satisfied that the direction is no more restrictive or intrusive than is required in the circumstances. Consideration would need to be given to whether different measures are put in place in relation to those covered by a group direction who were in close proximity to ensure that a group direction for a class of port workers is no more restrictive or intrusive than is required in the circumstances to address the particular listed human disease of concern.
2.9
Ms Sykes went on to say that there is also the possibility of different directions being given to different groups. As an example, port workers may be directed to simply wear personal protective equipment and get tested if the contact risk is minimal. The decision on what measures are imposed within a group lies with the Department of Health.
Pre-arrival reporting requirements
2.10
A significant risk is posed by a vessel or aircraft transporting a large amount of passengers. If biosecurity officers are not made aware of changes to the biosecurity risk on-board then they are unable to properly assess the risk level. Under the current Biosecurity Act, the operator of a vessel or aircraft is required to submit a pre-arrival report if they intend to enter Australian territory. This pre-arrival report, under the Biosecurity Regulation 2016 (the regulation), must be provided between 12 to 96 hours prior to the estimated time of an arrival. If an operator becomes aware that the information provided to authorities was incorrect or incomplete, then a subsequent report is required.
2.11
In their submission, DAWE explained that the amendments contained in the bill would insert a new subsection 193(1A) 'which would provide that the operator must give one or more other reports in relation to the aircraft or vessel in the circumstances prescribed by the regulations.' The regulations would set out the different types of reports required by different classes of vessels, depending on their circumstances.
2.12
The introduction of the new subsection 194(1A) would allow for the regulations to prescribe the circumstances where the operator must give further information in relation to a previous report. The regulations may also prescribe what kind of further information is required and when that information must be given to a biosecurity officer.
2.13
The MUA expressed its support for the additional reporting requirements of the bill. The MUA made reference to the Inspector-General of Biosecurity's report that found the Ruby Princess incident occurred in part due to the failure to enforce existing measures. For this reason, the MUA voiced its support for the further improvement of reporting requirements. The MUA also stressed the importance of an enforcement regime that prioritises the importance of compliance over convenience for shipping companies.
2.14
In referencing the quarantine case in Darwin, the representatives of the MUA noted that the initial issue related to a discrepancy between the number of people reported to be on the ship and the actual number aboard.
Mr Newlyn noted that incidences of this type are a continuing concern for the MUA:
The concerns we have around the arrangements for notifying of pratique, and that is, more often than not, particularly on these flag-of-convenience international vessels, the captain of those vessels, or the master of those vessels, is under enormous commercial pressure to make sure that the vessel keeps moving, that it's worked and that it's sailing to its next destination. They don't want to be held up… There are many, many examples of exploitation in that space, and we're concerned that those arrangements don't protect Australia's biosecurity arrangements to the best effect.
2.15
Subsequent testing of the entire crew – at the expense of the employer, Qube – came back negative. Given the lack of workers available to unload the vessel due to quarantine orders, the vessel continued to Western Australia, where it was allowed to berth and unload, before returning to Darwin to complete unloading of cargo.
2.16
In voicing support for the additional pre-reporting requirements, Mr Newlyn also submitted that enforcement needs to be robust and that discrepancies between jurisdictions remain an issue. The MUA emphasised the need for a uniformed approach to biosecurity issues across jurisdictions, in order to effectively enforce the Biosecurity Act. The MUA also called for the use of Commonwealth powers to override state and territory powers to facilitate a uniform approach, stating that currently:
[I]t's completely up to each state to determine whether they will let a vessel in within the 14-day period. Some states are far stricter than others; other states rely heavily on the captain's advice and the pratique declaration.
2.17
Mr Newlyn noted that allowing the vessel involved in the Darwin incident to continue on to Western Australia indicated 'the differences in the two state jurisdictions are completely one end of the spectrum to the other. Interestingly, the state that has the strictest protocols in place allowed the vessel to be worked and berthed.'
2.18
While acknowledging the need for pre-reporting, Shipping Australia submitted that reporting requirements can be burdensome and that duplication of reporting requirements should be avoided where possible. Shipping Australia advocated for a 'single window' approach in which necessary information is shared from a single government point across all necessary areas.
2.19
In giving evidence at a public hearing, representatives of DAWE responded that they do not think there is an extra burden applied by the new amendments. Rather, the bill brings clarity and strengthens the Biosecurity Act to better deal with biosecurity risks. Mr Colin Hunter, First Assistant Secretary, Biosecurity Operations Division, directly addressed the issue of discrepancies in biosecurity risk handling between jurisdictions. He explained to the committee some of the different roles and responsibilities of the state, territory, and federal governments, and how they relate to each other:
[W]e would hold joint portfolio responsibility of the Biosecurity Act with the Department of Health… In accordance with section 540 of the Biosecurity Act, the director of biosecurity is responsible for animal, plant and human health, whereas, under section 544, the chief medical officer is the director of human biosecurity. The chief medical officer delegates powers to the local state and territory jurisdictions to undertake and discharge the responsibilities of health actions at the border. We provide information to them to help them to take those decisions.
2.20
Mr Hunter further clarified that the pre-reporting requirements are to ensure that officials at the border 'have the most up-to-date information available to assess the human health risk of the arriving vessel.' The additional requirements are needed to assist DAWE in its role as a distributor of information to other areas.
Strengthening penalties for non-compliance
2.21
The bill proposes an amendment to section 48(1) to address practical and legal disparities in compliance with the Biosecurity Act. The amendments would extend the scope of the section to give responsibility for biosecurity matters to a person in charge of an incoming aircraft or vessel. Currently, responsibility for pratique compliance lies only with the operator of the vessel or aircraft. Under the amendment, the person in charge of the vessel or aircraft will now be liable for civil penalties if pratique requirements are not met.
2.22
The MUA affirmed its support for measures to strengthen penalties for non-compliance with Australia's biosecurity laws. However, in its submission the MUA noted the possibility of international shipping companies seeking to reduce operating costs by shirking responsibilities under the amended Biosecurity Act. The MUA warned that routine non-compliance remains a threat unless there is lasting cultural change across the sector brought about through greater enforcement of the Biosecurity Act.
2.23
In opposition to the amendment, Shipping Australia submitted that it was not clear why large financial penalties need to be imposed on individual crew members of vessels. The amendment is designed as a disincentive for crew members to engage in non-compliance for financial gain. However, Shipping Australia believes there is no incentive for ship masters to flout biosecurity laws as they are paid employees of the shipping companies and therefore do not stand to gain financially.
2.24
Carnival Australia highlighted specific logistical issues with notifying passengers on a cruise liner and the possible penalties that may result. Carnival Australia submitted that potentially 4,000 people who are free to move around on-board a cruise liner is far more difficult than notifying a plane full of seated passengers, yet under the amendments these circumstances would be treated in the same way. The effect of the amendment:
[…] is that the person in charge would effectively have no defence to a failure to give the notification to all members of the class. What the proposed amendments require is that the class be notified of the direction and its contents. If the notice is not actually delivered to everyone in the class, there is then a contravention of the notification requirements.
2.25
Carnival Australia are concerned that, given the logistical issues and the potentially large number of passengers, the person in charge would have no defence or excuse if even one passenger cannot be notified.
2.26
Representatives of DAWE told the committee that the bill ensures 'the appropriate level of penalties applied for a range of offences.' Ms Peta Lane, First Assistant Secretary of the Biosecurity Strategy and Reform Division, noted that the department is not only looking to punish those who are non-compliant but will also provide support to those who comply with the obligations established by the Biosecurity Act. Ms Lane explained that DAWE was also looking at how it supports 'compliance entities in the biosecurity system' and simultaneously 'penalising those who are doing the wrong thing'. Ms Lane proceeded to explain the range of measures in place to enable compliance, such as trials that support:
[…] those entities that are doing the right thing—through streamlined clearance processes, for example. We're incentivising people to do the right thing but also ensuring that we have appropriate deterrents for those that continue to do the wrong thing.
2.27
Ms Lane concluded that the bill does include amendments that broaden the liability for non-compliance beyond just the operator, but also that the penalties are just one part of a broader suite of activities aimed at increasing compliance. In response to questions taken on notice, the department detailed broader ways it has worked to strengthen compliance and enforcement arrangements:
continued review of penalties to ensure there are sufficient deterrents to non-compliance;
introduction of penalty increases through two previous amendment bills;
introduction of new penalty provisions to enable the department to enforce a broader range of offences;
work undertaken with the Department of Home Affairs to implement cancellations of visas for international travellers who commit serious breaches of the Biosecurity Act;
continued work on arrangements to offer streamlined clearances as a reward for entities that operate with good compliance records; and
significantly bolstered capacity to target serious noncompliance through dedicated operations, including joint operations with Australian Border Force and the Australian Federal Police.
Committee view
2.28
The committee supports the intent of the bill to strengthen biosecurity measures through more rigorous pre-reporting requirements, greater penalties for non-compliance with the Biosecurity Act, and the introduction of broader-reaching biosecurity group directions.
2.29
All submitters and witnesses have agreed that strengthening biosecurity measures at Australia's borders is vital to protecting the environment and the economy. As demonstrated by the Ruby Princess experience, amendments to the Biosecurity Act are needed to strengthen Australia's biosecurity regime in order to prevent similar events in the future.
2.30
The committee accepts the department's assurances that biosecurity group directions will be proportionate to the risk level.
2.31
The committee also believes that increased pre-reporting requirements are not overly burdensome and are a necessary measure to ensure the most up-to-date information is available to federal, state and territory officials when assessing potential biosecurity risks.
2.32
Furthermore, the committee accepts that the application of greater penalties for a wider range of responsible officers is a necessary deterrent for non-compliance with the Biosecurity Act.
2.33
The committee recommends the Senate pass the bill.
Senator Susan McDonald
Chair